vol. 35, no. 11

"American

Civil Liberties

Union

Volume XXXV

No. 11

State Court of Appeal

SAN FRANCISCO, NOVEMBER, 1970

{

Voter-Residency

Requirement

Struck Down

Since 1879 no one has been permitted to vote in Califor-

nia who has not been a resident of the State for at least one

year. But that is the case no more. Last month the Cali-

fornia State Court of Appeal struck down the one year -

residency requirement as violative of the Constitution's

guarantee of equal protection of

the laws.

Husband and Wife

The decision came in the -case

of Peter and Nancy Keane, hus-

band and wife, who moved to

San Francisco from Texas in late

November of last year, Gradu-

ates of Southern Methodist Uni-

versity Law School, they estab-

lished. residency in the City, ap-

plied for admission to the State

Bar of California, passed their

examination and were admitted

_to practice law. But when they

attempted to register to vote,

San Francisco Registrar of Vot-

ers Emmery Mihaly turned them

down because they missed, by

three weeks, fulfilling the one

year residency requirment.

Expedited Hearing

ACLUNC's staff attorneys,

Paul Halvonik and Charles Mar-

son, assisted by summer legal in-

tern Deborah Hinkle, brought

suit on the Keanes behalf in the

San Francisco Superior Court.

Carol Weintraub

Integrates

Schroeder's

Last May ACLUNC Chapter

Director, Carol Weintraub, de-

cided she would jike some Ger-

man food for lunch and, in com:

pany with a friend, went to

Schroeder's Restaurant in San

'Francisco, She saw a sign out-

side of the restaurant that pro-

claimed that women were not

welcome until after 1:30 but,

finding it hard to believe that

the sign meant what it said, en-

tered the restaurant, Inside she

and her companion were treated

rather rudely by Max Kniche,

manager of the restaurant, who

informed them that the sign

meant exactly what it said, When

the Supreme Court of California

in its Cox decision (see story

elsewhere in the News) held

that business may not arbitrarily

refuse service to California citi-

zens, Carol Weintraub decided

once again to give Schroeder's a

try, Again she was rebuffed. This

time the rebuff proved Schroe-

der's undoing.

ACLUNC has had a number of

complaints in the past year about

Schroeder's anti-female policy

and it was decided that suit

should be brought. Staff counsel

Paul Halvonik filed suit in the

case of Weintraub v. Schroeder's

contending that the plaintiff had

been injured pursuant to the State

Civil Rights Act, asking for an

injunction and requesting $500.00

in damages. The State Civil Rights

Act provides for statutory dam-

ages of $250.00 for each incident

of unlawful denial of services).

Schroeder's apparently consulted

with their attorneys and discov-

ered that it might be rather ex-

pensive to continue denial of serv-

ice to females. The day after suit

was filed, Schroeder's announced

that it was abandoning its dis-

criminatcry policy towards fe-

males and would serve them in

the future.

They asked the Court to require

Mihaly to register the Keanes.

Superior Court Judge Robert W.

Merrill, however, held the one

year qualification `reasonable"

and dismissed the complaint.

ACLUNC then brought an orig-

inal suit in the Supreme Court

of California which referred the

case to the Court of Appeal.

That Court expedited the matter,

heard oral argument on Septem-

ber 24, and rendered its deci-

sion on October 7.

"Compelling Interest"

In the argument to the Court

of Appeal Halvonik contended

that Judge Merrill had applied

the wrong legal standard to the

case, The one year residency

requirement, he said, could not

be justified on the grounds that

it was "reasonable." In restrict-

ing the right of franchise the

state is inhibiting the exercise

of a fundamental constitutional

liberty and it may not do so on

the plea that its regulation is

reasonable. Only a "compelling

interest" can justify infringe-

ment of a fundamental liberty.

The Court of Appeal agreed, Jus-

tice Preston Devine,

for a unanimous court, held:

"The standard of equal protec-

tion as applied to cases involving

the right of citizens to vote...

is that the exclusion from fran-

chise must be necessary to pro-

mote a compelling state inter-

est." :

Court's Opinion

In his decision, Justice Devine

went on to find that no signifi-

cant interest of the state was

promoted by excluding from the

franchise those whose residency

had not encompassed a year:

"Formal channels of voters'

education information are

immeasurably wider and

more numerous than they

were almost a century ago.

The wealth of information

available from newspapers

(which frequently give elab-

orate summaries a few weeks

before election), as well as

that which is presented by

radio and television, ex-

ceeds beyond description

-Continued on Page 14

Jewel Speaks

For Santa Cruz

Chapter Nov. 20

Howard H. Jewel, Chairman

of the branch board, will be

the featured speaker at the

8th Annual Membership Meet-

ing of the Santa Cruz Chapter

of ACLUNC on November 20.

The meeting will be held at

8 p.m. in Room. 508 of the

Business Bldg. at Cabrillo Col-

lege, Aptos. Further details

will be contained in the Chap-

ter newsletter.

Election of directors to the

Chapter board will precede

Mr, Jewel's talk, Jacob Mi-

chaelsen, chairman of the

chapter board, will preside.

speaking -

Ernest Besig

Will Retire

Next May 30

- Ernest Besig, Executive Direc-

tor of ACLUNC, last month an-

nounced to the branch board that

he will retire next May 30. The

text of his announcement is as

follows:

"Some of my friends on the

board are aware that during the

past few months I have been con-

sidering retiring as your execu-

tive director and that I have dis-

cussed the matter with my fam-

ily. I believe it is appropriate at

this time to inform you that I

have reached a decision to retire

next May 30.

`At that time I will be 67 years

of age. I will have been asso-

ciated with the ACLU for more

than 37 years and executive di-

rector in San Francisco for 36

years. Maybe it's hightime that

I quit.

"T am frank to say that I leave

with regrets and that I had not

anticipated quitting at any par-

ticular age but hoped to continue

as long as I was useful. I want to

emphasize that there is no one

reason that dictates my action.

Frankly, I have a number of

reasons which need not be speci-

fied at this time.

"The board now has almost

eight months in which to secure

my successor. I shall, of course,

provide such assistance as the

board wishes.''

It is expected that the board

will authorize establishment of a

Selection Committee at its No-

vember 12 meeting. In the mean-

time, it is not too early to spread

the word that ACLUNC is looking

for a new exective director.

$150,293.40 Budget

Landmark High Court Decision

Discriminatio ~:

By Businesses ~

Are Unlawful

Theodore Cox was peacefully drinking a coca-cola in a

San Rafael shopping center when he was asked to leave by a

security guard. The request was made doubtless because

Cox had earlier engaged in friendly conversation with a

"hippie" who had refused to leave the premises on request.

Cox also refused to leave and

the police were summoned. Cox

was arrested pursuant to an anti-

. hippie ordinance making it a mis-

demeanor to refuse to leave busi-

ness premises when asked to do

o by the person in charge there-

of.

Court History .

