vol. 34, no. 1

American

Civil Liberties

Union

Volume XXXIV

SAN FRANCISCO, JANUARY, 1969

No. 1

Marijuana Policy Statement

Seek Removal

Of Criminal

Penalties -

The American Civil Liberties Union has voted to urge

the removal of criminal penalties from the use and posses-

sion of marijuana.

The ACLU action was taken by the national Board of

Directors last month following close study by the ACLU

Due Process Committee, recom-

mendations from several ACLU

state organizations and a two-year

discussion within the Union.

Private Behavior

In explaining the ACLU action,

Mr. John de J. Pemberton, Exec-

utive Director, said, `Private be-

havior which has not been shown

to do damage to others is a per-

sonal matter - Constitutionally

protected-and does not deserve

the harsh criminal penalties im-

posed by present federal and

state laws covering the use and

possession of marijuana."

"As a matter of record," Mr.

Pemberton continued, "police and

prosecutors have too often used

these harsh criminal sanctions as

a playground, prompting illegal

_ search procedures, the breach of

due process protections and a.

ready rationale for harassment."

Text of Statement

The ACLU policy statement,

adopted December 15, 1968 reads

as follows:

"The use of marijuana involves

protected Constitutional rights

including the right to privacy.

Intrusion by government on such

a Constitutionally protected act

places a burden of justification

upon government. That burden

has not been met with respect to

federal and state laws which im-

pose severe penalties on the use.

and possssion of marijuana.

"The showings of legitimate

' government interest, upon which

present legislation rests, are

neither clear nor conclusive, and

the penalties themselves may be

subject to Constitutional objec-

tion as cruel and unusual] punish-

ment. Federal and state statutes

applying criminal sanctions to the

use and possession of marijuana

are excessive and unconstitu-

tional interventions into personal -

and private rights.

"The Due Process Committee

of ACLU is now examining the

civil liberties and constitutional

implications of more appropriate

regulatory measures short of

criminal penalties for the use and

possession of marijuana especial-

ly by minors and the appropriate

restrictions on the sale of mari-

juana."

Long-Haired

S.F. Postman

ls Suspended

William Cain, a postal carrier

regularly assigned te San Fran-

cisco's Diamond Heights Station,

has been suspended without pay

from his duties "because," ac-

cording to Charles Harper, Direc-

tor of Management for the San

Francisco Post Office, "his hair

does not present an appearance

which conforms to good business

practices."

ACLUNC Staff Counsel Paul

Halvonik has asked Postmaster

Lim P. Lee to reinstate Cain,

insisting that there is no postal

regulation requiring employees

to have a business-like haircut.

The only relevant postal regula-

tion requires employees to keep |

their hair neat and clean, a re-

quirement that Cain has ful-

filled.

ACLUNC Council

Forms in West

Contra Costa Co.

Concerned members of ACLU-

NC in West Contra Costa County

met at the El Cerrito Co-Op mar-

ket on December 10th to discuss

the formation of a chapter in the

area. Approximately 45 people at-

tended the meeting, not all of

whom are among the 200 mem-

bers who reside in the towns in-

cluded in the area: Richmond, El

Cerrito, Pinole, Crockett, Rodeo,

El Sobrante, and San Pablo.

A steering committee was

formed, and held its first meet-

ing in Richmond on December

17th; Leo Yarnell and Larry

Lewis were chosen as co-chair-

men. Various committees have

been formed, and those interest-

ed in contributing some time and

energy are invited to attend the

next steering committee meeting

on January 28, Call the office for

details, or Mr. Lewis at 234-3096,

or Mr. Yarnell at 237-7805.

Orientation

ing with them,

Berkeley-Albany Chapter

Civil Liberties

The Berkeley-Albany Chapter will hold an all-day session

on Saturday, January 25, to further orient volunteers, includ-

ing attorneys, to civil liberties issues and procedures in deal-

The morning sessions will begin at 9 o'clock and will con-

sist of panel discussions of the structure and function of the

Civil Liberties Union, and on what constitutes a civil liberties

issue. Lunah plans are still incomplete, and it is hoped to have

a well known speaker at that time. The afternoon is devoted

to workshops in specific areas of current civil liberties interest.

The sessions will be held at the Northbrae Community

Church, 941 The Alameda, near Los Angeles Avenue, Berkeley,

and will take place between 9 a.m, and 4 p.m. There will be a

small fee to cover costs. All Chapters are strongly urged to

send their participating attorneys, and as many chapter work-

ers and interested members as possible, If further information

is desired, call the Berkeley ACLU office, 548-1322.

Day Jan. 25

Secretary

Wanted

The ACLUNC has need for

a secretary, one who takes

shorthand and who operates

an IBM typewriter. The job

also involves mimeographing,

handling telep hone com-

plaints and general office

work, The salary is $450 per

month.

Applicants should write or

telephone to Mrs. Pamela

Ford at the ACLU office, 503

Market St. San Francisco,

Cal, 9405. (Phone 433-2750).

Poole Expresses

Deep Regret at

Ladar's Conduct

Cecil Poole, United States At-

torney, last month expressed

deep regret to Ernest Besig over

"any personal embarrassment"

he may have suffered in a pass-

port incident with his deputy,

Jerrold Ladar. Besig agreed to

bring the young lady in question

to. the U. S, Attorney's office for

service of a subpoena to appear

before the Grand Jury. Mr. La-

dar agreed to return a subpoena

that the FBI had taken from be-

longings she had stored in a

Richmond residence, After the

subpoena was served Ladar re-

fused to surrender the passport

and threatened Besig's removal

by U. S. Marshals for obstructing

justice,

Mr. Poole stated that Ladar's

"narration of the incident" dif-

fers from the oie given by Besig.

Besig asked Poole to advise him

how Mr. Ladar's version of the

facts differed from his but re-

ceived no response. "I'll be glad

to publish Mr. Ladar's version"

said Besig, "if his differs from

mine in any significant way."

The ACLU contended that Mr.

Ladar's behaviour requires fur-

ther action than an expression

of regrets at any personal em-

barrassment Besig may have suf-

fered.

Death Row Test Case

State Supreme

Court Lifts

Execution Ban

On December 19, 1968, the California Supreme Court's

decision upholding the constitutionality of the death penalty

became final and the stay of all executions in the state of

California, entered on November 14, 1967, was vacated.

