vol. 34, no. 11

American

Civil Liberties

Union

Volume XXXIV

SAN FRANCISCO, NOVEMBER, 1969

No. 11

Increase Your Contribution

Financial

Needs of ACLU

Are Critical

Letters were sent to most of the ACLU's membership

last month urging them to re-enroll in the ACLU and to con-

tribute toward the budget for the fiscal year beginning No-

vember 1. The budget has been set tentatively at $127,358.,

-about $4300. less than last year. Next January the board

will decide whether to restore

several items to the budget

which would cost $7,700 and in-

crease the anticipated deficit

from almost $13,000 to $20,308.

Legislative Program

Tentatively eliminated from

the budget is the ACLU's legis-

lative program which was estab-

lished four years ago at the urg-

ing of the chapters, At that time

the budget increased $23,000,

largely because of the legislative

program.

The legislative program has

been a most effective one first

under Paul Halvonik and then

under Charles Marson. The diffi-

culty is that the ACLU has never

raised enough money to pay for

the program. Heretofore, the

branch has been bailed out by

bequests, but during this past

year: there were no bequests and

the budget deficit now appears

to be about $11,000.

Other Cuts

Also tentatively eliminated

frem the budget are items fer

the triennial report, annual meet-

ing and for a summer legal in-

tern. The value of these items

has, of course, been well estab-

lished.

The eliminated items will be

restored to the budget only if

the board finds that income is

running sufficiently ahead of last

year to pay for them. Even so,

ACLUNC Asks

For Release of

Private Sood

ACLUNC has applied to the

Commanding Officer of the Dis-

ciplinary Barracks at Fort

Leavenworth, Kansas, for the re-

lease of Private Nesrey Sood

pending appellate disposition of

his case. Sood, first of the Pre-

sidio 27 convicted of "mutiny" for

participating in a non-violent

demonstration protesting stockade

conditions, has been confined

over a year in the stockade and

Leavenworth. Originally sen-

tenced to fifteen years at hard

labor for, as he puts it, "sitting

on the man's grass," Sood's hard

labor confinement was reduced

to two years after intervention

of Secretary of the Army Stan-

ley Resor.

- Application for release was

made under a new statute which

went into effect in August of this

year. It provides that a military

prisoner may be released pend-

ing appeal, Paul Halvonik, Sood's

attorney, maintains that Sood's

case is "ideal" for release under

the statute. The government has

yet to respond to the appeal brief

filed on Sood's behalf and has

instead recently secured another

extension of time to reply; at

the rate things are going Sood

will have served his sentence be-

fore he is past the first level of

military appellate review. Addi-

tionally, the crime for which

Sood was convicted is not one

which suggests he is a danger to

the civilian community,

there will still be a deficit of

$13,000,

Increase Contributions

Non-profit organizations have

a tough time surviving in a pe-

riod of inflation. ACLU costs

have gone up while very few

members have increased their

contributions. We are reluctant

to make a crisis appeal but it

seems clear that members will

`have to increase their contribu-

tions if the ACLU is to maintain

even its present level of work.

The ACLU needs the minimum

dues from members, of course,

but it also desperately needs

larger contributions and pledges

of support.

- Next January marks the 50th

anniversary of the ACLU.

Wouldn't now be a fitting time

to mark this auspicious occasion

by an increase in your contribu-

tion?

The Budget

The budget for the fiscal year

follows:

Salaniegas os $ 78,680

Pension Futid ........:.....52.. 5,000

Hosp; - insur =... 700

Legal Dept... 242 =. 6,000

Mailing Service ...............- 4,000

ACLU NeWs_ 2.32 4,600

Printing and Sta. 2.5... 3,000

Taxes and Insurance ...... 2 3) 45128

Travel and `Trans. 22.....-- 1,230

Rent] 7,920

Postase@ ==. 3s 7,500

Tela and lel. ee: 2,700

Furn. and Equipment ........ 400

Publications =... 400

Miscellaneous ................---- 300

Audit and Reports..............-. 800

Totalee = ee $127,358

Items Tentatively Cut

Legislative Expenses ...... $ 5.500

Triennial Report .............- 1,200 .

Annual Meeting ................ 250

Education: Comm. ...........- 750

Legal Intern .................... 500

NOAM sn $135,058

ACLU Backs

Angela Davis

The ACLU's' California

branches will support Angela Da-

vis with an amicus curiae brief

if the Regents appeal from the

decision of the Los Angeles Su-

perior Court ordering her rein-

statement as a teacher at UCLA.

In a letter to the Regents last

month, ACLUNC contended that

the Regents' action "is a clear

violation of the First Amend-

ment to the United States Consti-

tution. The United States Su-

preme Court has specifically

held that a person may not be

denied public employment be-

cause of his membership in the

Communist Party."

The letter also noted that the

ACLU "has previously urged col-

lege students to obey the law in

the interest of academic free-

dom; we can hardly ask less of

the Regents. When the institu-

tions of government ignore the

law there will be no law and no

justice, there will only be an-

archy or tyranny."

Attack on

Conscription

By ACLU

ACLUNC and the National

ACLU have entered the case of

United States v. John Michael

Besenti as amicus curiae in sup-

port of the defendant, Besenti's

offense is failing to register for

the draft. Besenti's attorney,

Gordon Lapides of San Fran-

cisco, contends that Besenti was

not required to register because

conscription violates the Consti-

tution. ACLUNC and the Na-

tional] ACLU have filed a brief

substantiating that contention.

: National Brief

The brief, prepared primarily

by National volunteer attorney

Leon Friedman, has previously

been filed in New York Federal

Court in the case of United

States v: Zimmerman. It' is the

product of six months of pains-

taking research into the original

understanding of the framers of

the Constitution.

