vol. 32, no. 12

American

Civil Liberties

Union

Volume XXXII

SAN FRANCISCO, DECEMBER, 1967

Number 12

`Fair Play for Juveniles'

"Fair Play for Juveniles?" will be the title of a pub-

lic educational program sponsored. by the Mid-Peninsula

Chapter of the ACLUNC on Monday, December 4. The

meeting will take place at the Ravenswood High School .

Auditorium, 2050 Cooley Ave., East Palo Alto, starting

at 8:00 p.m.

The program will focus on the implications of recent

California state legislation which brings juvenile rights.

into line with recent decisions of the U.S. Supreme

Court.-Emphasis will be placed particularly on practical,

useful information relevant to the arrest, arraignment,

prosecution and ajudication of juveniles. Speakers will

be Joel Goldfarb, Ph.D., Lecturer in the School of Crimi-

nology, U.C., Berkeley, and Paul N. Halvonik Assistant

Staff Counsel and Legislative Representative of

ACLUNC.

Admission is free and open to both adults and

juveniles.

Death Penalty Test Cases

All Executions

In Calif. Halted

BySupremeCourt

In October two death row inmates, Robert Page Ander-

son and Frederick Saterfield, represented by ACLUNC and

NAACP, filed petitions for writs of habeas corpus in the

State Supreme Court challenging the constitutionality of the

administration of the death penalty in California. On Novem-

ber 9, 1967, the California Su-

preme Court issued an order re-

quiring the State Attorney Gen-

eral to show cause why the re-

lief prayed for should not be

granted. The Attorney General

was given until December 1,

1967, to file a written return to

the petition's plea for habeas cor-

pus.

Second Order |

Qn November 14, 1967, the

California Supreme Court issued

its second order in the Anderson-

Saterfield matter. It reads:

"Pending finai determination in

this Court of the above entitled

proceedings, the execution of all

judgments of death heretofore or

hereafter entered by the Supe-

rior Courts of this State in all

causes involving other defend-

ants is hereby stayed." The or-

der is signed by six of the seven

justices of the State Supreme

Court. -

Well Timed

The order came at a propiti-

ous moment. Robert Lee Massie

was scheduled to die on the next

day. Massie's case, since he has

expressed a desire to die in the

gas chamber, presented some

knotty problems. A stay of Mas-

sie's execution was being sought

in the Federal Court of Judge

Robert Peckham by Los Angeles

attorney Robert H Hanson, and

ACLU co-operating attorney Je-

rome Falk at the moment that

the Supreme Court issued its or-

der. The application for a Fed-

eral stay was, for the time being,

rendered moot.

Background

The stay issued by the Califor-

nia Supreme Court is the latest

in a chain of events that began

last June when ACLUNC and the

NAACP filed a suit in the Fed-

eral District Court challenging

the constitutionality of Califor-

nia's death penalty. Judge Peck-

ham issued a stay for all death

row inmates on July 5, 1967. He

dissolved that stay on August 24,

when he decided not to entertain

the Federal suit as a class action.

In that order Judge Peckham

- outlined procedures for death

row petitioners to follow in chal-

lenging the administration of the

death penalty in California.

Among those was a requirement

that the petitioners return to the

State Supreme Court in order to

give it an opportunity to pass

on the constitutional questions

raised in the Federal litigation.

That is how the Anderson and

Saterfield petitions in the Cali-

fornia Supreme Court came to

be filed.

Substantive Issues

The substantive issues raised in

the habeas corpus petitions be-

fore the State Supreme Court are

the same as the ones raised in

the Federal litigation. They are:

(1) That the State of Califor-

nia violates the petitioners' con-

stitutional right to counsel by

not providing lawyers for indig-

ent death row inmates after they

have exhausted their appeal to

the State Supreme Court. Many

legal avenues are open to a con-

demned man after his conviction

has been affirmed by the United

States Supreme Court. He can

petition the United States Su-

preme Court for review. He can

file various writs challenging his

conviction and sentence in the

State and Federal Courts and he

can seek clemency from the Gov-

ernor of the State. California

does not provide counsel during

these critical proceedings.

Exclusion of Jurors

(2) That the exclusion of scru-

pled jurors from death penalty

trials violates the due process

and equal protection clauses of

the United States Constitution.

California has a bifercated death

trial system. A jury first deter-

mines whether or not the ac-

cused person is guilty. If a guilty

verdict is returned that jury, or

another one, then decides what

penalty to exact. Any person op-

posed to the death penalty is

removed from both phases of the

trial. ACLUNC and NAACP

maintain that, as to the "guilt"

phase of the trial, this exclusion

of scrupled jurors is absolutely

unnecessary and results in a jury

that is not a representative sam-

-Continued on Page 2

Stolzman Will

Provides Legacy

To ACLUNC

ACLUNC recently shared in

the estate of Gustav Stolzman of

Santa Cruz who died last year

at the age of 84. The bequest

amounted to $5,053.19.

Stolzman was a widower, born

in Berlin, Germany, who worked

`as a tool and die maker. He was

introduced to the ACLU by his

good friends Edward J. Dreis

and Ernest W. Guenter, who

persuaded him to remember the

ACLU in his will. He also made

bequests to the Unitarian So-

ciety and the Free Thinkers of

America.

During the past fiscal year the

ACLUNC received bequests to-

taling about $17,000. In addition

to the legacy from Stolzman, a

$5,623.46 bequest was also re-

ceived from Marin Angeloff of

Stockton and a legacy of $6331.-

92 from the estate of Dr, Mary

Sarvis. Without this income the

branch would have operated at a

deficit of about $12,000.

Any persons wishing to re-

member the ACLUNC in their

wills may use the following langu-

age: "I give and bequeath $-- -

to the American Civil Liberties

Union of Northern California,

Inc., with headquarters in San

Francisco."

At a recent meeting, the

branch board of directors voted

to treat all surplus funds except

those earmarked for legal work

as endowment funds. In the fu-

ture, any money received from

bequests will be placed into en-

dowment funds and may not be

touched without special permis-

sion of the board.

Redwood City Obscenity Case

Highest Court

Overturns |

Conviction

The long path from the Redwood City Municipal Court

to the United States Supreme Court was trod successfully

by Conrad Chance who, on November 6, 1967, obtained a re-

versal of his conviction by an 8 to 1 vote of the high court.

This story starts in June of 1965 when Chance, the owner of

two Redwood City "adult'' book-

stores, and one of his salesmen

were charged with 11 counts of

exhibiting obscene material for

sale.

