vol. 48, no. 8

aclu news

Volume XLVIII

November-December 1983

`No. 8

Strip Searches Halted in Fremont

The City of Fremont has agreed to

adopt a policy limiting strip searches in

accordance with due process and privacy

rights as a result of a lawsuit filed by the

ACLU-NC on behalf of Marlene Penny.

`Penny was strip searched by the Fremont

police after being arrested for failure to

pay a dog license fee.

The Settlement Agreement states that

the Fremont Police Department will

maintain and enforce the new policy at

the Fremont Dentention Center starting

this month and that all other policies and

practices regarding searches will be

scrapped.

ACLU-NC cooperating attorney

Donald Brown said that the agreement is

a "`major victory'' limiting random strip

searches of persons arrested for minor

offenses with respect to constitutional

rights.

"`The new policy states that a strip

search may be conducted only when

there is individualized suspicion that a

person may be bringing contraband into

the detention facility,' Brown ex-

plained. ``This will eliminate the

previous practice of strip searching all

persons who entered the facility

regardless of the fact that there was no

reasonable suspicion that the person was

Marlene Penny - strip search victim in

Fremont who protested and won.

carrying drugs or a dangerous weapon."'

- According to the new policy, some

factors that may be considered in deter-

mining whether there is a reasonable

suspicion are the nature of the crime

(serious violent offense), arrest and

detention circumstances, the subject's

reputation, acts of violence and dis-

coveries in previous searches of the

Michael Miller

ACLU Defends Paper from

Libel Suit Threat by Kopp

At a November 3 press conference, the

ACLU-NC announced that it will defend

Tiempo Latino, a local Spanish language

newspaper that is being threatened with a

libel suit by Supervisor Quentin Kopp

who alleges that the paper defamed him

by calling Proposition O `"`racist."'

Luis Munoz, publisher of Tiempo Latino

SY

Proposition O is the San Francisco

ballot initiative authored by Supervisor

Kopp which attempts to undermine the

federal Voting Rights Act by eliminating

Spanish and Chinese election materials

from San Francisco voters. Though the

continued on p. 3

Luis Infante/Tiempo Latino

subject.

`Another major aspect of the agree-

ment,'' said Brown, ``is the question of

accountability. The Detention Super-

visor or Patrol Supervisor must be pre-

sent to determine whether a strip search

should be conducted, and is responsible

for assuring that the search is conducted

properly.

"A written record of the search must

be made which includes the reason for

the strip search. A written record means

that the justification for the search will

be taken seriously by the police officer

and that the subject of the search will

have a way to prove what actually hap-

pened at the jail,'? Brown added.

Other sections of the new policy state

that the search must be conducted by an

officer of the same sex as the subject,

that the person not be asked to assume

any position other than standing, and

that an officer may not touch the

person's body nor ask the subject to ex-

pose a body cavity.

The new policy applies to all arrested

persons in custody, adults and juveniles;

a strip search may not be conducted once

a decision is made to release the arrestee.

The lawsuit, Penny v. Fremont, was

filed in 1981 by ACLU-NC cooperating

attorneys Donald Brown and L.

Christopher Vejnoska, both of the San

Francisco law firm of Brobeck, Phleger

Harrison, and ACLU-NC staff at-

torney Alan Schlosser.

The case was brought on behalf of

Marlene Penny, a Fremont mother of

four, who was strip searched at the Fre-

mont Detention Facility after being ar-

rested for failure to pay a dog license fee

for a dog which she no longer owned.

Penny was forced to remove all

clothing except her underwear and sub-

mit to a strip search despite the fact that

continued on p. 3

FOUNDATION OF NORTHERN CALIFORNIA

1983 BILL OF RIGHTS DAY

CELEBRATION

and

PRESENTATION

OF ELEVENTH ANNUAL

EARL WARREN

CIVIL LIBERTIES AWARD TO:

GORDON HIRABAYASHI

FRED KOREMATSU

MINORU YASUI

Sunday, December 4, 1983 - 5:00 to 7:00 p.m.

No Host Wine Bar - 4:00 to 5:00 p.m.

Sheraton Palace Hotel Grand Ballroom

New Montgomery and Market Sts.

San Francisco

Tickets: $10.00 - call 415-621-2493;

or write Bill of Rights, ACLU, :

1663 Mission St., Suite 460, San Francisco 94103

2 aclu news

f nov-dec 1983

The Debate:Student Religious Clubs in Schools

In a California school with a number of diverse student-run organizations -

Photography Club, Young Republicans, French Club, Journalism Club - a group

of students wishes to form a religious club. The students will study the Bible, discuss

theological issues, and pray. They do not wish faculty involvement. They want access

to vacant classrooms during the school day, on the same basis afforded to other stu-

dent organizations.

Does the First Amendment's Establishment Clause forbid the school from permit-

ting the student religion club to meet on school property? Or do the First Amend-

ment's guarantees of freedom of speech, freedom of association and equal protection

require the school to allow students wishing to form a religious club access to school

property on the same basis as other students?

These questions have sparked a lively controversy among civil libertarians

throughout the nation. ACLU-NC is now faced with a real-world request from high.

school students asking us to represent them against their school board, to gain

authority to start a religion club, which will meet on high school premises, during

lunch periods, like other student clubs.

The Board of Directors will consider their request at its December meeting. The

difficult policy questions raised by the students' request have been aired at earlier

Board meetings, and, most recently, at ACLU-NC's annual conference in October.

. The major themes expressed by each side are: -

No on Clubs: The Establishment Clause forbids public officials from allowing the

use of tax-supported facilities for religious worship. This is a direct financial benefit

to religion, and it is particularly pernicious in the school setting.

Yes on Clubs: The school is not ``establishing'"' anything. The students are in-

itiating and running this club. The school is simply allowing high school students ac-

cess to vacant space, heat and light, on the same basis it provides this to all other

students wishing to form clubs. If the use of tax-supported funds alone violated the

Establishment Clause, parks and streets could not be used for prayer and religious

meetings; yet the ACLU has always supported this use of public property.

No on Clubs: Schools are vastly different from parks and streets. They are in-

herently coercive. By its compulsory education laws, the state requires students to at-

tend. The core concept of the Establishment Clause is implicated here: students will

be coerced into participation in religious activity against their conscience.

Yes on Clubs: Students are required to attend school; they're not required to at-

tend the meetings of a religious club during lunch. There's no official compulsion.

at all.

No on Clubs: But there's an unofficial compulsion that's very real to adolescents.

These religious clubs will reflect the majoritarian religions, and students of dissident

faiths will necessarily feel excluded and hurt. The school should not be a party to this

divisiveness by authorizing the religious club to form.

Yes on Clubs: This image of high school students as vulnerable and malleable is

something the ACLU has always fought against, in court cases championing the

rights of teenagers to read controversial books and make their own choices about

birth control and abortion. Unlike the school prayer cases, the pressure here is not

from the school itself. High school students are young citizens, able to exercise con-

stitutional rights - including the right not to join a club, or the right to form a com-

peting club.

No on Clubs: The group may be initiated by students, but it cannot be entirely run

by students. By law, and because of insurance problems, there must be a faculty ad-

visor present. This adult is paid from school funds. He or she will bring to the club an

aura of authority, which will entangle the school itself in religious activities.

Yes on Clubs: The school's obligation is satisfied by the mere presence of an adult,

to prevent students from setting fires or engaging in mischief. He or she need not,

and should not, participate in the group's activities. The school employee is thus

analogous to the police officer in the park who maintains order during the religious

meeting. When the Pope said Mass in a Washington, D.C., park, the ACLU argued

that the government had a duty to provide police, and that this did not limit the right

of people to hear the religious service.

No on Clubs: We've always had a bright line in this area. No religion at all in

public schools. Why should we abandon that simple position to start down this

dangerous trail? :

Yes on Clubs: Because rights we care deeply about are in jeopardy here - freedom

of speech, freedom of association, and equal protection. The values advanced by the

Establishment Clause - the avoidance of religious coercion and sponsorship by the

government - are not endangered by these students' request. To turn these students

away, to side with the government, will be to support official censorship of one kind

of speech, religious speech. The ACLU should fight against censorship in all

its forms.

To continue the debate, the ACLU News asked two leading civil liberties activists

to present the arguments on both sides:

Church vy. State or State v. Student

by Michelle Welsh

The Constitution itself distinguishes

between religious speech and other types

of speech in the First Amendment. The

Framers of our Constitution provided

that ``Congress shall make no law

respecting an establishment of religion,

or prohibiting the free exercise thereof."'

Religious speech is, in many respects, af-

forded broader protection than rights to

free speech and association generally.

Balanced against `this greater protec-

tion of individuals' religious speech is a

strong prohibition against State involve-

ment in religion. Taken together, the two

aspects of the First Amendment

guarantee: voluntary religious belief and

conduct, government neutrality toward

religion; and separation of church and

state.

How do these principles apply to the

problem of use of high school class-

rooms for students' religious meetings? -

' High school students are unique in.

that they are compelled by law to attend

school. Thus, special care must be taken

to maintain religious neutrality in the

school setting, lest the students ex- .

perience school ``sponsorship'' of a par-

ticular religious sect, or the effects of

divisiveness from competition among

students for limited school facilities or

faculty sponsors.

In prohibiting student religious clubs,

the school boards are not engaging in

content regulation of student speech.