Constitutional Argument

In the only wars in which we

were invaded by a foreign

enemy, the Revolutionary War

and the War of 1912, there was

no conscription into the Federal] -

Army, The reason: it was not be-

lieved that the Federal] govern-

ment had the power to conscript.

The Founding Fathers were quite

fearful of any national standing

army, much less one that could

conscript. In order to avoid a-

large standing army,: the scheme

of the Consitution is to permit

the state citizen-soldier militia

(the National Guard) to -con-

script but limit the Army to en-

listments. The brief surveys the

Constitutional Convention, state

ratifying conventions and early

actions of Congress to prove the

point. For example, in the Sec-

ond Amendment's original draft

there was a provision exempting

conscientious objectors from

service in the militia, The pro-

vision was removed not because

of a lack of sensitivity to claims

of conscience; but rather because

it was felt that the question of

exemption should be left to the

states, No similar conscientious

objector exemption was _ pro-

posed for the national Army be-

Palo Alto High School

San Jose High School

Federal Judge

Strikes Down

Long Hair Rule

Federal District Judge Robert Peckham has ordered

James Eick High School, in San Jose, to readmit Robert Olff

to the school and held the school's haircut regulation un-

constitutionally overbroad. The regulation, which provided

that "a boy's hair shall not fall below the eyes in front and

shall not cover the ears, and it

shall not extend below the collar

in back,' was challenged when

Olff, a fifteen-year-old honor stu-

dent who affected an "Afro"

hair fashion, was excluded from

school at the beginning of the

year for allegedly violating the

regulation.

Safety and Welfare

Judge Peckham held _ that

school authorities do have a le-

gitimate governmental interest

in promulgating regulations

which insure the safety and wel-

fare of high school. students. The

requirement that a boy's hair be

"clean," he concluded, is rea-

sonable and there may be situ-

ations in which restricting the

length of hair is a legitimate

safety regulation, for example

in a welding class, in an auto-

motive class or in a woodwork-

ing class. But the challenged

regulation was much too broad.

"The

cumstances when health or safe-

ty considerations require a boy's

hair to' be a certain length, but

rather regulate hair length with-

out any reference to the reasons

therefore," Judge Peckham said.

cause no one felt it had the pow-

er to conscript.

New Arguments

The brief notes that U. S. Su-

preme Court decisions upholding

the draft against constitutional

attack have never considered the

arguments and history advanced

by the ACLU and that, further,

there has never been a Supreme

Court opinion upholding a draft

absent a declaration of war.

Leon Friedman argued the

Besenti case for amicus ACLU

and ACLUNC before Federal

District Judge Robert Peckham

October 22, Judge Peckham has

taken the matter under submis-

sion,

Federal Suit Supports.

Free Speech of Students

ACLUNC has filed suit on behalf of the Bay Area High

School Students Union, an organization of Palo Alto high

schoo] students who wish to distribute literature on campus

in support of the Vietnam Moratorium on November 15,

1969. Only officially recognized student organizations can

pass out literature and invite

speakers to Palo Alto high

schools; the Bay Area Students

Union has been denied official

recognition because of a school

district policy which provides:

"Student organizations shall not

be permitted to engage in politi-

cal advocacy or activities of a

partisan political nature."

Freedom of Expression

The ACLUNC policy chal-

lenges the constitutionality of

the regulation on First Amend-

ment grounds and relies on the

Tinker v. Des Moines School

School District opinion handed

down by the United States Su-

preme Court in February of this

year. In the Tinker case the

United States Supreme Court

held that a school district could

not prohibit students from wear-

ing black arm bands as a pro-

test against the Vietnam war.

The high court said: "In our

system students may not be re-

garded as closed-circuit recipi-

ents of only that which the state

chooses to communicate. They

may not be confined to the ex-

pression of those sentiments that

are officially approved. In the

absence of a specific showing of

constitutionally valid reasons to

regulate their speech, students

are entitled to freedom of ex-

pression of their views."

Volunteer Counsel

The case was brought to AC-

LUNC's attention by Martin

Eichner, a third year Stanford

`Law Schoo] student, who also

assisted in the preparation of

the suit. On application of staff

counse] Paul Halvonik, Federal

District Judge Oliver Carter is-

sued an order requiring the

school district to show cause why

its regulation should not be held

unconstitutional. The case has

been transferred to San Jose

where ACLUNC volunteer at-

torney John Thorne will argue

it before Federal District Judge

Robert Peckham,

school board regulation.

does not specify particular cir- -

Free Expression

Olff, on the other hand, has

a constitutional right "to express

in his own ways preference to

whatever hair style comports

with his personality and _ his

-search for his own identity .. .

In the absence of any limitations

confining the school district's

hair length regulations to cir-

cumstances which warrant: such

control, this Court holds the reg-

ulations to be unconstitutionally

overbroad in that they inhibit

free expression more extensively

than is necessary to achieve le-

gitimate governmental purposes."

Appeal Taken

Olff. was represented in his

federal suit by staff counsel

Paul Halvonik and volunteer at-

torney Elliot Steinberg of San

Jose. The school board has in-

dicated that they will appeal

Judge Peckham's decision to

the Ninth Circuit of the United

States Court of Appeals.

Govt. Secrecy

Attacked in War

Refugees' Case

Shortly after World War II

the United States participated in

the "forcible" repatriation' ~ of

emigrant Soviet citizens, huge

- numbers of whom were subse-

quently imprisoned or killed, as

part of a plan called "Operation

Keelhaul." The operation was top

secret then and still is today.