ACLU Representation

ACLU agreed to furnish coun-

sel for the case primarily because,

of a pattern of community harass-,

ment which was attempting to

dictate what booksellers and

magazine sellers could and could

not display in Redwood City.

Pre-trial motions and proceed-

ings resulted in the dismissal of

all but two of the counts, both of

which were against Mr. Chance.

A long jury trial followed with

many expert witnesses appear-

ing on both sides. The result

of this trial was that Chance was

acquitted on one count and con-

victed on the remaining count

involving 12 photographs of semi-

nude females,

One Dissent

The U. S. Supreme Court rul-

ing came on the petition for cer-

tiorari prepared by ACLU staff

counsel Marshall W. Krause, who.

also handled the trial of the case.

The petition argued that the

photographs were net obscene

when compared to materials re-

cently "cleared" by U. S. Su-

preme Court decisions, that there

is a right of privacy which allows

adults access to whatever ma-

terial they wish to see so long as

it is not forced upon them or

advertised in an offensive man-

ner, and that the trial court de-

prived Chance of constitutional

rights by failing to admit offered

evidence of contemporary com-

munity standards. The Supreme

Wearing Long Hair

Matter of Personal

Expression, Says ACLU

ACLUNC has filed an amicus curiae brief in the State

Court of Appeals supporting the right of students to adopt

their own hair fashions, even if they do not please school

administrators.

The case is that of Gregor Myers v. Arcata Union High

School District. Last year Myers,

represented by ACLU Attorney

Lawrence A. Truitt of Arcata,

won his case in the Superior

Court of Humboldt County. My-

ers has been suspended from

school because his haircut was

considered "extreme" by Arcata

High School authorities, Judge

G. Watson, Jr. issued a Writ of

Mandate requiring the school to

readmit Myers. "Certainly,"

Judge Watson said, "the school

-would be the first to concede that

in a society as advanced as that

in which we live there is room

for many personal preferences

and great care should be exer-

cised in showing that what are

mere personal preferences of one

are not forced upon another for

mere convenience since absolute

uniformity amongst our citizens

should be our last desire."

School District Appeal

The School District appealed

Judge Watson's order. In its

brief, prepared by Paul Halvon-

ik, ACLUNC contends that hair

fashion is a matter of personal

expression protected by the Unit-

ed States Constitution. A right

of expression, like free speech,

cannot be regulated because of

a preference for short hair by

school authorities or by vague

and unpredictable guide lines,

such as "extreme."

Proper Rule

The brief states "the only con-

stitutional rule that a school

could adopt, the only rule that

would not trench on fundamental

rights and thus be unconstitu-

tional because vague and over-

broad, is a rule that hair cannot

be of a length that injures aca-

demic pursuits and discipline.

Additionally, if that rule were

challenged, the school would

have to demonstrate that the en-

forcement of its rule would re-

sult in a benefit that would out-

weigh the resulting impairment

to an individual's constitutional

right to wear his hair as he

pleases and that there were no

alternative means, less subver-

sive of the constitutional right,

available to achieve the objective

of academic pursuit and class-

room discipline."

Federal Case

The brief goes on to point out

that the haircut issue is not a

new one. It directs the Court of

Appeals' attention to an 1879

Federal case in which the Sher-

iff of San Francisco had cut off

the queque of a Chinese inmate

of the County Jail. The Federal

Court found that action uncon-

stitutional.

Court agreed with the first of

these points in its 8 to 1 decision

with only Justice Harlan dissent-

ing. (Justice Harlan takes the

view that the First Amendment

applies in a diluted form when

applied to the States through the

Fourteenth Amendment and

that the States have a greater

latitude in censoring materials

than does the Federal govern-

ment under the First Amend-

-ment.) The 8-Justice majority

(including the new Justice, Thur-

good Marshall) merely ruled that

the photographs were covered

by the First Amendment without

any explanation.

3 Disappointment

Although it may appear to be

ungrateful to snipe at a favor-

able decision, it continues to

be disappointing that the United

States Supreme Court cannot

muster a majority for any co-

herent theory resolving the ap-

parent clash of values between

First Amendment freedoms and

the desires of many persons to

censor on moral grounds. With-

in the last few months approxi-

mately 20 cases have been de-

cided in the same manner that

the Chance case was decided,

that is, without any explanation.

This leaves prosecutors free to

continue to engage in censorship

and provides no guidance for per-

sens who conscientiously wish to

follow the law but do not wish to

restrict circulation out of timid-

ity. Additional confusion has

been sowed by the fact that two

judgements of obscenity have

been affirmed by the high court

in recent months. These are

Landau v. Fording involving

Genet's film, "Un Chant

d'Amour," and Fort v. Florida

involving a number of sculptures

kept by an artist in his own

backyard. Still remaining unde-

cided on the docket of the US.

Supreme Court are several cases

involving the question of whether

stricter standards can be required

for material available to minors.

It would seem that the Court

will have to come up with some

opinion in resolving this issue.

No Rehearing

In Genet -

Film Case

The United States Supreme

Court has turned back the at-

tempt to have its decision in

Landau v. Fording reconsidered

by rejecting a petition for re-

hearing filed by ACLUNC attor-

neys. The court last June decided

by a vote of 5 to 4, that the film

produced and directed by Jean'

Genet, "Un Chant d'Amour," was

not protected by the First

Amendment and thus could be

suppressed by California authori-

ties.

The petition for rehearing at-

tempted to get the Court to ac-

cept the view that the film had

social value for some groups of

persons even if it has no social

value for mass distribution. The

petition also sought to get a clari-

fying decision from the Court

rather than a per curiam deci-

sion. made without argument, It

appears that the Genet film will

be a permanent victim of cen-

sorship until the Supreme

Court's concept of First Amend-

LETTERS ...to the EDITOR

Editor:

I have been a member of the

_ ACLU for more than 35 years. I

am also happy that I have been a

member of the Postmaster Gen-

eral's Stamp Advisory Commit-

tee since 1961. I was, and I am,

happy with our selection for the

1965 Christmas stamp of the New

England weather vane depicting

an angel blowing a trumphet. It

was an excellent stamp. I'm also

pleased with our selection last

year of a portion of the Memling

Madonna and Child and even

more pleased with this year's

stamp which will be of larger size

and include more of the same

portrait.

There is a vast increase in the

monthly volume of mail in De-

cember arising, of course, be-

cause of the millions, if not bil-

lions, of Christmas cards and

greetings sent and received by

Americans. The event they honor

is the birth of Christ.

_ The first Amendment to the

United States Constitution pro-

vides that "Congress shall make

no law respecting an establish-

ment of religion, or prohibiting

the free exercise thereof." Arti-

cle VI, clause III of the Constitu-

tion itself provides that there

_ Shall never be a religious test as

a qualification for public office.