In lifting the stay the Court denied a petition for the

continuation of the stay filed by

ACLUNC and the NAACP Legal

Defense Fund.on behalf of death

row inmates. The petition, pre-

pared by volunteer counsel Je-

rome B. Falk, Jr., stated:

"The majority opinion [in last

month's death penalty decision]

established, first, the necessity

of a new penalty trial for each

man sentenced to death in Cali-

fornia by a jury in whose selec-

tion veniremen scrupled against

capital punishment were excused

for cause, second, a California

policy requiring the appointment

of counsel for each indigent con-

demned man desiring representa-

tion. The immediate effect of

these holdings is to call for re-

view of the record in the case

of each condemned man now on

death row-by counsel appointed

for him if he has none-to de-

cide whether an application for

a new penalty trial is warran-

ted."

The petition went on to urge

that, before the stay he lifted,

an investigation be conducted to

determine which men on death

Attention

Oakland Area

Members

There will pe. a special meet-

ing of the steering committee

and other members interested in

becoming involved in chapter

work in the Oakland Area, on

Wednesday, January 8, at 8 p.m.

at the home of Mr. Joel Zebrack,

65 Eucalyptus Road, Berkeley.

The meeting will be concerned

with the future of the Oakland

Council, and with plans to

strengthen its structure and pro-

grams, Anyone inerested in par-

ticipating is cordially invited.

Simulated Oral Intercourse

McClure's "The Beard'

May Soon Go fo Trial

The legal controversy over Michael McClure's play "The

Beard" has been revived.

In 1966, Billie Dixon and Richard Bright, the stars of

"The Beard," were arrested under Penal Code 647 (a), which

makes anyone engaging in "lewd or dissolute conduct" in a

"place open to the public" guilty

of disorderly conduct. The pre-

cise complaint of the police was

that, during a performance of

the play, Dixon and Bright had

engaged in a "simulated act of

oral intercourse."

Writ of Prohibition Issued

In December 1966 ACLUNC

staff counsel Marshall Krause,

representing Dixon, Bright, and

Michael McClure, sought and ob-

tained from Superior Court

Judge Joseph Karesh a writ of

prohibition preventing their

prosecution under Section 647

(a). The case has been on ap-

peal since then.

When the appeal was argued,

ACLUNC urged that prosecuting

under Section 647 (a) was an

attempt to avoid having to apply

the normal rules of obscenity to

"The Beard"; that Section 647

(a) was not intended to apply to

conduct in a play; that if prose-

cution was permitted at all, the

constitutional limitations on the

prosecution of obscenity would

have to be applied; and that a

private theatre charging admis-

sion is not a "place open to the

public" within the meaning of

the disorderly conduct statute.

Similar Care

Before a decision was made by

the Court of Appeal, the Califor-

nia Supreme Court decided a

somewhat similar case, In re

Giannini and Iser, 69 A.C. 588

(1968). The Giannini case in-

volved the prosecution of a top-

less dancer and her employer

under the disorderly conduct

statute. Calling the dance a

"theatrical performance," the Su-

_ preme Court held that Section

647 (a) could be applied, but

that the First Amendment limi-

tations on the prosecution of ob-

scenity must be followed,

Appeal Court Reverses

Relying on Giannini, the Court

of Appeals has reversed the writ

of prohibition, ruling that Dixon

and Bright may be prosecuted

" ~"isorderly conduct'' but that

Firs. Amendment standards

must be applied.

ACLUNC's petition for rehear-

ing has been denied, and if a

petition for hearing in the Cali-

fornia Supreme Court is unsuc-

cessful, "The Beard' will go to

trial.

row were in need of appointed

counsel, that counsel be appoint-

ed for those discovered to be in

such need and that the appointed

counsel then be given time to

present a writ on behalf of the

condemned man that would set

forth his legal claims.

No Explanation

The Supreme Court did not

give any reasons for denying the

application for continuation of

the stay. It did, however, grant

stays in two death cases on the

following day. One of the con-

demned men who received a

new stay, Edward Louis Arguel-

lo, is represented by ACLUNC-

NAACP/LDF.

Standards Issue In High Court

In the same week that the

State Supreme Court lifted its

general stay of executions, the

Supreme Court of the United

States agreed to hear the Arkan-

sas case of Maxwell v. Bishop.

Maxwell raises the very question

which divided the California Su-

_ preme Court four to three in its

determination that Califonia's

death penalty is constitutional.

That question is whether a jury

may impose the death penalty in

its unguided discretion or wheth-

er the Constitution's requirement

of due process invalidates any

procedure in which a jury is not

given guidelines tor its penalty

imposition. Maxwell is going to

be heard with another death pen-

alty case before the Supreme

Court, Boykin v. Alabama. Boy-

kin involves a number of con-

stitutional claims but the only

one common to Maxwell is the

"standards" question.

ACLU Succeeds

in Two More

Teachers' Cases

ACLUNC has been successful

in persuading the Committee of

Credentials of the State Board

of Education to drop further pro-

ceedings against two more teach-

ers arrested during nonviolent

demonstrations against the draft

and the war in Vietnam.

The Cases .

Susan E. Roberts of Berkeley

has a California teaching cre-

dential; Genevieve McDonald of

San Francisco has applied for

one. Both were arrested during

demonstrations at the Oakland

Induction Center. The State

Board of Education moved to re-

voke Miss Robert's credentiat

and to refuse one to Miss Mc-

Donald.

ACLU Position

' At informal] hearings in Sacra-

mento on December 10th and

lith, ACLUNC's position was

once again stated to the Commit-

tee of Credentials: any revoca-

tion of a teaching credential be-

cause of misdemeanor arrests ir

connection with nonviolent civil

disobedience would violate both

state law and the First and Four-

teenth amendments to _ the

United States Constitution.

Other Cases Pending

After the hearings, the Com-

mittee announced that no fur-

ther proceedings will be taken

against Miss Robert's credential,

and that Miss McDonald's appli-

cation for a credential will be

granted. This brings to five the -

number of cases in which teach-

ers represented by ACLUNC

have prevailed. At least four

similar cases are pending.