Stanford Historian

Julius Epstein, a historian and

research associate at Stanford's

Hoover Institution on War, Revo-

lution and Peace, specializing in

war refugees and is writing a

book on forced repatriation of

anti-communist Russians after

World War II. He has been try-

ing since 1954 to see the Army's

file on Operation Keelhaul. He

was getting nowhere until Con-

gress in 1967 passed the Freedom

of Information Act, which estab-

lishes the public's right to know

information in government files

and puts the burden of justifying

secrecy, in the agency enforcing it,

Suit Filed

Epstein brought suit under the .

Act, claiming that the only,rea-

son for hiding a file dormant for

- more than two decades is that it

might embarrass the Army -

hardly sufficient justification for

its top `secret classification, The

District Court disagreed and

granted summary judgment for

the Army, holding that unless

the Army had acted "capricious-

ly" in its classification, the Court ~

had no jurisdiction to review the

matter, Epstein appealed, and

ACLUNC intervened as amicus

euriae on his behalf.

ACLU Argument

In a lengthy, thorough review

of the history and purposes of

the Freedom of Information Act,

volunteer lawyers Michael Tray-

nor and Donatas Januta. of San

Francisco and Preble Stolz of

Berkeley argue that the whole

purpose of the act was to require

the District Court to make an inde-

pendent review for the justifica-

tion for secrecy, and that the

_ Army totally failed in the Dis-

trict Court to discharge its bur-

den of showing that its "top se-

cret" classification of the Opera-

tion Keelhaul file is merited. The .

case will be argued in Novem.

ber.

The 1969 Regular Session of

the California Legislature-iong, |

confused,. bitter,. and unproduc-

tive-has come to an unglam-

-orous and anticlimatic end. Like

many popular game animals, civil

liberties are probably. safer i in the

off season,

Characterized By Consign

The session is best characteriz-

ed by the confusion that sur-

rounded it, and the drive for

economy-cum-law - and-order that

pervaded it. Most of the confu-

sion resulted from the transfer

of power from the Democrats,

who had dominated the legisla-

ture for a decade, to the Repub-

licans, who were as unused to

power as the Democrats were un-

used to its absence. Death and

defection further complicated the

alignment of power: three special

elections were held during the

session, any one of which could

have altered the legislative

course.

Republican Majorities

The Republicans began the year

- with a shaky 41-39 margin in the

Assembly, only to see it drop to

39-39 with the accidental death

of Alan Pattee of Monterey and

the departure of Robert Vene-

man of Modesto to HEW in

Washington. Ulcers proliferated

and Democratic hopes rose, but

Republican Robert Wood defeat-

ed Fred Farr for Pattee's seat

and Republican Claude Berryhill

defeated Ernest La Coste in Mo-

desto. by .an .almost intangible

"margin, The: Senate would have

been deadlocked 20-20 but for the

death on New Year's day of

George Miller Jr., the experi-

enced and influential Senator

from Contra Costa County, whose

son was then defeated by John

Nejedly, Contra Costa's `"mode-

rate" District Attorney. Secure in

their majorities, the Republicans

installed Bob Monagan of Tracy

as speaker of the Assembly, and,

later in the session, Howard Way

of Exeter as President Pro Tem-

pore of the Senate. These men

realigned all committees and as-

Aen A all bills.

`Crim. Pro, "Conn?

Included in the shuffling was

the Assembly Criminal Proce-

dure Committee, traditionally

crucial to ACLU interests. The

previous balance of five men of

each party was upset with the re-

moval of one Democrat, and

Frank Murphy (R-Santa Cruz)

replaced W. Craig Biddle (R-

Riverside) as. Chairman. This

meant that if all Republicans

voted together, any bill would be

passed or buried by them alone.

Law and Order

The transfer of power was

ominous when coupled with the

public outcry for law and order

-especially on the campuses.

"Campus unrest," as it came to

be called, was easily the most

urgent problem of the session,

even over schools and taxes. Pub-

lic outrage at the tactics of cam-

pus militants colored every con-

troversial issue and spilled over

generously into the criminal law,

the educational budget, and a

dozen other subjects.

It was a very active session,

producing 3,927 bills, 512 resolu-

tions, and scores of constitutional

amendments, It was not an aus-

picious year for the rights of in-

dividuals. As the following sum-

mary shows, however, it could

have been a great deal worse.

Campus Unrest

The public hysteria over cam-

pus violence produced a fairly

united front among legislators

but a wide variety of individual

reactions. Some demanded blood.

Assemblyman Don Mulford,

wose district contains the Berke-

ley campus, went so far as to

summon several judges to Sacra-

mento and threaten them with

well-financed opposition in the

next election unless they gave

stiff sentences to students in

cases then pending before them.

Others, carefully reading their

mail (one letter from a constitu-

ent demanded that student dem-

onstrators be dispersed with

ACLU NEWS

NOVEMBER, 1969

Page 2

very happy."

flamethrowers), contented them-

selves with the prospect of au-

thoring repressive legislation.

Those who were doubtful about

the wisdom of repression, with a

: few exceptions, were very quiet.

`Senate Hysteria

~The issue well illustrated the

difference in attitude between

the Senate and the Assembly.

The Senate produced and passed

literally scores of bills, nearly all

of them badly drafted, ill-con-

sidered, and not qa few brutal.

There were bills to require oaths

of obedience to rules, to remove

all financial aid from those ar-

rested (not necessarily convict-

ed) of a crime on the campus, to

allow local governments to pass

trespass and loitering laws for

the campus, to require the carry-

ing and production of identifica-

tion, to fire all administrators

who refuse to expel misbehaving

students, to give misdemeanor

lawmaking power to the Regents

and the Trustees, to imprison .

students for up to five years for

such nebulous infractions as "dis-

turbing," "interfering," and the

like. It was widely rumored in

the halls that one could submit a

bill reciting the page of a tele-

phone book, as long as it carried

the words "`student" and `pen-

alty," it would pass the Senate.

