vol. 33, no. 2

Calif. Supreme Court

| American ,

Civil Liberties

Union

`Volume XXXII1

SAN FRANCISCO, FEBRUARY, 1968 - Number 2

RESALE AMELIE TEES CTT LNT TL

Advertising in Public Buses

induction

Center Case

The State Supreme Court by a 6-1 decision in the case of

Vogel v. County of Los Angeles has struck down the State

Levering Oath of non-disloyalty. The Court, in affirming the

decision of Judge Robert W. Kenney of the Los Angeles

Superior Court, overruled its opinion of fifteen years ago in

The Alameda Superior Court's

Appellate Division has reversed

a Municipal Court decision find-

ing David Long of San Francisco

npnrmmmsmennarnenge mney mi No

What appears to be the final word in the legal battle

' ACLU of Northern California has been fighting for Women

For Peace was heard on December 21, 1967, when the

Supreme Court of California handed down its decision af-

firming the right of the peace group to be granted equal

access to advertising space on

buses run by a public transit

authority.

Peace Ad

In September of 1965 The

Women For Peace submitted an

advertisement to the Alameda-

Contra Costa Transit District for

placement on its buses at the

standard rate. The ad read,

`Mankind must put an end to

war or war will put an end to

mankind.' President John F.

Kennedy. Write to President

Johnson: Negotiate Vietnam.

Women For Peace, P. 0. Box

944, Berkeley." . :

The ad was refused by the

district which relied upon its

policy of accepting only "com-

mercial" advertising except that

political advertising will be ac-

cepted "in connection with and

at the time of a duly called

election being held within the

boundaries of the District."

Lower Court Victory

ACLU attorneys then brought

suit in Alameda County Superior

Court, pointing out that the Dis-

trict was a public agency and

that once it had opened its buses

to advertising it could not limit

political advertising to particular

times or to particular issues. On

motion for preliminary injunc-

tion the trial court, Honorable

Cecil Mosbacher presiding, found

that the District's policy abridged

freedom of speech and granted

an injunction preventing the Dis-

trict from refusing the adver-

tisement.

Reversal Nullified

The District then appealed to

the Court of Appeal which re-

versed the trial court on the

ground that the District's policy

was not discriminatory and was

reasonable under the circum-

stances. (See the September

1967 ACLU News.) This opinion

was nullified when the Supreme

Court of California. granted a

hearing.

4-3 Decision

The opinion in the case, Wir-

ta v. A-C Transit District, was

written by Justice Stanley Mosk

and concurred in by Justices

Peters and Sullivan and Chief

Justice Traynor, Justice Burke

wrote a dissenting opinion which

was concurred in by Justices Mc-

Comb and Schauer.

Justice Mosk first pointed out

that the District had opened its

buseg to advertising and that

the particular advertisement in

the case was an expression of

ideas admittedly protected by

the First Amendment. The essen-

tial question was whether the

District "for reasons of admin-

istrative convenience" could de-

cline advertisements expressing

opinion on political subjects.

Censorship

The opinion stated: "The vice

is not that the District has pre-

ferred one point of view over an-

other, but that it chooses be-

tween classes of ideas entitled

to constitutional protection, sanc-

tioning the expression of only

those selected, and banning all

others. Thus the District's regu-

lation exercises a most perva-

sive form of censorship." The

Court then pointed out the illog-

ic ef preferring commercial mes-

sages over non-commercial mes-

sages when it is the latter which

has constitutional protection and

the former which can be fully

regulated by the State.

What is Political?

- The majority of the Supreme

Court then pointed out the dif-

ficulty in distinguishing between

political and non-political adver-

tisements by using the following

examples: "A cigarette company

is permitted to advertise the

desirability of smoking its brand,

but a cancer society is not en-

titied to caution by advertise-

ment that cigarette smoking is

injurious to health. A theatre

may advertise a motion picture

that portrays sex and violence,

-Continued on Page 4

guilty of trespassing at the Oak-

land Armed Forces Induction

Center.

Long, under orders to appear

for a physical examination, en-

tered the Center last March wear-

ing a sandwich-board sign pro-

testing the war in Vietnam. He

was asked to remove the sign or

leave the Center. When he re-

fused he was placed under arrest,

tried and convicted as a trespas-

ser who had entered the building

with the intent to interfere with

its lawful business, and fined

$22.00.

Free Speech Issue

In reversing the conviction the

Appellate Division said:

"There is no evidence in the

record of this case to show

an intent to interfere with,

obstruct, or injure any busi-

ness of the occupant other

than the words on the sign

carried by appellant, and

that `(because of the First

Amendment - guarantee of

freedom of speech) may not

form the basis for the find-

ing of intent."

The Court also observed that it

knew of no case in which a per-

son had been convicted of tres-

passing in a place where he had

been ordered to appear.

ACLU Counsel

Long was represented on his

appeal by assistant staff counsel

Paul N. Halvonik who was assist-

ed by. cooperating Attorney Mich-

ael Ballachey of Berkeley. -

Police

Sergeant Sues for

S onstitutional Rights

ACLU attorneys have filed a mandamus action on behalf

of Sgt. Emil J. Zugnoni against the City of Albany and Ralph

M. Jensen, the Chief of Police of the City of Albany. Sgt.

Zugnoni has been a member of the Albany Police Depart-

ment since 1946 and has held the rank of sergeant since

1954. His dispute with his su-

periors came about when he was

ordered to go on special duty

to dust for latent fingerprints

at the scene of an alleged bur-

glary after he had repeatedly

told the Chief of Police that he

did not have the skills to make

such tests and did not wish to do

this work until he was trained

for the job. As a result of his

refusal, Sgt. Zugnoni was sus-

pended from his job for a period

of 15 days without pay and such

suspension was made a part of

his personnel file.

No Hearing

The Superior Court suit

eharges that Zugnoni was sus-

pended without any hearing or

opportunity to present a defense

to the charge. When Sgt. Zugnoni

attempted to appeal the decision -

to the City Council of the City

of Albany, the Council declined

to hear the appeal on the -basis

of an opinion rendered by its

City Attorney that a city em-

ployee suspended for 30 days or

less has no right to a hearing or

to an appeal under the City

Charter. The ACLU's mandamus

action, prepared by staff counsel

Marshall W. Krause, is based on

the theory that the Charter does

provide for such a hearing and,

in any event, the due process

clause of the Fourteenth Amend-

ment to the United States Consti-

tution requires that a_ hearing

be granted in which:a suspended

employee has a chance to present

' evidence and confront the wit-

nesses against him.