That's it.

Here is why I sadly parted

with ACLU a number of years

ago on the "religious" issue. Com-

mon sense and our knowledge of

history tells us that the framers

of the Constitution and the First

Amendment had had recent un-

_ happy experiences with church

states or state churches. These

men wanted no part of religion

ordered by a political dictator-

ship and serving such dictator-

ship. Today the danger that fuz-

zy old women are in danger of

being burned as witches is no

greater than the danger that we

will see established in the United

States a monolithic oppressive

state church or anything resemb-

ling it. .

I am, I suppose, a non-practic-

ing Protestant. I'm not musical or

artistic but share with millions

of Americans the deep affection

for the Christmas carols, the

story of the Christ child and I

admire the great works of art

which have been inspired by the

meaning of Christmas.

Shortly after our boss, the Post-

master General, announced the

new Memling Christmas stamp,

newspapers carried stories that

an injunction suit would be filed

by "Protestants and other Ameri-

eans united for separation of

church and state." At least one

of the stories carricd news that

the suit would probably be

backed up by ACLU. How the

issuance by the Post Office of

the Memling Christmas stamp

ean harmfully affect the separa-

tion of church and state defeats

me. An American can buy and

use Christmas stamps if he wish-

es or he may refrain from doing

so. There are many other stamps

of the same denomination.

A good many of the adverse

comments on our last three

Christmas stamps have come

from people who claim to see a

"Catholic" influence. The sugges-

tions are untrue. The great ma-

jority of the committee are non-

Catholic and so is President

Johnson. Lawrence O'Brien, a

Catholic, has demonstrated real

courage in going forward with

the stamps we have recommend-

ed to him. The stamps are to

ACLU NEWS

DECEMBER, 1967

Page 2

commemorate Chirstmas and not

any segment of the Christian re-

ligion. I feel that the critics have

as untenable a position as that of

some Catholics who denounce

and oppose measures which

make birth control information

available to all just because they

don't want it for themselves.

ACLU has done great things

to sustain, maintain and support

the rights of individuals under

the Bill of Rights. I have helped

some, particularly as a lawyer in

the area of military discharges.

The Presidential order of 1952

restoring citizenship to all who

lost it by desertion in time of

(nominal only) war was my

idea. It was drafted under my

supervision when I was General

Counsel in the Department of

Defense. I refused to give Mc-

Carthy personnel records when

he was at the height of his power

and can assure you that that was

no fair weather matter. I strong-

ly advocate a more militant posi-

tion with respect to the inequity

and illegality of all-white draft

boards in certain Southern

states sending Negroes into the

army. Let's use our resources and

militancy in areas like that and

let's relax on this one, along

with the rest of the people, be-

cause there is no current prob-

lem or future danger in the long

dead issue of "separation of

church and state."

Particularly we shouldn't

spend our time and money fight-

ing about things like postage

stamps or Christmas carols. Such

positions make us look ridicu-

lous even in the eyes of those

dedicated to protection of the

freedoms spelled out in the Bill

of Rights. (Please note that our

Committee unanimously recom-

mended the Bill of Rights anni-

versary to the Postmaster Gen-

eral for a stamp and recommend-

ed Herblock as the artist. Both

recommendations were ac-

cepted.)-Roger Kent.

Political Activism

Editor: Since I dropped my

ACLU membership, I have had

a number of solicitations from

you for renewal. I have just now

received another one which sug-

gests that I must have discon-

tinued my support on the basis

of "letting Jack do it."

It had been my intention to

simply drop my membership

without any particular ado but

inasmuch as you continue to.

press for renewal and suggest

that the failure to renew is due

to apathy, it is perhaps my obli-

gation, particularly since I sup-

port the basic principles of the

organization, to inform you as to

why you lost at least one mem-

bership.

In recent years, the ACLU has

seemed to me to become an ac-

tivist political organization. Re-

gardless of my own feelings, pro

or con on particular issues, it

does not seem to me that the or-

ganization is intended to be a

political arm of the Civil Rights

movement, the Vietnam with-

drawal proponents, the draft re-

sistance movement, the abolition

of capital punishment support-

ers, etc. I recognize that there

are Constitutional questions to

be found in each of these issues

and the line between political

activism and the protection of

fundamental Constitutional civil

liberties is a difficult one to

draw. My own strong impression,

however, is that the ACLU has

overstepped that line by a very

considerable margin and, since I

find myself at odds with some of

your political positions, at least

in degree, I would prefer to

make my political contributions

to organizations that are openly

political and more consonant

with my own thinking.

You are welcome to publish

this letter in the NEWS, if you

wish, since it is my feeling that

there are probably a number of

people who might share my atti-

tude and can perhaps get the

ACLU back into the function for

which it was intended.-Robert

S. Webber, San Bruno, Calif.

Unmarried

Postal Worker

Faces Discharge

The pressure on young people

to get married would seem to

strong enough without the active

intervention of the United States

Civil Service Commission on be-

half of marital bliss. This inter-

vention comes about in the case

of Neal Mindel, a clerk at the

San Francisco Post Office. It

seems that Mr. Mindel, who has

been working for the Post Of-

fice for approximately one year,

has been found by Civil Serv-

ice investigators to be living

with a woman not his wife and

therefore to be engaged in "im-

moral conduct" which requires

him to lose his Post Office job.

There is no allegation that Mr.

Mindel's conduct in any way af-

fected the way in which he ac-

complishes his job or involved

any public notoriety or scandal.

Luckily, ACLU staff counsel

Marshall Krause was able to pre-

vail on Congressman Phillip Bur-

ton to make sure that the Post

Office would keep Mr. Mindel

employed while his appeal from

the Civil Service action was

pending.

Bureau Upholds Dismissal

The action of the local Civil

Service region was appealed to

the Bureau of Personnel of the

United States Civil Service Com-

mission in Washington, D. C. In

view of the public statement of

the former director of that Bu-

reau that "Under Civil Service

Commission standards immoral

conduct is significant only when

accompanied by notoriety, scan-

dal, or public censure," it was

expected that this Bureau would

give favorable consideration to

Mr. Mindel's appeal. However,

these expectations were dashed

when a decision was reached

stating, "The evidence clearly

substantiates the facts on which

the previous decision was based,

and you have furnished no new

or additional information on ap-

peal which would justify a re-

versal of that action."