In the Municipal Court, Cox's

attorney, ACLUNC volunteer

Stanley J, Friedman of San Fran-

cisco, contended that the ordi-

nance by providing for arbitrary

discrimination was unconstitu-

tional for a number of reasons.

San Rafael Municipal Court

Judge Alvin H, Goldstein, Jr.,

found Friedman's reasoning per-

suasive and held the law uncon-

stitutional, But the Appellate De-

partment of the Marin County

Superior Court overturned the

Goldstein decision. Review of the

Superior Court decision was then

sought by means of habeas cor-

pus in the California Court of

Appeal, which declined to con-

sider the case, and the Supreme

Court, which issued a writ re-.

quiring San Rafael to show cause

why the ordinance should not

be declared unconstitutional,

Civil Rights Act

The challenged ordinance con-

tains an exception to the "leave

on request" rule for cases cov-

ered by the state (Unruh) Civil

Rights Act of 1959. The Supreme

Court, after agreeing to hear the

case, asked for special briefs ad-

Membership

Re-Enrollment

Now In Progress

The ACLUNC embarked on its membership re-enroll-

ment campaign last month for the fiscal year beginning No-

vember. Branch members have been asked to re-enroll and

to. contribute to the $150,293.40 budget, except for those

who joined or renewed between August and October or who

have already enrolled for the

new fiscal year.

Rate of Giving

The budget this year is depend-

ent on the high rate of giving

which the membership estab-

lished during the past fiscal year.

If the rate of that giving is main-

tained, then, with the help of

part of the lease settlement with

our old landlord ($7800) the

branch will end the fiscal year

with a deficit of only $2375.

Then, hopefully, during the next

year the membership will grow

enough to provide the missing

$10,000 and any inflated costs of

doing business,

Small Budget Increase

During the past year, the

board authorized the expenditure

of $141,657.49. Consequently, the

new budget shows an increase of

only $8,969.05 or 6.3%, which,

considering the inflated cost of

doing business, is not out of line.

On the basis of the budget,

ACLUNC needs an average con-

tribution of $19 from about 8100

members. Naturally, many per-

sons, including students, will not

be able to give that much. Con-

sequently, we must receive many

larger gifts to balance the small-

er contributions.

Give a Little More

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 branch to

meet the increasing demands

upon it.

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 ACLU the costs of fol-

low-up mailings.

The Budget

Here is the way your money

will be spent:

Salaries $ 87,945.00 |

Pension Fund .............. 5,000.00

Health Insur, ................ 700.00

Legal Dept. _........0........ 8,000.00

Mailing Service .......... 4,600.00

ACLU NEWS ............... 4,800.00

Printing and Sta, ......... 4,800.00

Taxes and Insurance ... 4,222.40

Travel and Trans. .......... 2,050.00

Rent: = 8,230.00

Postage 2... 8,000.00

dressed to the question whether

the civil rights act is limited to

racial and cognate discrimina-

tons or prohibits all arbitrary

discriminations in any business

establishments in California. San

Rafael took the position that all

arbitrary discriminations were

not prohibited by the Unruh Act

because the Unruh Act, by list-

ing racial, religious, ete. dis-

criminations, cannot be read to

prohibit all arbitrary discrimina-

tions, ACLUNC took the contrary

position. In a lengthy brief pre-

pared by staff counsel Pau] Hal-

vonik, ACLUNC traced the his-

tory of the Civil Rights Act back

to the last century. The brief

urged that all arbitrary discrimi-

nations by business establish-

ments are prohibited by state

law. The first civil rights act

(of 1893) did not even mention

racial discrimination, It provided

that all persons were to be ad-

mitted to places of public amuse-

ment upon purchase of a ticket

-Continued on Page 2

"Overweight"

Gov't Worker

Gets Job Back

Until October of last year Mis.

Joan Hayes was a welfare eligi-

bility worker trainee in Santa

Clara County, she had an excel-

lent work record, but over the ob-

jection of her superior, she was

yenired by the County Personnel

Board for the reason she was

"overweight" by standards of

"appropriate" weight.

The Santa Clara Chapter of

ACLUNC, contending that Mrs.

Hayes weight had nothing to do

with her public duties, brought

suit-on her behalf praying for

her reinstatement and payment

of the wages and benefits she

would have received had she not

been terminated.

At the trial County Personnel

Director Harold S, Rosen was ex-

tensively cross-examined by vol-

unteer attorney Samuel Cohen of

San Jose. Under Cohen's prod:

ding Rosen admitted there was

not a precise standard of weight

set forth for women, who like

Mrs, Hayes, are 6 feet tall, Rosen

contended, however, that the ex-

amining physician hag `"discre-

tionary powers" in certain situ-

ations to disqualify an applicant

for employment, Cohen persist-

ed in his cross-examination and

Rosen then admitted that he had

no question that Mrs. Hayes

was physicially able to perform

her job and that she was well

qualified for the duties.

After the Rosen testimony the

County decided that the game

was up and offered to give Mrs.

Hayes her joi back should she

pass a physical examination, Co-

hen agreed to the arrangement;

Mrs, Hayes went to the Valley

Medical Center and passed her

physical with flying-colors, She

is now back on the job.

Tel; and Yel. 2 3,250.00

Furn. and Equip. ............ 500.00

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

Miscellaneous .............. 400.00

Audit ==. 800.00

Annual Meeting .......... 250.00

Education Comm. __._... 750.00

Summer Leg, Fellow. 500.00

Sac. Leg. Exp. ............ 5,000.00

Lotale $150,293.40

Leafletting at Fair Grounds

Trespassing

Convictions

Reversed

The Supreme Court of California has overturned the

trespassing convictions of Roderick Wallace, John Pamperin

and Madeline Mintzer whose alleged trespass occurred during

a May Fair in Dixon, California. The trio had been arrested

when they refused to discontinue their pro-farm labor

picketing and handbilling near a

harvesting machine on the fair-

grounds.

Trespass Conviction

Tried in the Dixon Justice Court,

they were convicted of violating

Penal Code Section 602(j) (enter-

ing land for the purpose of inter-

fering with the lawful business

thereon). That conviction was af-

firmed on appeal by Judge Ray-

mond J. Sherwin of the Solano

Superior Court.

ACLUNC then entered the pic-

ture and asked the Court of Ap-

peal to issue a habeas corpus writ

vacating the conviction. The Court

of Appeal reviewed the case but

denied the writ on the ground that

the picketers ``might have been"'

convicted for obstructing people

rather than for exercise of First

Amendment rights.

No Obstruction

Staff counsel Paul Halvonik

and volunteer attorney Marcus

Vanderlaan of Sacramento then

asked the Supreme Court to con-

sider the case, contending that

there was no evidence that the

picketing obstructed anyone and

that the petitioners had a consti-

tutional right to picket and hand-

bill on the state fairgrounds.