Fair Dealing

The memorandum filed with

the lawsuit points out that power

to deprive persons of constitu-

tional rights merely because they

are employed by the government

has been severely curtailed by

court decisions in recent years.

There is a constitutional right

to fair dealing between the gov-

ernment and its employees.

There is no compelling interest

to waive such a basic right as

a hearing when an employee is

charged with misconduct.

Important Issue

It is believed that the opinion

in Sgt. Zugnoni's case will be

extremely significant for other

public employees as it is a fre-

quent practice of government

agencies to suspend their em-

ployees for short periods of time

without according them a hear-

ing. Such a procedure is justified

on the basis that the suspensions

are brief in duration, but in fact

they have more serious conse-

quences because they are used

in evaluating records for promo-

tional and other benefits. The

Zugnoni case will come before

the Alameda County Superior

Court in Oakland on January 31

for a hearing on why the relief

requested should not be granted.

Pockman v. Leenard upholding

as constitutional an almost identi-

eal oath.

That earlier decision had been

predicated on the assumption

that since there was no constitu-

tional right to public employ-

ment, public employment could

be conditioned on the relinquish-

ment of constitutional rights.

But, said Supreme Court Asso-

ciate Justice Peters;

"It is now well settled that,

although an individual can

claim no constitutional right

to obtain public employment -

or receive any other publicly

conferred benefit, the Gov-

ernment may not condition

public employment or receipt

of such benefit upon any

terms that it may choose

to impose .. ."

"Restrictions on the cher-

ished freedom of association

protected by the First

Amendment . must be

drawn with narrow speci-

Victory Won

in Dilworth

Act Case

John Johnson, at that time

teaching by virtue of a provision-

al credential, was subpoened by

the House Un-American Activi-

ties Committee in 1960. He ap-

peared at the hearings held in

San Francisco in May of that

year and refused to cooperate

with the Committee.

Johnson applied for a perman-

ent teaching credential later that

year but withdrew the applica-

tion when it became apparent

that he would not receive the

credential because of his refusal

to cooperate with the Commit-

tee.

Second Application

Johnson reapplied for his teach-

_ ing eredential in 1966. The Com-

mittee of Credentials refused his

application on the grounds that

Johnson, by his actions before

the Un-American Activities Com-

mittee, had committed unprofes-

sional conduct and been insubor-

dinate. That determination was

based on Education Code sec.

12955 (the Dilworth Act) which

makes failure by any teacher to

answer questions posed by a

Legislative Committee investigat-

ing un-American activities, The

State Board of Education affirm-

ed the decision of the Commit-

tee.

Court Action

Johnson sought a write of man-

date from the Superior Court

ordering the State Board of Edu-

cation to issue him his teaching

credential on the grounds that

the Board's action was unlawful

and unconstitutional.

Superior Court Judge Robert

Drewes of San Francisco granted

that writ on January 16, Judge

Drewes has not yet, at this writ-

ing, filed an opinion explaining

the basis for his ruling. Johnson's

`attorney, assistant staff counsel

Paul N. Halvonik, urged eight

different grounds for the grant-

ing of the writ including a con-

tention that the Dilworth Act is

void on its face as an infringe-

ment of the First Amendment

rights of freedom of speech and

association. vs o

ficity. First Amendment

freedoms are delicate and

vulnerable and must be pro-

tected wherever possible.

When Government seeks to

limit those freedoms on the

basis of legitimate and sub-

stantial. Government pur-

poses, such as_ eliminat-

ing subversives from the

public service, those pur-

poses cannot be pursued by

means that broadly stifle

fundamental persona] liber-

tieS 2

The Levering Oath does just

that because it:

"Pyoscribes membership,

past, present, or future, in

any party or organization

which advocates the over-

throw of the Government by

force, violence or other un-

lawful means, and there is

no provision requiring a spe-

cific intent to further the

unlawful aims of the organi-

zation . . . thus, a teacher

or governmental executive

may not join an internation-

al organization, containing

some members from Commu-

nist countries, for the pur-

pose of obtaining knowledge

in his chosen field because

should the Communist mem-

bers obtain positions of lead-

ership there is a danger that

one of the purposes of the

organization may be the

overthrow of our Govern-

ment."

Justice Marshall McComb, the

lone dissenter in the Vogel case,

did not write a separate opinion,

instead he set out in full former

eases holding the oath consti-

tutional.

ACLU Counsel

Vogel was represented by

Southern California ACLU At-

Continued on Page 3

Two employees of the Marin

County Probation Department,

John Hitchcock and Robert Ralls,

were suspended for three days

last September because they had

appeared before the County

Board of Supervisors and op-

posed the phasing out of the

County's Family Rehabilitation

Center. Their statements were

"insubordinate," according to

County Probation Officer Walter

Busher, who favored ending the

program..

Hitchcock and Ralls, represent-

ed by. volunteer ACLU attorney

Ted Lachalt of San Rafael and

Paul Halvonik, filed a complaint

with the County contending that

the suspensions were a depriva-

tion of their right to freedom of

speech. They demanded that the

suspensions be expunged from

their records and that they re-

ceive the salary lost during the

period of suspension. The County

complied with the request and,

additionally, is preparing a new

set of regulations for Marin em-

ployees that will provide free

speech guarantees.

RS LSS SO eT TLR ED BEEN OD LE ST

AMERICAN CIVIL LIBERTIES UNION NEWS

Published by the American Civil Liberties Union of Northern California

Second Class Mail privileges authorized at San Francisco, Califcernia

ERNEST BESIG... Editor ~

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

Subscription Rates - Two Dollars a Year

Twenty Cents Per Copy

Chapter Activities

Mid-Peninsula

President John Summerskill of San Francisco State College will

be the featured speaker at the annual meeting of the Mid-Peninsula

chapter at 8:00 p.m. Monday, February 26, in the Henry M. Gunn

High School Auditorium, 780 Arastradero Road, Palo Alto. Presi-

dent. Summerskill, who requires no introduction for readers of the

ACLU News, will have as his topic "ACADEMIC FREEDOM IN

CALIFORNIA INSTITUTIONS OF HIGHER EDUCATION." The

public as well as members are invited to hear this timely talk.