Board Review

The next step in the admini-

strative process is an appeal to

the Board of Appeals and Review

of the United States Civil Serv-

ice Commission which has now

been accomplished. If that agen- -

cy does not sustain the ACLU's

position, the case will be taken

to the federal courts,

Invasion of Privacy

Mindel's case is an example

of the atrocious interference into

private life which government is

sometimes prone to make. Why

it should be of any interest to the

government whether or not Mr.

Mindel is married to the woman

with whom he lives escapes a

rational answer. Perhaps if Mr.

Mindel were an ambassador or

some very high government offi-

cial it could be said that his

private life reflects upon the

government. But even this rea-

soning is attenuated, and clearly

does not apply to a postal clerk

We hardly think it rational to

believe that there are citizens in

San Francisco. who may be

shocked and offended to learn

that their mail could have been

handled by a man living with a

woman not his wife. Lastly, it

should be pointed out that the

federal government has no in-

. terest in marriage license fees, as

all sueh revenues go to state and

local purposes.

Staff Counsel

Speaks at S.F.

Meeting Dec. 11

Marshall W. Krause, ACLUNC

staff counsel, will participate in

a panel discussion on "Skid Row

and Alcoholism" at "S.I.R. Cen-

ter', 83 Sixth St., San Francisco,

Monday evening, December 11,

at 8 p.m.

The meeting is being spon-

sored by the San Francisco Po-

lice-Community Relations, South-

ern District, and The Society for

Individual Rights,

Driver Forced to Remove

"Yes On Peace' Sirip

The ACLU protested last

month to the Commanding Offi-

cer of the Presidio of San Fran-

cisco against the actions of an

MP on November 13 in not al-

lowing a young motorist to pro-

ceed to her destination on pub-

lic roads through the Presidio

without removing a "Vote Yes

on Peace" bumper strip from the

rear bumper of her car. The MP

informed the 16-year-old girl

that he was acting under a Presi-

dio regulation and they weren't

going to have any more of "`this."

Somewhat scared, the young lady

removed the bumper strip and

went on her way.

The young lady's mother, Mrs.

Elliott M. Feigenbaum, tele-

`phoned the Military Police and

was informed that even though

the `bumper strip referred to a

San Francisco city election, dis-

play of the strip on the Presidio

was considered demonstrating

and "derogatory to the actions

of the government."

Some time ago-a similar in-

cident occurred at the Presidio in

connection with a traffic arrest.

The MP offered to tear up the

ticket if the young lady would re-

move a "Get Out of Vietnam"

sticker from her car. When she

refused to do so the MP noted

that fact on the ticket. The Army

admitted that the MP was wrong

but stated it reserved the right

to. prevent bestickered cars from ~

demonstrating at the Presidio.

As the NEWS goes to press, no

response has been received from

the Presidio concerning the la-

test incident, and the ACLU's

-claim that one car proceeding

through the Presidio doesn't

make a demonstration. The

ACLU has learned, however, that

the Army intends to issue a pub-

lic statement about the matter.

Calif. Executions Halted

Continued from Page 1-

pling of the community and that

is, in fact, unconstitutionally

stacked in favor of the prosecu-

tion. The exclusion of scrupled

jurors from the "penalty" jury

is also challenged on the grounds ~

that a penalty jury is supposed

to reflect the "conscience of the

community" but that present law

excludes about half of the com-

munity from contributing to that

expression of conscience.

(3) The death penalty in Cali-

fornia is in violation of the equal

protection and due process

clauses of the United States Con-

stitution because it is imposed

without standards and guide-

lines. Juries, the memorandum

of law accompanying the writs'

point out, are

"permitted to

choose between life and death

upon conviction for any reason,

rational or irrational, or for no

reason at all; at a whim, a vague

eaprice of the color of petition-

er's skin if that did not please

them."

(4) The death penalty is cruel

and unusual punishment. It is

cruel because it is imposed with-

out any standards and is, there-

fore, arbitrary and capricious. It

is cruel because it is a method

of mental torture. It is cruel be-

cause there is no justification for

it. It is not a greater deterrent

to crime than the alternative of

life imprisonment. Vengeance, of

course, is not a legitimate legis-

lative purpose and the legitimate

legislative purposes besides de-

terrents that are served by pun-

ishment, i.e., isolation and reha-

bilitation, can also be better

served by a sentence of life im-

prisonment, an alternative less

subversive of the fundamental

constitutional right to life.

Evidentiary Hearing

The writs of habeas corpus in

the Anderson and _ Saterfield

-eases also ask that an evidentiary

hearing be held in which the pe-

titioners will be given an oppor-

tunity to prove their allegations

about the administration of the

death penalty in California. The

Anderson and Saterfield writs

were prepared by assistant staff

counsel Paul N. Halvonik, Pro-

fessor Anthony Amsterdam of

the University of Pennsylvania,

and San Francisco co-operating

attorneys Jerome Falk, Jr., Gary

Berger, Roy Eisenhardt and Har-

ry Kreamer.

Ralph B. Atkinson

Dr. Alfred Azevedo

Mrs. Judith Balderston

Albert M. Bendich

Leo Borregard

Albert Culhane

Mrs. Natalie Dukes

Prof, John Edwards

Howard A. Friedman

Robert Greensfelder

Rev. Aron S. Gilmartin:

Evelio Grillo

Mrs. Zora Cheever Gross

Francis Heisler

Neil F. Horton

Howard H. Jewel

Hoabiaty, Treasurer: |

Joseph S. Thompson

Honorary Board Member:

Sara Bard Field

Mrs, Gladys Brown

Mrs, Paul Couture

Mrs. Margaret C. Hayes

Prof. Carlo Lastrucci

John J. Eagan

Joseph Eichler

H. H. Fisher

Board of Directors of the American Civil Liberties Union

of Northern California

CHAIRMAN: Prof. Van D. Kennedy

VICE-CHAIRMAN: Rabbi Alvin I. Fine

Helen Salz

SEC'Y-TREAS.: John R. May

EXECUTIVE DIRECTOR: Ernest Besig

-GENERAL COUNSEL: Wayne M. Collins

STAFF COUNSEL: Marshall W. Krause

ASST. STAFF COUNSEL and LEGIS. REP., Paul Halvonik

ADMINISTRATIVE ASSISTANT: Mrs. Pamela S. Ford

CHAPTER DIRECTOR: Mrs. Marcia D. Lang

Committee of Sponsors

Mrs. Paul Holmer

Mrs. Mary Hutchinson Prof. Wallace Stegner

r. Morse Erskine

Prof. Ernest Hilgard Prof. Wilson Record

Dean Robert A. Keller

Prof. David Levin

Gerald D. Marcus

Ephraim Margolin

Prof. John Henry Merryman

Robert L. Nolan, M.D.