Due Process Issues

Appeal in |

Security

Clearance Case

The United States has appealed a decision by Federal

District Judge Robert Peckham that held invalid a Defense

Department Security Clearance procedure and restored the

security clearance of Dexter C. Shoultz, an employee of Lock-

heed Aircraft who had his clearance revoked pursuant to the

procedure.

Mr. Shoultz had held the se-

curity clearance for more than

a decade when, in 1966, he was

informed that a screening board

of the Department of Defense

desired to ask him certain ques-

tions during an "interview."

Shoultz contacted ACLU Execu-

tive Director Ernest Besig who

demanded to know the authority

for a hearing where the accused

is not informed of the charges

against him, not confronted by

his. accusers and not permitted

to cross-examine witnesses, The

Department of Defense replied

that a new regulation was being

prepared and that the "inter-

view" would be pursuant to its

provisions,

. New Regulation

The new regulation became ef-

fective on January 7, 1967, and

an interview was scheduled for

Shoultz. Marshall Krause, at that

time staff counsel, asked the

Federal District Court to stop

the interview but Judge Zirpoli,

who heard the application for

the temporary restraining order,

denied relief on the basis that

the motion was premature be-

cause it could not be determined

whether Shoultz would refuse to

answer relevant questions, The

interview was held on June 30,

1967,

On Octeber 13, 1967, Shoultz

was informed that his security

clearance had been suspended

because of his refusal to answer.

"relevant" questions. Shoultz was

removed from his job at Lock-

heed and was scheduled to be

placed on a prolonged leave of

absence without salary. Marshall

Krause, however, sought another

order in the Federal District

Court, an order which was grant-

ed by Judge Peckham.

Court Ruling

Judge Peckham held that the

newly adopted Defense Depart-

ment Procedure was invalid be-

cause it "permits an indefinite,

if not effectively permanent,

suspension of an -individual's se-

curity clearance, thereby nulli-

fying employment opportunity,

without any statement of charges

or other specific notice, without

any opportunity to answer spe-

cifie facts alleged to jeopardize

an individual's security clear-

ance, without any confrontation

or cross-examination, and with-

out any factual basis given as

the reason for the suspension."

No Executive Authority

Judge Peckham, relying on the

authority of a 1959 Supreme

Court case, concluded that such

a security clearance procedure

could not be sustained in the

absence of a specific authoriza-

tion for it from the President.

He further found that the Presi-

dent had not authorized the pro-

cedure.

After Peckham's decision,

Shoultz. regained his security

clearance and the government

appealed the case to the United

States Court of Appeals. Both

sides have now filed their briefs

and the matter will soon be set

for oral argument.

ACLU Brief

In the brief on Shoultz's be-

haif, staff counse] Paul Halvonik -

maintains that the Peckham de-

cision is unassailable. "If this

Court will imagine a hearing in

which some of the guarantees of

ACLU NEWS

JANUARY, 1969

Page 2

due process of law are present,"

the brief states, "it will imagine

everything" not present in the

hearing that resulted in the re-

vocation of Shoultz's_ security

clearance. `There is no require-

ment of written specification of

charges; no opportunity, conse-

quently, to reply to such charges

in writing; no opportunity to

confront one's accusers; no right

of cross-examination; no notice

as to the burden of proof; no

review of the proceedings."

The brief concludes with the

observation that if the Depart-

ment of Defense actually had

any information that suggested

that Mr. Shoultz was a security

risk, it could institute appropri-

ate and lawful proceedings and

suspend his access to classified

information.

Santa Cruz Co.

Chapter Chooses

Its Officers

Last month, Stanley D. Stevens

of Santa Cruz was elected to his

fifth term as chairman of the

Santa Cruz County Chapter of

ACLUNC. Other officers are

Jacob Michaelsen, vice-chairman;

Joyce Richardson, secretary; Mar-

vin J. Naman, treasurer; Robert

Lissner, membership chairman;

Daniel Miller and John E, Mc-

Bain, program co-chairmen; and,

Peter Beagle, public relations di-

rector, -

In addition to McBain, Mrs.

Linda Sanquino of Aptos and

Michael] P. Dailey of Santa Cruz

are newly elected to the board.

Re-elected to the board were

Mrs. Myra McLoughlin of Ben

Lomond and the following from

Santa Cruz: Duncan Holbert,

Mrs, Hermia Kaplan, Bruce Lar-

kin, Paul Lee, Mrs. Margaret

Lezin, Mrs. Elizabeth Moore and

Philips Patton.

New Pamphlet

On Secondary

Schools

"Academic Freedom in Sec-

ondary Schools," a pamphlet

embodying ACLU policy state-

ments solely on private and

public schools below college

level has just been issued

by ACLU.

The 21-page, 25c pamphlet

was prepared by a special

committee of the National

ACLU's Academic Freedom

Committee. Under the major

headings of Teachers' Rights

and Students' Rights, it takes

up such topics ag curriculum

and the teaching of contro-

versial issues, organizational

and political activity, extra-

curricular and out of school

_activities, student government,

appointment and dismissal of

teachers, the rights of teach-

ers and administrators, stu-

dent discipline and students'

due process rights, and the

role of the police.

ACLUNC will fill orders for

the new pamphlet. Please en-

close 3lc to cover the cost of

the pamphlet and postage.

The branch office has thus

far distributed more than 1000

copies of the pamphlet.

`Nuisance'

Loss in State

Court of Appeal

The California Court of Ap-

peal, reversing a decision by

Judge Robert Drewes of the San

Francisco Superior Court, has

ordered that Duncan Pain go on

trial for violating California's

"public nuisance"

Drewes had held that Pain could

not be tried under the Code sec-

tion because the "public nui-

sance" law did not apply to

people but only to things,

Court's Decision

The Court of Appeal found

that Pain could be tried for

"maintaining a public nuisance"

by "unlawfully obstructing the

free passage and use in the cus-

tomary manner of a public

Street," that the Code section -

was not unconstituionally vague

and that it did not infringe the

exercise of First Amendment

rights in the public streets. The

`Court further ruled -that al-

though Pain must stand trial,

the prosecution must prove not

only that Pain obsructed the

street but that he "unreason-

ably" obstructed the street.