Rather, they are preventing an establish-

ment of religion in public schools, which

is a compelling state interest and one the

ACLU strongly supports.

According to the tests developed by

the Supreme Court, high school student

religious clubs necessarily violate the

Establishment Clause. The Clause is

violated unless all of the following stan-

dards are met: the school's policy must

have a secular purpose; its effect must

neither advance nor inhibit religion; and

the school must avoid entanglement with

religion.

Permitting religious groups to meet on

high school grounds fails the second and

third tests. (The first, secular purpose, is

probably satisfied by the school's desire

to foster student participation in clubs by

granting them access to school facilities.)

The effect of allowing the club is to

advance a particular religion. The school

is supplying rent-free lighted and heated

facilities to a religious group, which

represents a subsidy of tax funds to

religion. More importantly, the school

places its imprimatur upon the religious

activity by making it an integral part of (c)

the school's extracurricular program

during hours when students are legally

compelled to attend school. To many

adults, permitting religious meetings may

seem merely to accomodate religion, but

to'an impressionable high school stu-

dent, the school's action in authorizing

the religious club creates an improper ap-

pearance of official support for religion.

Also, the school will become exces-

sively entangled with religion in monitor-

ing the student meetings, especially since

faculty involvement is required. The

legal duty of schools to supervise

students during school hours is obviously

broader than the government's duty to

provide police protection to an outdoor

religious gathering. The school would be

forced to monitor religious groups, to

guarantee that student participation in

religious meetings is truly voluntary. Ex-

cessive entanglement between the secular _

authority (school officials) and religion

(the students)

continued on p. 4

would therefore be

Amen to the First Amendment

by Marshall W. Krause

History: In the 1960s we at the ACLU- -

NC won some good legal battles; no

longer could local school boards, re-

sponding to the pressure of ``patriots''

(how did we ever let them have that

word?) deny the use of school buildings

for meetings under the Civic Center Act

on the ground that.a speaker's politics

were ``suspect''. As the fledgling staff

counsel of our organization I got to

roam the state filing suits against school

boards from the Oregon border to the

nebulous end of our Northern California

territory. School boards were enjoined

from requiring that speakers in ``their''

auditorium be ``cleared by HUAC; sign

non-communist statements; submit their

speeches for review of the Board's

counsel and similar outrages to the spirit

of freedom in which our country was

conceived and born.

Almost always before the injunction

was obtained there would be a meeting at

which a valiant ACLU member would

read the First Amendment to the re-

calcitrant board members, and I would

say, in what must have been an effort to

mitigate their shame, ``You are neither

responsible for, nor sponsors of, the

political views of speakers merely be-

cause they are using school facilities.'' It

seldom worked.

We are dealing with something quite

similar when it comes to ``allowing'"' a

group of students to meet as a club ona

public high school campus to further

their religious beliefs. It doesn't turn the .

school into a Baptist Church or make its

principal a proselytizer. Support for the

right of the students to so congregate has

one result for the ACLU, it furthers the

aims of the First Amendment, and all

of them.

Since the meeting of groups is an ac-

tivity protected by the First Amendment, .

as is the right to practice one's religion,

opponents of ACLU support for these

rights in context of a religious club,

among the other voluntary student clubs,

must believe that a breach of the Estab-

lishment Clause is involved. Current law

in a nutshell says that any government

aid to religion is unconstitutional unless

1) it has a non-religious purpose. 2) its

core effect is not advancement of

religion and 3) the aid does not cause ex-

cessive entanglements between govern-

ment and religion. continued on p. 4

Elaine Elinson, Editor

aclu news

8 issues a year, monthly except bi-monthly in January-February, June-July,

August-September and November-December

Second Class Mail privileges authorized at San Francisco, California

Published by the American Civil Liberties Union of Northern California

Davis Riemer, Chairperson Dorothy Ehrlich, Executive Director {

Marcia Gallo, Chapter Page if :

ACLU NEWS (USPS 018-040)

1663 Mission St., 4th floor, San Francisco, California 94103. (415) 621-2488

`Membership $20 and up, of which SO cents is for a subscription to the aclu news

L and SO cents is for the national ACLU-bi-monthly publication, Civil Liberties.

-

Seni a Sa te.

aclu news

nov-dec 1983

Fremont Man Wins

Damages for False Arrest

An innocent man who was detained by

police outside a Fremont pizza parlor

and then required to pose for a series of

mug shots in public view was. awarded

$15,000 in damages on November 1 by

an Alameda County Superior Court

_ Judge. .

After a one day trial, Judge Robert H.

Kroninger ruled that Fremont police of-

ficers had violated the constitutional

rights of Richard Ron Chavez, a 32-year

old Fremont social worker. Chavez was

represented by ACLU-NC staff attorney

Amitai Schwartz.

Schwartz called the verdict a `"`great

vindication of constitutional rights. The

police must be made aware that they can-

not violate constitutional rights with im-

punity. If they must pay $15,000 in

damages to persons whom they vic-

timize, they will think twice about

repeating such violations,'' he said. -

In May 1981, Chavez had been driving

to the Straw Hat Pizza restaurant on

Grimmer Boulevard in Fremont when he

was stopped by officer Carl Berinsky of

the Fremont Police Department for in-

vestigation of local indecent exposure

and rape incidents. Berinsky was joined

by defendant David Lanier, another Fre-

mont police officer. -

The two officers searched his car and

Chavez was pat-searched, made to stand

against the wall of the restaurant, il-

luminated by a bright light, while Com-

munity Service Officer Michelle Burgess

took six mug shots of him.

The public photographing of Chavez

took place in front of patrons and

employees of the restaurant. Chavez was

`never charged with any crime. -

At the November 1 trial in Alameda

County Superior Court, the police ad-

mitted that they did not have cause to ar-

rest Chavez and that the photos had been

put into a ``mug book'' at the police sta-

tion. The mug shots were later destroyed

at the demand of the ACLU.

Judge Kroniger ruled that the deten-

tion was ``excessive'' and that the photo-

graphs served no purpose except to em-

barrass and humiliate Chavez. The judge

ruled that the police had violated

Chavez's Fourth Amendment right to be

free of unreasonable searches and

seizures, that they had falsely arrested

Chavez, that they had violated his right

to privacy and had caused him emotional

distress.

The judge characterized the photo-.

graphing of Chavez as ``outrageous,"'

and ruled that the award of $15,000 was

an appropriate amount in light of the

``extreme'' violation of rights.

Volunteers Energy

Fuels Fund Drives

by Michael Miller

ACLU-NC Associate Director

Many evenings this November, the

ACLU-NC staff has been replaced at

their desks by a second shift of workers

who proceed to monopolize the ACLU's

eight telephone lines. :

They are the Bill of Rights Campaign

Telephone Volunteers who each make

dozens of phone-calls and individually

raise up to $700 an evening for the

ACLU legal program in northern

California. Each night that these

dedicated volunteers hit the phones they

raise between $2-3,000.

This same effort is repeated in

donated law offices from Sacramento to

Oakland to Palo Alto as the ACLU

grassroots activists tackle the task of

raising $70,000 for the 1983 Bill of

Rights Campaign. To date they have

raised over $35,000.

According to Bill of Rights Campaign

Chair Naomi Schalit, the volunteers are

so successful in raising funds because ``it

is hard to resist an eager and committed

civil liberties activist whose only reward

is receiving a firm pledge for a gift over

the phone.

"Most of us are afraid that we might

be invading someone's privacy when we

start to phone,"' said Schalit. ``But the

money is critical - so we swallow our

timidity and start calling. The reception

that we get from ACLU supporters on

the other end is very inspiring."'

The telephone nights are organized by

Schalit and ACLU-NC Field Representa-

tive Marcia Gallo with leaders of the

ACLU chapters around the region. More

than 45 volunteers have participated in

this year's fundraising in telephone

nights sponsored by the San Francisco,

Earl Warren, North Peninsula,

Sacramento and Gay Rights Chapters as

Naomi Schalit (1.) and Frances Strauss,

prime movers of the ACLU's success-

ful fundraising campaigns.

well as the Pro-Choice Task Force and

Right to Dissent Subcommittee. .

Lair Smyser

"The gifts are now coming in at a

record rate and I expect us to easily meet

our $70,000 goal,'' said Schalit. `"`Our

members know our legal program is one

-of the best uses of their money."'

The Campaign will culminate at the

Bill of Rights Day Celebration on Sun-

day, December 4 at the Sheraton Palace

Hotel in San Francisco. At that event,

the 1983 Earl Warren Civil Liberties

Award will be presented to Gordon

Hirabayashi, Fred Korematsu and

Minoru Yasui for their courageous

dedication in fighting the wartime intern-

ment of 120,000 Japanese Americans.

Tickets for the event are $10.00 and are

available from the ACLU (see ad p. 1).

Major Gifts Campaign

Parallel to the Bill of Rights Cam-

paign is the other major source of funds

for the ACLU-NC Foundation, the Ma-

_ jor Gifts Campaign.

continued from p. I

Strip Search

she had no previous arrest record and

there was no reasonable suspicion that

she would be carrying drugs or weapons

into the jail.

Penny, who received $1000 in

damages in the settlement, said at a

November 1 press conference sponsored

by the ACLU and Assemblywoman.

Maxine Waters (see accompanying arti-

cle) said, ``All I ever wanted to do when I

took up this fight, was to ensure that this

degrading practice of strip searching a

person. without cause never happens

again - to any woman, man or child."'