Assembly Deliberative

The Assembly, on the other

hand was relatively careful and

very deliberate. First a special

subcommittee was formed to hear

weeks of testimony from all in-

volved sectors. Then the mem-

bers of the subcommittee joined (c)

with the Chairman of the Educa-

tion Committee and three mem-

bers of the Criminal] Procedure

Committee to form the Select

Committee on Campus Disturb-

ances. The Select Committee ar-

gued for weeks, then submitted

a lengthy report with recom-

mended legislation.

These recommendations re-

sulted from several months of

frantic backstage negotiations

among university and state col- .

lege spokesmen, the ACLU, law

enforcement, and: others, :

The criminal aspects of these

recommendations were packaged

in A.B. 534, by Frank Murphy

(R-Santa Cruz); the educational

aspects into A.B. 1286, by John

Stull (R-San Diego). These two

bills slowly gathered support and

went to the Senate in relatively

respectable form.

Senate Amendments

There they were amended

somewhat by irate Senators

whose personal solutions had

died in the Assembly (of the

seventy-odd Senate bills, all but

four minor ones were stopped in

the Assembly). An attempt to im-

prove the bills was fought off on

the Senate floor in a lengthy dis-

pute, during which Senator Don-

ald Grunsky, arguing against the

revisions, stated that voting for

"make the ACLU

That seemed to

work, since the amendments, by

George Moscone of San Francis-

co, were defeated. In conference

committee a few of the more

courageous Senate additions were

removed. The Governor bemoan-

ed the loss of his own program

in the Assembly but signed the

bills anyway.

New Law Analyzed

A.B. 534 opens with a section

condemning anyone who "mali-

ciously and willfully disturbs the

them would

peace or quiet" of campuses.

Lawyers will recognize this as an

exact replica of the present dis-

turbing-the-peace section of the

Penal Code. It adds nothing to

the law, but it sounds good. The

bill then provides that any stu-

dent or employee who is suspend-

ed or dismissed for an offense

involving disruption after a cam-

pus disciplinary proceeding and

told not to return to campus com-

mits a misdemeanor if he returns

within the period of his suspen-

sion or within up to a year in the

case of dismissals. Neither the

hearing nor the instruction to

stay away is mandatory. This sec-

tion is constitutionally shaky,

Returning to Campus

The next section, which is con-

troversial and also constitution-

ally suspect, punishes as a mis-

demeanant any person (student

or not) who remains on a campus

or returns to it after his ``con-

sent" has been "withdrawn." This

can take place if the chief ad-

ministrative officer of the cam-

pus or his designee "has reason-

able cause to believe'"' that the

subject "has willfully disrupted

the orderly operation' of the

campus. A written report must.

be submitted and confirmed; a

hearing may be demanded and

must occur within seven days; in

no event is the withdrawal ef-

fective for more than fourteen

days.

Public Address Systems

In its earlier form the bill con-

tained a provision regulating and

licensing the use of public ad-

dress systems on the campus.

This was one of the Governor's

recommendations, as well as the

desire of the Select Committee. -

After ACLU amendments to this

portion were accepted in the As-

sembly, the University had the

whole section deleted in the Sen-

ate.

Finally, A.B. 534 provides that

anyone who violates any of its

provisions a second time must

serve at least ten days in jail,

and ninety days on a third viola-

tion.

_ Educational Package

A.B. 1286, the educational pack-

age, contains two positive pro-

visions, The campuses are re-

quired to promulgate specific

rules governing conduct and link

them to specific penalties. The

students are entitled to notice of

these rules and have the right to

contest disciplinary action at a

hearing.

The bill requires campus of-

ficials to hold a hearing to de-

termine punishment for any stu-

dent who has been convicted of

a disruptive crime on campus or

who, after a disciplinary hearing,

has been found to have "willfully

disrupted the orderly operation

of the campus."' However, neither

the extent of the discipline nor

the necessity for a disciplinary

hearing is prescribed.

State of Emergency

The bill provides for the dec-

laration of a state of emergency

on campus and for subvention of

funds to state governments for

part of the expenses of control-

ing disorders. It also provides

that a student convicted of a

campus-disruptive crime or found

by a disciplinary hearing to have

"willfully disrupted" the campus

must be subjected to a hearing

to determine whether any schol-

`-arship or other financial aid

should be revoked, However, the

original disciplinary hearing is

not mandatory, and though aid

may be removed for up to two

years, the school has discretion to

continue it.

Other Bills

Except for a few minor and

relatively well-drafted bills pro-

hibiting the making of threats

with the intent to force a teach-

er or student not to teach or at-

tend classes, and except for Sen-

ator Short's S.B. 496, which pro-

hibits the use of force to obstruct

a student or teacher from attend-

ing or teaching, and defines

force as including the use of

one's body to block access, the

t

Summary

of 1969

Legislative

Session

"By CHARLES MARSON,

ACLUNC Legislative Representative

remaining 80 to 90 bills on cam-

pus disturbance, including the

Governor's package (carried by

Senator Harmer of Glendale),

were killed.

Wiretapping

Since Congress in 1968 passed

its omnibus Crime Control and

Safe Streets Act inviting states to

pass statutes permitting wiretap-

ping and electronic eavesdrop-

ping, the law enforcement lobby

has been excitedly pushing for

state legislation to authorize it.

Their major effort this year was

A.B. 253, by W. Craig Biddle (R-

Riverside), which was a compre-

hensive bill authorizing every

manner of wiretapping and eaves-

dropping in stated circumstances

with the authorization of a judge.