Prof. Robert M. O'Neil

Clarence E. Rust

John Brisbin Rutherford

Mrs. Alec Skolnick

Stanley D, Stevens _

Stephen Thiermann

Cecil Thomas

Donald Vial

Richard J. Werthimer |

Dr. Marvin J. Naman

Mrs. Theodosia Stewart

Re. Rev. Sumner Walters

Richard Johnston

Roger Kent

Mrs. Ruth Kingman

Prof. Theodore Kreps

Rev. Robert W. Moon -

Dr. Norman Reider

Prof. Hubert Phillips

Norman Lezin

AMERICAN CIVIL LIBERTIES UNION NEWS

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151

Security Proceeding

Federal Court

Enjoins Secretary

of Defense

In an unusual legal proceeding last month Federal Dis-

trict Court Judge Robert F. Peckham, issued a temporary

restraining order at the request of ACLU staff counsel

Marshall W. Kruse which required the Secretary of Defense

to immediately end the suspension of the secret security

~ clearance of Dexter C. Shoultz,

an employee of Lockheed Air-

' eraft Company. After some grum-

bling and delay, the Director for

Security Policy of the Depart-

ment of Defense, Joseph J. Lieb-

ling, wrote to Mr. Krause that

the restraining order would be

obeyed and the suspension of

Mr. Shoultz's clearance was re-

scinded pending further order of

the court, effective immediately.

As the result of this decision,

Mr, Schoultz will keep his `job

as a programmer for Lockheed

instead of being terminated on

November 17 as Lockheed

planned to do in view of the

fact that without a clearance Mr.

Shoultz could not get access to

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_1966.batch ACLUN_1967 ACLUN_1967.MODS ACLUN_1967.batch 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 the building where he was re-

quired to do his work.

Irreparable Injury

The temporary restraining or-

der was issued after hearing ar-

guments and was primarily based

on the uncontested allegation

that unless such an order were

issued Mr. Shoultz would lose his

job and suffer irreparable dam-

age even if his legal point should

eventually prevail when his case

was fully heard.

- The Facts

The basic facts and issues in

the legal dispute are as folows:

Mr. Shoultz has held a secret

clearance for more than ten

years. Last year he was informed

_that the screening board for in-

dustrial clearance set up by the

Department of Defense desired

to ask him certain questions and

for this purpose he was asked

-to make an appointment with a

board attorney for an "inter-

view." Shoultz contacted ACLU

executive director Ernest Besig

who demanded to know the au-

thority for the scheduling of such

an interview before any accusa-

tion had been made against

Shoultz that something he had

done had endangered his eligi-

bility for a clearance, After some

delay, the Department of Defense

regulation in this area was

amended effective January 7,

to add a new paragraph provid-

ing that a person who refuses to

answer relevant questions of an

investigator of the Department

of Defense shall have his clear-

ance suspended and further pro-

cessing of the case discontinued.

An interview was then scheduled

with Mr. Shoultz under the new

regulation.

Motion Premature

Prior to the interview, a com-

plaint was filed in Federal Dis-

trict Court challenging the vali-

dity of the procedure and seek-

ing an injunction against the

holding of the interview. An ap-

plication for a temporary re-

straining order was heard by

Judge Alfonso J. Zirpoli who de-

nied the order on the basis that

the motion was premature as it

could not be determined whether

or not Mr. Shoultz would refuse ~

to answer relevant questions at

the interview. On June 30, 1967,

the interview was held and on Oc-

tober 13, 1967, the Assistant Sec-

retary of Defense sent a let-

ter to Shoultz stating that he

had refused to answer. relevant

questions at this interview and

therefore his clearance was sus-

pended immediately without fur-

ther proceedings available to

_him. Shoultz was immediately

removed from his job at Lock-

heed and would have been placed

on prolonged leave of absence

- without salary on November 17

had not Judge Peckham's order

intervened.

Confronting Accusers

The ACLU position on the vali-

dity of the new regulation is

that it is an attempt to circum-

vent the requirement that a per-

son charged with some loyalty-

security violation be granted a

statement of reasons and an evi-

dentiary hearing on these rea-

sons so that he can face his ac-

cusers and present evidence, By

using the interview procedure,

the Department of Defense could

get around the requirement that

it present some evidence in sup-

port of removing a_ security

clearance. Of course, the De-

partment of Defense claims that

all they are trying to do is ga-

ther information and when their

`information gathering process

is completed they will grant a

hearing, if one is necessary. In

effect, this procedure makes a

holder of. a security clearance

his own accuser under penalty

of loss of a precondition for em-

ployment. The ACLU takes the

position that if the government

has derogatory information

against the holder of a security

clearance it should present this

information in a statement of

charges. (c)

Relevancy of Questions

There is a second reason for

the ACLU attack on the new

procedure. This is that a person

is required to deeide whether

or not a particular question

asked by an investigator at an -

interview is or is not "relevant."

If, at some subsequent time, a

question which he believed not

relevant and did not answer is

ruled to have been relevant then

the security clearance is lost

without further hearing. This

conflicts with the decision of

the United States Supreme Court

in Watkins vs. United States

where, in a House Un-American

Activities Committee hearing,

the Court held that when a per-

son is required to answer ques-

tions at his peril it is the duty

_ of the questioner to fully ex-

plain the relevancy of each ques-

tion when this matter is brought

into question. Such an explana-

tion was not given at Shoultz's

interview.

It is likely that the test of the

new procedure will be carried to

higher courts. Meanwhile, it is

hoped that Mr. Shoultz can con-

tinue on his job while the legal

issue is fought out. It is interest-

ing to note that if the Depart-

ment of Defense really had any

information which might com-

promise Mr. Shoultz's loyalty,

they could institute proceedings

and suspend his access to classi-

fied information.

Membership

Stands at Record

High of 7,322

The ACLUNC ended its fiscal

year on October 31 with a paid-

up membership of 7,322. The net

gain for the year was 420 mem-

bers. Since there were also 205

separate subscribers to the

NEWS, the paid mailing list

numbered 7,527.

The branch has shown a steady

gain in its membership since

1944 when the membership stood

at 742. The four thousand mark

was passed in 1958, the five thou-

sands mark in 1961 and the six

thousand mark in 1964,

Army Security

Case Ends in 4-F

Classification

Last September 13, an' Army

Board of Inquiry held hearings

in the case of a Berkeley draf-

tee who had been rejected for

induction as a security risk. The

young man was charged with

membership in the Young Social-

ist Alliance, association with the

W.E.B. Dubois Clubs of Ameri-

ca, subscribing to the "People's

World," and refusing to fill out

the Army's security question-

naire and Statement of Personal

History.