According to Schlosser, `"This agree-

ment changing strip search policies and

practices in Fremont shows that there is

no incompatibility between respect for

an individual's constitutional rights and

the maintainence of jail security."'

The terms of the Agreement, Schlosser

explained, are similar to AB 270, the

strip search bill authored. by Assembly-

woman Waters which passed the state

Legislature but was vetoed by Govenor

George Deukmejian.

"In fact, the new policy in Fremont

goes beyond the provisions in AB 270,"'

Schlosser explained, ``in that it covers all

persons detained in the Detention Facili-

ty not only those picked up for infrac-

tions or non-violent misdemeanors. The

fact that the Fremont Police Department

recognizes the legitimacy of these limita-

tions on strip searches should be a signal

~ for other police departments and to the

legislators - the bill should be sup-

ported with an override."'

Two other strip search cases on the

ACLU-NC docket are still pending:

Scott v. Oakland challenges the strip

search practices of the Oakland. Police

Department and Luke and. Banks v.

Contra Costa challenges the strip search-

ing of visitors to the Martinez Jail. In

Luke, the ACLU won a preliminary in-

junction from Contra Costa Superior

Court Judge Martin Rothenberg limiting

random strip searching of jail visitors

earlier this year.

Waters Starts

Override Campaign

for AB 270

Assemblywoman Maxine Waters,

author of AB 270 limiting random

strip searching by the police, an-

nounced at a November 1 press con-

ference in San-Francisco her plans for

a legislative override of the

Governor's veto of the measure.

`"Governor Deukmejian obviously

only hears the demands of the police. .

`With me are members of Californians

Against Strip Search (CASS), a state-

wide organization established to fight

the veto of AB 270. We will ensure

that the Legislature hears the public's

demand for an override loud and

clear.

Waters was joined at the press con-

ference by representatives of organi-

zations which are part of CASS; strip

search victims Marlene Penny and

Ramona Scott, both plaintiffs in

_ ACLU suits challenging strip search-

ing; and ACLU attorneys Don Brown

and Alan Schlosser.

CASS spokesperson Chris Winter

of the American Association of

University Women, announced that

the organization had set up a strip

search hot line - (916) 44-STRIP.

Winter said the phone line will be

staffed by volunteers to provide legal

referral to strip search victims and to

provide information on the override

campaign.

On any given day from October to

December, there is at least. one personal

meeting between an ACLU Board mem-

ber, joined by an ACLU staff person,

and a potential donor. The benefits of

thse personal meetings are substantial:

gifts from $1,000 to $10,000 are made to

help support the legal program. The pro-

jected total for the 1983 Major Gifts

Campaign is $230,000.

In this third year of the Major Gifts

Campaign, ``organization'' is the watch-

word, according to Development Chair

Bernice Biggs. Biggs explains that in the

spring and summer, previous Major

Donors are approached to renew their -

support. In the fall, new Major Gift

donors are sought, a more difficult task.

Over 25 volunteer solicitors, mostly

current and past ACLU-NC Board

members, participate in the Campaign.

The ACLU-NC Development Com-

mittee established soliciting teams and

recruited experienced solicitors as team

leaders to organize the two dozen

solicitors.

Biggs credits the success of the fall

fundraising to the effectiveness of the

- Major Gifts Campaign team leaders: .

Lisa Honig for-the East Bay, Larry

Sleizer for the Peninsula, Gordon

Brownell for San Francisco and Fran

Strauss for San Francisco and Marin.

The Campaign has raised $125,000 to

date.

continued from De 1

Libel Threat

proposal met widespread opposition

from the Spanish- and Chinese-speaking

communities as well as from civil liber-

ties and minority rights organizations, it

was passed by San Francisco voters with

a 45,000 vote margin on November 9.

In its October 12 edition, Tiempo

Latino printed a story about a press con-

ference held by the San Franciscans for

Voters Rights - No on O campaign.

The' article quoted a number of speakers

as calling the proposition a racist

measure. :

On October 15, attorneys for Super-

visor Kopp wrote the Tiempo Latino

claiming that ``Mr. Kopp was directly

defamed both on the front page and on

page 3, where he was repeatedly referred

to as the sponsor of a racist

proposition."' The attorney, James A.

Reuben, stated in the letter that if the

paper did not print a retraction that he

- would sue the paper on Kopp's behalf.

In response to the threatened litiga-

tion, Tiempo Latino decided not to

retract the statement and called the

ACLU for legal advice. ACLU-NC staff

attorney Amitai Schwartz said,

``Whether Proposition O is a racist

measure is a matter of opinion. It is the

opinion of Tiempo Latino that Proposi-

tion O, of which Mr. Kopp is a sponsor,

is a racist proposition."

Writing on behalf of Luis Munoz, the

publisher of Tiempo Latino, Schwartz

told Supervisor Kopp's attorney, ``The

paper will stand by the statements in the

edition of October 12, 1983 as it is en-

titled to do under the First

Amendment."' :

"`The ACLU is prepared to represent

the publisher, the newspaper and any

persons connected to the purportedly

libelous statements. We believe that the

threat of a libel suit is a bully tactic in an

election campaign,'' Schwartz added.

See

4 aclu news|

nov-dec 1983

EEE

-Amento...

continued from p. 2

The government aid now in question

provides space for students to create

their own interest groups. Advancement

of religion is only an incidental effect of

this policy if a religious group is formed

~ and is successful (it would have to do a

much better job than did my Sunday

school). Then we get to point 3) which

depends on individual facts but clearly

can be worked out without excessive en-

tanglements. (And by ``entanglements"'

I include any suggestion that the school

or its officials like or encourage the club

because of its content and any special

recognition to the club or its members

which implies that those who do not par-

B.A.R.K.

BOARD MEETING: (Usually fourth

Thursday each month.) Thursday,

November 24. Contact Joe Dorst,

415/654-4163, for information about

December and January meetings.

EARL WARREN

BOARD MEETING: (Third Wednes-

day each month.) Contact Len

Weiler, 415/763-2336, for informa-

tion about December and January

meeting schedule.

FRESNO |

BOARD MEETING: (Third Wednes-

day each month.) Contact Scott

Williams, 209/441-1611, for Dec-

ember and January meeting informa-

tion.

HUMAN RIGHTS DAY: Saturday,

December 10 in Fresno. Contact

Howard Watkins, 209/486-7633 for

information and to volunteer to help

staff ACLU's table.

GAY RIGHTS -

BOARD MEETING: (First Tuesday

each month.) Tuesday, December 6;

Tuesday January 3. 7:00 p.m.,

Contact Doug Warner, 415/863-0487.

WATCH FOR ANNOUNCEMENT

of special chapter-sponsored event,

tentatively scheduled for February.

MARIN

BOARD MEETING: (Third Monday

each month.) Contact Alan Cilman,

415/864-8882, for information about

December and January meetings.

FIRST AMENDMENT ROAD

SHOW: Saturday, December 3, Mill

Valley Community Center. A special

seminar on your rights to leaflet, peti-

tion, canvass, and campaign. Contact

Harvey Dinnerstein, 415/391-3090

(days) or Marcia Gallo, ACLU-NC,

415/621-2494.

MID-PENINSULA

BOARD MEETING: Contact Harry

Anisgard, 415/856-9186 for informa-

tion about December and January

meeting schedule.

ACLU, 1663 Mission, San Francisco. -

ticipate are not in the ``inside'' group.)

Those bridges crossed, the ACLU-NC

is protecting civil liberties in aiding a stu-

dent religious club and should do so.

Some of us may think high school

students are better off playing football or

discussing current events during the

noon hour, but that choice is not ours.

Marshall Krause was chief counsel for

the ACLU-NC from 1960-1968 and is

currently on the Board of Directors. He

is a senior partner with Krause, Timan,

Baskin, Shell and Grant in Marin.

Church v....

continued from p. 2

unavoidable.

Other student clubs do not carry this (c)

ee C00 Ca se

MONTEREY

PUBLIC FORUM/BOARD MEET-

ING: ``The Establishment Clause of

the First Amendment: How Does

Separation of Church and State Af-

fect Public Education?"' featuring

guest speakers Nell Horton, Oakland

attorney and former ACLU of Nor-

thern California board member,

Abbe Miller, attorney and teacher in

Monterey; and Michelle Welsh, co-

chair of the Monterey County

Chapter Legal Committee. 8:00 p.m.,

Tuesday, November 22, Public

Health Department Conference

Room, County Courthouse, 1200

Aquajito Road, Monterey. Contact

Richard Criley, 408/624-7562.

ANNUAL MEETING: Saturday,

January 28, Crossroads Conference

Center in Carmel. This meeting will

conclude with the presentation of the

first ``Francis Heisler Civil Liberties

Award'' to Monterey County

Chapter Director Richard Criley. For

more' information, contact

408/624-7562.

MT. DIABLO

BOARD MEETING: (The chapter is

now meeting on the fourth Thursday of

each month instead of the third.) Thurs-

day, December 1. For meeting time and

place call Eve Gilmartin 935-0257.

FIRST AMENDMENT ROAD.

SHOW: Saturday, January 14. Join

us in Walnut Creek to learn more

about your First Amendment rights

regarding political activities. Con-

tact Barbara Eaton, 415/947-0200

(days) or Marcia Gallo, ACLU,

415/621-2494.