Rehearing Sought

Pain's attorneys, staff counsel

Paul Halvonik and cooperating

attorney Ephraim Margolin, will

ask the Court of Appeal to re-

consider its decision. If the

Court of Appeal declines to re-

hear the matter the California

Supreme Court will be asked to

pass on the constitutionality of

California's "Public Nuisance"

Law, -

Before Judge Drewes made his

decision, now overruled, that the

nuisance law could not be ap-

plied to persons, it was used by

the San Francisco police as a

device for rounding up `"unde-

sirables" in the Haight-Ashbury

and Tenderloin districts.

impromptu

Play Leads

To Arrest

An impromptu play performed

in a San Francisco park by nine

State College students resulted

in the arrest of two of them.

Those two are charged with ob-

scenity offenses.

The play included a vignette

in which one actor, portraying a

policeman, simulates an evacua-

tion of his bowels on another

actor portraying a student, The

idea the actors were attempting

to convey is that the police have

abused students. The symbolism. .

was lost on the police. Or per-

haps it wasn't. In any event they

made the arrests.

Hearing Sought -

On Long-Pending

Nat. Petition

A petitioner for naturalization,

Mrs, King Kwan Woo, has re-

quested the Federal District

Court to set her naturalizaion

petition for a hearing on the

ground that the Immigration and

Naturalization Service has arbi-

trarily refused, for a period of

over four years to bring her pe-

tition into court.

In a motion filed on her be-

half by staff counsel Paul Hal-

vonik, the court is urged to set

the matter for a hearing even

though the Immigration and

Naturalization Service contends

it needs more time to investigate

her petition.

Petitions for naturalization are

granted or denied by the courts

`but the Immigration and Nat-

uralization Service customarily

determines when the petition

will be heard in court,

In Mrs. Woo's case there is no

indication by the Service of any

intention to present her petition

at any time in the foreseeable

future.

law.. Judge

Referendum Decision

ACLU Adopts Policy

On Civil Disobedience

The following statement on "Civil Disobedience," adopted

by the national board of directors of the ACLU, was recently

approved in a referendum vote of the Union's electorate:

In the past few years particularly, the ACLU has been

confronted by situations in which individuals have violated

laws of the United States or of

its states or municipalities and

have requested ACLU defense in

connection with the violation.

These cases have presented the

ACLU with a complex and

troublesome issue, In many cases

those who have violated such

laws have not done so primarily

for anti-social purposes but be-

cause they wished by their dis-

obedience to express their views

on some aspect of public life.

Some have labeled their behavior

"civil disobedience."

Many types of facts have been

inaccurately labeled "civil dis-

obedience;" therefore, we should

make clear our definition of the

term, Generally speaking, civil

disobedience is the willful, non-

violent and public violation of

valid laws because the violator

deems them to be unjust or be-

eause their violation will focus

public attention on other injus-

tices in society to which such

laws may or may not be related.

To some persons, the willing ac-

ceptance of punishment for each

disobedience is the gravamen of

civil diesobedience. To others,

some of whom have sought

ACLU assistance, it is not the

acceptance of punishment, but

the public violation of the law,

which is the core of civil dis-

obedience.

A working definition of civil

disobedience will exclude, we be-

lieve, instances of the violation

of federal or state laws or munic-

ipal ordinances which either

clearly or arguably violate the

United States Constitution, Thus,

instances in which individuals

disobey local laws which perpe-

tuate segregation in public

schools or public transportation

are not examples of civil dis-

obedience. The considerations

which move people to challenge

the constitutionality of legisla-

tion that is colorably invalid. un-

der the United States Constitu-

tion by violating such laws are

different from the impetus to

protest "unjust" but clearly valid

laws by disobeying them.

Nor does civil disobedience oc-

cur when people surreptitiously

violate laws, such as by exceed-

ing speed limits. In these cases

there is no attempt to bring to

the public's attention the "injus-

tice" of a valid law. Again, civil

disobedience is not involved

when one inadvertently violates

a law, like forgetting to include

savings account interest in one's

tax return. The public protest

element is missing in such in-

stances too. Open rebellion or

riots, like those which occurred

in Watts, California, and have oc-

curred in a number of American

cities recently, are not examples

of civil disobedience since they

involve violence and they are not

peaceful attempts to focus atten-

tion on injustice through the

means of persuading the public

to change unjust laws.

Unjust Laws

When the ACLU uses the term

"civil disobedience," we do not

mean any of the examples re-

ferred to above. We believe there

are two broad categories to which

the term is properly applied The

first involves the deliberate vio-

lation of a law by an individual

because the individual believes

the law itself is unjust even

though it is constitutional, Such

a case would be presented by a

person refusing to participate in

a civil defense drill because he

SLL

he

believes it to be unwise, or by a

pacifist refusing to pay a portion

or all of his federal taxes because

he believes the taxes will be

used in part for military pur-

poses, or by an individual refus-

ing to register for military serv-

ice, either as a means of protest-

ing miiltary conscription or of

protesting against war or because

believes registration runs

afoul of the obligations imposed

by his conscience. In all these

instances, we have assumed that

the laws are constitutional, re-

gardless of how unwise or unjust

they may be from the viewpoint

of the individual who violates

them.

The second category of civil

disobedience arises when an in-

dividual violates a valid law with

which he has no quarrel but does

so to protest or call attention to

some other evil, which may or

may not be related to the law

which is being violated. This has

been common to a number of

civil rights demonstrations in the

North. For example, the access

of materials to a construction

site is blocked by persons lying

down in the path of trucks in -

order to protest discriminatory

employment practices by the gen-

eral contractor or the labor un-

ion involved, Or garbage may be

dumped into a government office

building to protest inadequate

sanitary facilities in a slum area

or the failure of the municipal-

ity to take corrective action. In |

both cases, valid laws against dis-

orderly conduct or trespass on

private or public property or

other similar statutes have been

violated.

Many of the people who have

been involved in either type of

civil disobedience have willing-

ly submitted to arrest, prosecu-

tion, and imprisonment because

they believe the theory of civil

disobedience requires their ac-

ceptance of the consequences of

their illegal conduct as proof of

their respect for society as a

- whole and for its laws in gen-

eral. In these cases the ACLU

has little, if any, role to play. Our

eoncern arises when those who

violate valid laws seek our as-

sistance in order to avoid the

law's consequences on the

grounds that they acted out of

conscience or deeply felt con-

victions.