Following Dr. Summerskill's presentation there will be a brief

business session, at which Dr. John Marquis, chapter chairman, will

report on the past year's chapter activities, the election of new mem-

_bers of the board of directors will occur, and plans for the coming

year will be outlined.

Santa Clara Valley

ANNUAL MEMBERSHIP MEETING: Lou Gottlieb, formerly of

the Limelighters, owner of Morning Star Ranch in Sonoma County,

which was recently the focus of attention by press and radio when

a mushrooming "hippie" community developed there came into con-

flict with building and health restrictions, will speak on "Civil Liber-

ties and the Alternate Society" at the Chapter's annual meeting to

be held on Thursday, February 29, at the Education Building at San

Jose State College, at 8:00 p.m.

Mr, Gottlieb draws on his personal experience to challenge the

society in general and such organizations as the ACLU in particular

to re-think the applicability of existing statutes in a'period of social

flux and crisis.

A short business session and annual report will precede Mr. Gott-

lieb's address, and election of Chapter Board members and member

to the Branch Board of Directors will take place. The slate of can-

didates will be mailed to Chapter members in advance.

Marin County

PARTY: The entire membership is urged to attend a "Meet Your

New Chapter Board Party" to be held on Saturday, February 10, at

8:30 p.m., at the Hanzel residence, 100 Goodhill Rd., Kentfield, This

is a social event, with the principal goal being a good time for all

eomers. Liquid refreshments, edibles and entertainment are being

planned, and a $2.00 donation is requested of members to cover the

costs of the event. No donation is required of any member who

brings a non-member.

' FEBRUARY MEETING: A panel discussion on "The Bill of

Rights: Teaching and Reaching the Teenager" willibe featured at

the February Chapter meeting, to be held on Monday, February 19,

at 8:00 p.m., at the Bank of Marin:community meeting room, Fifth

and B Streets, San Rafael. The panel will include educators, lawyers,

and that rara avis the teenager himself. The newly elected Chapter

Board will elect its officers for 1968 and transact other essential -

business, All members and their guests are invited.

Berkeley / Albany

The annual meeting of the Berkeley/Albany Chapter ACLUNC

will be held at the Washington School auditorium, Grove and Ban-

croft Way, Berkeley, on Monday evening, February 26 at 8 o'clock.

At this writing, the program for the meeting is being arranged

by Chairman Dr, James Yandell. The meeting will also elect board

members and vote on certain proposed By-Law changes. Ballots will

be mailed to the membership.

LETTERS to the EDITOR

vocal in our support of ACLU

Clergyman's Views

Editor: In case you are "keep-

ing score" on the current Kent,

Webber, et al. correspondence

in the News about whether or

not ACLUNC has crossed the

line from protection of liberties

to advocacy of activism, please

count me among those who sup-

port the present stance of ACLU-

NC. As long as we stand equally

committed to protect the rights

both of Dow Corporation recruit-

ers and those who demonstrate

against them, I have no fear that

we will be "used" beyond the

point. at which we want to be

used by all whose rights are in

danger.

The issue of Christmas observ-

ance is sufficiently ambiguous

that I find it hard to be dog-

matic: However, as a Christian,

as a clergyman, and as one who

has lived in another secular state

(India) in which I was in a 2

percent minority, I would prefer

for us to err on the side of keep-

ing a clear distinction between

what is religious and what is

civic. The distinction is import-

ant for the sake of the church

as well as for the sake of the

state.

Perhaps the exchange of cor-

_respondence will help some of

us who have done little except

pay dues become a little more

ACLU NEWS

FEBRUARY, 1968

Page 2

Please feel free not to print

my letter, but I did want to reg-

ister my support. - Bruce W.

Jones, Berkeley.

"Political Activists"

Editor: Mr. Robert Webber, in

his December letter to ACLU

News, expresses the opinion that

ACLU has in recent years be-

come an "activist political organ-

ization." I wish it had, for there ~

are not enough such organiza-

tions with the objectivity, intel-

ligence and effectiveness which

distinguishes yours. I make this

observation parenthetically, for

it is beside the real point I wish

to make:

Since a person hardly ever

needs help in protecting his basic

liberties except when he public-

ly says or does something un-

popular or nonconformist, it fol-

What To Do When

Questioned

Or Arrested

A free copy of "You and the

Police," the wallet-size card giv-

ing the rules of conduct where a

person is questioned or arrested

by the police, may be obtained

by writing to the ACLU, 503

Market St., San Francisco, 94105

and enclosing a stamped, self-

addressed envelope. Larger quan-

tities are available at $9.50 per

thousand, plus postage.

State Bar

Questions

Challenged

Last month the American Civil

Liberties Union of Northern Cali-

fornia filed with the Committee

of Bar Examiners of the State

Bar of California an extensive

memorandum urging deletion of

two questions on the application

to take the State Bar examina-

tion. The questions required dis-

closure of present or past affili-

ation with the Communist Party,

any party or organization which

advocated the overthrow of the

government by force or violence,

and any group which lent or

lends support to any organization

or movement advocating the

overthrow of the government by

force and violence. The ACLU

memorandum points out that

such questions enter areas of be-

lief and association protected

against disclosure by the United

States Constitution. ae

Mere Association

The Supreme Court of Califor-

nia in outlawing the California

loyalty oath in the Vogel case

made it abundantly clear that

government could not inquire

into mere association but must

limit its inquiries to participa-

tion in actions or plans which

are themselves unlawful.

The ACLU memorandum also

points out that the vagueness

and broadness of the questions

provides a "chilling effect" for

the exercise of First Amendment

freedoms which will cause per-

sons to be timid about their

associations and speech because

of fear of prosecution, even if -

unwarranted and likely to be

unsuccessful, This kind of chill-

ing effect has been struck down .

as unconstitutional many times _

by decisions of the United States

Supreme Court.

No Danger

The memorandum concludes:

"Though: membership in the Bar

is a position of trust and res-

ponsibility, we venture to sug-

gest that it is a highly non-sensi-

tive position, so far as fears of

violent revolution are concerned.