During oral argument before

the high court, the California At-

torney General conceded that the

passing out of handbills and pick-

eting of exhibits at a state fair-

ground was constitutionally pro-

tected as long as done in an un-

obstructive manner. Halvonik, in

response to inquiries by the Court,

said that ACLUNC was not chal-

lenging the constitutionality of

602(j) but only maintained that,

on the evidence, petitioners could

not be held guilty of a violation.

Occupying of Space

The evidence showed that the

petitioners obstructed other per-

sons no more than anybody else

and that persons wishing to view

the harvesting machine could

freely do so by walking around

the picketers. ``The mere occupy-

ing of space," he contended ``can-

not be deemed an obstruction. The

only thing that distinguished pe-

titioners presence from that of

others at the fairground was that

they were engaged in the expres-

sion of a dissenting viewpoint. But

the fact that they were engaged in

First Amendment activity cannot,

absent any showing of a genuine

physical obstruction, be consid-

ered a violation of section (602(j)."

The Supreme Court, Justice Stan-

ley Mosk writing the opinion for

_six members, so held. Since the

petitioners did not occupy the en-

tire walkway and since persons

wishing to see the exhibit were

able to do so by avoiding the place

where the picketers were stand-

ing, the finding of obstruction was

held to lack any factual support.

Justice Marshall McComb dissent-

ed without written opinion.

Discriminations by

Businesses Are Unlawful

Continued from Page 1-

unless they were intoxicated or

otherwise a nuisance.

All Discriminiation Banned -

Last month the Supreme Court

rendered its landmark decision.

It held the San Rafael ordinance

constitutional, but only because

of its civil rights act exception.

The San Rafael ordinance, they

said, does not permit arbitrary

exclusion of people from shop-

ping centers, Relying heavily on

the historical sources cited by

ACLUNC, Justice Tobriner

speaking for a unanimous court,

said:

"Although the legislation has

been invoked primarily by

_ Correction

The October NEWS story (page

1) about the City of Seaside an-

nual July 4 parade erroneously

said that Women for Peace was

among the peace- -oriented groups

denied permission to march. It

was the Women's International

League for Peace and Freedom

that was involved. Also, through

a typographical error, the names

of the Peace and Freedom Party

and the Movement for a Demo-

cratic Military were omitted.

Conference

Report Delayed

Because of the illness of Carol

Weintraub, Chapter Director, a

report of the Chapter Conference

will not appear until the Decem-

ber issue of the News. In the

meantime, however, the office

wishes to thank Sally Gilliam,

Katie Saltzman and Joanne Siph-

erd for their excellent work at

the conference, 0x00B0

. ACLU NEWS

NOVEMBER, 1970

Page 2

persons alleging discrimina-

tion on racial grounds, its

language and its history com-

pel the conclusion that the

Legislature intended to pro-

hibit all discrimination by

business establishments. . .

"The shopping center may

no more exclude individuals

who wear long hair or un-

conventional dress, who are

black, who are members of

the John Birch Society, or

who belong to the American

Civil Liberties Union, mere-

ly because of these charac-

teristics or associations, than

may the City of San Rafael.

Public Place

Justice Tobriner concluded

his opinion in the Cox case with

a quotation from an 1890 deci-

sion by the Supreme Court of

Michigan:

"The man who goes either

by himself or with his fam-

ily to a public place must

expect to meet and mingle

with all classes of people.

He cannot ask, to suit his

caprice or prejudice or social

views, that this or that man

shall be excluded: because he

does not wish to associate

with them, He may draw his

social line as closely as he

chooses at his home, or in

other private places, but he

cannot in a public place car-

ry the privacy of his home

with him, or ask that peo-

ple not as good or great as

he is shall step aside when

he appears."

Meaning of Decision

The Cox decision should mean

that no longer will people be

excluded from California's busi-

ness establishments because of

their long hair, their sex or be-

cause of any other class to wae

they may belong. .

Letters to the Editor

Reconsideration Urged

Editor:

As a former long-time Member

of the Bd. of Directors of

ACLUNC, I am writing to pro-

test, most vigorously, the recent

action of the National ACLU and

the ACLUNC in supporting, as

an organizational priority, oppo-

sition to the war in Indochina,

My credentials in the Calif.

Peace Movement are, I would

hope, impeccable and of no re-

cent duration. Since moving to

San Francisco in 1945 to volun-

teer in the establishment of the

United Nations, I have served as

Executive Vice-President of the

United World Federalists of

Calif., as a Board member of the

United Nations Ass'n., as a mem-

ber of the Interfaith Committee

for Peace, as No. Calif. Chair-

man for SANE, and as an active

member of other Peace Organiza-

tions too numerous to mention.

That the war in Indochina is

a national horror and a moral

disgrace goes without saying.

That a political matter such as

this falls within the purview of

an organization devoted his-

torically to the defense of the

Bill of Rights in the courts is, at

best, debatable, and, at worst,

highly divisive.

I strongly urge my former

colleagues on the

stand. I believe that their pres-

ent position represents a serious

and perhaps fatal dilution of our

non-partisan reputation of our

legislative influence and, is, a

real threat to the very survival

of the organization to which we

are all devoted-Zora Cheever

Gross, San Francisco,

Take a Poll

Editor:

There seem to be a substantial

number of members who are op-

posed to the Union's stand on

the war in Indochina, It would

seem reasonable to take a poll of

the whole membership on such

an important issue, especially

where so much controversy has

arisen, Then, at least, we would

know where we stood.

My position is that the ACLU

has the responsibility to oppose

the war on the grounds that it is

an Unconstitutional usurpation

by the President of Congress'

power to declare war. The ACLU

should also fight the decay of

civil liberties caused by this war.

But, to express official opposition

to the war becauSe it is one of

the reasons for this decay is

reaching beyond the realm of the

ACLU, We might just as well

support political candidates be-

cause they are civil liberties

minded. The strength of the

ACLU is that it has confined it-

self to a very strict, non-political

support of our Constitutional .

rights. I am afraid that this move

may go far towards destroying

the effectiveness of the ACLU.

We may be against the war, I

am, but there are plenty of other

organizations working against it.

Let's keep the ACLU out of that

fight. - Daniel eae Santa

Cruz,

Stay with ACLU

Editor:

This is to urge you who have

quit ACLU and you who disagree

with National's statement against

the war to reconsider. You have

valid viewpoints; ACLU's func-

tion is to uphold the Constitution,

not to adopt moral stands, and

yet perhaps all of*us must reex-

amine our thinking about human

rights in view of increasing

racism, pollution and perpetual

wars.

You who commend "E.B." for

his statement against National's

proclamation should know that

"EB." took a stand against Na-

tional when he fought for Japan-

ese-Americans during World War

II and when he opposed Na-

tional's "loyalty oath" for its of-

ficers. But he didn't quit work-

Board of.

ACLUNC to reconsider their .