In both types of civil disobe-

dience, many of those who have

violated laws have acted out of

the highest principle, often out of

asserted compliance with obliga-

tions of conscience and to ac-

complish a purpose with which

decent men may agree-to end

discrimination, to clean up the

slums, to protest against wars.

Nevertheless, in all cases the

ACLU believes that no civil liber-

ties issue is presented if the vio-

latorgs are arrested, prosecuted,

and punished, bearing in mind

that due process must be recog-

nized in the arrest and prosecu-

tion and that equal protection of

the laws must be accorded with

respect to the bail set or punish-

ment meted out. Specifically, the

right to counsel must be pro-

vided, the trial held in an at-

mosphere that is not prejudicial

to the rights of the accused, and

the sentence imposed not more

severe than would be imposed on

another person who violated the

same law. We have been concern.

-Continued on Page 4

' 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

503 Marke? Street, San Francisco, California 94105, 433-2750

Subeription Rates -- Two Dollars and Fifty Cents a Year

Twenty-Five Cents Per Copy

LB 151

,

FINANCIAL REPORT

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA

For Year Ended October 31, 1968

LAVENTHOL, KREKSTEIN, HORWATH and HORWATH

CERTIFIED PUBLIC ACCOUNTANTS

San Francisco, Calif,

Board of Directors

American Civil Liberties Union

. of Northern California

San Francisco, California

We have examined the statement of assets, liabilities and fund shuities of

the American Civil Liberties Union of Northern California as of October 31,

1968, and the related statement of income (loss) for the year then ended. Our

examination was made in accordance with generally accepted auditing stand-

ards, and accordingly included such tests of the accounting records and such

other auditing procedures as we considered necessary in the circumstances. We

previously made a similar examination for the year ended October 31, 1967.

Although the accounts are maintained principally on a cash basis, and modi-

fied with respect to unearned dues income and provisions for bi-ennial and #ri-

ennial recurring expenses, the differences between the modified cash basis and

the accrual basis are relatively immaterial.

In our opinion, the financial statements referred to above present fairly the

financial position of the American Civil Liberties Union of Northern Califor-

nia at October 31,

1968, and the results of its operations for the year then

ended, in conformity with generally accepted accounting principles applied on

a basis consistent with that of the preceding year.

LAVENTHOL, KREKSTEIN, HORWATH and HORWATH

December 3, 1968

Certified Public Accountants

Statement of Assets,

Liabilities and Fund Equities

OCTOBER 31,

1968

ASSETS

CURRENT ASSETS:

Cash

Wells Fargo Bank

General account 00... eeeccseseeee.

Savings account ......0.............

Time certificate 00.00... cee

San Francisco Federal Savings and Loan Association ........

Security Savings and Loan Association oo... cece

American Savings and Loan Association

Golden West Savings and Loan

Twin Pine Savings and Loan .............

Petty cash ...

iE se IE ON $ 2,698

5,000 $14,396

10,000

10,009

10,244

15,000

10,000

10

Securities, at cost (Note 1) 20.00...

U. S. Treasury Bonds, at cost (Note 2) 00.0

13,801

4,500

$87,951

7 ommeceeescramannionre

LIABILITIES AND FUND EQUITIES

CURRENT LIABILITIES:

Employees' payroll taxes withheld

Obligated funds (Note 3)

FUND EQUITIES

Balance, October 31,

Deferred income

Dues, fiscal year ended October 31,

Provision for Tri-ennial report

Excess expenses over income, fiscal

year ended October 31,

Equal Treatment

Asked for

Indigent Accused

ACLUNC, in a friend of the

court brief filed in the Califor-

nia Court of Appeal, has urged

that indigent criminal defend-

ants are entitled to the services

of court-appointed experts and

investigators whenever the ac-

cused can show that there is a

reasonable possibility that their

assistance can contribute to his

exoneration.

The criminal defendant is Da-

vid Major. His attorney, Ephraim

Margolin, who is representing

Major without fee, asked the Su-

perior Court to grant reasonable

costs to cover the expenses for

an investigator and a criminolog-

ist skilled in chemistry. Margolin

contended that he could not ef-

fectively represent Major unless

the motion were granted. The

Superior Court, nevertheless, de-

nied the motion and Margolin

has asked the Court of Appeal

to review and reverse that deci-

sion.

In the amicus curiae brief,

Paul Halvonik, quoting Justice

Black's observation that "There

can be no equal justice where

the kind of trial a man gets de-

pends on the amount of money

he has," argues that the denial

of Margolin's motion violates

three constitutional provisions:

the right to due process of law,

19672 eee

Se ee (

1968 .........

$ 1,209

12,073

SS eee 68,253

1969 3,500

3,000 /

84) 74,669

$87,951

Letters... ;

... to the Editor

Editor:-I believe it to be very

`improper and beyonc the pur-

poses of ACLUNC to condemn

individuals who engage in civil

disobedience unless that CD it-

self violates the civil liberties or

academic freedom of others. The

circumstances of the two U.C.

Berkeley sit-ins involved the oc- .

cupation of an administration

building and a classroom building

at night. How does that violate

academic freedom? It would

have been proper to condemn the

policemen, non-sit-inners and the

few sit-inners who destroyed

academic files in Moses Hall.

The only way that you related

the CD to a subversion of civil

liberties and academic freedom

was with political speculation.

The fact that many persons be-

lieve, not without some evidence,

that the Bd. of Regents' actions

constitute not only an attack on

academic freedom, as you recog-

nize, but also a bill of attainder,

prior restraint of speech, and an

act of racism emphasizes the im-

portance of ACLUNC not loosely

condemning actions which many

individuals of conscience consider

necessary.-Ray Grueneich.

the guarantee of equal protection

of the laws and the right to the

effective assistance of counsel.