It is difficult to imagine anything

which a lawyer could do or say

as a lawyer which would have

any tendency to bring about vio-

lent revolution. The tools and

techniques of the legal profes-

sion are not suited to the pursuit

of such goals. No questions in

this area were asked prior to

1954, yet their absence did not

result in any influx of unethical

lawyers, or of lawyers who used

their position as members of the

bar as a vantage point from

which to try to bring about vio-

lent revolution."

Few Copies Available

The memorandum was pre-

pared with the aid of Laurent

B. Frantz, Esq., and a few extra

copies are available at the ACLU

office on request.

lows that the proper work of

ACLU is selectively .concerned

with the rights of those who are

most likely to be `political ac-

tivists."

For if one's feelings, speech ~

and actions are those of the ma-

jority, one's liberties will be

faithfully respected by the pow-

ers that be. But when it happens,

as it sometimes does, that the

majority is wrong on major is-

sues, then the clear-sighted mi-

nority must, as a matter of self-

preservation and patriotism, be-

come political activists. That is

when they need the ACLU.

There is abundant evidence

that ACLU does not necessarily

share the views of those whom it

defends; the label therefore can-

not justly be transferred from

clients to defenders. - M. L.

Bramson, San Francisco.

UC Campus Cops

Seize Sculpture

From Art Class

UC campus police last month

raided the campus art studio and

saized a sculpture of a Univer-

sity of California student, Jane

Kochman, which had been done

for an art class. The campus po-

lice claimed they were holding it

for possible action by the Dis-

trict Attorney of Alameda Coun-

ty. The University's attorney de-

fended the campus police and

the ACLU was then prepared to

file suit when the sculpture, bad-

ly damag2d, was returned.

Christ Figure

The Daily Californian described

the sculpture as being "a man-

nequin-like Christ figure with fa-

cial features that strongly re-

semble those of Lyndon Baines

Johnson.

"The proportions of the figure

are not those of the usual Christ,

for Miss `Kochman's Lyndon-

Christ carries the swollen breasts

and belly of a pregnant woman.

The work, however, is neuter.

Loin Cloth

"This latter fact was not dis-

cernable until the American flag

being used:as a loin cloth was

removed." ee

In a letter to Chancellor Rog2r

Heyns, Marshall -W. Krause,

ACLUNC Staff Counsel, suggest-

ed that the following action

should be taken by the Univer-

sity: :

"(1) Immediate instructions

should be given to all personnel

who might be affected that no in-

terference with classroom activ-

ities should be attempted with-

out consultation with the highest

authorities at the University;

"(2) Absent lawful authority,

campus police may not remove

property from campus areas un-

less it is obviously a grave pub-

lic danger er lost or abandoned;

. Reprimands Sought

(3) The particular-persons

`involved with Miss `Kochman's

sculpture `should be personally

reprimanded by an appropriate

University official;

"(4) A written apology should

be tendered to Miss Kochman for

the great inconvenience and wor-

ry caused her;

"3) The Academic Freedom

Committee should be assured

that no future incidents of this

type will be tolerated;

"(6) Miss Kochman should be

compensated in an adequate

amount for the approximately 20

hours of work which she believes

it will require to repair the sculp-

ACLU Will

Defend Att'y

Alex Hoffman

The Board of Directors of

American Civil Liberties Union

has given authority to its staff

to provide representation for an

attorney arrested and charged

with blocking a sidewalk, failing

to disperse, and "offensive con-

duct" during the protest against

the draft which took place at

`the Oakland Army Induction

Center. The attorney, Alex Hoff-

man, was present at the scene

because his clients requested that

he advise them as to how to pre-

vent conduct which would result

in their arrests.

Providing Counsel

When Hoffman arrived at the

Center he checked in with the

Oakland Police Chief and re-

quested some identification but

was told that none was available

and that he would not be both-

ered. Many persons at the Center

who had determined to commit

civil disobedience knew Mr. Hoff-

man as an attorney and asked

him questions before they put

themselves in a position to be

- arrested. The police evidently

got the mistaken impression that

Hoffman was directing persons -

where to go to be arrested.

According to the Police Report,

the only information which the

police heard Hoffman give was,

"If you are arrested give your

name and address and say noth-

ing else."

ACLU Position

The ACLU believes that a per-

son at the scene of a demonstra-

tion in the role of an attorney

and not acting as a demonstrator

has the right to advise his clients

and to be present if they are in

danger of being arrested. This

may not hold, true ina scene of...

general confusion, but there is -

no. dispute that in the particular

case there was nothing but peace-

ful disobedience and there was

no confusion at the scene. News-

men were allowed in the same

area where Hoffman was ar-

rested and were not bothered on

this occasion. If attorneys must

leave the scene of such demon-

strations they will be unable to

effectively advise their clients

and provide the protection which

the Sixth Amendment provides

for persons who are placed under

arrest. :

Hoffman's case will be heard

in Oakland Municipal Court in

February on demurrers to the

complaint filed by ACLU coun-

ture which was damaged by the

University police." sel Marshall. W. Krause.

_ Volunteer Help

Urgently Needed

The Branch Office urgently needs volunteers to assist in

the Spring membership drive: checking files, typing, stuffing

envelopes and telephoning. :

Checking Files

By now each member has received an appeal for names of

prospects and is due to get another one this month. The many

hundreds of names submitted need to be checked against our

files to eliminate those of active members.

- Typing and Stuffing ,

Following this, the names and prospects need to be typed

on stickers. Next, letters have to be prepared for each and

then stuffed and mailed.

These time-consuming, but vitally important jobs need to

be done between 9 and 5, weekdays.

Telephoning

At the end of March telephoners will be required for the

personal follow-up. This job is apportioned out to those ACLU

members willing to telephone a few prospects from their own

homes, in their spare time.

ACLU of Northern California is one of the few organiza-

tions that, (1) does not turn its membership drive over to

professional recruiters; (2) does not buy lists or exchange

its lists with other organizations; and for these reasons (3)

constantly faces a deficit.

` eee with a little time to spare can be of tremendous

elp.

Members unable to come to the San Francisco Office, yet

willing to participate will be put in touch with the membership

drive chairman of their appropriate chapters or non-chapter

drive areas. All offers will be gratefully accepted by mail: 503

Market Street, San Francisco; by telephone: 433-2750.

odo

"Stow ntat as one ee

California Test Cases

Death Penalty

Litigation

Moves

Ahead

The State Supreme Court has not yet set a date for hear-

ing oral argument in the cases of Robert Page Anderson and

Frederick Saterfield, the ACLUNC-NAACP Legal Defense

Fund constitutional challenge of the California death penalty.