-NORTH

PENINSULA

BOARD MEETING: (Usually se-

cond Monday each month.) Mon-

day, December 12; Monday,

January 9. 8:00 p.m. at Allstate

Savings and Loan in San Mateo.

Contact Richard Keyes,

415/367-8800 (days).

FIRST AMENDMENT ROAD

SHOW: Saturday, December 10 in

San Mateo. A special seminar on

your First Amendment rights to

petition, leaflet, canvass, and cam-

paign. Contact Richard Keyes,

number above, or Marcia Gallo at

ACLU-NC.

danger of creating an establishment of

religion. The journalism club, the

photography club or the political club

are thus not similar to the religious club.

Therefore, denying the religious group

access to school property, while afford-

ing it to other student clubs, is not a

denial of equal protection.

Freedom of speech for students is not

advanced by diminishing the protection

against establishment of religion. The

balance between the two rights has been

struck by the drafters of the Consti-

tution, and the ACLU should not

alter it.

_ Michelle A. Welsh is on the Board of the

Monterey Chapter and is an ACLU-NC

Cooperating Attorney.

SACRAMENTO

BOARD MEETING: (Usually third

Wednesday each month.) Contact

Mary Gill, 916/457-4088 (evenings),

for December and January meeting

schedule.

e

SAN FRANCISCO

BOARD MEETING: (Usually

fourth Tuesday each month.) Con-

tact Chandler Visher, 415/391-0222

(days) for December and January

meeting schedule.

SANTA CLARA

BOARD MEETING: (First Tuesday

each month.) Tuesday, December 6;

Tuesday, January 3. Community

Savings Bank in San Jose, 7:30 p.m.

Contact Steve Alpers, 408/241-7126

(days.)

SANTA CRUZ

BOARD MEETING: (Second

Wednesday each month.) Wednes-

day, December 14; Wednesday,

January 11. 8:00 p.m., Louden

Nelson Center, Santa Cruz. Contact

_ Bob Taren, 408/429-9880 (days).

FIRST AMENDMENT ROAD

SHOW: Saturday, January 21 in

Santa Cruz. We'll discuss your

rights to campaign, petition, leaflet,

and demonstrate. Contact Bob

Taren, number above, or Marcia

Gallo at the ACLU-NC Office.

SONOMA

BOARD MEETING: (Usually third

Thursday each month.) Contact An-

drea Learned, 707/544-6911, for in-

formation on December and

January meetings.

STOCKTON

BOARD MEETING: (Usually third

Thursday each month.) Contact

Bart Harloe, 209/946-2431 (days)

for December and January meeting

schedule.

Dr. Zachary Stadt

The ACLU-NC mourns the pass-

ing of Dr. Zachary Stadt, past presi-

dent of the Mt. Diablo Chapter and

ten year member of the chapter

board. Dr.Stadt, a dentist with the

Contra Costa Health Department,

was a veteran of the Abraham Lin-

coln Brigade, fighting facism in

Spain in the 1930's. "`He fought for.

freedom when it wasn't popular to

do so,'' said chapter vice-president

Beverly Bortin, `and his activism

will be sorely missed by the entire

ACLU,

YOLO COUNTY

BOARD MEETING: (Usually third

Thursday each month.) Contact

Harry Roth, 916/753-0996 (days)

for information on December and

January meetings.

FIELD...

COMMITTEE

MEETINGS

PRO-CHOICE TASK FORCE:

First Wednesday each month, alter-

nating between 6:00 p.m. and 7:30

p.m. times. December 7 - 7:30 p.m.

`"`Holiday Celebration'' with

special guest speaker - all pro-

choice supporters and friends

welcome.

Also, Wednesday, January 4, 6:00

p.m. Planning now underway for

January 22 ``Eleventh Anniversary

of Roe v. Wade'' - local meetings

and special Sacramento events.

Contact Dick Grosboll,

415/387-0575 (evenings) or Marcia

Gallo at ACLU-NC. ~

RIGHT TO DISSENT SUBCOM-

MITTEE: First Wednesday each

month, alternating between 6:00

p.m. and 7:30 p.m. times.

December 7 - 6:00 p.m.; January 4

-7:30 p.m. Work continues on

``First Amendment Road Shows''

all over northern California - bring

your ideas for new projects. Contact

Sarita Cordell, 415/647-4691 (even-

ings) or Marcia Gallo at ACLU-NC.

DRAFT OPPOSITION NET-

WORK: Special meeting set for Sat-

urday, December 10 at the ACLU-

NC office in San Francisco, 1663

Mission Street. Gather at 10:30 for

coffee, fruit and pastries, and updates "

on draft registration opposition ac-

tivities; meeting will conclude at

12:00 noon. Contact Judy Newman,

415/567-1527 or Marcia Gallo at

ACLU-NC.

IMMIGRATION WORKING

GROUP: Monday, December 12,

6:30 p.m. at the ACLU-NC office in

San Francisco, 1663 Mission Street,

for the next meeting of the Immigra-

tion Working Group. We've got

new information on the Simpson-

Mazzoli bill (not yet dead despite

the news!) and increased INS ac-

tivities. Bring your ideas for pro-

jects. Contact Andrea Learned,

707/544-6911 (days) or Marcia

Gallo at ACLU-NC.

GAL

1983

5 The Annual Report of nee

The ACLU Foundation of Northern California

- Looking back over the year that this docket represents, we are struck by the inspiring

courage of the people with whom we work.

From Fred Korematsu, who fought for almost half a century against an injust convic-

tion for refusing to obey wartime internment orders for Japanese Americans, to Leslie

Bennett, who challenged the inclusion of a religious prayer at her high school graduation

ceremony despite harassment and threats - our clients show a special courage through

often difficult and lonely fights.

But they believed in their rights - and they believed in the ACLU's ability to

help them.

Three ACLU-NC staff counsel, Margaret Crosby, Alan Schlosser and Amitai

Schwartz, have for seven years shared responsibility for directing our remarkable legal

program, ably assisted by Pat Jameson and Cati Hawkins. The staff counsel currently

handle over 100 active cases with the help of 80 dedicated private lawyers who donate

their services as ACLU cooperating attorneys.

Moreover, for every case which appears on the docket, there are hundreds of civil

liberties conflicts which are resolved administratively. ACLU's Complaint Desk, staffed

by a dozen volunteer lay counselors, receives more than 200 phone calls per week.

Assisted by the staff attorneys, and ten law students who clerk for the legal department

during the course of the year, these counselors often provide the advocacy necessary to

resolve a particular grievance.

In addition, the ACLU's public information program, directed by Elaine Elinson,

alerts the public to the action taken and issues championed by ACLU litigation through

the media and our own publications.

Through this docket you will witness the courage of our clients as we have done

throughout the year. We hope that you will take the opportunity to applaud this courage

and defend the Bill of Rights with your continued support to the ACLU.

Davis Riemer

Chairperson

Dorothy Ehrlich

Executive Director

The ACLU Fights

for the Rights of .. .

-,..Women

Bobb v. Monterey County Municipal Court

(California Court of Appeal) .

A woman juror held in contempt in

Monterey County Municipal Court for re-

fusing to answer a question which was sex

discriminatory was vindicated in June when

the state Court of Appeal overtumed the

contempt verdict.

The ACLU represented the woman who

refused to answer a question about her

spouse's occupation, a question asked only

of female members on the jury panel. She

was jailed for contempt of court and that rul-

ing was upheld by the superior court.

The appellate court ruling agreed with

ACLU arguments that the questioning

violated the equal protection guarantees of

the California Constitution. An attempt to

appeal that decision was thwarted when the

California Supreme Court denied hearing.

Isbister v. Santa Cruz Boys Club

(California Court of Appeal)

In June, the state Court of Appeal reversed

the 1980 landmark ruling by the Santa Cruz

Superior Court which determined, in agree-

ment with ACLU arguments, that the Boys

Club policy of excluding girls was illegal

and that membership in the club must be

open to children of both sexes.

The California Supreme Court, however,

granted the ACLU petition for hearing and

will decide the case next year.

In re Dement and Razo

(California Court of Appeal)

In a case which seemingly places male in-

mates' constitutional right to privacy against

the right to equal employment opportunities

of female correction officers, the ACLU is

arguing that neither right need be com-

promised. The ACLU filed an amicus brief

urging reversal of a 1980 superior court

order which retioved all female staff from

observational posts located in the boys' liv-

`ing units of a Stockton juvenile detention

center. The ACLU claims that the order

should be reversed as there exist alter-

natives less drastic than restricting women's

employment opportunities - such as minor

structural changes in the living units - that

would both protect the inmates' right to

privacy and retain the normalizing in-

fluence of a coeducational correctional

staff.

Miller v. California Commission on the

Status of Women

(California Court of Appeal)

In 1976, the California Commission on the

Status of Women was sued by an anti-ERA

group which charged that the Commission

had unlawfully used public monies to gather

support for the ERA. In the 1982 trial, the

plaintiffs broadened their attack on the

Commission, maintaining that the Commis-

sion should be restricted to a "passive and

objective informational role." The judge

ordered the Commission to limit activities to

"technical and consultative advice," free of

any advocacy.

The ACLU has filed an amicus brief in the

Court of Appeal on behalf of the Commis-

sion, arguing that the Constitution does not

prohibit the Commission from adopting

positions on women's issues, advising the

public of those positions and lobbying

- before the Legislature in support of women's

rights.

