vol. 33, no. 11

American

Gil fibedies

Union

Volume XXXII

SAN FRANCISCO, NOVEMBER, 1968

Boost Your Contributions

Membership

Re-Enrollment _

For' 68-'69Begins

Letters went out last month to most ACLU members

urging them to re-enroll for the fiscal year beginning No-

vember 1. Under a plan put into effect a year ago, all mem-

berships fall due November 1 of each year. Nevertheless,

those who joined or renewed between August and October

or who have already enrolled for

the new fiscal year have not

been solicited for re-enrollment.

New Budget

At the same time, the Board

of Directors announced that it

had fixed a budget of $129,459.20

for the coming fiscal year. This

is an increase of only $521.08

over last year's budget but an

increase of almost $5,000 over

last year's actual expenditures.

In-other words, last fiscal year

the office kept within the au-

thorized spending by almost

$5000. Even so, the expected def-

icit in the Operating Fund will

be in the neighborhood of $11,-

200. That deficit must be met

out of Reserve Funds.

Deficit Spending

The new budget contemplates

a deficit of $11,609.20 even

though figuring on an increase

in membership dues of about

$8,000. This increase in member-

ship income would flow from ~

an increase in minimum dues

from $8 to $10 and a normal

growth in membership.

As the recent letter to the

membership pointed out, the

branch is still struggling to pay

for an EXPANDED program

which involved the addition to

the staff of an Assistant Staff

Counsel and Legislative Represent-

ative two years ago. Until the

membership grows sufficiently to

pay for its enlarged staff, the

ACLU looks hopefully to its

present members to boost their

contributions and thereby dimin-

Anti-Poster

Law Held

Invalid

Judge Janet Aitken of the

San Francisco Municipal Court

has held San Francisco's anti-

poster ordinance unconstitution-

al on the ground that it con-

flicts with the freedom of speech

guarantees of the United States

Constitution.

The San Francisco ordinance

made it a crime to place a post-

er on a utility pole without first

receiving a permit from the De-

partment of Public Works.

Two members of the Progres-

sive Labor Party, Max Begarie

and Robert Edmundson, were ar-

rested for violating the ordi-

nance when, without a permit,

they placed a poster complaining

about police brutality on a util-

ity pole. Their attorney, staff

counsel Pau] Halvonik, took the -

position that since the ordinance

did not set any standards for the

Department of Public Works to

follow in issuing permits, the

Department had an_ absolute

power of censorship that con-

flicted with freedom of speech

guarantees,

Judge Aitken agreed and

found that the lack of any stand-

ards for issuing the permit made

the ordinance unconstitutional

on its face.

ish if not erase the anticipated

deficit of $11,609.20.

Re-Examine Giving

Once again each member is

urged to re-examine his giving to .

the ACLU to see whether he

can't give a little more this year

in order to allow the ACLU to

pay for its expanded program.

Obviously, the budget will not

be met unless the membership is

willing to INCREASE its con-

tributions.

If you can't pay all of your

contributions now, please make

a pledge that is payable on a

quarterly basis. Also, you can

add substantially to the value of

your contribution by responding

to this initial appeal, thereby

saving the ACLU the costs of fol-

low-up mailing.

New Procedure

This year, each re-enrollment

bears the name and address of

the person to whom it is sent.

Consequently, payments are cer-

tain to be properly credited even

though there are name changes

by the contributor (such as the

wife filling out the form in her

name), or the member giving a

different address such as _ his

business rather than his resi-

dence. The reason this is men-

tioned is because last year many

people who had renewed were

being solicited even though they

had re-enrolled, but under a dif-

ferent name or a different ad-

dress.

The Budget

Here is the way your money

will be spent:

Salaries; $75,560.00

Retirement ...................... 633.20

Pension Fund ................ 1,566.00 (c)

Hospitalization .............. 750.00

Legal Dept. - Cases .. 6,000.00

Mailing Service ............ 4,000.00

ACLU-News_ .................-. 4,500.00

Printing and Stationery . 6,060.00

Taxes and Insurance ....... 4,040.00

Travel and Transp. ........ 1,600.00

Rent 22 2 2 7,950.00

Postate = =e. 7,500.00

Tel - Tel... 2,800.00

Furniture and Equip. .... 400.00

Publications ................. 400.00

Miscellaneous ................ 300.00

Audit and Reports .......... 650.00

Education Comm. ........ 750.00

Sacramento Expenses .. 5,000.00

Total 34 $129,459.20

Bagley Speaks at

Sonoma County

Annual Meeting (c)

Sonoma County Council will

hold its annual membership

meeting on December 14 at the

Commons on the campus of So-

noma State College.

The featured speaker, a long-

time friend of ACLU, will be

State Assemblyman William T.

Bagley. There will be an optional

dinner, and the meeting will also

take up the probable new Chap-

ter status and thus the election

of the Board members.

Charles Marson

Becomes Ass't

Staff Counsel

Charles C. Marson, 25, of San

Francisco has been appointed

Assistant Staff Counsel and Leg-

islative Representative for the

ACLUNC. He succeeds Paul N.

Halvonik, who was elevated to

the post of Staff Counsel after

Marshall W. Krause resigned.

Marson was admitted to the

California bar in December 1967.

He has been associated with the

firm of Cooley, Crowley, Gaither,

Godward, Castro and Huddelson

of San Francisco since June

1967. He joined the firm follow-

ing his graduation from the Uni-

versity of Chicago Law School.

He received a B.A. degree in

English from the University of

Southern California in 1964.

During his third year in law

school Marson was Comment

Editor of the Law Review. At

U.S.C. Marson was a debater for

four years and Captain of the

Varsity Debate Team during his

last year.

During the summer of 1966

he was research assistant to Prof.

Norval Morris, Director, Center

for Studies in Criminal Justice

in Chicago. He helped prepare

a United Nations document en-

titled "Capital Punishment: De-

velopments 1961-1965."

As Legislative Representative,

Marson will spend about half of

his time in Sacramento and the

other half in San Francisco work-

ing under the direction of the

staff counsel.

No. 11.

Political Persecution

Egyptians Win

Withholding of

Deportation

The deportation to Egypt of Ismail Khlifa, 55 magician

and monologist, and his wife Fifian, 45, a belly dancer, has

been stayed by Monroe Kroll, Special Inquiry Officer of the

Immigration and Naturalization Service in San Francisco. An

appeal by the Immigration Service to the Board of Immigra-

tion Appeals was withdrawn on

October 8 by C. W. Fullilove, Dis.

trict Director of the Immigration

Service. x

Political Issue

Khlifa and his wife conceded

they were deportable because

they over-stayed their visitors'

Membership

At New High

ACLUNC membership has

climbed over the 7600 mark. This

represents a net gain of almost

300 members during the fiscal

year. Also, in the past four years

the membership has grown from

6000 to 7600. During the same

period membership income _ in-

creased about $36,000.