In December the petitioners moved for an evidentiary

hearing in order to substantiate

their claim that the death penalty'

is administered in a manner that

deprives them of due process and

the equal protection of the laws.

The Court denied that motion.

Oral argument on the legal con-

tentions will, therefore, be the

next step in the state proceed-

ings.

Federal Courts

In the meantime the federal

court litigation has been con-

tinuing. The challenge began in

the court of Federal District

Judge Robert Peckham in June.

`Peckham., issued. a stay of. all

executions in July. In August

Peckham decided not to enter-

tain the suit as a class action

and dissolved the class stay. At

the same time he set up a pro-

cedure whereby individual peti-

tioners under a sentence of death

could raise the constitutional

questions and receive a stay of

execution. while ACLUNC-NAA-

CP/LDF conducted litigation in

the State Supreme Court. Under

the Peckham order the federal

litigation was to be limited to

procedural points until such time

as the California Supreme Court

passed on the merits of the death

penalty challenge. :

ee

In October; however, when the

petition of Leaman Russell Smith

was heard before Judge Sweigert,

the Peckham order was ignored.

Judge Sweigert decided that

California's death penalty is con-.

stitutional giving Smith a stay of

execution while his case was ap-

pealed to the United States Court

of Appeals, On November 14 the

California Supreme Court issued

its stay of all executions in the

state, a stay that will remain in

effect until the Anderson and

Satterfield. cases are decided.

ACLUNC-NAACP/LDF then

asked the United States Court

of Appeals to vacate Sweigert's

opinion in the Smith case and

return the case to the Federal

District Court so that the federal

and state courts would not be

involved in a "foot race" to de-

cide the constitutional issues.

The United States Court of Ap-

peals granted the motion. Swei-

gert's decision, the only decision

against ACLUNC -NAACP/LDF

on the merits, is thus a nullity.

Talbot Case Joined

There has been one other im-

portant victory recently in the

United States Court of Appeals.

That was in the case of condemn-

ed man Dorman Fred Talbot, Jr.

Talbot had raised one of the con-

stitutional issues in the ACLUNC-

NAACP/LDF litigation (that the

death penalty is unconstitutional

because there are no standards

to guide juries in deciding wheth-

er to impose the death penalty)

before that litigation had begun.

Federal District Judge Burke had

found no. merit in the contention

and his decision had been ap-

pealed to the Court of Appeals.

At ACLUNC-NAACP/LDF's sug-

gestion Talbot's attorney, Patrick

Sampson of Claremont, moved

to remove that issue from the

ease so that Talbot could parti-

cipate in the larger litigation

as to that issue and all others.

Volunteer attorney Jerome Falk

prepared an amicus curiae brief

supporting Sampson's motion and

Paul Halvonik appeared as ami-

cus at Talbot's hearing and _ ar-

gued in support of the motion.

The motion has been granted.

Consolidation Motion

All federal litigation has now

been returned to the District

Court which will not proceed to -

the merits of any of the cases

until the California Supreme

Court acts. Professor Amsterdam

preserved petitioners' motion to

consolidate all the federal cases

before one federal judge, in or-

der that they might be handled

expeditiously. and consistently in

the event that the California

Supreme Court rules' against

Saterfield and Anderson, to Chief

Judge Harris on January 15.0x00B0Har-

ris indicated he will issue his

order on that motion sometime

in February. Coincidentally, the

United States Supreme Court on

January 15, in the case of Wither-

spoon v. Illinois, agreed to hear

one of the issues raised in the

California litigation: that the ex-

clusion of persons scrupled

against the death penalty from

juries deciding the guilt or in-

nocence of one accused of a

capital offense results in a jury

unconstitutionally "stacked"

against the defendant.

22 Sounsek! 37 84. 3

The lawyers in the California

death penalty litigation are Pro-

fessor Anthony G. Amsterdam

and Jack Himmelstein of NAA-

CP/LDF, Paul Halvonik of ACL-

UNC, and volunteer attorneys

Jerome Falk, Gary Berger; Harry

Kreamer and Roy Eisenhardt.

Unlawful

Arrest Case

in High Court

Mrs, Dorothy Paddleford has

filed a petition for a.writ of ha-

beas corpus with the California

Supreme Court contending that

she has been unlawfully arrested

and asking the Court to release

her from constructive custody

until such time as an arrest for

her alleged transgression, illegal

parking, is properly made.

Rubber Stamp

Mrs. Paddleford alleges that

she was arrested at night in her

home on the basis of a warrant

of arrest issued not by a magis-

trate but by a clerk using a

stamp with a facsimile of a'

judge's signature. The petition

further alleges that the arresting

officers were abusive and insult-

ing, handcuffed her and took her

to jail when she was clad only

in a housecoat.

Brief Filed

ACLUNC has filed an amicus

curiae brief supporting Mrs. Pad-

dleford. The ACLU brief asks

the court to hold that habeas

corpus is available to test an

unlawful arrest because there is

no other remedy available and

no other way to assure that the

police will,refrain from making

unlawful arrests where they do

not intend to seize evidence.

Where evidence is seized pursu-

ant to an unlawful arrest it is

excluded from evidence, a de-

terrent to illegal police proced-

ures. se

Penal Code Requirements

The brief also contends that

the arrest was unlawful because

"The judge did not see a com-

plaint, he did not sign the war-

rant and he did not consider

the issue of whether there was

good cause to serve the warrant .

at night." All those requirements

appear in the Penal Code. And,

as the brief observes, `These

provisions cannot be fobbed off

as jejune niceties better observed

in the breach. They are in the

code for a very good reason.

They are there to enforce the

guarantees of the Fourth Amend-

ment to the United States Consti-

tution."

John Roderick Peet

Indictment

feturned for

Draft Protest

A large number of persons in Northern California have

publicly destroyed their draft registration cards -as a protest

to the government's present policy in Southeast Asia. Of

this number only one, 19-year old John Roderick Peet of

Walnut Creek, California, has been indicted under the new

federal act making it a crime

to engage in such symbolic pro-

test. Peet was arraigned last

month in United States District

Court and was represented by

ACLU staff counsel Marshall W.

Krause. A 30-day continuance

was received to raise constitu-

tional challenges to the law in-

volved.