Inaccessible Spot

The hearing was scheduled for

Fort Baker, an isolated area near

the waterfront in Sausalito, and

not accessible by public trans-

. portation. When Ernest Besig,

who represented the registrant, -

arrived at the place of hearing,

four armed, white helmeted

MPs were stationed in front of

the meeting place under the

command of an officer. No other

persons came to the area of the

hearing except members of the

Board and those chauffering

them and the nearby gas station

attendant who was opening his

station.

Four Armed MPs

After the hearing opened and

the Board was sworn, Besig

asked the President to explain

the necessity for four armed

MPs. He said he could only con-

clude that since he and his client

were the only non-military per-

sons present that the show of

force was directed at them. The

President refused to explain the

presence of the MPs and, in-,

deed, made the ominous state-

ment that "Any reason that we

may have for having them here

is our own specific business."

Besig said he declined to parti-

cipate in a hearing in which he

and his client were subjected to

to intimidation, and they both

withdrew.

Demonstrations and Incidents

After they departed, the rec-

ord shows that the President did

explain the presence of the MPs.

He said "that there had been

demonstrations and incidents at-

tending hearings of this nature

. . .' Of course, there were no

demonstrations on this occasion.

In a memorandum to the Ad-

jutant General, the ACLU con-

tended that the registrant had

been denied a fair hearing as

provided by the regulations since

he was subjected to an over-

awing and intimidating display

of force, and because the hearing

was not scheduled in the vicinity

of his residence but in an out

of the way place.

Reclassified

Recently, the registrant was

requested to report to the induc-

tion center in Oakland for a phy-

sical examination. Thereafter, his

draft board notified him that he

been reclassified 4-F.

ACLU Aids 6 Boys -

In Auburn ES.

Long-Hair Case

Six students attending Placer

High School in Auburn, who

were suspended last month be-

cause of their long hair, were

reinstated pending an examina-

tion of the law by Richard Smith,

County Counsel of Placer Coun-

ty. The local school board has a

policy of requiring "socially ac-

ceptable" hair care, whatever

that means. Three of the boys,

who are members of a folk-rock

band, say the long hair is essen-

tial to their musical work.

Volunteer ACLU attorney Law-

rence K. Karlton of Sacramento

intervened in the case after the

Sacramento Valley branch of

ACLUNC was asked for assist-

ance by Deputy District Attorney

Franklin Tuttle whose son Da-

vid was among those suspended.

Charles Bricker Prosecution

Acquittal By

Federal Judge

In C.O. Case

After two days of trial and extensive briefs, United States

District Court Judge Alfonso J. Zirpoli has acauitted Charles

Bricker on; the criminal charge of failing to report for in-

duction as ordered by his local draft board. Bricker, 25 years

old, is a reporter for the Richmond Independent and lives

with his wife in Oakland. The

ACLU took his case because of

the belief that he was denied

important procedural rights in

presenting his claim that he

should not be inducted because

he is entitled to recognition as

a conscientious objector to mili-

tary service, The decision of

Judge Zirpoli agreed with this

position in holding that Bricker

had been denied the right to

have his conscientious objector

claim considered by the State Ap-

peal Board and therefore must

be acquitted.

Complex Issue

Bricker's case is complex be-

cause he had enlisted in the Unit-

ed States Army Reserves and was

only ordered for induction after

he had been certified for pri-

ority induction to his draft board

because of unsatisfactory per-

formance in the Reserves. The

reason for Bricker's unsatisfac-

tory performance in the Re

serves was that subsequent to

his enlistment he became a con-

scientious objector. He applied

for a discharge from the Re-

serves on this ground and at

the same time filed a form 150

(setting forth his C.O. claims)

with his local draft board. The

Army refused to give him a dis-

charge, saying that he was not

a conscientious objector.. After

Bricker was certified for pri-

ority induction, his local draft

board held a personal interview

on whether he should get a con-

scientious objector classification

and turned him down. However,

when Bricker appealed this de-

Gideon Society

Withdraws

Bible Request

The Superior Court challenge

of the proposed distribution of

"Gideon Bibles' in grades 5

through 12 of the San Jose Uni-

fied school district ended suc-

cessfully when the Gideon Soci-

ety withdrew its request thus

mooting the case. The court will

not pass on academic issues.

The case was handled by at- .

torney James W. Stewart, a vol-

unteer attorney for the Santa

Calra Valley Chapter of the

ACLUNC. The Santa Clara Coun-

ty Counsel ruled the Gideon Bible

is a sectarian publication whose

distribution in the schools was

forbidden by Sec. 8453 of the Ed-

cation Code. He also held that the

_ distribution was forbidden under

the First Amendment "as con-

stituting an aid to the establish-

ment of religion."

Peace Booth at.

Placer Co. Fair

The Placer County Citizens for

Peace were able to rent a booth

at the 20th District Agricultural

Association Fair through assist-

ance of the Sacramento Valley

Chapter of ACLUNC.

`Lawrence K. Karlton, volun-

teer ACLU attorney, wrote an .

opinion that was submitted to

the Board expressing the view

that the applicants could not be

discriminated against because of

their opinions. The booth caused

no disturbances or incidents...

cision he was not accorded the

usual Department of Justice

hearing on the question of his

conscientious objection because

`the State Appeal Board took the

position that he was being draft-

ed as a reservist and therefore

could be drafted regardless of

his classification.

Three Questions

The ACLU argued three points

before Judge Zirpoli: (1) That

even a person certified for pri-

ority induction because of un-

satisfactory performance in the

Reserves was entitled to the full

procedural guarantees of any

draftee claiming to be a con-

scientious objector and that Se-

lective Service regulations pro-

viding for "priority induction"

regardless of classification were

unauthorized by Congress; (2)

that once the local draft board

had given Bricker a hearing on

the merits of his claim to be a

conscientious objector, it was

committed to giving him his full

procedural rights whether or not

he was originally entitled to

them and could not cut off the

appeal; (3) that the Army, in

considering Bricker's request for

discharge, had deprived him of

procedural guarantees by failing

to give him a hearing on his re-

quest.

Judge Zirpoli's Position

Judge Zirpoli accepted the sec-

ond of these arguments and did

not pass on the other two. In

an opinion filed November 16,

1967, he relied upon the US.

Supreme Court case of Vitarelli

v. Seaton where the Secretary of

the Interior in attempting to dis-

miss an employee granted him

certain procedural rights and

then attempted to substitute a

summary dismissal procedure.