... and the Right

to Choose

Committee to Defend Reproductive

Rights v. Rank

(California Court of Appeal)

F or the sixth year in a row, the ACLU filed

a successful lawsuit to challenge the

Legislature's cut-off of Medi-Cal funds for

abortion through the Budget Act. In an at-

tempt to circumvent the landmark 1981

California Supreme Court ruling that any

restriction on Medi-Cal funding for abortion

was in violation of the state Constitution, the

Legislature established a special fund for

abortion outside of general Medi-Cal ap-

propriations and put even more severe

restrictions on abortion funding than in any

previous year.

When the suit was filed in July, the Court

of Appeal responded within hours by issu-

ing a stay preventing the state from cutting

off the funds for abortion and from sending

out notices about the threatened cut-off of

funds to hundreds of thousands of Medi-Cal

recipients.

The continuation of funding means that

100,000 women - including 27,000 teen-

agers - each year in California have access

to Medi-Cal funds for abortion.

Margolis v. Deukmejian

(Sacramento Superior Court)

The ACLU is challenging the constitution-

ality of the state's 1967 Therapeutic Abortion

Act which establishes an absolute 20-week

time limit for the performance of any abor-

tion. The suit, filed on behalf of doctors who

perform abortions and their patients,

disputes and interpretation of the act by the

former state Attorney General George

Deukmejian that the 20-week time limit be

enforced unless prosecutors conclude that

the fetus was not viable or the life or health

of the pregnant woman was in danger.

The ACLU is arguing that this interpreta-

tion, which clashes with the guidelines of the

state Department of Health Services,

violates several U.S. Supreme Court rulings

and that the Attorney General does not have

the power to rewrite the law.

People v. Gomez

(California Court of Appeal)

When an anti-choice group invaded a

Planned Parenthood clinic, disrupted clinic

operations, and assaulted clinic staff

members, they were charged with trespass

and battery. The clinic invaders attempted

to defend themselves with the "necessity

defense," arguing that they had fo disrupt

the clinic to prevent the greater harm of

abortion which they claimed was murder.

The ACLU opposed their defense, arguing

that the jury could not find that abortion is

murder since it is a constitutionally pro-

tected right.

The judge agreed that the "necessity de-

fense" did not apply to the clinic invaders

and they were subsequently found guilty of .

illegal trespass and assault. The appellate

division of the Superior Court affirmed the

convictions, and the Court of Appeal re-

fused to hear further appeals.

... Minorities

International Molders v. Nelson

(U.S. District Court)

Ih April 1982, the Immigration and

Naturalization Service (INS) carried out a

_ highly publicized nationwide series of raids

on worksites euphemistically called "Opera-

tion Jobs." The ACLU, MALDEF and other

public interest law firms filed a class action

suit against the INS, charging that in nor-

thern California INS and Border Patrol

agents violated the constitutional rights of

employees and employers by illegally enter-

ing worksites without warrant or consent, by

detaining workers simply because they look-

ed Hispanic without any reasonable suspi-

cion that they were undocumented aliens and

by depriving those detained, often with

violence or threats of violence, of their due

process rights.

SPALL a TT SS NS ERT EN OT EDS SF STS TSS PES Eg gE EES

Legal Docket

Olagues v. Russionello

(U.S. District Court)

A discriminatory probe of persons who

seek bilingual election materials initiated by

the U.S. Attorney in nine northern Califor-

nia counties, just weeks before the 1982 spr-

ing election registration deadline, was chal-

lenged by the ACLU and MALDEF in a

class action suit on behalf of Chinese and

Spanish speaking voters. The suit argued

that the investigation is in violation of the

Constitution and the federal Voting Rights

Act.

In October, the federal court judge dis-

missed the case stating that the courts have

no power to enjoin a prosecutor's investiga-

tion and finding that the federal and county

officials have immunity against damages for

these claims. An appeal is being filed.

Korematsu v. U.S.

(U.S. District Court)

Fred Korematsu was convicted in 1942 for

refusing to obey the government's evacua-

tion and internment orders which resulted in

the incarceration of 120,000 Japanese

Americans in concentration camps during

World War II. In January, Korematsu,

Minoru Yasui and Gordon Hirabayashi filed

writs of error coram nobis in an attempt to

reverse their convictions, charging that new

documentation, unearthed through the

Freedom of Information Act, proved that

government officials had manipulated,

fabricated and suppressed evidence

presented to the U.S. Supreme Court which

upheld the convictions in 1943.

_ In November, U.S. District Court Judge

Marilyn Patel vacated Korematsu's 40-year

old conviction declaring that the govern-

ment had falsified and suppressed evidence

to justify the internment and the wholesale

violation of constitutional rights.

Roman and Guillory v. City of Richmond

(U.S. Court of Appeal)

The ACLU has agreed to defend the $3 mil-

lion dollar judgment awarded by a federal

jury in June to the families of two black men

shot by Richmond police officers.

The four month trial focused on the racist

_ and brutal practices of the Richmond police

toward the black community. The City of

Richmond appealed the trial court judg-

ment.

Tinsley v. Palo Alto Unified School

District,

(California Court of Appeal)

The ACLU filed an amicus brief in support

of a legal challenge to California's Proposi-

tion 1 - the state constitutional amendment

approved by voters in 1979 which puts

severe limitations on busing as a remedy for

school desegregation. The amicus brief

argued that Proposition 1 was itself state ac- |

tion to promote segregation and conse-

_ quently violates the federal Constitution.

The U.S. Supreme Court determined in

Crawford (the major Los Angeles school -

desegregation case) that Proposition 1 was

valid. Tinsley will be re-argued in the Court

of Appeal on the grounds that the restric-

tions in Proposition 1 cannot be constitu-

tionally applied to prevent desegregation of

a small school district where extensive bus-

ing is not a factor.

_. Gays

Brinkin v. Southern Pacific _

(San Francisco Superior Court)

The ACLU is representing a gay employee

of Southern Pacific who was denied the con-

tractual 3-day funeral leave when his lover

_ of 11 years died. The suit, filed against the

SP company and the railway clerks union,

claims that the denial of benefits is discrim-

inatory under California statutory and

constitutional law, both for using the stan-

dard of marriage as a requirement for

benefits and for discriminating against

homosexuals who are prohibited from

achieving the legal status of marriage.

Adolph Coors Co. v. Howard Wallace,

et al. :

(U.S. District Court)

The ACLU is representing Solidarity, a gay

rights group in San Francisco that produced

a leaflet supporting the boycott of Coors

beer, outlining Coors' objectionable labor

policies and political activities. Coors is su-

ing the AFL-CIO Coors Boycott Committee

and Solidarity, claiming that in a successful

effort to persuade KQED television to cancel

a special "Coors Day" auction they violated

antitrust laws.

In -December 1982, a district court

magistrate ruled that Solidarity must comply

with a discovery request of Coors to provide

the company with membership information,

the identities of their contributors, minutes

of meetings and other information about

Solidarity and its boycott activities. The

magistrate also ordered Solidarity and the

ACLU to pay Coors' attorneys' fees.

However, in May, the ACLU was successful

in convincing the federal district court

judge to vacate the magistrate's decision

and reverse the decision on fees. The judge

agreed with the ACLU argument that the

divulging of such information would be a

serious infringement of associational

privacy.

In this action, and in the entire suit, the

ACLU contends that Coors is clearly at-

tempting to use the legal process to chill

free speech.

Demon-

strators

International Committee Against Racism

v. City of Sacramento

(Sacramento Superior Court)

The ACLU filed suit against the city of

Sacramento charging that the police, with-

out lawful justification, subjected partici-

pants in the 1981 "March against Racism" to

detention, metal detector searches, body |

frisks, individual mug shots, intensive

videotape surveillance and a police escort

intended to prevent spectators from joining

the march.

As part of a Settlement Agreement, the

Police Department has adopted a new

Parade Permit Policy which 1) prohibits

metal detectors searches or frisks of mar-

chers or spectators without individualized

suspicion of criminal activity and 2) pro-

hibits photographing marchers while speak-

ing or participating in demonstrations

unless they are involved in unlawful activity.

NAACP v. City of Richmond

(U.S. Court of Appeals)

The Richmond city ordinance that was used

to prevent NAACP and ACLU demonstra-

tors from marching in the streets to protest

police abuse in the black community in the

fall of 1982 was upheld by a federal judge in

August after the ACLU challenged its con-

titutionality.

Although the 1982 march itself was able

to proceed as a result of the ACLU's earlier

successful appeal to the Court of Appeals,

the ordinance, which requires that groups

obtain a march permit from the police

department 20 days prior to an event unless

the City Council waives the notice require-

ment, is the subject of a new appeal. The ap-

peal charges that the ordinance is in clear

violation of the First Amendment.

The Ad Hoc Committee For Nuclear

Disarmament in Novato v. City of Novato

(U.S. District Court) _

The AD Hoc Committee for Nuclear Dis-

armament planned a rally and march in

Novato in June 1982. The Novato City

Manager and Chief of Police told the group

that in order to secure a permit for the

march they would have to obtain insurance

and pay fees for additional police protection

- provisions which the small committee

could not afford. The ACLU is representing

' the committee in a suit challenging the price

tag on First Amendment rights. Novato has

no ordinance which authorizes levying such

fees against demonstrators and has imposed

them arbitrarily on some groups, like the Ad

Hoc Committee, but not on others.