The increased income, how-

ever has not been sufficient to

meet the added costs of a Chap-

ter Director, an Asst. Staff Coun-

sel, more clerical help and the

normal increases in the cost of

doing business. ;

The branch financial problems

would easily be solved if it could

add another 1000 members to its

rolls. At the present rate of

growth, however, it will take

three years or more before the

branch is able to balance its

budget.

Marin Chapter Conference

Subject: Civil Liberties

Of High School Students

A county-wide conference on the "Civil Liberties In The

Secondary Schools' will be held by the Marin chapter on

November 16th (Saturday) at the College of Marin in Kent-

field.

The conference has already aroused considerable interest

in the Marin community, and a

widely representative group of

participants are scheduled for

the 11 panel discussions. Among

others, three high school princi-

pals, a police chief, newspaper-

men, school board _ trustees,

teachers and students have al-

ready expressed a desire to par-

ticipate. Principal speakers at

the conference will be Dr. Na-

than Adler, lecturer in criminol-

ogy and sociology, U.C. Berkeley,

Suit Seeks to

Establish Right

Of Poor to Sue

A suit, under the Civil Rights

Act, has been filed in the Fed-

eral District Court asking it to

rule that California must per-

mit indigent persons to file suits

in the California state courts.

The Federal suit is on behalf

of Leonard Glaser, a person with

no assets or income, who at-

tempted to file a suit in the Cali-

fornia Superior Court challeng-

ing a California law which re-

quires a person convicted of the

felony of marijuana possession to

register with local authorities.

Glaser was not permitted to file

his suit because he did not have

the requisite filing fee.

The Federal suit is based on

the theory that the actions of

the California courts in refusing

to permit Glaser to file his suit

are a denial of the equal pro-

tection of the laws and due

process of law guaranteed by the

United States Constitution.

and Alvin H. Goldstein, presiding

judge, Marin Municipal Court,

and a student speaker.

Eleven Panels

The eleven panels which will

be held during the day will pro-

ject ACLU positions on key stu-

dent issues such as off-campus

behaviour, due process, outside

speakers, etc.; panel members

and audiences will be asked to

comment or to put forth alter-

nate positions,

No Registration Fee

The conference will take place

at Olney Hall, College of Marin,

from 10 to 12 a.m. and from 1:30

to 4:30 p.m. There is no registra-

tion fee; those attending are

asked to provide their own

lunches.

Members of the Marin chapter

are urged to participate, espe-

cially those who can bring with

them high school students who

wish a voice in the proceedings.

For Further Information

Further information or spe-

cifics can be obtained from

chapter chairman Irving R.

Cohen at 388-8332 or vice-chair-

man Robert Pence at 388-7480.

Santa Cruz

Meeting

All members of the Santa Cruz

chapter have been asked to leave

the evening of November 20 free,

so they can attend the annual

general membership meeting.

Flag your calendars, and await

further details.

| ACLU Deplores

visas, but petitioned for tempo-

rary withholding of their depor-

tation because, in the words of

the Special Inquiry Officer,

"They feared they would be sub-

ject to persecution in Egypt be-

cause Mr. Khlifa had been a long-

time member of the Masonic

Order having joined it in Leba-

non in 1951, because while he

was in Argentina in approximate.

ly 1960 he performed as a magi-

cian for the benefit of a Jewish

hospital, and because in Brazil

he had told jokes during his per-

formances ridiculing Nasser,

President of the United Arab

Republic.

Opposed toe Nasser

At his hearing, Mr, Khlifa tes-

tified he was opposed to Nasser

"because he is a Communist and

Iam a Mason." In Egypt, Masons

are characterized as being Zion-

ists. Mr. Khlifa believed he might

be sent to a more remote place

in the Red Sea area where the

Egyptian government used to

send unwanted political ele.

ments.

In a letter to the Immigration

Service, the State Department

expressed the opinion that the

Khlifas would not suffer political .

-persecution if they were deport-

ed to Egypt.

: Egypt Irrational

"Having heard and observed

the respondents throughout their

testimony before me," Kroll] de-

clared, "I find it difficult to be-

lieve that any ordinary govern.

ment would consider them a-

threat. In this context, however,

it cannot be overlooked that the

government of Egypt is no or-

dinary government, Its intransi-

gence vis-a-vis the State of Israel

and all things Israeli or believed

sympathetic thereto is too well

known to require comment here.

If the Government of Egypt were

known to act rationally towards

persons who have had even the

slightest connection with, or the

most indirect contact or marginal

sympathy with the State of Is-

~Continicd an Page 2

Illegal Acts at

U.C. Berkeley

The ACLU has directed the

following statement to the

Regents of the University of

California, with copies to the

Academic Senate, Pres, Hitch

and Chancellor Hynes, and

the sponsors of Social Analy-

sis 139X.

The American Civil Liber-

ties Union of Northern Cali-

fornia has twice petitioned

the Regents of the University

of California te respect the

tradition of academic freedom

and due process at Berkeley

by allowing Social Analysis

139X to be given on campus

and for credit. We have de-

plored their refusal to permit

this, We must now deplore

actions of those students and

non-students who twice this

week have pressed their de-

mands through illegal acts.

We cannot have a free so-

ciety unless we have a decent

respect for due process, and

we again urge the Kegents-

and now also urge the stu-

dents-to show their respect.

New Pamphlet

On Secondary

Schools -

"Academic Freedom in Sec-

ondary Schools," a pamphlet

embodying ACLU policy state-

ments solely on private and

public schools below college

level has just been issued

by ACLU.

The 21-page, 25c pamphlet

was prepared by a special

committee of the National

ACLU's Academic Freedom

Committee. Under the major

headings of Teachers' Rights

and Students' Rights, it takes

up such topics as curriculum

and the teachnig of contro-

versial issues, organizational

and political activity, extra-

curricular and out of school

activities, student government,

appointment and dismissal of

teachers, the rights of. teach-

ers and administrators, stu-

dent discipline and students'

due process rights, and the

role of the police.

ACLUNC will fill orders for

the new pamphlet. Please en-

close 3le to cover the cost of

the pamphlet and postage.

"Long Hair'

Argument in |

Court of Appeal

The California Court of Ap-

peal, after hearing the legal arg-

uments, has taken under submis-

sion a school district's appeal

from a Superior Court decision

requiring the school to readmit

a pupil suspended for wearing

an "extreme" haircut.