ACLU, alone in opposing the bill,

presented hours of testimony in ~

two hearings. The bill fell one

vote short in the Criminal Pro-

cedure Committee and, after stay-

ing in limbo for months, died

with the end of the session. It is

the most likely single candidate

for renewed struggle next year.

Death Penalty

This year the drive to abolish

the death penalty fared no better,

but no worse, in the legislature

than in the courts. Bills to abol-

ish it outright, to impose a mora-

torium pending study, and to es-

tablish a study commission were

the-subject of a lengthy hearing

in which ACLU and other groups

participated. All of them died in

the Criminal Procedure Commit-

tee on a four-four vote (it is safe

to assume that the one absent

member opposed). On the nega-

tive side, the Senate passed but

the Criminal Procedure Commit-

tee killed a bill to make death

mandatory for anyone convicted

of first degree murder of a po-

liceman. The hearing is described

in the August ACLU News, Thus

the death penalty is suspended

in the status quo. Everyone has

vowed to try again next year.

Obscenity and Sex

The forces of righteousness ac-

complished this year what they

had been unable heretofore to

do: a "crackdown on smut." S.B.

62 and S.B. 63, both by Senator

Lagomarsino of Santa Barbara,

have been signed into law. S.B.

62 deals with those under 18 and

will (1) permit redeeming social

importance to be measured in

terms of importance. to minors;

(2) permit prurient interest to be

measured in terms of clearly de-

fined deviant sexual groups, if it

appears that material was de-

signed for such a group; and (3)

permit evidence of "pandering"

-evidence that material was be-

ing commercially exploited for

the sake of its prurient interest.

S.B. 63 adds to the adult ob-

scenity law the deviant sexual

group and pandering tests. In its

original form S.B. 62 also per-

mitted prurient interest to be bal-

anced off against social import-

ance, permitted the measurement

of prurient interest in terms of

children of different age groups,

loosened the knowledge require-

ment to permit prosecution of

one who recklessly failed to in-

spect material he sold, permitted

evidence of pandering by some

one other than the defendant

(i.e, an advertiser), and penal-

ized children for misrepresenting

their age in order to purchase

matter meant for adults. Some

of these provisions were con-

tained in S.B. 63 as well.

The Senate rejected but the.

Assembly accepted ACLU argu-

ments that these provisions were

clearly unconstitutional, and they .

were deleted.

Result Unclear

The effect of these bills is un-

clear not only because they are

conceptually contradictory and

confusing but also because they

.do not take into account current

trends in obscenity law such as

Stanley v, Georgia (described in

last month's ACLU News). Ali

that is certain is that the bills

will provoke lots of iltigation.

' Consenting Adults

_ Several other measures against

obscenity were introduced, but

all failed. Sexual conduct was the

focus of several pieces of legis-

lation. Willie Brown Jr. and John

Burton, both Democrats of San

Francisco, authored a bill to re- -

peal the criminal sanctions

against oral and anal copulation

by consenting adults (hetero- or -

homosexual) in private. Although

no one made intelligent argu-

ment against it, it died in com-

mittee for lack of the political

courage of the Assembly to put

it to a vote on the floor, Mean-

while, Senator Larry Walsh (D-

Los Angeles) offered a bill to

punish anyone who engages in or

any teacher who counsels, pro-

cures or permits any simulated

act of sexual intercourse or "de-

viate sexual conduct" on any

state college facility. This was a

response to the performance of

Michael McClure's play "The

Beard" at Fullerton State Col-

lege. The bill passed the Senate

but was successfully oppored. by

"ACLU inthe Assembly. . ; ~

Topless and Bottomless

Finally on the sex front, the

Governor, the League of Califor-

nia Cities, law enforcement and

moralists everywhere demanded

and got legislation permitting

local communities to regulate

topless and bottomless perform-

ances by ordinance, One bill per-

mits the regulation of such per-

formances in places that sell

liquor; another permits the regu-

lation of public nudity generally.

The Governor signed both. Both

contain an ACLU-suggested ex-

ception for places devoted pri-

marily to "theatrical perform-

ances." Both bills undoubtedly

invite a great many unconstitu-

tional local ordinances. Probably

the most obvious result of the

Legislature's concern with sex

and obscenity will be full employ-

ment for lawyers.

Free Speech

Freedom of speech weathered

all but a few attacks during the

session (putting aside the obscen-

ity bills). Two bills were intro-

duced to "regulate" expression in (c)

the Capitol Building in Sacra-

mento. A.B. 261, by Don Mulford

(R. - Piedmont/Berkeley) pro-

hibits all picketing in the Capitol

Building. It was widely believed

(although denied by the author)

that the bill was aimed at Mr.

Robert Simpson, an elderly, gen-

tle retired man who strolls the

halls of the Capitol with sand-

wich board signs ungenerously

characterizing many politicians.

This has been tolerated for years,

but when Mulford graduated to

Mr. Simpson's signboards, A.B.

261 was introduced. Over heated

opposition the bill passed the

Assembly, but seemed dead in

the Senate Judiciary Committee

-Continued on Page 3

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

Subcription Rates -- Two Dollars and Fifty Cents a Neat :

Twenty-Five Cents Per Copy

Continued from Page 2-

(it was so reported in this col-

umn in July). It was revived in

the closing days of the session,

however, and sent to the Senate

floor. There, with visions of

Panthers in their eyes, 21 Sena-

tors approved it. So did the Gov-

ernor. Another bill which would

have required permission in ad-

vance to carry signs in the Capi-

tol, was defeated.

Bills Defeated

ACLU _ successfully opposed

most of the rest of the assaults

on free speech. Defeated were

bills to: delete the requirement

of intent from the incitement-to-

riot act; outlaw conduct, includ-

ing speech, which would have any

tendency to encourage truancy;

punish anyone who sends a writ-

ten insulting communication to a

teacher; punish those who dis-

play the flag of a foreign power

with which the United States is

at war; ban "mass picketing";

and publish injurious falsehoods

concerning the police.