1965 Amendment

In Ausust of 1965 Congress

amended the Universal Military

Service and Training Act to pro-

vide that a person who knowing-

ly destroys or knowingly muti-

- lates any certificate issued under

the Act shall be fined not to

exceed $10,000 or be imprisoned

for not more than five years,

or both. This new law was intro-

duced into the House of Repre-

sentatives by the Chairman of

the Armed Services Committee,

Representative Mendel Rivers,

who stated on the floor of the

House: "It is a straight-forward

clear answer to those who would

make a mockery of our efforts

in South Vietnam by. engaging

in the mass destruction of draft

cards." :

Symbolic Speech

The ACLU is attacking the

validity of this legislation be-

cause it has no. legislative pur-.

pose other than to punish the

symbolic communication of pro-

test against the war in Vietnam.

(@xisting laws provide penalties

for failure to register with the

Selective Service System and

failure to have evidence of one's

classification.) The ACLU be-

lieves that draft card destruc-

tion is symbolic speech just as

"You've Got a

Right' TV Series

Ten half-hour programs, under

the general title of "You've Got

a Right" are being televised' by

KPIX (Channel 5) on successive

Sundays 6:00 to 6:30 p.m., start-

ing January 14 and ending March

17,

Each of the programs includes

a cast of 9 to 10 actors. The tech-

"nique used is that of a theatrical

rehearsal with the actors going

in and out of character as they

discuss various aspects of a legal

right or of a Supreme Court

decision,

Schedule

The first two programs dealt

with "Privileges and Immunities"

and the third with the Fifth

Amendment's protection against

self-incrimination. The remaining

seven programs wil] cover: Ille-

gal Search and Seizure (Febru-

ary .4); Freedom of the Press

(February 11); Habeas Corpus

(February 18); Right to Counsel

(Bebruary. 25 and March 3);

Right to Vote (March 10); and

The Right to Education `and

Equal Protection Under the Law

(March 17).

Distinguished Actors

Produced by the Westinghouse

Broadcasting Corporation, in co-

operation with the New York

University Law School -and

Robert Lewis Shayon, radio and

television editor of the Saturday

Review, the series features dis-

tinguished actors including Alex-

ander Scourby and Bramwell

Fletcher.

San Francisco Hospital

Police Must Give Writte

Grounds for 72-Hour Holds

The San Francisco Hospital informed the ACLU last

month that it had instructed its staff "that any patient

brought to the hospital as mentally ill must be accompanied

by (written) statements of the observer who reports these

allegations." The ACLU had complained that two cases had

come to its attention in which

no written application had been

made by the police. In one case,

a young man was picked up after

creating a disturbance in a

church gymnasium but the hos-

pital didn't know why the po-

lice believed the man might be

mentally ill, :

The Law

Under Sec. 5880 of the Wel-

fare and Institutions Code emer-

gency hospitalization may not

exceed seventy-two hours. The

law also provides that an applica-

tion for such detention "shall be

in writing and shall state the

circumstances under which the

person's condition was called to

the officer's or physician's at-

tention .. ." At the San Fran-

cisco Hospital special emergency

detention forms are provided for

a police officer to fill out.

Stated Policy

"Tt is stated policy of the psy-

chiatric admitting section," said

Dr. Arthur B. Carfagni, Jr., Di-

rector of the Immediate Psychia-

tric Aid and Referral Center, in

a letter to the ACLU "that all

patients brought by the Police

on other than Court Orders must

have a statement of the observa-

tions leading to that emergency

detention accompany him and

that in its absence, patients need

not be seen." In his instructions

to the staff, Dr. Carfagni point-

ed out that "A patient is being

illegally detained unless the po-

lice officer fills out a proper

5880." .

Voluntary Patients

In another case, the ACLU

protested against the refusal of

the San Francisco Hospital to al-

low an elderly voluntary patient

who had recovered to leave. The

hospital feared he might be tak-

en advantage of by his friends.

Dr, T. E. Albers, hospital Ad-_

ministrator, informed the ACLU

that he had instructed his staff

"that any patient in this hospital

who appears to be either physi-

cally or mentally incapable of

earing for himself must be dis-

charged at his request, unless:

(1) A petition has been secured

for their short detention, fol-

lowed by a court issued petition,

if the court so desires; (mentally

incapable);

(2) There has been a request

for the appointment of a Public

Guardian. (Physically incapable).

is the raising of a banner, peace-

ful picketing, refusal to engage

in flag salutes, and vigils.

High Court: Cases

The United States Supreme

Court is now considering the

validity of this law in the case

of O'Brien v. United States. The

Supreme Court agreed to hear

the case after the Court of Ap-

peals for the First Circuit found

the law unconstitutional as a

violation of freedom of speech

and refused to follow the con-

trary decision of the United

States Court of Appeals for the

Second Circuit in Miller v. Uni-

ted States, as to which the Su-

preme Court had denied review.

Symbolic Act

_It is probable that Mr. Peet

was indicted merely as a symbol-

ic act on the part of the gov-

ernment to show that if the Su-

preme Court upholds the validity

of the law other persons engag-

ing in similar conduct can ex-

pect to be prosecuted. A Su-

preme Court decision in the

O'Brien case will probably come

within the next month or two.

Calif. Levering

Loyalty Oath

Unconstitutional

Continued from Page 1-

torneys A. L. Wirin, Fred Okrand

and Lawrence Sperber. ACLUNC

filed a brief amicus curiae pre-

pared by Staff Attorneys Paul

N. Halvonik and Marshall W.

Krause. An~ amicus brief was

filed by Albert M. Bendich and

Coleman Blease; on behalf of

University employees and _ per-

sons who had been denied em-

ployment at the Universitv be- .

cause of their refusal to take the

oath. Robert M. O'Neill and

Richard W. Jennings filed an

amicus curiae brief on behalt

of the Academic Freedom Com-

mitte of the Berkeley Academic

Senate.

New Threat

Response from Sacramento to

the Vogel decision was not long

in coming. Assemblyman James

Hayes (R-Long Beach) has in-

troduced: a bill that would re-

quire public employees to take

a new oath of non-disloyalty.

ACLUNC will, of course, resist

any attempts to impose new

oaths of non-disloyalty on public -

employees. ACLUNC Director

Ernest Besig has announced that

"in the event such an oath is

passed, the ACLU will under-

take damage actions for all per-

sons affected and press the cases

until complete redress has been

obtained."