. Prisoners

De ace v. McDonald |

' (San Mateo Superior Court)

In a landmark prisoners' privacy rights

case, the California Supreme Court ruled

that the monitoring of detainees' conversa-

tions for the purpose of gathering incrim-

inating evidence was illegal.

The ACLU, representing a detainee, his

wife and his lawyer and local taxpayers, had

argued in the Supreme Court that the San

Mateo County Sheriff's practice of elec-

tronically monitoring and recording conver-

sations between prisoners and their visitors

violated the California Constitution's

guarantee of privacy. The high court deci-

sion is the first one in the country to deter-

mine that inmates' conversations may be

monitored solely for security reasons and

not for the purpose of obtaining evidence

against them. The case is still pending in the

trial court.

Bailey v. Loggins

(California Supreme Court)

The California Supreme Court ruled in

December 1982 that Department of Correc-

tions regulations concerning prison news-

papers must take prisoners' First Amend-

ment rights into account. The high court

stated that inmate newspapers - even those

funded by the state - cannot be limited in

their freedom of the press except for com-

-pelling governmental interests such as in-

stitutional security and public safety.

The case rose out of the censorship by

Soledad prison officials of two articles writ-

ten in 1976 for the inmate newspaper, the

Star News. An amicus brief by the ACLU

argued that the First Amendment protects a

newspaper edited by inmates inside the

walls of a prison from censorship by the

state.

Huston v. Pulley

(Court of Appeal)

The inmate editor of the Soledad Star News

filed a challenge to the censorship of prison.

authorities of a sexually suggestive but not

obscene photograph and cartoon in the in-

mate paper. The Monterey Superior Court

reversed the action of prison officials. Fol-

lowing the Supreme Court decision in

Bailey, the ACLU took over representation

of the editor and the paper. The Court of

Appeal held that prisoners' free speech

rights can only be restricted when essential

to protect institutional security, and that

prison censorship in this case violated con-

stitutional and statutory standards.

Diaz and Prisoners Union v. Watts

(Solano County Superior Court) :

A superior court injunction in 1981 ordered

prison officials at the California Medical

Facility in Vacaville who censored,

destroyed and shut down the prisoner run

newspaper there to allow the paper to

resume publication and cease harassment of

the inmate editor.

In the wake of the Supreme Court deci-

sion in Bailey v. Loggins, the California

Department of Corrections issued new

regulations for prison newspapers. The

ACLU challenged these rules as unconstitu-

tionally vague and overbroad but our re-

quest for a preliminary injunction barring

the use of the new regulations was rejected

by the superior court.

In re Charles Williams

(California Court of Appeal)

The editor of the San Quentin prison

newspaper filed a petition for habeus corpus

challenging the post-Bailey rules regulating

prison newspapers (the same regulations

that are being challenged in Diaz.) The

ACLU filed an amicus brief in the Court of

Appeal arguing that the rules violate the

Bailey decision and are vague and over-

broad.

Torrey v. County of Alameda

(Alameda Superior Court)

On behalf of a former inmate of Santa Rita

who was forcibly raped by another inmate in

the presence of two deputy sheriffs, the

ACLU is suing Alameda County and the

Sheriff's Department claiming that the

systematic indifference to prisoners' rights

and safety at the jail and the subsequent en-

dangerment of prisoners is a violation of the

constitutional guarantee of freedom from

cruel and unusual punishment. ;

The case will go to trial next year in

superior court.

Workers

Pittsburg Unified School District v.

California School Employees Association

(California Court of Appeal)

An amicus brief by the ACLU in the Court

of Appeal argues that four school employees

involved in a labor dispute were exercising

First Amendment rights when they engaged

in peaceful, non-obstructive informational

leafleting at the private business offices of

two school board members.

The board members obtained a pre-

liminary injunction in superior court pre-

venting the union members from such infor-

mational picketing.

Smith v. State Personnel Board

(California Court of Appeal)

A state employed social worker who was

disciplined and suspended from her job for

"blowing the whistle" on her employer's

violation of the law received back pay and

the expungement of the suspension from all

records, as the result of the settlement of an

ACLU appeal.

The social worker had raised objections to

hospital administrators and county officials

about Sonoma State Hospital's failure to pro- .

vide programs mandated by state law for

developmentally disabled children.

U.S. v. Butterworth

(U.S. District Court)

An ACLU amicus brief in the U.S. District

Court supported the defense of five air traf-

fic controllers who were criminally charged -

for participating in the 1981 PATCO strike.

This was the first time ever that the federal

government sought criminal penalties under

the federal employees strike ban.

The ACLU argued that the five defen-

dants, all of whom were union organizers or

officers, were selected for prosecution

based on their advocacy of union policies

(including the right to strike) in violation of

the First Amendment.

The arguments raised in the ACLU brief

in support of a pre-trial defense motion for

an evidentiary hearing were accepted by

the judge and the hearing was held. How-

ever, the judge rejected the claim of selec-

tive presecution, and this decision was af-

firmed by the federal Court of Appeals.

The Press

: McCoy et al. v. The Hearst

Corporation et al.

(California Court of Appeal)

The appeal of 1.6 million dollar libel judg-

ment against two former San Francisco Ex-

aminer reporters, Raul Ramirez and Lowell

Bergman was filed by the ACLU in the

Court of Appeal.

The seven figure libel judgement, award-

ed by a San Francisco jury in 1979, was the

result of suit brought by two city policemen

and a former Assistant District Attorney

against the reporters and the Examiner

because of a series of articles published in ~

1976 about a controversial murder trial in

which a 19- -year- -old Chinatown youth was

convicted.

The case strikingly documents the poten-

tial of libel suits to limit journalist inquiry in-

to the activities of public officials. Oral

arguments in the case are expected in 1984.

z ze z %

'

ACLU 1983

... Patients

Jamison v. Farabee

(U.S. District Court)

l, a major victory for mental patients'

rights, a Consent Decree was filed in May

establishing that involuntary mental patients

at Napa State Hospital have the right of in-

formed consent with respect to anti-psy-

chotic drugs and the right to due process

`procedures in the administration of such

drugs. The Decree, which is expected to be

approved by the federal court, will end a

five year class action suit and is the first

judgment of its kind to protect the rights of

involuntary mental patients.

An earlier settlement in the same case

resulted in new regulations from the state

Department of Mental Health recognizing

for the first time the right of voluntary men-

tal patients in all public and private licensed

mental health facilities in California to

refuse such medication.

: Fort Help v. Municipal Court

(Alameda County Superior Court)

The ACLU is representing a methadone

program in its attempts to protect the con-

fidentiality of its clients' records against

police searches. In September, the Berkeley

police raided the San Francisco program

under a warrant issued by the Berkeley

Municipal Court.

The police were looking for the identity of

a burglary suspect, but failed to give notice

to the program as required by federal and

state law.

The ACLU sought return of the informa-

tion taken from the program; when only part

of the information was returned, a writ pro-

ceeding was brought in superior court.

Doe v. Naylor

(Court of Appeal)

A patient whose personal medical records

were confiscated by a state investigator dur-

ing an investigation of her psychiatrist for

- Medi-Cal fraud, was supported in her suit

against the state by the ACLU. An amicus

brief filed by the ACLU and the Northem

California Psychiatric Society argued that

the patient's right to privacy, guaranteed by

the state Constitution, was violated by the

scope of the state investigator's search.

However, in August the State Appellate

`Court upheld the constitutionality of the

search.

... Disabled

Christopher T. v. San Francisco Unified

School District

(U.S. District Court)

The ACLU-NC joined the national

ACLU's Children's Rights Project and Legal

Services for Children in a class action suit

on behalf of disabled children who were be-

ing denied educational benefits accorded

them by law.

In violation of the provisions of the

Education for all Handicapped Children

Act, parents of handicapped children in

San Francisco and elsewhere have been

forced to give up custody of their children in

order to receive financial assistance for the

costly residential education their children

require.

The District Court granted the plaintiffs'

motion for partial summary judgment com-

pelling the school district to assume the cost

of residential placements for the two plain-

tiffs and to return both children to the legal

custody of the parents. Settlement discus-

sions to reach a class-wide resolution of the

problem are proceeding.

... students

Bennett v. Livermore Unified

School District

(Alameda County Superior Court)

When graduating seniors at Granada High

School in Livermore objected to having a

prayer at their school graduation ceremony,

they were opposed by several school com-

mittees, the principal, and the school board.

The ACLU-NC went to court on behalf of

one of the students and a Livermore tax-

payer charging that inclusion of the prayer

was in violation of the constitutional prin-

ciples of church-state separation.

The injunction issued by the Superior

Court was allowed to stand by the Court of

Appeal and Supreme Court on the eve of

the graduation ceremony and the prayer

was not included in the program. The con-

tinuing litigation could affect public school

graduation ceremonies statewide.

McKamey v. Mt. Diablo Unified

School District

(Contra Costa Superior Court)

High school students in the Mt. Diablo

Unified School District will be able to read

Ms. magazine again without first obtaining a

parent's written permission as a result of an

August superior court decision removing

censorship restrictions on the magazine.

The ACLU filed suit on behalf of students,

teachers, parents, a taxpayer and the Ms.