Statement of Income (Loss)

INCOME

"Membership, $ 94,976 $ 92,219

Special funds appeal ow... eee $ 7,309 $ 5,725

Less portion directed to }

obligated funds -........ eee ees 3,081 4.228 4,185 1,540

Special gifts

Cash .. 12,814 15,925 ae

Market value of securities received ...... 1,694 14,508 3,371 19,296

Memorial gifts. 22. 807 490

Inferest:income.. 2. 3,647 3,340

Dividend income ooo... eee eceseseeee 505 388

Operation Correction ...00.........eceeccececceeeeeos 131 235

Publication sales, notary fees, :

and miscellaneous 2.0... eee 608 302

Legislative program ou... = 425

wp Total. income (2.0.2.0. 119,410 118,235

EXPENSES

Salaries 2 er ee ee 75,292 71,550

Printing, stationery, office expense .......... 5,050 7,611

Rent. ee 7,408 7,071

A.GiLUS News (0250 ee 2, 4,632 3,957

Postage .. : 6,895 5,867

Mailing service .22..02 3 3,538 1,077

Telephone .................. 2,991

Taxes and insurance 20.0.0... 3,992

Travel and transportation 0.0.0... 88 1,515

Provision for 1968 Tri-ennial report .......... 1,800 1,200

Rotirement: 28 ee 633 741

Pension plan o.oo... 538

Employee eueballiaten Baer eee: 451

Audit fe 505

Legislative program TI Oe 3,187 3,255

Furniture and equipment... {78 1,734

Publicationsi: fic. 2208. 2550 28. sow 478 427

"Annual:meeting .02500200 ek, 105 75

Bi-ennial conference 0... cece 48 -

Sundry 22-28 asec! Hoel exetel: 232 350

Total expenses 0.0.0.0... AS oaris 119,494 114,907

Excess income over expenses -...............-...-. ($ $ 3,328

84)

Notes to Financial Statements

1. Market value of securities owned by the American Civil Liberties Union of

Northern California at October 31, 1968,

Number of

Shares :

127 Fundamental Investors, Inc. ...

ee ee a oe

was as follows:

158* Winfield Growth Industries Fund, Inc. ........ jq:c-c-c-ccececececereseeee

28 Real Estate Investment Trust of America o.....0.......ccccececeee 826

48 Fidelity Finds Ince. 2 995

23 Portiand General Electric Co. 503

Ul Crocker. Citizens cBankite = 2235) ot ee 499

5 ISB IMisOGie Gee eee ee ee 1,535

20 Sani Jose's Water Works.) te a ee 650

139 American `Metal Climax, (ite. 3... ea... 6,325

$15,283

*137 shares held by A.C.L.U., 21 shares held by custodian.

2. Two $500 U. S. Treasury Bonds posted

as bail in the United States Court.

Naval Reservist

Given Honorable

Discharge

An Administrative Discharge

Review Board last month recom-

mended that a Naval Reservist

be granted a discharge that re-

flects the character of his serv-

ice, Since he had been separated

from active duty under honor-

able conditions he will receive

an Honorable Discharge,

The young man was released

from active duty last June 22.

Two days later he was arrested

by San Francisco police in Gold-

en Gate Park on a charge of in-

decent exposure. He plead guilty |

to the charge and was placed on

probation.

The Navy learned of his con- -

viction and brought proceedings

for his discharge from the Naval

Reserve. He was informed that

he might be given an Undesir-

able Discharge.

At the hearing, the young man

_ Was represented by Ernest Besig,

ACLU executive director. Besig

agreed that the Navy had a right

to discharge his client but that

any discharge must reflect the

character of his service and

could not be based on civilian

activity.

Marin Chapter

Annual Meeting

January 26

Steve Weissman, a campus or-

ganizer for the Students For A

Democratic Society, formerly of

the FSM and VDC, will speak at

the annual meeting of the Marin

Chapter of the ACLU. The meet-

ing will be held on January 26,

1969 at 7:30 p.m., in the Super-

visors Chambers of the Marin

County Civic Center. (The San

Pablo exit of the Freeway, just

north of San Rafael, leads di-

rectly to the Center.) .

_ Mr. Weissman's talk, to be fol-...

lowed by an extended inter-

change between himself and the

audience, will fall within the

framework of "A Radical's Chal-"

lenge to Traditional Concepts of.

Civil Liberties." Topics to be

mentioned range from John

Stuart Mill to "left fascism." (For

those who would come prepared

to challenge the challenge, "A

Critique of Pure Tolerance," by

Marcuse et al. is recommended.)

In addition to the entertain-

ment, there will be elections of

the new board of directors, and

a report on the past year's activi-

ties. The meeting is open to the

3. Transactions in obligated funds, fiscal year ended October 31, 1968: ' public.

RECEIPTS

Begin- :

nine Special Expendi- -Trans- Ending

Balance Appeal Other tures fers Balance

General defense fund ccccccceet cence $10,575 $2,000 $1,197 "$3,608 "= $ 422) "= $10,586

Teachers' loyalty oath case 0.0... =? 24 24l

Juvenile Court') ae 265 265

H. U. A. C. : 103 103

People vs Gurner and Maginnis ...0...........eceeeeeeeees 390 163 35 8 580

People vs Dixon ("The Beard') 2.........0..eeeeeeeeee 201. 106 242 . 55

Levering Act test (Glickman) ............ ees 37 15 (52) sae

Hatch Act (Solfar) 2.22 ee 12 19 7 ae

Berg vs Cahill . (26) 26 a

Wirta vs Transit District ..........ccccscccccscsesscccsessseeeeees (40) 443 (403)

People vs Budd 25 48 (23)

Mindell vs Civil Service 00.0... cccceseccssesssececbeeeseesssess oe 137 I 27 poe MH

Doctors' abortion case ......... = 425 5 420

Death penalty cases 2. - 77 120

Sellers vs Regents s ~ 77 300x00B0 47

Hamilton vs Superior Court -........ssseccscccessecesseseeeseees -_ 96 | 697 (601)

Meyers vs Board of Education ..0........-ccesseceneeee -_ 94_ 206 (112)

Draft cases 2 es ~- 288 80 97 271

3,081 $2,196 $3,987 - $12,073

Total obligated funds soseetadennsnenengtseseetetentteeteesteantenesee I 1,783

Deny Review of Probation Condition

The Supreme Court of Cali-

fornia has denied an ACLUNC

petition asking it to review a

Court 6f Appeal decision that up-

held as constitutional a condi-

tion on the probation of Anetta

Peeler that, in effect, prohibits

her from associating with her

husband.

The petition concluded with

two rhetoricial questions:

"Surely the state may not,

consistent with the Fourteenth

Amendment, intrude into the

marital relationship on the

ground that it is not in the

best interests of the state.

Surely the state does not have

the power to separate a mar-

ried couple on the grounds

that the relationship is un-

wholesome and not, in the

state's view, in the best inter-

ests of the wife."