The student is Gregor Myers

who was readmitted to Arcata

High School after Humboldt

County Superior Court Judge

William Watson, Jr. held uncon-

stitutional a regulation which

prohibited students from wear-

ing "extreme haircuts."

Myers was represented in the

successful Superior Court action

by ACLU volunteer attorney

Lawrence A. Truitt of Arcata.

He is represented on appeal by

Jerome B. ee Jr. of San Fran-

cisco,

ACLU Argument

At the appellate hearing staff

- counse] Paul MHalvonik, repre-

senting ACLUNC as a friend of

the court, contended that hair

fashion is a matter of personal

expression protected by the Unit-

ed States Constitution. "James

Madison,' MHalvonik argued

"would surely be surprised to

discover that the state is dictat-

ing what is an appropriate hair

fashion, a dictation that finds

Madison's own hair fashion un-

acceptable."

Falk also took the position

that hair styles are a form of

expression. He argued, addition-

ally, that the prohibition of "ex-

treme" haircuts is a vague and

unpredictable guideline that vio-

lates due process of law.

Egyptians Win

Witholding of

Deportation

Continued from Page 1-

rael, the State

opinion would be acceptable and

would have refuted the respond-

ents' claims ...

"The respondents' anti-Egyp-

tian conduct may be described

as minimal. Nevertheless, treat-

ing it as objectively as possible

in the light of the attitude of

the Egyptian Government men-

tioned above, which is a matter

of widespread general and public

knowledge, it cannot be dis-

missed lightly. In that light, the

Service to defeat the respond-

ents' applications for temporary

withholding of deportation

ACLU NEWS

NOVEMBER, 1968

Page 2

Department's:

Admit Bearded

Dental Student

To U.C. Clinic

Robert Isman is a student in

his fourth and last year at the

University of California Medical

Center's School of Dentistry, In

order to graduate next June he

must participate in the School's

Dental Clinic. But Isman has

been unable to work in the

Clinic because his beard vio-

lates a school requirement that

students in the Dental Clinic be

"clean-shaven."

Staff counsel Paul Halvonik

asked the School to consider

abandoning the clean - shaven

regulation and admit Isman to

the Clinic. Ben Pavone, Dean of

the School of Dentistry, told

Halvonik that the regulation

was being reconsidered but that

-Isman would not be admitted to

the Clinic until the regulation

was revised, which, if it ever

happened, would not occur for

several months.

Attempts to negotiate the mat-

ter with the attorneys for the

Regents of U.C. were also un-

availing. Therefore, a federal

suit under the Civil Rights Act

was prepared and the case of

Isman v, Regents set for hear-

ing. The day after the Univer-

sity was informed that Isman's

case was going to be heard in

the Federal court, the School of

Dentistry relented, admitted Is-

man to the Clinic and decided

that his previous absences from

the Clinic would not reflect ad-

versely on his academic record.

Berkeley `State

Of Emergency'

Arrests Fought

ACLUNC and its Berkeley-

Albany Chapter are representing

a number of persons arrested

for violating "regulations" pro-

mulgated during the two states

of emergency declared in Berke-

ley this past summer.

The promulgation of the first

state of emergency imposed a

curfew throughout the city of

Berkeley, The curfew was a de-

monstrably unsatisfactory man-

ner of dealing with `"emergen-

cies" because Berkeley' mer-

chants, unable to conduct busi-

ness-as-usual while a curfew was

in effect, suffered a decline in

profits,

The regulation promulgated

under the second "emergency,"

therefore, imposed no curfew.

Instead it prohibited "loitering"

and banned all public meetings.

That was better for business but

not so good for freedom of .as-

sembly.

ACLU has taken the position

that the ordinance that permits

proclamatiton of civil emergen-

cy and the regulations adopted

pursuant to it are all unconsti-

tutional on their face. A two-

hour hearing on constitutional

questions was held by Munici-

pal Judge George Brunn last

month, Argument was presented

by Berkeley volunteer attorneys

Larry Duga, Albert Bendich and

Ken Kawaichi and staff counsel

Paul Halvonik.

should have come forward with

persuasive evidence that it is

unlikely that persons who have

acted as the respondents would

be persecuted for their alleged

political opinions when they re-

turn to Egypt. No such evidence

has been presented. Accordingly,

the applications for temporary

withholding of the respondents'

deportation to Egypt are

granted."

The much-traveled Khlifa and

his wife are presently residing

in Brooklyn, N.Y., where Mr.

Khlifa is a cook in a restaurant.

Mrs. Khlifa is teaching belly

dancing in a night club. Their

twenty year old son was recently

married and is living in Oakland.

He is an auto mechanic.

The Khlifas were represented

by Ernest Besig, Executive Di-

rector of the American Civil Lib-

erties Union.

Letters

... to the Editor

The Cleaver Lectures

Editor - English history and

the enthralling account of the

bitter fight between Parliament

and the Divine Right of Kings-

and my mind leaped to the Uni-

versity of California and the Re-

gents.

Again I knew that whether El-

dridge Cleaver does or does not

deliver his ten lectures - for

credit or not-at the University

is not important.

What is of profound import is

that the power to decide on cur-

riculum, on who is to lecture reg-

ularly or occasionally, lies with

the faculty, the Academic Sen-

ate, possibly the students, and

nobody else.

Should the decision be a good

one, all's well; if it should not,

the remedy lies with the august

body that made it.

Should this power be shifted

so much as a hair's breadth, the

volcanic fissure is fearful to con-

template.-Helen Salz, San Fran-

cisco.

Second Amendment

Editor:

The August, 1968 issue con-

tains several letters on the gun-

control law, quoting the Second

Amendment. In my opinion, the

Second Amendment has nothing

to do with gun-control legisla-

- tion. Its meaning is fairly clear

if it is read in its historical set-

ting - namely that the Bill of

Rights was adopted before the

start-of the French Revolution.

The least reading of any part

of the debates of the Constitu-

tion shows that those gentlemen

had ancient and modern history

at their fingertips, and tried to

draw lessons from it, They were

familiar with societies in which

part of the population was dis-

qualified from bearing arms.

They certainly knew that in the

Roman Empire, from the time

of Diocletian, the Senatorial Or-

der was prohibited from bearing

arms. They probably knew, de-

spite the lack of contact between

Egypt and Western Europe from

the last Crusade to Napoleon's

invasion of 1798, that in Mame-

luke Egypt, the sons of the Mam-

elukes were disqualified from

bearing arms.