The Supreme Court held that

even though the employee could

have been initially dismissed

without the procedural protec-

tions, once they were invoked

they "could not be ignored. Simi-

larly, once Bricker's board had

court martialed him as a deserter

they could not ignore the pro-

cedural rights of such a claimant.

What Next?

What will happen next in the

Bricker case is difficult to pre-

dict. At a minimum, Bricker will

have to be granted an appeal on

the merits of his claim to be a

conscientious objector. At the

time this appeal should have

been granted to Bricker, the law

provided that an appellant was

`entitled to a hearing before a

hearing officer of the Depart-

ment of Justice. This provision

has, however, been repealed by

the 1967 amendments to the Se-

lective Service Act. But since

Bricker was deprived of this

hearing by the mistake of the

Selective Service System, it will

be argued that he must be given

his rights under the old law and

cannot be processed under the

- new law. In any event, the Brick-

er case establishes the principle

that just because a person en-

lists in the Reserves he does not

lose his right to subsequently be-

come a conscientious objector to

military service and receive fair

consideration of his claim. The

Bricker case was handled by

ACLU staff counsel Marshall W.

Krause.

ACLU NEWS

DECEMBER, 1967

Page 3

"ie

Special Session

Has Deadline On

Reapportionment

The California Legislature is currently engaged in an ex-

traordinary session called for the purpose of reapportioning

California's congressional districts. Governor Reagan called

the legislators into session after the California Supreme

Court ruled that the present districts do not conform to the

"one-man-one-vote'" mandate of

the United States Supreme

Court. The California Court gave

the legislature until December 6,

1967, to come up with an accept-

able apportionment, if they fail

in that endeavor the Court will

itself reapportion the districts.

The Governor and a number of

legislators have expressed disap-

proval of the Court decision. "Ar-

rogant," Charles Conrad (R-Sher-

man Oaks) called it. He often

talks that way about court deci-

sions; it is part of his campaign

of respect for law and order.

Waiting Game

Reagan and Conrad do not dis-

pute the Court's conclusion that

the present apportionment is il-

legal. There is no doubt in any-

body's mind about that. The

Court, according to Conrad, is

arrogant in following the Con-

stitution with some deliberate

speed. After all, he and the Gov-

ernor reason, a reapportionment

now must proceed on statistics

from the 1960 census; why not

wait two years until 1970 when

a new census will more accurate-

ly reflect population shift and

growth. There are a number of

answers to this reasoning. The

number of California congress-

men is based on the 1960, not

speculation about the 1970, cen-

sus, The present malapportion-

-- ment is based on the 1960, not

the 1970 census. All congression-

al apportionment throughout the

United States is, by necessity,

based on the 1960 census. Proper

apportionment based on the 1960

census is more likely to reflect

the realities of the actual popu-

lation than malapportionment

based on the 1960 census. Besides

the mathematical error, there

are not just two years to the

1970 census. There will be at

least two elections, those of 1968

and 1970, before the 1970 cen-

sus can be translated into ap-

portionment figures.

Legislature Did Nothing

Finally, testiness on the part of

legislators about the timing of

the California Supreme Court's

decision is a bit disingenous. The

United States Supreme Court de-

cided that congressional districts

must be apportioned one-man-

one-vote in 1962. Coincidentally,

the same year that the 1960 cen-

sus was first used for congres-

sional district elections in Cali-

fornia. The Legislature did not

rush to comply with the ruling

while it had nice, fresh statis-

tics. It did nothing. It has since

done nothing in every session.

The State Supreme Court waited

five years before acting. If Rea-

gan had had his way California

would have avoided the effects

of a U.S. Supreme Court deci-

sion for ten years, a record few

southern states could match.

Stalemate

And the State Court, when it

acted, gave the Legislature an

opportunity to reapportion be-

fore the Court itself assumed the

task. At this writing the Legis-

lature is having a great amount

of difficulty in meeting the

ACLU NEWS

DECEMBER, 1967

Page 4

Court's December 6 deadline.

There is a stalemate. No appor-

tionment plan has gathered suf-

ficient support to pass both

houses. The real problem is the

excruciating pain of reapportion-

ment, The present malapportion-

ment is the product of two fac-

tors: gerrymandering in favor of

the Democrats, who controlled

the 1961 Legislature, and at-

tempts to keep geographic areas

with similar community and po-

litical interests within particu-

lar congressional districts. Both

are factors in the stalemate. The

Democrats cannot gerrymander

for themselves this time. The

Senate is now evenly divided and

the Governor is a Republican.

The plans now being considered

gerrymander, instead, in favor of

incumbents. This impartiality is

due to every legislator's respect

for incumbency. But many Re-

publicans feel that a gerrymand-

er for incumbent congressmen

helps the Democrats and they

cannot get over a nagging sus-

picion that the Democrats are

putting something over on them.

More important, however, is the

geographic "community of in-

terest" problem. Senators and

Assemblymen see their districts

being split among different con-

gressional districts and they do

not like it. Reapportionment

means that these divisions must

occur, but no one wants to vote

for the cutting up of his district.

Thus a Senate-Assembly confer-

ence committee that came up

with a compromise plan had two

important dissenters, Senator

John F. McCarthy (R-Marin),

who did not like the way Marin

was being split up and Assembly-

man Frank Murphy (R-Santa

Cruz) who deplored similar

boundary innovation within his

area.

Uncertain Future

- Will they meet the deadline?

It is impossible to predict, The

pressure from incumbent con-

gressmen, who are afraid the

Court will not sufficiently recog-

nize their interest in staying in

office, is intense. At the same

time, pressure from districts that

do not want to be divided is

great. Leadership from the Gov-

ernor could resolve the prob-

lem. As yet there has been no

evidence of any.-Paul N. Hal-

vonik, ACLUNC Legislative Rep-

resentative.

State High Court

Sets Argument

in Two Cases

The State Supreme Court will

hear argument in two impor-

tant civil liberties cases on De-

cember 4 in its chambers at the

State Building in San Francisco.

The first of these cases will be

Wirta v. A-C Transit District in-

volving the attempt of the Dis-

trict to prohibit "political" ad-

vertising except at the time of

an election. It will be argued by

volunteer attorney Joseph Gro-

din.

The second case is Vogel v.

Los Angeles which is the chal-

lenge to California's Levering

Act Loyalty Oath. This case will

be argued by A. L. Wirin for the

Southern California ACLU and

Credential

Retained by -

Henderson

Oliver Morton Henderson,

M.D., is a man of strong feel-

ings about the war in Vietnam.