Alto,

ing. His quarter-of-a-century de-

votion continues,

If you agree with him, support

him now. Rejoin, continue your

memberships - let National and

the Branch boards know how you

feel, participate in the next elec-

tion by submitting candidates-

' but stay with ACLU, It needs

purists who interpret ACLU aims

literally and who value ACLU's

traditional non-partisan role. -

Shirley Dye, San Francisco,

Mail Ballot

Editor:

In view of the controversy sur-

rounding your (in my view, mis-

guided) resolution concerning

the Indochina conflict, I suggest

you put the matter to a mail bal-

lot of the membership.-Martin

Hoffman, M.D., San Francisco.

P.S.: Just for the record, I have

been opposed to this war

for many years and have, in

my capacity as a Member of

the Board of Directors of

the Northern California

Chapter of Americans for

Democratic Action,

what I thought I could do

to oppose it. The arguments

presented by Mr. Besig and

others, however, against

ACLUNC and ACLU-Na-

tional involvement remain,

I think, correct.

Note: At its September meeting

the branch board took the posi-

tion that it has "ultimate respon-

sibility for making policy and

does not, and cannot feasibly, put

its actions to the vote of the gen-

eral membership"-Editor.

Divisive Issue

Editor:

I am very much in favor of

your stand that ACLU should

concentrate on civil liberties and

not go off in ten other directions,

desirable though these may be.

I joined and continue to sup-

port the ACLU. because. of its

hitherto single-minded and very

effective efforts in support of the

Bill of Rights and personal civil

liberties. These rights, secured at

a terrible cost over a period of

two thousand years, are not only

. precious but fragile. They were

seriously jeopardized during the

McCarthy era. They are in

greater jeopardy today. Their

preservation will require all of

the effort - undivided effort -

that this organization can muster.

The national board by its poli-

tical statement on the Indochina

war lost sight of this overriding

imperative. By its endorsement

the ACLUNC board of directors

fel] into the same trap.

An interesting question is,

"Who laid the trap?" I suggest.

the members of both boards

should ponder this briefly. May- |

be next time they'll recognize the

political wolves in civil liberties

clothing.

The ACLU may not survive an-

other goof as divisive as this one.

-Robert L. Magovern, Palo

On Becoming Irrelevant

Editor:

Most of us in the ACLUNC see

the Indochina war and the "`peac-

time' draft as the greatest

threats to civil liberties in our

generation. We have permitted

traditionalists to monopolize AC-

LU News and its letters to the

editor, but this hardly proves that

they have a monopoly on civil

liberties.

The most effective modern tool

for defending civil liberties is the

class action suit. This is a much

more sophisticated and far-reach-

ing legal technique than tradi-

tional methods. Effective oppo-

sition to the war and the draft is

simply a broad-scale application

done

of the class action principle.

ACLU can hardly pretend any

longer that civil liberties in any

area can be secured as long as

the war and the draft continue.

This is no time to play ostrich.

Unless we are willing to face the

realities of today, ACLU will be-

come irrelevant.

In the meantime, DO. NOT re-

move my name from the mem-

bership list.

-Charles Paddock, Palo Alto.

Dicenrointed

Editor:

Although I've been very much

opposed. to the war in Indochina

and belong to organizations in

opposition to it, I am most dis-

appointed in the ACLUNC stand

and feel that its efforts should

be devoted to civil liberties rather

than speaking out on issues, no

matter how crucial, that relate

to the climate of general opinion.

-Frances B. Schiff, Menlo Park.

Wilful Group

Editor:

Nuts to that obviously wilful

group that tilted the opinion of

the Board to denounce the Indo-

china war as a policy of the

ACLU.

As individual] ACLU members

we can join and support the Black

Panthers, the Weathermen, the

Women's Lib., Women's Christian

Temperance Union and the John

Birch Society, but we should not

dilute the ACLU by mixing their

objectives with ours, which, to

me, are simply to see that indi-

viduals are not denied their con-

stitutional rights.

Though I sympathize with those

that resign, I cannot join them.

Too many poor, helpless, and

friendless people need the ACLU

when it is doing its real job,

which it generally is.

-Leonard G. Homann, Davis.

High Military

Court Refuses

Review to Sood

The Court of Military Appeals,

the highest military court, has

refused to review the conviction

of Nesrey Sood.

Sood was the first of the "Pre-

sidio 27" convicted of mutiny for

his participation in a non-violent

demonstration of Presidio stock-

ade inmates in 1968, The demon-

stration was a protest of the kill-

ing of a mentally disturbed fel-

low inmate and the abysmal

stockade conditions.

On appeal the Court of Mili-

tary Review reversed the mutiny

conviction but held that Sood

had committed a different of-

fense, wilfull disobedience of an

order, and that the portion of

his sentence imposing one year

at hard labor, a bad-conduct dis-

charge and forfeiture of pay and'

allowances was valid, Originally

Sood had been sentenced to fif-

teen years at hard labor and a

dishonorable discharge,

After that Court's decision,

Paul Halvonik and co-counsel,

. Captain Paul Saunders of Wash-

ington, asked the highest court

to review the case and reverse

the entire conviction, The Ap-

peals Court denied the petition

without any written opinion.

Thus the saga of the Presidio 27

`has apparently come to an end.

ACLUNC participated. in. the

case because of the outrageous |

charge of mutiny and reversal of

the mutiny conviction must be

considered a substantial victory.

In its decision the Court. of Mili-

tary Review held that the record

"fairly shouts" that no mutiny

occurred.

AMERICAN CIVIL LIBERTIES UNION NEWS

Published by the American Civil Liberties Union of Northern California -

Second Class Mail privileges authorized at San Francisco, California

ERNEST BESIG ... Editor .

593 Markket Street, San Francisco, California 94105, 433-2750

Subcription Rates - Two Dollars and Fifty Cents a Year

Twenty-Five Cents Per Copy

(ESS 151

I

Selective Service

The selective service has exer-

cised considerable power over

registrants through its delin-

quency regulations which give lo-

cal draft boards the authority to

declare a registrant delinquent

whenever he has failed to per-

form any duties required of him

under the selective service laws

other than the duty to comply

with an order to report for induc-

tion or civilian work. A delin-

quency status accelerates a regis-

trant's induction-men with that

classification are called prior to

any other group including volun-

teers. In two cases this term the

Court cut back the Selective Serv-

ice's `"`free-wheeling authority to

ride herd on the registrants using

immediate induction as a discipli-

nary or vindictive measure."'

A National ACLU Case

The first was Gutknecht v US

where the petitioner, classified

I-A, left his draft card on the

steps of the Minneapolis Federal

Building with a statement ex-

plaining he opposed the Vietnam

War. His draft board declared

him a delinquent and ordered him

to report for induction. Gut-

knecht's refusal to take part in

the induction proceedings resulted

in a four year prison sentence.

Reversing his conviction, the

Court per Justice Douglas noted

that ``acceleration may be ex-

tremely punitive,'' and that Con-

gress had not authorized punitive

sanctions apart from the criminal

prosecutions specifically delineat-

ed in the Selective Service Act. If

laws are violated by registrants,

they can be prosecuted. If induc-

tion is to be substituted for these

prosecutions, a vast rewriting of

the Act is needed.'' And because

"deferment of the order of call

may be the bestowal of great ben-

efits,' the Court held that such

benefits could not be "forfeited

for transgressions. which affront

the local board."