And in feudal Europe, with

which they lived, the art of war

was a privilege of the aristoc-

racy. deTocqueville describes the

European aristocracy in Democ-

racy in America, vol. IJ, part III,

ch. 18 (entitled `""Honor in the

United States"). In the May, 1968

number of Revue de Paris is an

article entitled "In the Service

of France" (Service de France)

by Ghislain de Diesbach, which

points out that from the end of

the Middle Ages to the fall of the |

French monarchy in 1792, the

art of war was a prerogative of

the prince, and the natural voca-

tion of the aristocracy; conduct-

ed by families who were military

by hereditary tradition; and fur-

thermore, that war was the ex-

clusive affair of the military

people, with which civilians had

nothing to do. If there was no

outright disqualification of peas-.

ants from bearing arms, at least

it was something which they did

not do, any more than they had

lunch with the King.

The French Revolution intro-

duced general conscription, orig-

inally to democratise the art of

war, and make it no longer the

specialty of a privileged class.

Later they found that with mass

levies they could overwhelm the

small, specialized armies of

feudal Europe.

Since then, conscription has

become general, and the problem

has almost entirely reversed it-

self. The Second Amendment

was designed to provide that

bearing arms should not be the

privilege of any class; whoever

was capable of bearing arms

could not be disqualified from

bearing arms. The usual ques-

Bureau of Narcotics

No Repetition of Seizure

Of Films by State Agents

John E. Storer, Chief, State Bureau of Narcotic Enforce-

ment, assured the ACLU last month that there would be no

further incidents of his agents seizing cameras and remov-

ing and exposing the film because their pictures had been

taken.

Citizens' Rights

"All of the Agents in the Bu-

reau of Narcotic Enforcement,"

said Mr. Storer in a letter to

Ernest Besig, ACLUNC execu-

tive director, "have been advised

about the rights of a citizen to

take photographs in a _ public

place. They have been admon-

ished that it is improper to use

force or other coercion to seize

the film or to molest the photog-

rapher in any manner.

"T am certain that there will

be no further events of this kind

involving our Agents."

Two Complaints

The ACLU received two com-

plaints about the seizure of films

by agents in San Francisco's

Haight-Ashbury district. In the

first case, Dr. William O'Brien

on April 17 took a picture of

some narcotics arrests by State

agents. Agent Van Raam (then

unidentified) crossed the street

and grabbed the camera and ex-

posed the film, He later admit-

ted to Ernest Besig in a tele-

phone conversation that he had

seized the film.

In the second case, a 21-year-

old student at San Jose City Col-

lege, Henry Martin, had a similar

New Chapter

Director

Appointed

Carol Weintraub, 28, has been

appointed ACLUNC Chapter Di-

rector. She succeeds Marcia D..

Lang who resigned to go to New

Mexico. (c)

Miss Weintraub is a former

New Yorker who graduated from

City University in New York

City with a B.S. in Education.

She holds teaching licenses in

New York and has two years

teaching experience in New York

City besides one year as a health

instructor in Bolivia.

In addition to her teaching ex-

perience, Miss Weintraub was

previously employed by Ameri-

can Field Service in New York

as an area supervisor, with U.S.

AID in the Dominican Republic

in the national community devel-

opment program, and with the

Peace Corps as a volunteer in

Bolivia. She speaks Spanish and

has written a book and two book-

lets in Spanish. The book is

titled "Teaching Health."

tions of today arise from objee-

tions to conscription. (One of

the few regulations which really

bring the Second Amendment

into play is the rule automatical-

ly disqualifying homosexuals.

Geoffrey Gorer, in his book, The

Americans, ch. 4, says that in

World War II the United States

was the only belligerent which

nad that rule.)

Since, in its historical setting,

the Second Amendment was al-

most certainly designed to pre-

vent any part of the citizenry

from being excluded from the

armed forces, it does not at-

tempt to grant private citizens a

constitutional right to carry pri-

vate arms, - George Olshausen,

Split, Yugoslavia.

experience on Apri] 30. He took

pictures of a group, 10-12 feet

ahead of him. After the film was

ripped from his camera a mem-

ber of the group gave Martin $2

and said, "You don't take pic-

tures of agents."

Successful Conference

The ACLU made complaints to

both the local and State offices

of the Bureau of Narcotic En-

forcement as well as to Attorney

General Thomas C. Lynch, under

whose jurisdiction the Bureau

operates. A conference was final-

ly arranged between Storer and

Besig at the ACLU office and

the problems were speedily re-

solved.

Oakland Council

intervenes

For Reservist

Joel Zebrack, a member of the

volunteer legal panel of the Oak-

land Council, ACLUNC, recently

prevented the honorable dis-

charge without leave to re-enlist

of a member of the Coast Guard

Reserve because of his involve-

ment in a couple of criminal

matters.

In the first instance, in 1965, -

the reservist was charged with

either intoxication or loitering

but the charges were dropped.

In the same year, he was also

charged with burglary but then

plead guilty to trespass, There-

after, the record of the convic-

tion was expunged under provi-

sions of the Penal Code.

Following a review of the mat-

ter by the Commandant: of: the

Coast Guard, Mr. Zebrack was

informed that the reservist would

be allowed to re-enlist. Zebrack's |

letter contended that "to deny

the right or privilege to re-enlist

at this time would be a violation

of civil rights guaranteed by

law."

`Love Book' Def't.

Granted Right to

Fed. Employment

The Post Office has decided

that Ronald Muszalski, one of

the persons convicted for selling

"obscene" literature in the"Love

Book" case, is eligible for Fed-

eral employment.

Muszalski was initially rated -

ineligible because of his convic-

tion. Staff counsel Pau} Halvonik

wrote to the Civil Service Com-

mission and urged it to recon-

sider its rating. Halvonik point-

ed out that Muszalski's case is

on appeal and that "to our

knowledge, no court other than

the San Francisco Municipal

Court has found the `Love Book'

obscene, The `Love Book' con-

tinues to be sold throughout the

Bay Area and, particularly, in

San Francisco with no incident.

There has never been a Federal

decision that the `Love Book' is

obscene..."

The decision was reconsidered

and Muszalski has been informed

that he is eligible for employ-

ment at the Post Office.

The "Love Book," a poem by

Lenore Kandel, is a candid and

verbally earthy celebration of

sexual love.

Be He NP SE OE RIESE RNS SSA ASSEN

AMERICAN CIVIL LIBERTIES UNION NEWS

Published by the ro eae os

Second Class Maii pris

"ERNEST BESIG .

ee rties Union of Northern California

Ss at San Francisco, California

. Editor

503 Market Street, San Francisco, Galifornts $4165, 433-2750

Subcription Rates -- Two Dollars and Fifty Cents a Year

Twenty-Five Cents Per Copy

151

Identification

In Simmons v. United States,

a criminal defendant, al-

leged that the identification

procedure was prejudicial be-

cause after pictures of him were

shown to witnesses before the

trial, the prosecutor depended

on in-court identification at trial.