His feelings are so strong that

on one occasion he deliberately

stood in front of a truck deliver-

ing napalm to the Redwood City

facility and was convicted of ob-

structing a street and served a

10-day jail sentence. He has also

made his position known by ap-

pearing at high school gradua-

tion exercises at Peninsula high

schools with signs urging grad-

uates to cooperate with the Viet-

nam war effort. :

School Health Services

Besides being a psychiatrist,

Dr. Henderson holds a creden-

tial from the State Department

of Education authorizing him to

perform health services in the

public schools. Pursuant to this

credential, he consults with

school personnel concerning psy-

chiatric health problems. It is

just this consultation which the

State Department of Education

tried to end by revoking Dr.

Henderson's credential on the

ground that the activities de-

scribed above were acts "demon-

strating his unfitness for service"

and acts "involving unprofession-

al conduct,"

Hearing Held

A hearing was held on this

matter before George R. Coan, a

hearing officer of the State Divi-

sion of Administrative Proced-

ure, and testimony was taken

from police officials and Dr.

Henderson. In support of its po-

sition, the attorney for the State

Department of Education argued:

"Like every other credential

holder, the respondent has signed

an oath by which he swears that

he will support the laws of the

United States and the State of

California and will, by precept

`and example, promote respect for

the statutes of the United States

and the State of California, rev-

erence for law and order by un-

divided allegiance to the govern-

ment of the United States. By

his acts and conduct, the re-

spondent has not only violated

that oath but he is, by his pres-

ent state of mind, unwilling to

follow its requirements. I submit

that this 51-year-old respondent,

although commendably con-

cerned with what goes on around

him, is irresponsible and possi-

bly dangerous in his methods of

protest."

No School Misconduct

Fortunately, these arguments

did not prevail, the hearing of-

ficer pointed out that here is no

allegation or proof that Dr. Hen-

derson ever misconducted him-

self as a consultant to the public

schools nor was there evidence

that Dr. Henderson attempted to

use his position with the public

schools to forward his own po-

litical ideas. The hearing officer

found that Dr. Henderson had

not committed any acts involving

unprofessional conduct or dem-

onstrating unfitness for service -

and ordered the accusation filed

against him by the State Depart-

ment of Education dismissed. It

is expected that the State Board

of Education will accept this

opinion as final. Dr. Henderson

was represented at the hearing

by staff counsel Marshall W.

Krause.

almost certainly will result in

the judgement that the Califor-

nia loyalty oath is invalid be-

cause of decisions of the US.

Supreme Court invalidating simi-

lar oaths in other states. The

Northern California ACLU has

filed a "friend of the court" brief

in the Vogel case.

The Supreme Court's calendar

starts at 9:30 but the Vogel and

Wirta cases will not be reached

until later in the morning or

perhaps early afternoon.

PFC Joe Smith

Forgotten GI

Wants Out After

18 Mos. at Home

The ACLU will seek a writ of habeas corpus in the US.

District Court in San Francisco to secure the release from

the Army of Private First Class Joe Allen Smith, 23, the

Army's forgotten man, Smith's two-year tour of duty ended

June 13, 1967, but 18 months

home in Brownsville, Calif., near

Marysville. The Army claims the

18 months is "lost time" and

- must be made up, while Smith

asserts that he was under orders

during this period awaiting prom-

ised special orders which never

arrived. What's more, he's got

a telegram to prove it. Maybe

that's why the Army has not

court martialed him as a desert-

er but is employing him as a head-

quarters runner at the Presidio

attached to the Special Proces-

sing Detachment, Company C.

Departure Cancelled.

Smith received engineering

training at Ft. Hood, Texas, in

1965. He was granted a 30-day

leave before reporting to the Oak-

land Army Center on December

28 for shipment to Thailand as a

tractor operator. Pursuant to his

orders, he telephoned Fort Hood

to determine the status of his

reporting date but was told they

had no information for him.

Then, under date of December

24, 1965 he received a telegram

from Fort Hood which he still

has that the so-called port call

date of December 28 had been

cancelled and that "Special or-

ders reflecting a new P/C date

will follow."

The special orders never came.

Joe Smith patiently spent 18

months with his wife, Glenda

Fay, in or near Brownsville

where he kept a post office box.

To while away the time he got

a job as a logger at about $130

a week with Sillen Bros., Inc.,

in Yuba City, and his wife drew

a monthly Army allotment of

$95.20. "It sure helped out," said

Smith. In the meantime his

unit in Thailand continued to

carry Smith on its rolls as being

`in transit."

Wants Out

When his discharge date fin-

ally arrived last June 13, Smith

assembled his papers, got into

his slicked up uniform and pre-

sented himself at the Army base

in Oakland where he told an un-

believing officer that he'd come

for his discharge. After telling

his story, Smith says the officer

"kind of went crazy."

"Jesus Christ, boy!", the of-

ficer is reported to have shout-

ed, "Don't you watch television?

The first right of a citizen

Ts the right

To be responsible

AMERICAN CIVIL

of it was spent at or near his

Don't you know there's a war

on?"

No Court Martial

Ever since he returned the Ar-

my has been trying to figure out

what to do with Smith. They

abandoned the idea of charging

him with being AWOL or any

other offense. They decided, how-

ever, that he must make up the

18 months he was at home and

repay the money his wife re-

ceived as an allotment, As a re-

sult, his regular pay is being

used to offset the alleged debt.

At the same time, he was ele-

vated to PFC. Finally, Smith

went to a lawyer but he said he

couldn't help him and sent him

to the ACLU.

ACLU Intervenes

The Army wrote Ernest Besig,

ACLU executive director, in re-

sponse to his inquiry, that while

"Smith may be legally required

to serve all of his lost time, ad-

ministrative steps are being tak-

en to determine whether he

qualifies for a discharge." It

then proposed setting up a spe-

cial board to hear Smith's case,

but abandoned the idea when

Besig said he would oppose any

proceeding which might result

in an undesirable discharge. The-

Army then ordered Smith to Ft.

Leonard Wood, Missouri, but can-

celled its orders when the case

received wide publicity.

Other Cases

Smith was recently given both

psychiatric and physical examina-

tions which he passed, but there

is no indication he will be dis-

charged. In the meantime, simi-

lar cases have been disclosed in

North Carolina, where the indi-

vidual is being court martialed

and in southern California where

a discharged soldier has been

billed for pay he received while

absent 223 days.

Won't Admit Mistake

Clearly, the :Army goofed. It

is not surprising that such things

happen but it is surprising that

they don't happen more often.

Unfortunately, the Army refuses

to admit its mistake and seeks

to penalize the victim who was

only obeying orders. Maybe the

United States District Court can

induce the Army to see the er-

ror of its ways.

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