Justices Stewart and Burger

who concurred in the result would

have reversed Gutknecht's con-

viction because ``the local board

. . . violated the very regulations

it purported to enforce,'' when it

ordered him to report only five

days after having declared him

delinquent instead of giving him

thirty days in which to make a

personal appearance before the

board and take an appeal.

In a related ACLU case Breen v

Selective Service, the petitioner

had a student deferment but was

reclassified I-A when he surrend-

ered his draft card to a minister

_ in protest of the war. He sued to

enjoin this reclassification but the

Federal District Court dismissed

the suit because of a provision in

the Selective Service Act which

announces that ``no judicial re-

view shall be made of the classi-

fication or processing of any reg-

istrant . . . except as a defense

to a criminal prosecution . . . af-

ter the registrant has responded

either affirmatively or negatively

to an order to report for induc-

tion. . ."' The Court per Justice

Black reversed holding (1) that

the Act should not have been con-

strued to require that the regis-

trant submit to induction or risk

criminal prosecution to test the

legality of the induction order,

(2) that draft boards are not au-

thorized to deprive otherwise

qualified students to deferments

under this kind of situation and

(3) as in Gutknecht, induction

pursuant to the delinquency regu-

lation is not authorized by the

Act. - se

"~The Universal Military Train-

ing and Service Act - which ex-

cludes registrants from a Con-

scientious Objector exemption if

their opposition to war is gener-

ated.by `"`essentially political, so-

ciological, or philosophical views

or a merely personal moral code"'

-was challenged in two cases this

term.

In Welsh v US the petitioner's

application for a C-O exemption

was rejected because his Selec-

tive Service Board found his be-

liefs were not ``religious'' within

the meaning of the Act. His sub-

sequent conviction for failure to

report for induction was reversed

by the Supreme Court. Justices

Black, Douglas, Marshall and

Brennan held that the Act's ex-

clusion of those persons with ``es-

sentially political, sociological, or

philosophical views'' should not

be read to exclude those who hold

strong beliefs about our domestic

and foreign affairs or even those

whose conscientious objection to

participation in all wars is found-

ed to a substantial extent upon

considerations of public policy.

The two groups of registrants

which obviously do fall within

these exclusions from the exemp-

tion are those whose beliefs are

not deeply held and those whose

objection to war does not rest at

all upon moral, ethical, or religi-

ous principles but instead "rests

solely upon considerations of

policy, pragmatism or expedi-

ency."'

Although Welsh "originally

characterized his beliefs as non

religious'? the Court held that be-

cause they were supported with

"the strength of more traditional

religious convictions,'' he was en-

titled to an exemption.

Justice Harlan, who concurred

in the result, felt that the ma-

jority had "performed a _lobo-

tomy"' on the statute `to avoid

facing a latent constitutional

question."'

He felt that a `"`statute that de-

fers to the individuals conscience

only when his views emanate

from adherence to theistic religi-

ous beliefs'? unconstitutionally vio-

lates the Establishment Clause.

The dissenters, Justices White,

Stewart and Chief Justice Burger

believed that `"`even if Welsh is

quite right in asserting that ex-

empting religious believers is an

establishment of religion forbid-

den by the First Amendment"

. .. he "had no excuse for re-

fusing to report for induction."'

C-O status was also an issue in

Mulloy v US where the petitioner,

prior to receiving an induction

order, had applied for reclassifi-

cation as a C-O. The board re-

fused to reopen his classification

and ordered him to report. Mul-

loy's conviction for refusing to

submit to induction was reversed

by a unanimous Court which held

that it is an abuse of discretion

for a local draft board to refuse

reopening a registrant's classifi-

cation when it is presented with

a non-frivolous claim for a change

in classification based on new ~

factual allegations which are not

conclusively refuted by other in-

formation in the registrant's file.

A fifth Selective Service case,

Toussie v US, involved the re-

quirement that men must register

for the draft within five days of

their eighteenth birthday. Toussie,

who was 18 in 1959, never regis-

tered and when indicted eight

years later, contended that his

prosecution was barred by the

five year statute of limitations.

The issue which divided the Court

was whether failing to register is

a continuing offense lasting until

one reaches the age of 26 or

whether the offense is complete

within five days of one's 18th

birthday.

The majority held that failure

to register is not a continuing of-

fense because (1) ``there is no

language in this Act that clearly

contemplates a prolonged course

of conduct'? and (2) there "`is

nothing inherent in the Act of reg-

istration which makes failure to

do so a continuing crime.'' Thus

the five year limitation beginning

to run on Toussie's 18th birthday

barred his prosecution after 1964.

Justices White, Harlan and

. Chief Justice Burger dissented,

holding that ``to erect as the ma-

jority does an absolute bar to

`finding a continuing offense in the

absence of express statutory lan-

guage is to shirk our judicial re-

sponsibility of interpreting Acts

of Congress as they come to us

without insisting that Congress

make our task easier by using

some particular form of words to

express its intent."

i

Equal Protection

Indigent Defendants

The petitioner in Williams v

Illinois had been convicted of

L

petty theft and received the max-

imum sentence of one year im-

prisonment plus a $500 fine and

$5 court costs. Pursuant to a

statute, the judgment directed

that if the defendant was unable

to pay the fine and court costs

at the expiration of the one year

sentence he should remain in jail

and ``work off'' the monetary. ob-

ligations at $5 a day. Thus his

sentence was.increased by three

months over the maximum term.

The Court held that when such a

procedure results in a defendant's

confinement for a longer period

than the maximum incarceration

allowable for the offense, its vio-

lates the equal protection clause

by unconstitutionally discriminat-

ing between the indigent and

those able to pay.

Justice Harlan concurred but

called the Chief Justice's equal

protection analysis ``a wolf in a

sheep's clothing.'' Preferring a

due process analysis, he felt that

the issue was whether the State

"ean consistently with due proc-

ess refrain from offering some al-

ternative for payment on the in-

stallment plan."

Welfare

The poor also engaged the

Court's attention in half a dozen

welfare cases this term. One of

their most pressing difficulties in-

volved withdrawal of aid prior to

a fair administrative hearing. In

Goldberg v Kelly the Court. noted.

Children which requires that a

state's determination of recipi-

ent's welfare needs must reflect

changes in the cost of living. The

Court found that New York `"`im-

permissibly lowered its standard

for need by eliminating'? items

which it had previously included.

Last year its ``radically altered'

welfare system reduced benefits

to recipients in New York City by

forty million dollars. The Court

held that although the state may

use state funds pursuant to any

plan it chooses, the petitioners

here were entitled to an injunc-

tion against the payment of fed-

eral monies according to the new

system.