Those questions have appar-

ently been answered in the af-

firmative by the California

courts. Peeler's attorney, Paul

Halvonik, will seek a different

answer from the federal courts.

ACLU NEW3

JANUARY, 1969

Page 3

yen

religious theory,

of Revolution."

needs will be met?

cussion.

Mi. Diablo Chapter

Annual Meeting Jan. 31

The Annual Meeting of the Mt. 9 - Chapter will take

place on Friday, January 31, 1969 at Diablo Valley College,

.Pleasant Hill, Room E109, starting promptly at 8 p.m.

Paul Halvonik, ACLUNC Staff Counsel, and another speaker

(to be announced) will discuss "Civil Liberties and the Right

_. The discussion will include the following questions: (1) In

a controversy, does an individual have the right to urge

violence? (2) Can the right of the majority to an education

be endangered by the obstructive acts of a minority? (3) If a

minority cannot obstruct, how can it ensure that its legitimate

All ACLUNC members are invited to attend the meeting,

bring their friends and families, and participate in the dis-

High Court Decision

Arkansas

`Monkey Law

Overturned

Arkansas' anti-evolution statute was declared unconstitu-

tional last November in an unanimous Opinion of the U. S.

Supreme Court. The law, adopted in 1928, prohibited the

teaching in public schools and universities of the theory that

man evolved from other species of life. "The statute,"' accord-

ing to the court, "was a product

of the upsurge of `fundamentalist'

religious fervor of the twenties.

The Arkansas statute was an

adaptation of the famous Ten-

nessee `monkey law' which. that

state adopted in 1925." That law

resulted in the celebrated Scopes

case in the twenties which the

ACLU handled.

Classroom Textbook

In the present case, involving

Susan Epperson, on recommen-

dation of the teachers of biology

in the Little Rock high school,

the school administration adopt-

ed and prescribed a textbook

which contained a chapter set-

ting forth "the theory about the

origin ... of man from a lower

form of animal." Miss Epperson

Was supposed to use the new text-

book for classroom instruction

"and presumably to teach the

statutorily condemned chapter;

but to do so would be a criminal

offense and subject her to dismis-

sal. She then filed a suit seeking

a declaration that the statute

is void."

Government Neutral

"Government in our democra-

ey," said Justice Fortas in the

chief opinion, "state and national,

must be neutral in matters of

doctrine and

practice. It may not be hostile

to any religion or to the advo-

eacy of no-religion; and it may

not aid, foster, or promote one

religion or religious theory

against another or even against

the militant opposite. The First

Amendment mandates govern-

mental neutrality between reli-

gion and religion between reli-

gion and non-religion."

Preference of Religious Doctrine

At another point, the court de-

clared "There is and can be no

doubt that the First Amend-

ment does not permit the State

to require that teaching and

learning must be tailored to the

principles or prohibitions of any

religious sect or dogma . .

While study of religions and of

the Bible from a literary and his-

toric viewpoint, presented objec-

tively as part of a secular pro-

gram of Education, need not col-

lide with the First Amendment's

prohibition, the State may not

adopt programs or practices in its

public schools or colleges which

`aid or oppose' any religion. This

prohibition is absolute. It for-

bids alike the preference of a

religious doctrine or the prohibi-

tion of theory which is deemed

ACLU NEWS

JANUARY, 1969

Page 4

antagonistic to a particular dog-

ma.

Sectarian Conviction

"In the present case, there

can be no doubt that Arkansas

has sought to prevent its teachers

from discussing the theory of

evolution because it is contrary

to the belief of some that the

Book of Genesis must be the

exclusive source of doctrine as to

the origin of man ... It is clear

that fundamentalist sectarian

conviction was and is the law's

reason for existence.' The AC-

LU joined with the American

Jewish Congress in filing an

amicus curiae brief in the case.

Union intervenes

For Anti-Draft

Leafletter

Robert Mandel, anti-war acti-

vist and member of the "Oakland

Seven," was arrested last spring

on five counts of violating Penal

Code Section 653g, which pun-

ishes anyone who "loiters about

any school or public place at or

near which children attend or

normally congregate." The police

report, which was attached to

the complaint, showed that on

each occasion Mandel's "`loiter-

ing" consisted of passing out

anti-draft leaflets on high school

campuses in Oakland.

In 1964 ACLUNC attacked the

predecessor of Section 653g as

being unconstitutionally vague.

In response, the Court of Ap-

peals interpreted the word

"loiters" to apply only to one

who loiters "with an evil or sin-

ister purpose."

The Oakland. Police have in-

terpreted this requirement as

prohibiting the distribution of

anti-draft leaflets to high school

students. Mandel's attorney,

Donald Kerson, applied to the

Superior Court of Alameda

County for a writ of prohibition

preventing the Municipal Court

from trying Mandel, on the

ground that the vagrancy statute

obviously did not apply since

Mandel was exercising the first

amendment rights of freedom of

speech assembly, and travel. The

Superior Court refused to stop

the procesution. Kerson ap-

pealed.

ACLUNC has intervened in

the Court of Appeal as amicus

curiae, filing a brief in support

of Mandel. ACLUNC's brief

argues that Section 653g, as in-

terpreted in 1964, clearly does

not apply to someone who is

exercising First Amendment

ACLU Adopts

Policy on Civil

Disobedience

Continued from Page 2-

ed that more severe sentences

have been imposed on persons

who have openly violated laws

they deemed unjust than those

imposed on others who commit

violations of the same laws for

anti-social reasons. Indeed, the

fact that peaceful, nonviolent be-

havior was involved in the viola-

tion of a law should be taken

into account by the court in con-

sidering the sentence to be im-

posed, even though such factors

are not relevant to the question

of guilt or innocence with re

spect to the offense involved.

Furthermore, we will continue

to oppose over-energetic enforce.

ment of disorderly conduct, tres-

pass, and_ similar ordinances

where the right of protest is in-

volved and where the inconve-

nience is minor.