The Court, in an opinion by Har-

lan, declined to declare the prac-

tice of showing pictures invalid,

either on constitutional grounds

or in exercise of their super-

visory power over the federal

courts. Harlan said that the

identification would be set aside

only if the procedure was im-

permissibly suggestive as to give

rise to a very substantial like-

hood of irreparable misidenti-

fication. Here, where a series of

group photos was used in which

the two defendants appeared

several times, there was no de-

nial of due process.

Simmons is important on an-

other point. At trial, testimony

given by the defendant on an

unsuccessful motion to suppress

the evidence was used against

him, Harlan pointed out that a

defendant who knows testimony

will be admissible at trial wil] be

deterred from presenting the tes-

timonia] proof necessary to as-

sert illegal search and seizure

claims and that one constitution-

al right should not have to be

surrendered in order to exercise

another,

Electronic Eavesdropping

Katz v. United States is an

important revision of the Su-

preme Court's attitude toward

the use of electronic eavesdrop-

ing to gather evidence for a

criminal prosecution. The gov-

ernment introduced evidence of

the petitioner's end of a series

of telephone conversations heard

by an electronic listening device

attached to the outside of a pub-

lic telephone booth. The Court

rejected the terminology of a

"constitutionally protected area"

(such as one's home or office)

and the idea that physica] pene-

tration of such an area was nec-

essary, to, violate the Fourth

Amendment, thus overthrowing

the "trespass" doctrine of Olm-

stead v. United States. Justice

Stewart admitted that the facts

warranted the issuance of a ju-

dicial warrant which would al-

low the use of this devise, but

pointed out that searches con-

ducted without a warrant can

be held unlawful even if there

was probable cause. Here none

of the factors excusing the ob-

taining of a warrant applied and

the need for judical safeguards

in this area precluded the crea-

tion of a new exception, This

case seems to set out an abso-

lute requirement for obtaining

a search warrant in order to use

any sort of electronic listening

device, at least for third-party

unconsented eavesdropping. Thus

the eavesdropping area is dif-

ferent from other kinds of

searches, White concurred, ex-

pressing his desire for an ex-

ception to the warrant require-

ment in national security mat-

ters. Douglas and Brennan con-

curred, opposing any such ex-

ception. Harlan concurred, stat-

ing that he did not read the

Court's opinion to mean that no

interception of a conversation,

one-half of which occurs in a

phone booth, can be reasonable

without a warrant. Black dis-

sented on the ground that a liter-

al interpretation of the Fourth

Amendment does not extend its

scope to eavesdropping of any

sort.

Self-Incrimination

Several extensions of the privi-

lege against self-incrimination

were made by Grosse, Marchetti

and Haynes v. United States. In

the first case the petitioner had

been convicted for failure to pay

a tax imposed on gambling earn-

ings. Under the statute petitioner

was also required to file monthly

returns, The Court held that be-

cause Congress had imposed no

explicit restrictions on the use

of information obtained as a

consequence of paying this tax

and in light of the fact that both

Pennsylvania and the United

States also had statutes which

prohibited gambling, one could

assert as a defense to these laws

the privilege against self-incrimi-

nation, Warren dissented, both

here and in Marchetti, saying

that no issue arises under the

Fifth Amendment until an ef-

fort is made to use the registra-

tion procedure in aiding a crimi-

nal prosecution, He added that

if there is self-incrimination, the

provision which requires that in-

formation be turned over to the

state prosecutors upon request

is severable from the rest of the

tax law. Otherwise, he said, this

case opens the door to attack

on all federal registration stat-

utes where the _ registration

touches on allegedly illegal ac-

tivities. The statute in Marchetti

was an occupational tax on wag-

ering with no exemption from

criminal laws. It instructed each

principal interna] revenue office

to maintain for public inspection

a list of all those who had paid

and to give a certified copy on

request to state or local prose-

cution officers. Using basically

the same reasoning as in Gros-

so, the Court overthrew this

statute as a violation of the

Fifth Amendment privilege. Har- |

lan specifically noted that it

would be inappropriate to "find"

in the statute a restriction on the

use of information obtained by

federal and state authorities

since this use was a significant

element of Congressiona] intent

in adopting wagering taxes. In

Haynes the statute required

registration of certain types of

firearms and the petitioner was

convicted under a statute which

declared possession of unregis-

tered firearms unlawful. Harlan

said that the registration re-

quirement here was directed at

those who had not complied with

the act's other requirements and

who were thus' immediately

threatened by criminal prosecu-

tion under other sections, Thus

the statute was again unconstitu. |

tional, Warren again dissented.

In Gardner v, Broderick, the

Court overthrew as a violation of

the privilege against self-incrimi-

nation a New York practice of

requiring public employees to

sign waivers of immunity from

prosecution when they were

asked to testify in investigations.

Petitioner was told to sign a

waiver of immunity in order to

testify before a grand jury in-

vestigation of police corruption

or he would be fired. Fortas,

speaking for six members of

the Court, said that if the po-

liceman had refused to answer

questions specifically, directly

and narrowly relating to the per-

formance of his official duties

without being required to waive

his immunity with respect. to the

use of answers or proof thereof

in a criminal prosecution of him,

the privilege would not have

been a bar. But here he was

fired for the refusal to waive a

constitutional right, an imper-

missible result.

Right to Counsel

The Supreme Court, in a unani-

mous opinion written by Mar-

shall in Mempa v. Rhay, granted

the right to counsel in a proce-

dure whereby the sentence was

imposed after revocation of pro-

bation, The Court concluded that

a lawyer must be provided for

this proceeding whether it is

called revocation of probation or

deferred sentencing as it in-

volved crucial decisions on sen-

tencing and appeal.

In another case, Burgett v.

Texas, the Court reversed a con-

viction where evidence of a prior

conviction was admitted although

the right to counsel had been de-

nied in that prior conviction, An

opinion by Douglas made it clear

that this evidence could not be

admitted even though the Texas

trial court had instructed the

jury not to consider prior offen-

ses for any purpose and the Tex-

as recidivist statutes did not pro-

vide for any enhanced punish-

ment. Harlan, Black and White

dissented. Warren concurred and

answered the dissent.