Chief Justice Burger and Jus-

tice Black dissented believing that

the department of Health, Edu-

cation and Welfare should have

reached a decision either approv-

ing or disapproving the plan prior

to the Courts' determination:

In Lewis v Martin California's

statute which provided that, for

the purposes of AFDC, the wel-

fare needs of children were con-

clusively presumed to be reduced

by the amount of income of either

a stepfather or adult male assum-

ing the role of spouse to the

mother (MARS), was held incon-

sistent with the Social Security

Act. Justice Douglas expressing

the view of six members of the

Court held that ``In the absence

of proof of actual contribution,

Review of

Significant

U.S. Supreme

Court Decisions

1969-

1970

Part 2

By DEBORAH HINKLE

ACLU Summer Fellow 1970 -- Third Year Student

University of California Law School

(Boalt Hall)

that "termination of aid pending

resolution of a controversy over

eligibility may deprive an "`recipi-

ent of the very means by which

to live while he waits,'' and held

that Due Process requires prior

termination of aid a hearing in

in which the recipient is given

`timely and adequate notice de-

tailing the reasons for a proposed

termination, and an effective op-

portunity to defend by confronting

any adverse witnesses and by pre-

senting his own evidence and arg-

uments orally."" He must also be

allowed to retain an attorney if

he desires. Finally the decision

maker must state the reasons for

his determination that the recipi-

ent no longer qualifies for aid and

he must indicate the evidence he

relied on. A similar result was

reached in Wheeler v Montgom-

ery. Justices Black and Chief Jus-

tice Burger dissented in both

cases holding that the matter

should be left to administrative

action. Justice Stewart did not

find that the state proceedings

violated Due Process in either

case.

The basis of the Court's inquiry

`into three other welfare cases

was expressed by Justice Har-

lan's observation that it is ``par-

ticularly part of the duty of this

tribunal, no less in the welfare

field than in other areas of the

law, to resolve disputes as to

whether federal funds allocated

to the States are being expended

in consonance with the conditions

that Congress has attached to

their use.'' The issue in Rosad v

Wyman was whether New York

had complied with the Federal

Program for Aid to Dependent

ruling "every . .

California. may not consider the

child's `resources' to include

either the income of a nonadopt-

ing stepfather who is not legally

obligated to support the child as

is a natural parent, or the in-

come of a MARS - whatever the

nature of his obligation to sup-

port." Justice Black and Chief

Justice Burger dissented, believ-

ing that, since HEW had primary

jurisdiction over the issues of the

case and the administrative pro-

cedures provided by the Social

Security Act had not been ex-

hausted, that the District Court

did not have jurisdiction over

the case.

The AFDC program was also at_

issue in Dandridge v. Williams.

Maryland authorized an admin-

istrative regulation imposing a

maximum limit on the total

amount of aid any one family

could receive and thereby re-

duced the per capita benefits for

members of large families. `"`The

actual reason for the regulation''

as the ``State virtually conceded

... [was] . . .to limit the total

cost of the program along the

path of least resistance." Over-

. district court

that has passed on the validity of

the maximum grant device," the

Court, per Justice Stewart, up-

held the program against invali-

dation on statutory and equal pro-

tection grounds. ``So long as some

aid is provided to all eligible

families and all eligible children,

the statute itself is not violated.'

The equal protection argument

was disposed of by the finding

that ``a statutory discrimination

will not be set aside if any state

of facts reasonably may be con-

ceived to justify it.'' Among con-

-~

ceivable justifications were pro-

viding incentives for family plan-

ning and "maintaining an equit-

able balance in economic status

as between welfare families and

those supported by a wage-earn-

er."' Justice Douglas dissented

finding that the state program

was inconsistent with the federal

act. Justice Brennan agreed with

him and also considered the pro-

gram violative of equal protec- _

tion.

Voting Rights

The one man -one vote appli-

cation of the equal protection

clause was the issue in Hadley v

Junior College where pursuant to

a Missouri statutory apportion- |

ment plan a district containing

60% of the school age popula-

tion was permitted to elect only

50% of the trustees of a junior

college district. The residents of

this district contended that their

vote was unconstitutionally di-

luted. In an opinion by Justice

Black the majority held that (1)

the one man-one vote rule was

applicable in this case because

the trustees were elected officials

who exercised general govern-

mental powers over the entire

state and (2) that this apportion-

ment scheme did not sufficiently

comply with the rule.

Dissenting Justice Harlan,

joined by Burger and Stewart,

felt that the one man-one vote

rule should not apply to this

election: `"`The facts of this case

afford a clear indication of the

extent to which reasonable state

objectives are to be sacrificed on

the alter of numerical equality."

They also disagreed with the ma-

jority's conclusion that the ap-

portionment involved in this case

did not comply sufficiently with

the one man-one vote rule.

Arizona's statutory and consti-

tutional provisions which exclude

qualified voters who are not prop-

erty owners from voting on bond

issues was struck down by the

Court in City of Phoenix v Kolod-

ziejski, The majority held that

any "`differences between the in-

terests of property owners and

non-property owners was not so

substantial as to justify exclud-

ing the latter from the franchise."'

The dissenters, Justices Stewart,

Harlan and Chief Justice Burger,

believed that since property own-

ers bear the burden of municipal

bond indebtedness only they

should be permitted to vote on

such issues. (c)

One of the major issues con- -

cerning a state's power over elec-

tions is whether it may limit the

franchise to those voters ``pri-

marily interested"' in the election.

Again this question was left un-

answered in Evans v Corman. But

in holding that Maryland residents

in a federal enclave were not to

be denied the franchise by the

state, the Court did delineate

some tests for determining

whether a group was ;vimarily

interested in. the election. The

court noted that the state had

treated the appellees as residents

"to such an extent that it is a

violation of the Fourteenth

Amendment for the state to deny

them the right to vote." Secondly

they were entitled to the franchise

because ``in nearly every election,

federal, state or local, for offices

from the presidency to the school

board and on the entire variety of

ballot propositions appellees have

a stake equal to that of other

Maryland residents."

"Little Hunting Park' is a cor-:

poration organized to operate a

community park for the benefit

of residents in an area of Fairfax

County, Virginia. Under the by-

laws a person owning a member-

ship is entitled, when he rents his

home, to assign his park member-

ship to his tenant subject to ap-

proval of the board of directors.

In Sullivan v Little Hunting Park

a landlord leased his home and

assigned his membership to his

tenant, Freeman. Because Free-

man was Black the board refused

to approve his membership and

then expelled the landlord from

-Continued on Page 4

ACLU NEWS

NOVEMBER, 1970

Page 3

_ Review of Significant

Supreme Court Decisions

Continued from Page 3-

the corporation. A suit for injunc-

tive and monetary relief was de-

_ nied by the trial court. Reversing,

the Supreme Court held that the

board's actions violated S 1983 of

the civil rights act which guar-

antees the property rights of all

citizens and that expelling the

landlord from the corporation for

trying to vindicate the rights of

-minorities guaranteed by Sec.

1982 of the Act impermissible.