Foundation challenging the school board's

decision to restrict access to Ms. to onl

those students who could obtain parental

permission. The restriction was tantamount

to censorship of a magazine which provided

a unique and important perspective on con-

temporary social issues. .

The court's ruling relied on the 1983 U.S.

Supreme Court decision in the ACLU

lawsuit Pico v. Island Trees School Board

which held that the First Amendment does

not permit suppression of ideas in the school

library.

Wexner v. Anderson Union High

School District

(California Court of Appeal)

The ACLU's 1978 challenge to a Shasta

County school board ban on the books of

prize-winning poet-novelist Richard Brauti-

gan resulted in a summary judgment from

the superior court in 1980 that the ban was

unconstitutional and the books must be

returned to the school library. The court

refused, however, to order the return of the

books to English classes where they had

been previously used.

The ACLU appealed that decision argu-

ing that the superior court erred in holding

that the books may be banned from

classroom use. The school board also ap-

pealed, arguing that the books should not

be retumed to the school library. The ap-

pellate court heard arguments in May.

... And for the

Right to. .

... Freedom

of

Expression

Alternatives for California Women v.

Contra Costa County

(California Court of Appeal)

In July, the Court of Appeal ruled that a

county ordinance prohibiting groups to can-

vass and solicit funds door-to-door between

sunset and sunrise was unconstitutional. The

ruling was based on two premises: that the .

ordinance unreasonably discriminated be-

tween solicitation and other forms of can-

vassing, and, more basically, that the coun-

ty could find less instrusive ways to deal with

its legitimate concerns about privacy and

safety than banning door-to-door activity

during the evening hours.

The ACLU was representing Alternatives

for California Women, a non-profit group

which disseminates information concerning

battered women and solicits donations

through such activity. |

Women's International League for Peace

and Freedom v. Fresno

(California Court of Appeals)

The Women's International League for

Peace and Freedom (WILPF) opposes draft

registration and sought to put up signs in

city buses with a photo of soldiers saying,

"Why is this the only job our government

has to offer 19-20 year olds? Think before

you register for the draft."

The superior court held the city or-

dinance prohibiting political messages un-

constitutional, but that the city could ban the

- WILPF signs because they advocate illegal

activity, i.e., not registering for the draft.

Both sides are appealing the decision and

the ACLU is representing WILPF on the ap-

peal.

University of California Nuclear Weapons

Lab Conversion Project v. Lawrence

Livermore Laboratory.

(California Court of Appeal)

The ACLU argued in the Court of Appeal

in September that Lawrence Livermore

Laboratory must allow anti-nuclear groups

to place their information in the Lab's

Visitors Center and to use the Lab's audi-

torium for the showing of a film about the

dangers of nuclear weapons.

In 1980, the Alameda County Superior

Court issued an injunction allowing the anti-

nuclear group to use the Lab's facilities for

their First Amendment activities. However,

lawyers for the University of California,

which administers the Lab for the U.S.

Department of Energy, appealed the

decision.

Triple F Investments v. Green

(Fresno Superior Court)

A large shopping mall brought suit to en-

join the free speech activities of a political

petitioner on shopping center property. The

ACLU is defending the petitioner and will

challenge the burdensome shopping center

rules which include a mandatory insurance

policy, a prohibition against access during

holidays, and a ban against approaching.

customers. -

Over the last two years, the ACLU has

filed over half a dozen suits on behalf of ac-

tivist organizations challenging burdensome

and unnecessary "time, place and manner"

regulations at shopping malls throughout

northern California. In each case, the

ACLU has won court orders enjoining

unconstitutional limitations on free speech

activity at shopping centers.

California Water Protection Council v.

Valco Fashion Plaza

(Santa Clara Superior Court)

The California Water Protection Council,

represented by the ACLU, won a decision

which allowed its campaigners to approach

shoppers and struck down half a dozen

other rules which inhibited informational

activity.

Citizens for a Better Environment v.

City of Vallejo

(Solano County Superior Court)

In Vallejo, a city ordinance requires that all

persons who seek to canvass door-to-door

for political or charitable purposes must

submit to fingerprinting by the police. An

ACLU suit, filed on behalf of Citizens for a

Better Environment, Citizens Action League

and Greenpeace, argues that the ordinance

is unconstitutional as it violates the canvas-

sers' privacy and their First Amendment

right to communicate with the people o

Vallejo. :

Taxpayers for Vincent v. Los Angeles

City Council

. (U.S. Supreme Court)

The ACLU prepared an amicus curiae

brief in this U.S. Supreme Court case in-

volving the legality of a city prohibition on

posting signs on public property, such as

utility poles. The brief argues that an ab-

solute ban on the posting of political signs

violates the First Amendment.

Franklin v. Stanford

(California Court of Appeal)

In 1972, during the height of the Vietnam

War, Stanford University professor Bruce

Franklin was fired for speeches he made

during campus protests. In December,

1982, after a decade of hearings and litiga-

tion, the ACLU filed its challenge to

Franklin's dismissal in the state Court of

Appeal.

The ACLU challenge allows the appellate

court to consider for the first time in this

lengthy case whether, as the ACLU is argu-

ing, Franklin's constitutional rights were

violated by the Stanford firing.

Carr v. Warden and Pacifica

(San Mateo Superior Court)

When Friends of Pacifica, an environ-

mental group, was sued by members of the

city Planning Commission for slander based

on a statement made by the organization's

chair and reported in a local newspaper

during the campaign for a local growth con-

trol measure, the ACLU defended the

group.

In May 1982, the San Mateo Superior

Court dismissed the $125,000 slander suit.

The judge agreed with the ACLU argument

that statements made by the chairperson of

Friends of Pacifica during the campaign.

were expressions of opinion and thus pro-

tected under law. This victory against the

use of defamation to chill political expres-

sion was especially important for the Friends

of Pacifica as the unjustified slander allega-

tions had a potentially chilling effect on

members and those who wish to associate

with the group.

The members of the Planning Commis-

sion appealed the ruling and the ACLU is

representing both the Friends of Pacifica

and its chairperson on the appeal. ~

Polzkill v. City of Pacific Grove

(Monterey Superior Court)

In July, a superior court judge agreed with

ACLU arguments that a city ballot initiative

by the Pacific Grove Property Rights Com-

mittee proposing controls on property

development, was properly placed on the

ballot. A developer had filed suit against the

committee and the Registrar of Voters alleg-

ing that the initiative improperly covered

more than one issue and demanding that it

be removed from the ballot.

The ACLU represented the Pacific Grove

Property Rights Committee arguing that the

suit was an attempt to interfere with the in-

- itiative process and because such frivolous

lawsuits have chilling effect on First Amend-

ment rights.

... Privacy

In re Duncan

(U.S. Court of Appeals)

Charles Peter Duncan, a British citizen who

has been a lawful permanent resident in the

U.S. since 1971, was denied U.S. natural-

ized citizenship by the INS because he re-

fused to answer four questions on the Bio-

graphic Information Form which he found _

objectionable. The questions concerned

prior criminal activity, membership in

organizations, belief in communism and

moral character.

The ACLU represented Duncan in his ap-

peal of the denial, arguing that the INS can-

not force an applicant to waive his constitu-

tional rights as a precondition for citizen-

ship. In September, the federal court up-

held the INS decision on technical grounds

but did not address the constitutional issue.

The ACLU will pursue this issue until the

courts reach a conclusion based on substan-

tive, rather than technical, grounds.

The 1983 Legal Docket was written by

ACLU News editor Elaine Elinson.

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Schmid v. Lovette

(California Court of Appeal)

The use of a McCarthy era loyalty oath by

the Richmond School District was struck

down by a superior court ruling in an ACLU

challenge. The ACLU represented a

teacher who objected to signing the oath,

disavowing membership in the Communist

Party, when applying for a job with the

Richmond School District.

The judge ruled that the oath may no

longer be required of school district

employees and that the state superintendent

of public instruction must write to all school

and community college districts informing

them that the oath is unconstitutional.

The school district has appealed the court

award of attorneys' fees to: the ACLU and

that appeal is now pending.

Franchise Tax Board v. Barnhart

(San Francisco Superior Court)

The ACLU represented our former state

capitol lobbyists in an audit of their lobby-

ing activity by challenging a subpeona from

the Franchise Tax Board (FTB) on the

grounds that the subpeona sought confiden-

tial files protected by the First Amendment

and by the California Constitution's

guarantee of privacy.

The lawsuit was dismissed by the FTB

after they agreed to a settlement providing

access to limited financial data.

Robbins v. Superior Court

(California Supreme Court)

Sacramento County requires that employ-

able persons receiving general assistance

live in a poorhouse as a condition of county

support. In a case challenging the poor-

house for indigents, the ACLU is arguing as

a friend of the court that the involuntary

poorhouse condition violates the right to

privacy, freedom of movement and due

process.

Cohen v. Superior Court

(California Court of Appeal)

The ACLU filed an amicus brief in the

Court of Appeal challenging the constitu-

tionality of a San Francisco ordinance

passed in 1981 establishing a compre-

hensive regulatory system for the very

broadly defined category of "escort ser-

vices." The ACLU is asking that the or-

dinance be struck down because the con-

stitutional guarantee of privacy is violated

by its requirement that escort services main-

tain a daily register, open to the police and

health departments, showing the names and

addresses of patrons, their escorts, times

and places where escort services took place

and the fee charged.