Junior College Campuses

Tiny progress was made with

the passage of AB 388, by John

Vasconcellos (D. - San Jose),

which will permit the now-pro-

hibited distribution of partisan

publications on junior college

campuses. Over the author's ob-

jection conservatives added an

exception for publications which

advocate "disobedience of the

law." The exception is clearly un-

constitutional and, hopefully, will

be struck by the courts.

Academic Freedom

Academic freedom narrowly

survived attacks largely moti-

vated by the widely held belief

that "it's those young teachers"

who are stirring up campus un-

rest. For example, Senator Rich-

ardson (R. - Arcadia) offered

two bills - one to dismiss and

punish any teacher who advo-

cates, in the classroom or on the

campus, "disobedience to the

law," and another to punish any.

teacher who uses any instruc-

tional material, without. prior ad-

ministrative approval. Both bills

passed the Senate over opposi-

tion by ACLU. and_ teachers'

groups, but were stopped in the

Assembly Education Committee.

Sex Education

The enemies of sex education

won a partial victory with the

passage of Assemblyman Newton

-Russell's AB 2126, which per-

mits parents to examine instruc-

tional materials and to withdraw

their children from sex educa-

tion classes if the teaching, in

their opinion, violates their "re-

ligious training and belief," in

cluding "personal moral ae,

tions." Also passed was Senator

Schmitz's S.B. 413, which prohib-

its teachers from requiring chil-

dren to attend sex education

classes if their parents object, re-

quires written notice to parents

of sex education classes, an op-

portunity to inspect instructional

material (except textbooks), and

punishes willful violators `with

suspension or revocation of teach-

ing credentials.

Loyalty Oaths

The continuing loyalty oath

controversy was marked this year

by one victory and one `defeat.

Assemblyman Burke offered a

bill and a constitutional amend-

ment to require all state em-

Ployees to disclaim active and

knowing membership in any or-

ganization advocating the over-

throw of the government by

force or violence, This oath was

successfully opposed in the Crim-

inal Procedure Committee.

Teachers, however, have a new

oath to sign. Since ACLU suc-

ceeded in forcing State Superin-

tendant of Public Instruction

Max Rafferty to abandon the oath

presently required of teaching

. credential applicants, Carlos

Moorhead (R. - Glendale) offered

~a bill which revises that oath

very slightly (for example, one

need now swear only to "respect"

for law, order, and the flag, rath-

er than `"reverence'"'), The bill

passed both houses with no dif-

ficulty. An attack on it is antici-

pated,

Marijuana

Arrest rates may rise, rumors

may circulate concerning the

children of highly placed offici-

als, professional and_ technical

opinion may begin to landslide

against current marijuana laws,

or at least their penalties, but the

Legislature is scared stiff of the

issue and shows it, and the Gov-

ernor seems prepared to veto the

slightest improvement in the

law.

Many Bills Introduced

A wide range of legislation to

improve the marijuana laws was

introduced this year, and sup-

ported not only by traditionally

iconoclastic groups such as ACLU

but also by such staid organiza-

tions as the Los Angeles Times

and the Los Angeles Junior

Chamber of Commerce (one won-

ders what they do at night), Alan

Sieroty of Beverly Hills intro-

duced a bill to make first offense

possession a misdemeanor (it is

presently a felony unless the

judge in his discretion declares.

it a misdemeanor), a bill to per-

mit hospitals not to report per-

sons under the influence of mari- .

juana or dangerous drugs to the

police, and a bill to remove the

requirement that a convicted

marijuana violator register with

local police as a narcotics of-

fender. John Vasconcellos of San

Jose authored a bill to remove

marijuana from the "narcotic"

list of the Health and Safety

Code and put it in a separate

chapter. Edward Z'Berg (D. - Sac-

ramento) offered a bill to make

the discretionary misdemeanor

sentence retroactive for~ those

sentenced for felonies when first

offense possession was a straight

felony. Not one of the bills be-

came law.

How They Died

The first casualty was Sieroty's s

bill to reduce penalties, It failed,

for lack of one vote, in the Crim.

inal Procedure Committee. Next

to fall was Vasconcellos' bill,

veaten on the floor of the Assem-

bly. Sieroty's bill to remove the

registration requirement survived

the Assembly but died in. the.

"Senate Judiciary Committee. His

bill to exempt hospitals from re-

porting drug use was vetoed by

the Governor, as was Z'Berg's

modest measure.

Legislators Are Afraid

Th plain lesson from this is

that the Legislature will not

change the marijuana laws until

the members feel that they can

survive the resulting criticism in

their districts. Even then, it may

take a new Governor to sign

them into law. Fortunately, every

sign indicates that the external

pressures for reform will con-

tinue to build. ACLU will con-

_tinue to push for change.

Bail and O.R.

Slight progress was made in

this field with the passage of

bills to permit counties to estab-

lish O.R. projects, and to require

police to investigate the back-

ground of arrestees to determine

their eligibility for release on

their own recognizance; But a bill

to require an automatic review of

the amount of bail if an arrestee

has been unable for three days

to raise it was killed, and every

more substantive measure died

without a struggle. The pressure

of bondsmen combined with the

present law-and-order atmo-

sphere makes bail reform dubi-

ous for now. .

Preventive Detention

No ground was lost, however.

The growing controversy sur-

rounding what Attorney General

Mitchell calls "preventive de-

tention" had its parallel in the

California legislature with the in-

troduction of a bill and constitu-

tional amendment by Kent Stacey

(R. - Belmont) which provided

that one arrested for any felony

may not be released if he is cur-

rently awaiting trial on any other

felony charge. ACLU opposition

was successful in the Criminal

Procedure Committee,

A similar bill by Senator Brad-

ley of San Jose also failed in the

Criminal Procedure Committee.