However, the ACLU believes

that the way to correct injustice

in a free society is to change

valid laws by persuasion, not by

their violation, Freedom to say

what one believes, not to do what

one wishes, is what is protected

by the First Amendment. A

democratic society is as much in

need of compliance by citizens

with laws with which they dis-

agree as it must provide the

freedom to criticize and the

means to change such laws by the

democratic process. High motiva-

tion and deep-felt conscience may

be, and often are, the moving

force of those who practice civil

disobedience, But this does not

mean that those who disobey

laws for baser principles or less

altruistic motives should be con-

victed while those who deliber-

ately disobey laws for better-

motivated reasons should be ac-

quitted. To make this type of dis-

tinction would be to change a

nation governed by law to one

governed by motivation alone.

Indeed, conscience can lead men

to good and evil-assuming so-

ciety is able to distinguish be-

tween conscience and baser moti-

vations.

It is not the ACLU's function

to decide whether history will

determine that an individual who

disobeyed a specific valid law at

a particular time helped or hurt

humanity. Nor need we judge

whether those who practice civil

disobedience, and willingly ac-

cept punishment therefor, are

more responsible and consistent-

ly devoted to their principles

than those who, having violated

valid laws, seek ACLU assistance

to avoid the consequences of

their violation. Nor, indeed, is it

our province to raise the ques-

tion of whether civil disobedien-

ce is the only or the best or

wisest method of persuading the

public that a particular law is

unjust. For us, the single ques-

tion is whether. the act involved

can reasonably be defended as an

exercise of a constitutional right.

If it can, then we will defend it;

if not, we will not. .

ACLUNC Legislative

Office Reopens

The third year of ACLUNC's

legislative effort will begin, with

the legislative session, on Janu-

ary 6th. The legislative offices

will be in Room 614, 1107 9th

Street, Sacramento. The tele-

phone number is (916) 442-1036.

ACLUNC will be represented by

assistant staff counsel Charles

Marson. Suggestions, advice, and

questions are welcome.

rights. It also argues that Sec-

tion 653g, even as narrowly in-

terpreted to include only loiter-

ing with an "evil or sinister

purpose," is unconstitutionally

vague and overbroad, since it

does not adequately describe

what the offense is or where it

is committed, and, being vague,

is a ready tool for the suppres-

sion of First Amendment rights.

A decision in the case is ex-.

pected in January or February.

Public Employees

ACLU Joins in

Attack on the

Fed. Hatch Act

The Hatch Act, a federal statute which prohibits nearly

all federal employees and many state and local employees

from taking "an active part in political management or in

political campaigns," has severely curtailed the political

participation of millions of public employees since its passage

in 1939. ACLUNC is participat-

ing in an attack designed to have

the Hatch Act declared uncon-

stitutional.

Fishkin Case

The case centers around Je-

rome Fishkin, an Administrative

Analyst in the Contra Costa So-

cial Service Department, In 1966

Fishkin was an unsuccessful can-

didate for Democratic County

Central Committee, and was a

Regional Director of the Califor-

nia Federation of Young Demo-

crats. For these activities he

was threatened with dismissal.

Three-Judge Court

Fishkin, who is represented by

ACLUNC Board Member Albert

M. Bendich, brought suit in the

United States District Court to

restrain his dismissal and to have

the Hatch Act declared unconsti-

tutional. The State of California

joined as a plaintiff. A tempo-

rary restraining order was _ is-

sued, and a three-judge court

was convened to hear the attack

on the statute.

Both sides have now moved for

summary judgment. ACLUNC

has intervened in the case of

amicus curiae in support of Fish-

kin, and has filed a lengthy

memorandum arguing that the

Hatch Act is unconstitutional.

Prior Decision

In 1947 a four-man majority

of the United States Supreme

Court upheld the Hatch Act over

three vigorous dissents in United

Public Workers v. Mitchell.

Since then the composition of

the Court and the principles of

Sonoma County

Chapter Annual

Meeting Held

_ The newly chartered Sonoma

County Chapter of ACLUNC held

its annual meeting on December

14th. Chapter director Carol

Weintraub presented a scroll of

charter to outgoing chairman

Glenn Price. Assemblyman Wil-

liam T, Bagley addressed the

group of 100, and answered ques-

tions concerning his views of

civil liberties.

"~ A new board of directors was

elected, led by new chairman,

William Booth, Jerry Tucker,

professor at Sonoma State Col-

lege, will serve as the Chapter's

representative to the Branch

Board of Directors.

constitutional law have so

changed that Mitchell, ACLUNC

argues, is a dead letter, and

should be overruled.

Union's Contentions

ACLUNC's argument is. this:

the Hatch Act's prohibition of

"an active part in political man-

agement or in political cam-

paigns" is hopelessly vague, and

is also so broad as to prohibit

many activities Congress has no

interest in prohibiting or power

to prohibit. The Act does not

define the conduct that it pro-

hibits, but makes reference in-

stead to a body of 3,000 decisions

of the Civil Service Commission

made between 1907 and 1940 un-

der a Civil Service Rule with a

similar prohibition. These de-

cisions are not available to the

public. Instead, the Civil Serv-

ice Commission publishes a list

of "specific" prohibitions. Most

of these turn on the distinction

between "partisan" and `"non-

partisan" politics-a distinction

the employee must make at his

peril.

Great Confusion

There is so much confusion as

to what the Hatch Act prohibits

that there are many cases in

which employees have asked

their superiors whether certain

conduct is prohibited, have been

advised that it is not, and then

have been dismissed by another

superior. A recent congressional

study revealed that federal, state

and local employees are com-

pletely uncertain about their

political rights. |

One of the only things that is

clear about that Hatch Act is

that it has been used to punish -

conduct that Congress has no in-

terest in preventing and that is

otherwise protected by the First

Amendment's guarantees of free-

dom of speech, petition, and as-

sembly. Temporary postal clerks,

for example, have been fired for

writing a letter to the editor of a

local newspaper on a political

subject.

Massive Denial of Rights

The breadth and uncertainty

of the Hatch Act, argues

ACLUNC, add up to a massive

violation of first, fifth, ninth,

and tenth amendment rights. The

Hatch Act presently restricts the

political activities of more than

ten million public employees.

A hearing will shortly be sched-

uled before Judges Sweigert,

Wollenberg, and Duniway.

The first right of a citizen

Ts the right

To be responsible

ne

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AMERICAN CIVIL LIBERTIES UNION

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Sustaining Membership ..............-06: - 00

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Family Membership ........... Bee 1S

Annual Membership. =... 2)... 10

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