...10 Be Free

From

Unreasonable

Search and

Seizure

Penny v. Fremont

(Contra Costa Superior Court)

In October, a landmark settlement was

reached between the ACLU and the City of

Fremont limiting strip searches at the Fre-

mont Detention Facility. New guidelines

issued for all police personnel at the Fre-

mont Detention Center require that there be

individualized suspicion warranted before

any strip search can be conducted and that

there must be a written record of the reasons

for the search and the search itself.

The ACLU represented a Fremont mother

of four with no previous arrest record who

was strip searched at the detention facility

for failure to pay a dog license fee for a dog

which she no longer owned. As part of the

settlement, the strip search victim was

awarded $1000 in damages. Prior to the

settlement, Fremont had a policy of random-

ly strip searching all persons detained in the

jail without individualized suspicion that the

person was carrying contraband.

Scott v. Oakland

(Contra Costa Superior Court)

The ACLU is arguing the "open fields" ex-

ception to the Fourth Amendment should

only justify warrantless searches if the owner

of the land has not exhibited an intent to re-

tain privacy.

The ACLU is representing a female bank

employee who was strip searched by the

Oakland police despite the fact that she had

no previous arrest record, was detained for

the infraction of failure to pay a dog license

fee, and the authorities had been informed

that her father was en route to the jail with

bail money.

The case is still pending in superior court.

Luke v. Contra Costa

(Contra Costa Superior Court)

Random strip searching of visitors to the

Martinez Jail is now prohibited by an order

issued by the Contra Costa Superior Court

in December 1982 as the result of an ACLU

challenge to the practice.

The ACLU filed suit on behalf of two

women visitors to the jail in Martinez who

were subject to unwarranted strip searches.

One of the women was seven months

pregnant.

The court order enjoined jail officials

from conducting strip searches without

reasonable suspicion that the visitor is con-

cealing contraband or weapons and man-

dated several requirements controlling strip

searches.

The claim for damages for each strip

search victim and for a permanent injunc-

tion is still pending.

Chavez v. Fremont

(Alameda Superior Court)

Ain innocent man who was detained by

police outside a Fremont pizza parlor and

then required to pose for a series of mug

shots in public view was awarded $15,000 in

damages in November by an Alameda

Superior Court judge.

The judge ruled, in agreement with the

ACLU which represented the man, that the

police had violated the Fourth Amendment

right to be free from unreasonable search

and seizure, that they had violated the right

to privacy and had caused emotional

distress.

Oliver v. U.S.

(U.S. Supreme Court)

Tn an amicus brief filed in March in the U.S.

Supreme Court, the ACLU is arguing that

unrestricted access by government agents to

"open fields" without regard to Fourth

Amendment safeguards undermines

constitutionally protected privacy rights.

The case stems from the arrest of a retired

farmer by government agents who, without

warrants, drove on to his property, passing

four "No Trespassing" signs and a locked

metal gate where they found a marijuana

field a mile from the farmer's home which

was apparently being cultivated by, his

tenants.

Ge ee Samet ee na eee

You Can Support

This Docket

. .. with your special contribution to

I the Bill of Rights Campaign of the

! ACLU Foundation of Northern Califor-

nia. Without these special gifts, the

docket you are holding might be only

| one-half the size.

| I want to be a Bill of Rights Cam-

| Paign supporter and underwrite the

ACLU's legal work in northern

| California. Enclosed is my tax-

| deductible contribution of

C1 $500 () $250 (I $100

City.__==~=~--s- State

Phone

| Please make checks payable to the ACLY Foun-

dation of Northem Califomia and send to ACLU

Foundation, 1663 Mission St., San Francisco, CA

94103.

ee ee ee

Zip.

Libertarian Party v. Murphy et al.

(U.S. District Court)

On behalf of the Libertarian Party of San

Francisco, the ACLU sued the San Fran-

cisco Police Department for damages as a

result of a police raid on the party's head-

quarters housing the Libertarian Bookstore

and a newspaper. The suit claimed that the

police raid, which destroyed books and files

as well as equipment used to put out the

newspaper, was in retaliation for the Liber-

tarian Party's 1979 political campaign to

abolish the San Francisco Police Depart-

ment Vice Squad.

The Police Department has agreed to an

out-of-court settlement, the terms of which

are now being defined.

... Criminal

Justice

Harris v. Pulley

(U.S. Supreme Court)

The ACLU filed an amicus brief on behalf

of a Death Row inmate in an effort to block

the first state execution in 15 years. The

brief, filed on behalf of Robert Alton Harris

by the ACLU and the State Public

Defenders Office, argued that California,

unlike other states, lacks the procedural

protections necessary to ensure that there is

a meaningful basis to distinguish the few

cases in which the death penalty is imposed

from the many where it is not.

The Court of Appeals reversed the death

sentence and ordered the case back to state

court for a far-ranging review of the state

death penalty law, halting executions in the

state for an indefinite period. The U.S.

Supreme Court heard the case in November

and the issue should be resolved next year.

In re Jerald C.

(California Supreme Court)

Because both the state's criminal statutes

and its incarceration facilities serve special

societal needs, the ACLU argued as amicus

curiae that the costs of incarcerating a

juvenile offender must not be borne by only

a few citizens - the offender's parents -

but is the reponsibility of the state. In asking

that the court hold the section the law

assigning costs of the incarceration of

juveniles to their parents unconstitutional,

the ACLU asserts that when the government

elects to use its judicial machinery to

segregate a child from his family based on a

finding of juvenile misconduct rather than

parental neglect, it must subsidize the in-

carceration it demands.

People v. Spain

(U.S. Court of Appeals)

In January the federal Court of Appeals

upheld a district court decision overturning

the conviction of a Black Panther Party

member for offenses stemming from the

1971 uprising at San Quentin Prison. In an

amicus brief, the ACLU had argued that the

prisoner's trial had been marred by serious

due process violations, including the

shackling of the defendant during trial and

improper contact between the trial judge

and a juror who had prejudicial opinions

about the Black Panther Party.

In re Reed

(California Supreme Court)

ln May the California Supreme Court struck

down a state law requirement that persons

convicted of soliciting "lewd or dissolute

conduct" register for life as sex offenders,

agreeing with the ACLU's contention that

the requirement constitutes cruel and

unusual punishment. The court stated that

the law imposes the lifelong stigma of sex of-

fender registration on persons who have

commited little more than a sexual indiscre-

tion, involving no violence; other equally or

more serious offenses are punished less

severely.

The ACLU entered the case of aman who |

was sentenced to register as a sex offender

after having been convicted for the misde-

meanor offense of masturbating in a public

restroom.

Wilson v. Superior Court

(California Supreme Court)

The ACLU filed an amicus buet chal

lenging the so-called "truth-in-evidence"

- section of Proposition 8, the criminal justice

initiative adopted in June 1982. The brief

argues that the "truth-in-evidence" provi-

sion does not abrogate the requirement that

illegally seized evidence is inadmissible in

court. In October, the California Supreme

Court decided the case, without reaching

the Proposition 8 issue.

... 10 Be Free

From

Police Abuse |

Tom v. City of San Francisco

(San Francisco Superior Court)

Aan innocent man who was arrested and im-

prisoned because of a court clerk's error

entered into a police computer system

received $1500 in damages and expunge-

ment of his record in an out-of-court settle-

ment negotiated by the ACLU with the San

Francisco and Hillsborough Police Depart-

ments in April.

When the man was stopped for a motor

vehicle violation, the Police Information

Network (PIN) erroneously transmitted in-

formation to the arresting officer that he was

a "wanted man", and he was jailed. The

ACLU charged that his improper arrest and

detention violated the Fourth Amendment

prohibition against unreasonable searches.

Britt v. Police Commission

_ (San Francisco Superior Court)

Despite the fact that San Francisco voters

approved the establishment of the Office of

Citizen Complaints in the November 1982

election to investigate complaints of police

investigation replacing the police de-

partment-run Internal Affairs Bureau, the

OCC was not completely funded by the

City. In May, the ACLU filed a suit to force

the San Francisco Police Commission to

consider a larger budget for the OCC as the

budget allocated is insufficient for the OCC

to carry out all necessary investigations.

Ramey v. Murphy

(San Francisco Superior Court)

The ACLU has appealed a nuling by a

superior court judge upholding the San

Francisco Police Department's practice of

using an obstruction of sidewalks law as a

means of detaining persons who would not

otherwise be punished by legal means.

During a lengthy and complex trial in

1982, the ACLU had sought an injunction

and a declaration that the bad faith enforce-

ment by the police of Section 647c of the

state Penal Code was unconstitutional.

Evidence produced at the trial indicated

that 94% of the people arrested under 647c

have their charges dropped at their first ap-

pearance in court and that less than one in

200 persons is actually convicted of obstruc-

tion. The ACLU appeal argues that since

the courts have struck down vagrancy and

loitering laws, the police now sweep the

streets of undesirables as they had under the

old laws, they just avoid submitting the ar-

`rests for prosecution. -

Sundance v. Municipal Court

(California Supreme Court)

The ACLU filed a brief challenging the

widespread arrests without prosecution or

trial of public inebriates in Los Angeles

County. The record in the case shows over

150,000 arrests for public inebriation, with

only eight convictions after trial. The ACLU

brief argues that people cannot constitu-

tionally be subjected to arrest, booking, and

incarceration when arresting officers

reasonably know that the persons arrested

will not be prosecuted or convicted.

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