It provided a steeply graduated

bail schedule for those arrested

for the misdeameanors of tres-

passing or disturbing the peace.

t

Miscellaneous Subjects

The Legislature has passed and

the Governor has signed into law

a bill introduced by John Miller

of Berkeley at the instigation of

ACLUNC. The bill requires po-

licemen to wear badges or other

identification devices at all times,

and was drafted in response to

protests originated by the Berk-

eley-Albany Chapter concerning

the practice of police to remove

badges at riot scenes.

Martial Law Powers

ACLU scored a major victory

with the defeat of Assemblyman

Britschgi's A.B. 1729, which

would have significantly expand-

ed the martial law powers pos-

sessed by the Governor and exer.

cised by him during the People's

Park crisis. The California Dis-

aster Office ostensibly offered

the bill, claiming that it did not

change the law but merely clari-

fied it. ACLU was alone in op-

posing the bill and was at first

accused of extreme paranoia. But

as negotiations and hearings pro-

ceeded the disease spread, until

over the Disaster Office's pro-

testations the author abandoned

the bill.

Right to Travel

A severe blow was dealt the

right to travel with the passage

of A.B. 2323, by Pete Wilson

(R. - San' Diego). The bill pro-

hibits the entry into Mexico from

California of anyone under 18

who does not have a passport, a

parent or a guardian with him,

or written permission from the

parent or guardian. The bill was

introduced to ratify a currently

illegal practice at the border. The

rationale of its author was that

he wanted to stop the traffic in

narcotics - a goal so popular

that he and a majority of legis-

lators ignored ACLU claims (con-

curred in by Legislative Coun-

sel's office) that the bill was a

violation of the right to travel.

Criminal Appeals

A strange alignment of forces

defeated S.B. 639 by. George

Deukmejian, the only declared

candidate for Attorney General.

The bill would have abolished the

right to appeal from a felony

conviction and _ substituted a

"petition for leave to appeal,"

which would be denied if the

court petitioned felt the issues

"too insubstantial" to warrant

further consideration. The bill

had the support of the Judicial

Council but the opposition of

everyone else concerned. In one

rare hearing the Peace Officers,

District Attorneys, Attorney: Gen-

eral, State Bar, Public Defender,

and ACLU all agreed that the

bill should be killed. It was. It

was later quietly revived but

again killed by the same ephem-

eral coalition.

Parole and Probation

Every bill designed to bring

some sense of due process to

parole and probation revocation

procedures died without a strug-

gle, save only Willie Brown's bill

to deprive the Governor of his

ancient, dusty statutory power to

revoke parole. Not surprisingly,

the Governor vetoed it.

W. Craig Biddle of Riverside

succeeded in passing into law a

bill to create a presumption of

drunk driving if a blood test

shows .1 percent of alcohol in

the blood. A bill that would make

a .08 percent conclusive evidence

of impairment was killed.

Assorted New Laws

Bills were passed and signed

into law which will: establish

Spanish as: an alternative lan-

guage for reading the Constitu-

tion for the purposes of voting

eligibility (this, a constitutional

-amendment, will appear on the

ballot); abolish the tax exemp-

tion for unrelated income of

churches; extend the Fair Em-

ployment Practices law to cover

training programs and agricul-

tural labor; establish a teaching

credential for ethnic studies; ex-

pand the circumstances in which

a criminal defendant can be con-

victed without disclosure of the

identity of a confidential inform-

ant (see the August ACLU

News); and expand the power to

_ represents

5th Amendment

Case Ends in

Partial Victory

The California. Court of Ap-

peal has issued a Writ of Prohi-

bition invalidating a portion of a

"prosecution discovery order'' is-

sued by the San Francisco Supe-

rior Court. The trial court or-

dered defense counsel to (1)

"make available for inspection

and copying to the District Attor-

ney ... any and all statements

in your possession or available to

you obtained from" the named

witnesses, another person not

shown by the affidavit to have

been interviewed by the defense,

"and any other witnesses other

than the defendant"; (2) make

similarly available "the names,

addresses and statements of any

witnesses other than the defend-

ant which the attorneys for the

defendant intend to call for the

purpose of raising an affirma-

tive defense.' The order also

provided (3) that it "is a con-

tinuing one, and in the event any

material described in the above

paragraphs becomes available to

the defendant's attorneys subse-

quent to the signing of this or-

der" they shall "make the names,

addresses and statements of the

witnesses available" to the prose-

cution,

_ Court Ruling

By not limiting the order to

the names of witnesses the de-

fendant intends to call, the Court

of Appeal held, the order "is

likely to force defendant to sup-

port the case against him by re-

vealing the names of witnesses

who may be unknown to the (c)

prosecution," a violation. of the

Fifth Amendment proscription

of coerced self-incrimination, The

Court also found that the por-

tions of the order requiring dis-

closure of statements other than

those that the defense intended

to introduce at tria] was uncon-

stitutionally overbroad.

The Court concluded: .

"Tnsofar-as the order before

us requires petitioner to reveal

the names and addresses of

witnesses he intends to call,

and written material he in-

tends to offer in evidence, it is

permissible .. ."

Discovery Narrowed

The holding greatly narrows

the prosecution discovery order.

But the limitation is not narrow

enough in the view of defense

attorney Jerrold Levitin, who

the petitioner, or

ACLUNC, which supported Levi-

tin with a friend of the court

brief prepared by volunteer at-

torney Michael S. Moore, Levitin

will ask the California Supreme

Court to review the decision and

hold that the defendant need

not disclose his case at all, espe-

cially if the defendant does not

intend to use affirmative defens-

es (such as alibi or insanity).