' petitioner

Confrontation

In Smith v. Illinois, the Court

held, in an opinion by Stewart,

that the petitioner was denied

the right to confront witnesses

when the chief prosecution wit.

ness was allowed by the trial

judge not to give his real name

and address. White concurred,

joined by Marshall, saying that

there must be some showing of

why the witness should be ex-

cused from answering when he

alleges that the question is in-

tended to harass, annoy, humili-

ate or endanger him, Harlan dis-

sented. In Barber v. Page the

issue was whether the petition-

er was deprived of the right of

confrontation at a trial where

the principal evidence consisted

of reading the testimony of a

witness in a preliminary hearing,

who was in a Federal prison out

of the jurisdiction at the time

of trial, Marshall, joined by sev-

en, said that even assuming that

the petitioner had made a valid

waiver of the right to cross-

examine at the preliminary hear-

ing, the State had made no effort

to obtain the presence of the wit-

ness at the trial other than to as-

certain where he was. He con-

cluded that the right of con-

frontation could not be dispensed

with so lightly and said that the

result would be the same even

if cross-examination had occur-

red at the preliminary hearing.

Harlan concurred separately.

the convictions regardless of

which one was being currently

served.

CIVIL RIGHTS

School Desegregation

In three companion cases the

Court unanimously held that at

this point in time a "freedom of

choice' plan to desegregate pub-

lic schools did not constitute ade-

quate compliance with Brown v.

Board of Education. The free-

dom of choice plans basically

provided that both Negro and

white children could choose

which schools in the city they

wanted to attend. No white child-

ren chose to go to "Negro

schools" which remained ali

black. Brennan said that school

boards have an affirmative duty

from the second Brown case to

take all necessary steps to root

out discrimination and convert

to a unitary system of education,

and that the delay of 11 years

shown in this case was intoler-

able.

Open Housing

In Jones v. Meyer, the Court

took a significant step toward

abolishng the doctrine that state

action is required for a violation

of the Fourteenth Amendment.

Stewart, speaking for six mem-

bers, reexamined a _ reconstruc-

tion statute saying that all citi--

zens would have the same rights,

as whites to hold, buy, sell, and

devise rea] or personal property.

The opinion first interpreted the

"Review of

Significant

U. S. Supreme

Interrogation

In Mathis v. United States, the

petitioner was convicted of fil-

ing false tax refund claims on

evidence of oral statements ob-

tained from the petitioner by a

government agent while he was

in jail serving a state sentence.

The government agent gave the

no warnings of his

rights and this led the Court to

reverse the conviction. Black, in

an opinion for five, said that the

fact that the questions were

asked- as part of a routine tax

investigation which might not

lead to any criminal proceedings,

and that the petitioner was not

being held in jail by the officers

who questioned him, were not -

sufficient to excuse the failure

to give the required warning.

Joint Trial -

In Bruton v. United States, the

Court decided the issue of

whether a conviction at a joint

trial should be set aside because

a co-defendant's confession had

been introduced, although the

jury was instructed that the con-

fession had to be disregarded as

to petitioner. Brennan, speaking

for five, reversed the case of Del-

li Paoli v. United States and re-

quired the conviction to be set

aside because the co-defendant

was not willing to testify, and

therefore the petitioner's right

of cross-examination was violat-

ed. Bruton was held retroactive

in Roberts v. Russell.

Habeas Corpus

In Payton v. Rowe a unani-

mous Court overruled past cases

and held that a federal writ of

habeas corpus could be filed by

a person serving consecutive sen-

tences in order to challenge the

constitutionality of any one of

Court Decisions

1967-6

(Final installment)

By BARBARA KASS

ACLU Summer Fellow 1968 - Third Year Student

Univ. of California Law School

statute to bar all racial discrimi-

nation and not to be limited to

state action. As such, the statute

was held constitutiona] as a use

of the authority given to Con-

gress by the Thirteenth Amend-

ment, which abolished slavery

and included an enabling clause,

saying that Congress had the

power to enforce the amendment

with appropriate legislation. Ac-

cording to Stewart this gave

Congress the power to determine

what the badges and incidents

of slavery were, and the authori-

ty to translate this determination

into effective legislation.

EQUAL PROTECTION

One Man-One Vote

In Avery v. Midland County,

the Court made an important

extension of the one man-one

vote principle by applying it to

the election of county commis-

sioners. White wrote an opinion

that held that the Constitution

permitted no substantial varia-

tion from equal population in

drawing districts for units of

local government having general

governmental powers over the

entire gecgraphical area served

by the body, In dicta, White

stated that the same reasoning

applied to city councils and

school boards. Harlan dissented,

expressing grave doubts as to

the administrative feasibility of

the holding. He pointed out that

the greater and more varied

functions performed by local

governmental units required

more flexibility in their struc-

tural form than that at the state

level. Fortas also dissented, say-

ing that equal protection could

be achieved by a system which

took into account a complex of

values and factors, rather than

being based solely on the sim-

plicity of a one-to-one basis.

Illegitimate Children

In Levy v. Louisiana and Glona

v. American Gwtaranty and Li-

ability Insurance Company, the

Court made the important de-

cision that statutory discrimina-

tion. against illegitimate children

violated the equal protection

clause of the Fourteenth Amend-

ment, One case involved a suit

on behalf of five illegitimate

children to recover damages for

the death of their mother. The .

second was an action brought by

a mother for damages caused by

the death of an illegitimate son.

Douglas, speaking for six mem-

bers of the Court, held that il-

legitimate children were "per.

sons" within the meaning of the

equal protection clause and for--

bidding them to recover damages

beeause of their illegitimacy had

no relation to the wrong which

was done to the mother. The dis-

tinction was thus held to con-

stitute invidious discrimination

and was therefore invalid. In

Glona the argument was made.

that when a state is dealing with

"sin" it can act selectively. How-

ever, Douglas pointed out that

there was no rational basis for

assuming that if a mother could

recover damages for the death

of her illegitimate children the

cause of illegitimacy would be

served.

FREEDOM OF RELIGION

Aid To Parochial Schools

In Board of Education v. Al:

len, the Court declared valid a

New York law which required

the local public-school authori-

ties to lend textbooks free to all

students in certain grades, in-

cluding those in parochial

~ schools. Following a test laid out

in Eversen, which held that the

state could pay the cost of bus-

ing children to private as well

as public schools, White for the

majority found that this was a

law having "a secular legislative

purpose and a primary effect

that neither advances nor in-

hibits religion." He stressed that

the financial benefit was to the

parents and the children, not to

the schools, since the books were

furnished at the request of the

pupil and the technical owner-

ship remained in the state. He

said that there was no evidence

to support the proposition that

all textbooks were used by paro-

chial schools to teach religion,

and in fact there was a long his-

tory of recognition of the secu-

lar aspects of education by re-

ligious schools. Harlan con-

curred in a separate opinion.