Invalid Oath Still Used

It has also come to the atten-

tion of ACLUNC that many pub-

lic agencies are still presenting

their employees with the invalid

oath. Any one presented with

such an oath should strike out

the second paragraph. The first

paragraph, the traditional posi-

tive pledge to support and de-

fend the Constitution, was not

challenged in the Vogel iawsuit.

ACLU NEWS

FEBRUARY, 1968

Page Bs

Unruh-Reagan Showdown

Governor Reagan's "State of the State" address may have

been played to the most unenthusiastic audience of his

career. It was virtually uninterrupted by any applause. The

Capitol news corps was totally baffled. Sure it was a dull

speech, but that had never deterred applause before, espe-

cially from Republican legislat-

ors. Reagan, true to form, had

no real explanation for what had

happened. When asked why there

was no applause he mumbled

something about the same thing

happening to Lincoln at Gettys-

~ burg and then smiled to let the

newsmen know he didn't take

the analozy seriously.

One explanation is that the

Republican legislators were not

apathetic but stunned. Stunned

at the first results of the Unruh-

Reagan confrontation of 1968.

Election of Speaker

On the day before the Gover-

nor's address the Assembly

elected its officers. The Repub-

licans ran their own candidate

against Unruh for the office of

Speaker. This, doubtless, was

Reagan's idea. But why he did it

`is a mystery. There are 38 Re-

publicans and 42 Democrats in

the California Assembly. 42 beats

38 every time in the California

Assembly. It was like some per-

verse late show in which Reagan

asks his supporters to take the

field and lose one for the Gip-

per. What was the purpose? If

it was to establish party solidari-

ty it was unsuccessful; before

the week was out Republican

Assemblyman John Veneman

had introduced an income tax-

withholding bill) the ultimate

apostasy. Perhaps Reagan simply

wanted to inconvenience Unruh.

He did do that. Unruh had to go

through a lot of parliamentary

maneuvering before he could get

all of the Democrats on the floor

for the vote.

The Winner

After his election Unruh, ac-

cording to tradition, addressed

the. Assembly... It was a brief

and informal speech. They all

knew him, Unruh said, as a kind

and generous person who did not

bear grudges. There was some

nervous laughter. And, he added,

he knew they would bear with

him if it took a little longer

than usual to complete the list

of committee assignments.

The last remark came as a bit

of a surprise; it had been as-

sumed by everyone that the as-

siguments would remain the

same, The new committee as-

signments didn't take long to

prepare after all.

They were ready the next day,

just before the Governor spoke.

Three Republicans who lost

their influential chairmanships

probably think that Unruh does

bear grudges.

Be that as it may, there were

a number of more subtle com-

mittee assignment shuffles, two

of which may have an important

impact on the ACLUNC legisla-

tive program.

Blow to Realtors

Willie Brown (D-San Francis-

co) was elevated to Chairman

of the Assembly Committee on

Governmental Efficiency

Economy. Brown, a Negro, will

thus preside at Assembly com-

mittee hearings on one of Reag-

an's pet projects, bills designed

to repeal or modify the Rumford

ACLU NEWS

FEBRUARY, 1968

Page 4

and

Fair Housing Act. Just the

thought of it is going to be un-

settling for a few realtors.

Criminal Procedure

Unruh also made a change on

the Criminal Procedure Commit-

tee. John Vasconcellas (D-San

Jose) will' replace Walter Kara-

bian (D-Monterey Park). Kara-

bian and Vasconcellas are both

liberal, Democrats. Karabian

however, is expected to have a

much more difficult time in his

re-election campaign than Vas-

concellas, Vasconcellas, the

Speaker may have thought, is

in a better position to withstand

the pressure if the Governor be-

gins, as expected, to push for

repressive legislation.

The affects of the first. Unruh-

Reagan showdown are going to

be felt throughout this session.

Reagan has not forced any new

ones recently. - Paul Halvonik.

eversed

Last month the Appellate De.

partment of the Superior Court

of San Mateo County reversed

the decision of Municipal Court

Judge Roy Seagraves that section

601 of the Business and Profes-

sions Code, forbidding dissemina-

tion of information concerning

methods of abortion, was uncon-

stitutional. Judge Seagraves had

based his decision on the fact

that the statute unreasonably in-

terferes with freedom of com-

munication. (Se the July 1967

ACLU News.) The Appellate De-

partment took the view that the

statute would be construed to

apply only to regulate written

information intended to. facili-

tate illegal abortions under Cali-

fornia laws. Under this construc-

tion, said the court, no constitu-

tional problem is presented.

Further Action

The ACLU disagrees with this

opinion on several grounds and

will file a habeas corpus .action

in a higher court to test its va-

lidity. First. it believes that there

is an absolute right to distribute

information concerning abortion

methods unless it actually aids

and abets an illegal abortion. To

punish as criminal information

which might be used to facilitate

an illegal abortion is an over-

broad regulation in effect re-

stricting information about -a

subject of vita] public concern.

Erroneous Construction

The ACLU also thinks it doubt-

ful that a court is authorized

to construe a criminal statute by

adding words never intended by

the Legislature in an attempt to

try to save its contitutionality.

A statute must be read on its

face and persons reading the law"

might be intimidated by the

existence of a statute, even

though it had been more nar-

rowly construed by a court.

The defendants in the case,

Patricia Maginnis and Rowena

Gurner, are active in the Society

for Humane Abortion.

san on Peace

Ad Barred by |

eS @

Calif. High Court

Continued from Page 1-

but the Legion for Decency has

no right to post messages call-

ing for clean films." The Court

found that this kind of discrimi-

nation inevitably involves cen-

sorship. "The. mere fact that

plaintiffs would be permitted to

advertise their message at the

time of an election if they were

able to secure the sponsorship

of a candidate running for office

or to conform it to an issue

on the ballot only serves to il-

lustrate the narrow permissive-

ness and the vast prohibitory

scope of the regulation. More-

over, the insistence on identifi-

cation of messages to the elec-

tion process overlooks the pro-

priety and value of political mes-

sages importuning executive, leg-

islative, and administrative offi-

cials to adopt a desired course

of conduct. That other forms for

tne expression of plaintiffs' ideas

may be available is wholly irrele-

vant.