The dissenters felt that the case

should have been dismissed be-

cause the Fair Housing Act of

1968 "`provided a comprehensive

scheme for dealing with the kinds

of discrimination found in this

ease"? and that it was `"`very un-

wise as a matter of policy for the

Court to use Sec. 1982 as a broad

delegation of power to develop a

common law of forbidden racial

discriminations."'

Adickes v. Kress was also a

civil rights suit. There the plain-

tiff, a white school teacher, was

refused service in Hattiesberg,

Mississippi restaurant because

she was in the company of her

six black students. The police ar-

rested her for vagrancy after she

left the store. Her first allegation

-that the restaurant's refusal to

serve her and the arrest was the

product of a conspiracy between

the police and the store-was dis-

missed by the Federal District

Court because she "failed to al-

lege any facts from which a con-

spiracy could be inferred." Re-

sponding to her second allegation

-that her right under the Four-

teenth Amendment not to be dis-

criminated against because of

race had been involved-the trial

court directed a verdict in favor

of the store because the teacher

was unable to prove at the trial

that the restaurant's refusal was

pursuant to a custom enforced by

State law. The trial court, in

reaching that conclusion, gave a

very narrow reading to the notion.

of `custom enforced by State

law," holding that the phrase

means statewide enforcement of

segregation by use of trespass

laws.

~The Supreme Court reversed.

Justice Harlan expressing the

views of seven members of the

court held that (1) summary

judgment on the conspiracy count

had been improper because the

store had failed to carry its bur-

den of foreclosing the possibility

of an understanding between the

restaurant and the police and (2)

that if the teacher could prove

that a custom of segregating

races at stores was in any matter

enforced by state officials in Hat-

tiesburg (not the entire state) at

the time of the incident and that

that custom motivated the store's

refusal to serve her, she was en-

titled to relief. Justice Douglas

disagreed with the court's inter-

pretation of ``state enforced cus-

tom.'' The existence of the cus-

tom he felt, demonstrates suffi-

cient state involvement: "`it is

time we stopped being niggardly

in construing civil rights legisla-

tion. It is time we kept up with

Congress and construed its laws

in the full amplitude needed to rid

their enforcement of the lingering

tolerance for racial discrimina-

tions which we sanction today."

Racial discrimination was also

an issue in two cases questioning

the constitutionality of jury selec-

tion laws. Ordinarily an attack

upon racial discrimination in this

area is made by defendant chal-

lenging judgments of criminal

convictions. This term in Carter

_V Green the Court was presented

with its first case in which plain-

tiffs sought affirmative relief from

alleged jury discrimination. The

plaintiff first attacked the consti-

tutionality of an Alabama statute

which requires jury commission-

ers to select for jury service those

persons who are "generally reput-

ed to be honest and intelligent...

esteemed in the community for

ACLU NEWS

NOVEMBER, 1970

Page 4

their integrity, good character and

sound judgment."' His argument

was that the provision leaves the

commission free to give effect to

their beliefs that Blacks are in-

ferior to whites, that whites will

suffer from decisions by racially

mixed juries, and that the com-

missioners are encouraged to give

preference to Negroes who tend

not to assert their rights to racial

and social equality.

Justice Stewart, writing for the

majority, acknowledged that ap-

pellants produced a "`compelling"'

record and `"`overwhelming proof''

of racial discrimination and abuse

of discretion by the comissioners

but held that the statute was not

unconstitutional on its face since

"the protection is devoid of any

mention of race'' and ``there is no

suggestion that the law was orig-

inally adopted or subsequently

carried forward for the purpose

of racial discrimination.'' .The

petitioner also challenged the con-0x00B0

stitutionality of the selection of

the jury commission. The Court

held that while ``the state may no

more exclude Negroes from serv-

ice on the jury commission be-

cause of their race than from the

juries themselves," . . . ``we can-

not say on this record that the

absence of Negroes from the

Green County jury commission

amounted to a... showing of

discrimination.'"' Finally the Court

held that the petitioners ``are no

more entitled to proportional rep-

resentation by race on the com-

mission than on any other particu-

lar grand and petit jury.'"' And

on this point Douglas dissented:

"where the challenged state agen-

cy dealing with the rights and

liberty of the citizen has a record

of discrimination, the corrective

remedy is proportional represen-

tation."

In a comparison case, Turner vs

Fouche the petitioner challenged

the constitutionality of a Georgia

procedure whereby the county

board of education, consisting of

five freeholders, was selected by

the grand jury, which in turn was

drawn from a jury list compiled

by the county jury commission.

The commission was appointed by

a Superior Court judge who was

authorized to exclude anyone he

deemed not ``discreet'' while the

commissioners could: eliminate

anyone from the grand jury who

was not "upright"? and "`intelli-

gent."

Petitioners sought an injunction

against enforcement of these pro-

visions and a declaration that

they were unconstitutional on

their face. The Court held unan-

imously that the requirement that

the members of the Board of Edu-

cation be freeholders violated

equal protection because there

was no showing of any rational

state interest underlying it. But

as in Green the procedure was

not unconstitutional on its face be-

cause it ``is not inherently unfair,

or necessarily incapable of admin-

istration without regard to race."'

The Court did find that the peti-

titioners had made a strong

enough showing that the proce-

dure had been applied unconsti-

tutionally to exclude Blacks and

left the solution to the lower

court, 2

Once again the Court encoun-

tered constitutional difficulties

with the 1811 Will of Georgia's

Senator Bacon which conveyed

property in trust for his home

town, Macon, for the creation of a

public park to be used exclusively

by whites. Four years ago the

Court held that the park could not

be operated on a racially discrimi-

natory basis. Thereafter the Geor-

gia Supreme Court held that be-

cause the park had to be integrat-

ed ``the soul purpose for which

the trust was created has become

impossible of accomplishment and

has been terminated.'"? The park

was thereafter turned over to Ba-

con's heirs although there was no

reverter provision in the Will

which authorized this action.

This term in Evans vs Abney

Roneetey Invalidation of.

Locker Search

Struck Down

Continued from Page 1-

that which was available in

1879. =.

"Insofar as the exchange of

information by personal con-

tacts and political conversa-

tions is concerned, we ob-

serve that, here again, the

opportunities and the in-

ducements for participation -

are exceedingly wider than

they were nearly a century

`ago, From 1879 to 1911 only

males were allowed to make

use of the ballot in this

state. The contacts, both in

family and in social life, of

male and female voters are

a constant source of opinion.

The marketplace for ideas

has been broadened immeas-

urably ...

"In times when the citizenry

is specially exhorted to live

within the law and to seek

what they desire within the

law, it seems particularly

appropriate to insure the

citizens of the United States

the right to express them-

selves by use of the ballot."