Black dissented, distinguishing

school books from the busing

costs. He felt that the former

would inevitably be used to prop-

agate religious views of the fa

vorite sect. Douglas dissented,

giving many excerpts from text-

books which demonstrated that

a textbook could be an instru-

ment for propagating a partic-

ular religious creed. He stressed

that the local boards of educa-

tion were not the proper place

for a battle to occur over text-

book selection, and that the text-

books chosen would be present

in public schools as well as pri-

vate. Fortas dissented saying

that the reality of the law was

that the books, although "re-

quested by children," would be

chosen by the sectarian authori-

ties of their schools.

In Fiast v. Cohen, the Court

finally granted standing to a fed-

eral taxpayer to sue when he

felt that the establishment cause

of the First Amendment was be-

ing violated by an expenditure

of federa] funds. This overruled

an earlier decision refusing to

hear such taxpayers' suits.

CRUEL AND UNUSUAL

PUNISHMENT (c)

Alcoholism

In Powell v. Texas, the Court

upheld a statute which made

criminal public drunkenness

even when the defendant proved

he was a chronic alcoholic. There

-Continued on Page 4

ACLU NEWS

NOVEMBER, 1968

Page 3

State Court of Appeal

Suspension of

Cleaver's Parole

Held Proper

Eldridge Cleaver, the articulate Minister of Information

of the Black Panther party and presidential candidate of the

Peace and Freedom Party, will probably have to return to

prison unless a recent ruling by the California Court of Ap-

peal is reversed.

Cleaver, who was convicted in

1958 on two counts of assault

with intent to commit murder

and three counts of assault with

`a deadly weapon, was released

on parole in December of 1966.

His parole was revoked in April

of 1968 after he allegedly par-

ticipated in an Oakland gun bat-

tle between police and Black

Panther Party members.

Unreasonable Delay

Cleaver languished in the Cor-

rectional Facility at Vacaville

for two months without being

afforded a hearing on the

charges his parole officer had

lodged against him. Cleaver's at-

torneys, Charles Garry and Ben-

jamin Dreyfus, of San Francisco,

petitioned for a writ of habeas

corpus to release Cleaver from

Vacaville. The petition was

granted by Judge Raymond

Sherwin of the Solano County

Superior Court. Sherwin found

that Cleaver's parole had been

revoked without cause and that

the Adult Authority had waited

an unreasonable time before

providing Cleaver with a hearing

on the charges against him.

Adult Authority Hearing

The Court of Appeal has now

reversed Judge Sherwin's ruling,

holding that the charges lodged

by the probation officer were

sufficient cause for suspending

Cleaver's parole and that if the

Adult Authority had waited an

unreasonable time to schedule a

hearing before taking final ac-

tion in the Cleaver case, the

- Court should not, have released

Cleaver but, instead, have or-

dered the Adult Authority to

The Crisis Grows

hold a hearing. The Adult Au-

thority, and not the Superior

Court, is, according to the deci-

sion, the appropriate body for

determining whether or not the

parole agent's charges are valid.

Due Process Issues

ACLUNC, represented by then

staff counsel Marshall Krause,

participated in the Cleaver case

as a friend of the court. Krause

argued that parole revocation

procedures in California are a

violation of the due _ process

guarantees of the United States

Constitution and that the "pro-

ceedings by the Adult Authority

cannot be allowed to take place

unless Eldridge Cleaver, and all

other persons accused of having

violated a condition of parole,

are accorded the right to coun-

sel, the right to present evidence

and to compel testimony and

documents, the right to confront

accusers by hearing the evidence

against him and cross-examining

this evidence, and the right to

receive protection against arbi-

trary decisions by requiring a

reasoned basis for each deci-

sion."

The court specifically de-

clined to decide the issues raised

by ACLUNC. It held that the

Adult Authority has the right to

conduct a parole' revocation

hearing but expressed no view

on what are the proper pro-

cedures to be followed in such

a hearing.

Cleaver's lawyers have an-

nounced that they will appeal

the Court of Appeal's decision

to the Supreme Court of Cali-

fornia.

Reagan Attacks Academic

Freedom at U.C., Berkeley

ACLU of Northern California

last month once again urged the

Board of Regents of the Univer-

sity of California to keep its

hands off the Cleaver case at

Berkeley.

A letter sent to each regent

reminded the Board that `The

ACLU of Northern California

urged the Board of Regents last

month to support the best tra-

ditions of academic freedom and

responsibility by refusing to in-

terfere with the legitimate fac-

ulty decisions concerning the ex-

perimental course, Social Analy-

sis 189X. We believed then and

we believe now that, established

by due academic processes, the

course should be given on cam-

pus and for credit. We deplore

actions on the part of the Re-

gents which properly, in our

opinion, should be actions only

of the faculty, and we urge the

Board to reconsider its Septem-

ber 1968 decision in consultation

with the University's faculty and

administration."

Rafferty Replies

Max Rafferty, Superintendent

of Public Instruction responded

by reminding the ACLU that

"the California Constitution vests

sole control`of the University in

ACLU NEWS

NOVEMBER, 1968

Page 4

the Board of Regents. There-

fore," said he, "it is legal and

proper for the Regents to take

an action such as you deplore."

Reagan Resolution

Of course, Mr. Rafferty is a

supporter of Governor Reagan

who was unsuccessful last month

in withdrawing from the Faculty

authority over the content o1

courses, In a proposed resolution

side-tracked by the Regents but

which Gov. Reagan has promised

to present again at the Novem-

ber meeting of the Regents, the

Governor declared, "The Regents

intended by their action on Sep-

tember 20, 1968 and now re-iter-

ate that no University facilities

shall be used for a program of

instruction following the sub-

stance of Social Analysis 130X,

whether for credit or not, in

which Mr. Cleaver appears more

than once, as a lecturer."

Unfortunately, the latest sit-

ins and arrests play into the

hands of the Reagan - Rafferty

group who want to bring the

University under political con-

trol. The ACLU cannot support

such sit-ins. It will continue to

support the right under the prin-

ciples of academic freedom for

the Faculty to determine the con-

tent of courses, Hopefully, the

Academic Senate and most of the

Regents will be able to work out

the problem by negotiation.

Siskiyou Judge

Rules All `Hippies

Are Not Suspect

On September 23, Superior

Court Judge J. Everett Barr of

Siskiyou county dismissed an in-

formation charging two defend-

ants with possess'on of mari-

juana. The court held "that there

is nothing to constitute probable

cause for the search of this iso-

lated camp except that these de-

fendants were by inference mem-

bers of a `hippy colony.' "

The prosecution contended

that the delivery of a large

amount of contraband to "four

hippies" in the house upon the

premises provided reasonable

and probable cause for the

search of an additional five

camps and a tepee occupied by

"hippies" and located in an area

one mile square.