Objections Examined

The Court then turns to the

justifications advanced by the

District for its policies. It first

points out that a restriction on

First Amendment-protected com-

munication could only be ac-

complished where there was "a

clear and present danger that a

serious substantive evil will re-

sult." It rejects the argument

that advertisements of opinion

might be mistaken for the Dist-

rict's point of view by pointing

out that the same could be said

for a political organization using

a school building for a meeting.

Regarding the objection that the

District would `be -required to

accept all points* of view, the

Court says: "It will undoubtedly

be true... that an occasional

advertiser may post controver-

sial messages which will offend

some, perhaps the majority in

the community, Free speech in-

evitably encourages conflict and

often rocks the boat. Phlegmatic

indeed is the individual who at

some time has not recoiled at

the exercise of free speech by

others. Annoyance and _ incon-

venience, however, are a small

price to pay for the preservation

of our most cherished right."

Dissenters Oppose Controversy

The dissenting opinion took

the position that the Transit Dis-

trict had not opened its adver-

tising space for expression of

ideas protected under the First

Amendment except in a limited

way in connection with ballot

issues where all sides are given

an equal opportunity. It stated

that since First Amendment

ideas are: not covered by the

District's policy, there is no con-

stitutional issue in the case.

Since the District's board of di-

rectors is an elective body and

responsible to the will of the

electorate which can recall it if

the electorate does not agree

with the policy applied, this is

the only remedy. The dissent

continues: "The board's decisions

as to advertising in the buses

avoids even the appearance of

espousing controversial ideas

which might antagonize or alien-

ate customers or lead to alter-

cations on the buses themselves.

We can take judicial notice that

buses, bus drivers and patrons

are not infrequently victimized.

during periods of disorder and

strife. Certainly buses are vul-

nerable, and prudence and pub-

lie safety require that passeng-

ers be protected from being

drawn into areas of public con-

troversy." This quote indicates

the fundamental difference be-

tween the two blocs on the

Court: the minority believes that

the public: must be protected

from controversy, while the ma-

jority believes that the State

Fairmont

Anti - Rusk |

Demonstration

Over 59 persons were arrested

on January 11 in the vicinity of

the Fairmont Hotel after the

police ordered dispersed what

they felt was an unlawful as-

sembly of persons protesting the

policies of Secretary of State

Dean Rusk, who was giving a

speech at the hotel at the time.

Many grave allegations of police

misconduct have been made in-

volving severe beatings and re-

pression of peaceful demonstra-

tion, Most of these questions in-

volve factual matters which pre-

clude the ACLU from taking an

active part in the cases. How-

ever, the ACLU is concerned

that such complaints receive

proper investigation and for this

purpose a letter was immedately

sent to Mayor Joseph Alioto ask-

ing that he take steps to insure

that this would be done. As this

issue goes to press, no answer

from Alioto has been received

and no intimation has been heard

that any investigation is being

made by city officials.

Limited Intervention

The ACLU has taken a part

in one aspect of the matter, the

arrest of persons who were stand-

ing many: blocks. away from the

scene of the alleged unlawful

assembly and charged with ``fail-

ing to disperse.' By the time

these arrests were made, it was

quite obvious that the assembly

had been dispersed and in any

event these arrests were so far

away from the scene that there

was no question of public danger

from the individuals involved.

From reports received in the

ACLU office, it appears that

police officers were roaming the

general area five to six blocks

away from the Fairmont Hotel

looking for persons who seemed

to be students or "agitators" and

taking them into custody.

Unlawful Acts

It should not be left unsaid

that `there is substantial evidence

that `a group of persons present

at the demonstration were not

interested in peaceful demonstra-

tion but were determined to cre-

ate a bad incident by throwing

rocks and balloons filled with

blood and paint. This minority

of individuals jeopardized and

then destroyed the purpose of

the large majority of persons

present to engage in a peaceful

protest.

has no such power and that con-

troversy about political ideas is

a fundamentally healthy thing

to be encouraged in our society.

ACLU Counsel

The legal work on this case

was done by volunteer attorneys

Joseph Grodin and Robert O'-

Neil, with the assistance of staff

counsel Marshall W. Krause.

The Court of Appeal sitting

in Sacramento has affirmed the

decision of Superior Court Judge

Richard B. Eaton that Shasta

Union High School District bus

driver Olen Hollon had no right

to challenge his dismissal by the

District. American Civil Liberties

Union attorneys had challenged

the District's action in dismissing

Hollon on the ground that it was

based on Hollon's religious views

and therefore forbidden by the

First Amendment to the United

States Constitution. Hollon's at-

torneys, volunteer Robert Laws

.and Henry Saunders and staff

counsel Marshall W. Krause, have

decided to carry the case to the.

California Supreme Court and a

petition for hearing in that court

will be filed in early February.

Religious Tract

The facts are undisputed that

the only reason Hollon was fired

from his position as bus driver

was that his name was listed as

co-author of a fundamentalist

religious tract which made strong

charges against those who are

not believers in the sect involved.

The School Board, members said

that Hollon's acceptance of these

views led them to believe that he

was mentally unstable and could

not be trusted with children,

even though he had a good

record for the previous four

years. Despite the fact that Hol-

lon was examined by a psychia-

trist who found that he was not

mentally ill or dangerous, the

Superior Court upheld the School

District's action on the basis that

it was not unreasonable for them

to consider Hollon mentally un-

balanced.

Byrd's Honest Belief

The Court of Appeal decision

states: "Irrationality takes many

outward forms: Mental aberra-

tions just' as readily assume a

religious guise as not. That an

aberration is expressed in reli-

gious terms does not foreclose

good faith inquiry into the aber-

ration itself. Such an inquiry by

those responsible for the em-

ployees' fitness is not an inva-

sion of his private religious be-

liefs.' The opinion continues:

"The trial court found that the

-School Board honestly believed

that Hollon might be mentally

unbalanced; that its decision was

based solely on that belief. (This

finding) forecloses any claim of

constitutional trespass."

Hollon's Beliefs Penalized

The point which the ACLU

will raise in the Supreme Court

of California is that this sort of

analysis penalizes religious be-

lief whereas under our system

of constitutional government, be-

lief is absolute and the govern-

ment may not use it to penalize

its employes,

The first right of a citizen

Is the right

To be responsible

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