No Appeal

After reading the court's opin-

ion, City Attorney Thomas O'-

Connor announced that he was

"satisfied" with its reasoning

and that he would not ask the

Supreme Court of California to

review the decision, Accordingly,

Registrar Mihaly has registered

the Keanes to vote in the up-

coming election, Although the

Keanes are the only persons to

benefit by their suit for purposes

of the November election, the

decision of the City Attorney not

to appeal means that next month,

when the opinion becomes final,

it will be applicable statewide

and, in all future elections, no

one will be excluded from the

franchise because he has failed,

to live in the state for a period

of one year.

Branch Given

$400 by Sonoma

County Chapter

At the recent Chapter Confer-

ence, Ron Coles, Chairman of

the Sonoma County Chapter, pre-

sented ACLUNC with a check for

$400. That contribution, plus sub-

stantial gifts by Helen Salz, mem-

bers' contributions matched by

Richard DelLancie, increased

membership contributions and

cash received under a lease ter-

mination agreement at ACLUNC's

old office should result in a bal-

anced operating budget for the

past fiscal year.

The ACLU is grateful to all

who saved the branch from a

huge deficit.

the petitioner contended that the

_ closing of the park was illegal be-

cause it penalized Macon and its

citizens for complying with the

Constitution. Justice Black ex-

pressing the majority opinion held

that the Fourteenth Amendment

was not violated because (1). the

state applied racially neutral

trust laws in terminating the

park; (2) there was not state ac-

tion violative of the equal protec-

tion clause since a private party

had injected the discriminatory

motive; (3) and finally there was

no indication that the state judges

were racially motivated in con-

struing the will.

Justice Douglas based his dis-

sent on the fact that because Ba-

con did not provide a reversion to

his heirs "giving the property to

the heirs rather than reserving for

public use does therefore as much

violence to Bacon's purpose as

would the conversion of an `all-

white park into an all - Negro

park.''' ``Bacon's basic desire

can be realized only by a repeal

of the Fourteenth Amendment."

Brennan dissented vigorously

holding that "`this discriminatory

closing is permeated with state

action."'

Sought in Fed. Ct.

David Donaldson is now a ward of the juvenile court of

El Dorado County after the court held that he had possessed

marijuana in violation of California law. The evidence sup-

porting that conclusion was a plastic bag of marijuana which

had been taken from his high school locker by the vice

principal of the school. The vice

principal testified that a student

informed him that she had pur-

chased some pills from a boy

named "Dave." The only "Dave"

that came to the principal's

mind was David Donaldson and,

accompanied by a sheriff and

using a master key, he opened

Donaldson's locker. No pills

were discovered but the plastic

bag.of marijuana was uncovered,

Governmental Official

Over the objection of counsel

at the juvenile hearing, the Su-

perior Court held that the

search of Donaldson's locker did

not violate the Fourth Amend-

ment. The State Court of Ap-

peal upheld that ruling, holding

' that the vice principal of a pub-

lie school is not a governmental

official limited by the Fourth

Amendment. The Supreme Court

- of California refused to review

the case and ACLUNC has now,

by means of a petition for writ

of habeas corpus, asked the Fed-

eral District Court in Sacramen-

to hold the search unconstitu-

tional.

Flag Case

In the federal action Donald-

son's attorneys, John M. Pos-

wall of Sacramento and staff

counse] Paul Halvonik, urge that

the California Court's conclusion

that a school official is not a

public official limited by the Con-

stitution is clearly erroneous.

They point out that the United

States Supreme Court has con-

sistently ruled that school of-

ficials are bound by the Consti-

tution, the case of West Virgina

v. Barnette, holding unconstitu-

tional a compulsory flag salute in

schools being exemplary. Since

school officials are bound by the

Fourth Amendment the search

of Donaldson's locker must be

deemed in violation of the Con-

stitution, The invasion of a lock-

er held out as a private place

on the basis of the bald state-

ment that "Dave" sold somebody ~

some pills can hardly be deemed

"reasonable."

Show Cause Order

On the day the petition was

filed in Sacramento, the United

States District Judge Thomas J.

McBride issued an order requir-

ing the state to show cause why

the search should not be held in

violation of the Constitution. No

prediction of when the federal

court may rule on the Donaldson

matter is, at this time, possible.

Oakland Technical H.S., Nov. 21

Conference On

`Civil Liberties

In High Schools'

The Oakland Chapter of ACLUNC is sponsoring an all-

day conference on "Civil Liberties in the High Schools:

Theory and Reality" from 9:30 to 3:00 at the Oakland Tech-

nical High School, Oakland, on November 21, 1970. Nathan

Adler, Professor of Criminology at the University of Cali-

fornia, will open the morning

program with a talk on the

"Theoretical Aspects of Students'

Rights and Methods for Obtain-

ing these Rights." He will be fol-

lowed by Marcus Foster, the new

superintendent of the Oakland

schools, with a talk about the

reality of students' rights,

Afternoon Session

The afternoon session, which

Starts at 1:00 p.m., will be de-

voted to workshops covering six

areas: "Censorship and Control

Problems of Student Newspapers

and Student Government," led by

Barbara Rhine, attorney for the

Youth Law Center. Clifford

Sweet, F. Hayden Curry, Rich-

- ard Berg and Stefan Rosenzweig,

all of the Legal Aid Society of

Oakland, will lead the discussants

on the topic, "Sources of Legal

Aid and Advice."

Draft Problems

"Draft Counselling is the sub-

ject of a workshop led by Chris

McCandless, High School Pro-

gram Director, American Friends

Service Committee. Charles Mar-

son, ACLUNC Legislative Repre-

sentative, will lead the discussion

on "Legal Problems of Stu-

Pornography and

Civil Liberties

The San Francisco Council of

ACLUNC will hold a panel discus-

sion on the subject of Pornogra-

phy and Civil Liberties on Sunday

evening, November 22nd., at Fel-

lowship, Glide Methodist Church,

330 Ellis St., San Francisco, at

7:30 p.m. The public is invited.

dents," including search and seiz-

ure and the drug law problem.

"Teaching of Civil Liberties"

will be under the leadership of

Robert M. O'Neil, Boalt Hall Pro-

fessor of Law. Russell Bruno, at-

torney associated with the Oak-

land Lawyers' Committee Proj-

ect leads the discussion on, "Set-

ting a Civil Libertarian Atmos-

phere in the Classroom."

Students and Teachers

This free conference welcomes

both junior high and high school

students and teachers, Bring bag

lunches. Food may be purchased

from catering trucks off the

school premises. Evan Copper-

smith (Phone 562-6418) is chair-

man of the Oakland chapter's

Education Committee which has

arranged the program.

Halvonik Speaks

At Sonoma Chap'r

Annual Meeting

Paul N. Halvonik, ACLUNC

staff counsel, will be the featured

speaker at the annual dinner

meeting of the Sonoma County

Chapter of ACLUNC to be held

Thursday evening, November 19

at the Black Forest Inn, 138 Cal-

istoga Road, Santa Rosa.

A no-host cocktail hour will be

held between 6 and 7. Following

the dinner, there will be a very

brief business meeting before Mr. _

Halvonik speaks. The meeting

will adjourn at 9 p.m. All mem-

bers are urged to attend.