"If this warrant were allowed

to stand," said the court, "no

abode would be safe from search

if authorities could include the

occupants thereof in a class or

group. I don't know just how

far the State wants to go. Do

they eontend that all members

of the Lions Club, or al] bald-

headed men, or all Methodists, or

all wearers of mini skirts, or all

policemen, should be suspect be-

cause one was seen with con-

traband. Would they justify the

raiding of all homes within a

square mile of Lions Club mem-

bers, baldheaded men, Method-

ists, wearers of mini skirts, or

policemen. That would be the

logical result of this absurd

concept of guilt by association.

District Attorney Jane Skan-

derup has appealed the decision.

Review of

Supreme Ct.

Decisions

Continued from Page 3-

was no majority opinion. Mar-

shall wrote one opinion, joined

by Warren, Black and Harlan,

which stressed the confused state

of medical research regarding

the "disease" of alcoholism. He

said that this law was not punish-

ment for the status of being a

chronic alcoholic, as in Robinson

v. California where the crime

was the status of being a nar-

cotics addict, but rather for pub-

lie conduct when drunk. Black,

joined by Harlan, concurred,

stressing the need for state ex-

perimentation with a variety of

approaches to this problem.

White concurred separately in

the result, saying that since it

cannot be a crime to be a nar-

cotics addict, it also cannot be

a crime to yield to that compul-

sion to use narcotics which char-

acterizes the addict. Similar-

ly in a case of chronic alcohol-

ism it cannot be a crime to drink

or to be drunk, However, he con-

tinued, here the crime was be-

ing drunk in a public place.

There was no showing either of

a compulsion to frequent public

places when drunk, or of a sit-

uation where the petitioner had-

no home and therefore no place

to go except to a public place.

This opinion was necessary to

make up the majority, so it can

be assumed that five members

of the Court believe that a chron-

ic alcoholic cannot be punished

solely for drinking or for being

drunk. Fortas, joined by Doug-

las, Brennan and Stewart, dis-

sented, saying that the case

dealt with the mere condition

of being intoxicated in public.

He felt that the meaning of

Robinson was that criminal pen-

alties could not be inflicted for

a condition which a person was

powerless to change, He ad-

mitted that the statute here cov-

ered more than mere status, but

said that the constitutional de-

fect was the same because in

both cases the particular defend-

ant was accused of being in a

condition which he had no ea-

pability.to change or avoid.

Presidential Election

Cleaver,

McCarthy

Kept Off Ballot

Legal attempts to have the names of Eldridge Cleaver

and Eugene McCarthy appear on the November general elec-

tion ballot have failed. Although the suit on behalf of Cleaver

and the suit on behalf of McCarthy raised different legal

issues they apparently both failed, for the same reason, to

receive consideration on their

merits. That reason was that the

ballots were being printed at

the time that the actions were -

brought and that the courts

were, therefore, reluctant to in-

tervene in the matter.

ACLU Intervention

Cleaver and the Peace and

Freedom Party were represent-

ed by staff counsel Paul Halvo-

nik in their bid to have Cleav-

er's name on the ballot. Cleaver |

is the presidential candidate of

the Peace and Freedom Party.

Secretary of State Frank Jordan,

however, refused to certify

Cleaver as a candidate because

Cleaver, at age 33, is not old

enough to be President.

Electors Remain on Ballot

The California Supreme Court

was asked to overrule Jordan's

decision on the grounds that

Jordan, whose electoral duties

are purely ministerial, is not

qualified or empowered to de-

termine who is an eligible can-

didate for President and that a

decision on Cleaver's eligibility

was premature at this time be-

cause the electorate will not be

voting for Cleaver in November

but, rather, for presidential

electors who are pledged to

Cleaver, Removing Cleaver's

name from the ballot, it was ar-

gued, would only confuse the

voters: Cleaver's name would

not appear on the ballot for the

purpose of providing voters with

an opportunity to vote for him.

Cleaver's name would appear on

the ballot only for the purpose

of informing the voters that the

electors of the Peace and Free-

dom Party are pledged to vote

for Cleaver. The California Su-

preme Court, Justice Stanley

Mosk dissenting, turned down

the Cleaver request the day

after it was filed. On the day

before the Court had turned

down a petition by the Califor-

nians for an Alternative in No-

vember asking that the name

Eugene McCarthy appear on the

California ballot.

McCarthy Contentions

The McCarthy people were

represented by attorney Malcolm

Burnstein of Oakland, They con-

tended that the number of sig-

natures needed on a petition to

place an independent candidate

on the ballot was unreasonably

high. McCarthy needed 330,000

signatures in order to have

his independent candidacy rec-

ognized on the ballot. Only

67,000 signatures are needed to

put a new party on the ballot.

190,000 people had, in _ fact,

signed the McCarthy candidacy

petitions. Burnstein maintained

that California had no legitimate

interest in keeping off the ballot

the name of a candidate who

had garnered three times the

number of signatures needed to

place a new political party on

the ballot.

U.S. Supreme Court Review

When the California Supreme

Court refused to hear the Cleav-

er and McCarthy petitions, it was

decided that review should be

sought in the United States Su-

preme Court. With the election

date little more than a month

away, immediate review by the

United States Supreme Court

was necessary, Accordingly, Mike

Rosen, ACLU Staff Counsel in

the State of Washington, was

contacted and asked to apply to

Justice William O. Douglas, who

was at that time, at his home

in the State of Washington, for

an order requiring Jordan to

place the names of McCarthy and

Cleaver on the California ballot.

Rosen and California Assistant

Attorney General Charles Bar-

rett went to Douglas's home and

had an informal hearing. Jus-

tice Douglas decided not to grant

the relief but, instead, have the

Cleaver and McCarthy questions

set for immediate hearing on the

first day of the Court's term.

The United States Supreme

Court did consider the McCar-

thy and Cleaver petitions on Oc-

tober 7 and decided not to re-

view the actions of the California

Supreme Court.

Effect of Decisions

As matters now stand, voters

who wish to cast a ballot for

McCarthy or Cleaver may do so

even though their names do not

appear on the ballot. Persons

wishing to vote for Eldridge

Cleaver can cast their ballot by

voting for the Peace and Free-

dom Party. The absence of his

name from the ballot does not

affect the fact that the Peace

and Freedom Party presidential

electors are pledged to vote for

Cleaver. Persons wishing to vote

for Eugene McCarthy may write

his name in the blank space pro-

vided on the ballot. McCarthy

has qualified as a write-in can-

didate and a slate of presiden-

tial electors pledged to McCar-

thy has been filed with the of-

fice of the Secretary of State.

The first right of a

Ts the right

To be responsible

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