Marin Chapter

Board Meeting

Charles Marson, assistant staff

counsel and legislative represent-

ative for ACLUNC, will speak at

the next board meeting of the

Marin Chapter Monday evening,

November 17. Members are in-

vited to attend; further informa-

tion may be obtained from the

chairman, Irving Co *3-8332.

make nighttime misdemeanor ar-

rests until 10 p.m.

Bills Killed

Bills were killed or abandoned

to: unseal already sealed misde-

meanor records; outlaw cross-

bussing of pupils to achieve inte-

gration; criminally punish any

father of children on AFDC to

refuse employment or a job train-

ing program; and greatly expand

the statutory power of the police

to search and frisk for dangerous

weapons (see the August ACLU

News).

- Since ACLU supported: or op-

posed more than 200 bills and

watched the progress of perhaps

500 more, this summary is neces-

sarily selective and incomplete.

The author welcomes qustions.

Prisoner Rights

Case Before

State High Court

ACLUNC Staff Counsel Paul

Halvonik hag filed a friend-of-

the-court brief in. the: Supreme

Court of California supporting

the right of Hulen Harrell, a San

Quentin inmate, to possess law

`books and other legal materials

and, additionally, Harrell's right

to assist other prisoners in the

preparation of writs.

Books Confiscated |

Prison officials entered Har-

rell's cell last March and confis-

cated law books, legal material,

typing paper, typewriter and

writs for other prisoners that

Harrell was preparing.

In its 1968 term the Supreme

Court of the United States, in the

case of Johnson v. Avery, held

that a state may not prohibit

prison inmates from assisting one

another in the preparation of

writs unless the state provides an

alternative and superior system

of legal assistance for the in-

mates. The San Quentin authori-

ties, reading that decision very

narrowly, permit prisoners to

consult with one another about

legal matters but require that

each prisoner prepare and pos-

sess only legal materials that

"pertain" to his own case, :

- The Issues

The Harrell case poses the

question of the constitutionality

of the San Quentin regulation

limiting "jail house lawyering"

and additionally raises the ques-

tion of the constitutionality of

prison regulations that unreason-

ably impede prisoner access to

legal materials,

ACLUNC urges the Supreme

Court of California to give John-

son a reading which fully imple-

ments its rationale. If prisoners

cannot be prohibited from giving

each other assistance surely there

is no reason to impede effective

assistance by enforcing a rule

which prohibits one prisoner

from preparing a petition for an-

other. `Moreover, if prisoners

are entitled to legal assistance

from one another, they are equal-

ly entitled to gather legal infor-

mation from other surces, in-

cluding law books. Prison rules

unreasonably inhibiting access to

legal materials are, therefore, un-

constitutional.

Seek to Expunge Records

There is one other issue posed -

by the Harrell case, The Attor-

ney General conceded that Har--

rell has, in the past, been pun-

ished for activities admittedly

constitutionally protected -under

the Johnson v. Avery decision.

Nevertheless, the prison authori-

ties refuse to expunge records

reflecting the punishment, rec-

ords that wil] be considered by

the Adult Authority when Har-

rell comes up for parole.

ACLUNC has asked the Supreme

Court to order the records ex-

punged as an unconstitutional

penalty imposed on the exercise

of a constitutional right.

Isolated Prisoners

The filing of the amicus brief

has already had a salutary ef-

fect, The brief points out that a

prison rule prohibiting prisoners

in isolation from possessing legal

materials and a rule prohibiting

a prisoner from preparing or pos-

sessing the legal materials of an-

other coalesce to deprive a per-

son in isolation of any legal re-

dress. Two weeks after the

ACLUNC brief was filed the At-

torney General informed the Su-

preme Court that the Department

of Corrections had adopted a new

rule permitting jailhouse law-

yers to consult with isolated pris-

oners.

Chapter Conference

The all-Chapter conference

held on October 4 was deemed a

suecess by attendees. A full re-

port will appear in the next is-

sue of the News, as there was

insufficient space available in

_this issue.

ACLU NEWS

NOVEMBER, 1969

Page 3

Anti-Draft Handbills

Conviction of

School Leafleter

Is Reversed -

Robert Mandel, arrested repeatedly by Oakland police

for distributing anti- draft material on high school campuses,

has been vindicated by the First District Court of Appeal in

a long, significant, and split decision. The court issued a

writ of prohibition against his prosecution.

`"Loitering" Issue

_ Mandel was charged with five

violations of Penal Code Section

- 653g, which punishes as a vag-

rant anyone who "loiters" on or

near a school or a place where

children normally congregate. In

1964, in a case in which ACL-

UNC unsuceessfully urged that

the statute was unconstitutional,

the' First `District Court of Ap-

peal limited the meaning of the

term "loiter" so that, to violate

the: statute, one needed to have

"an evil or sinister purpose."

Five years later, ACLUNC, ap-

pearing" as amicus curiae on be-

Court of Appeals

Declines to Pass -

On'Agitator' Law

The United States Court of

Appeals for the Ninth Circuit

has held that Black Panthers

Larry Carter, Fred Crawford and

Steve Shead do not have stand-

ing to challenge the constitution-

ality of the new federal "anti-

riot law."

Contempt of Court

The Panther trio was convicted

in August of contempt of court

for refusing to answer questions

concerning possible violations. of

the "anti-riot law." - Their con-

tempt convictions were appealed

by their attorneys, the law firm

of Garry, Dreyfus, McTernan and

Brotsky, ACLUNC filed an ami-

cus curiae brief attacking the

constitutionality of the statute

and staff counsel Paul Halvonik

supported the appellants in oral

argument before the Ninth Cir:

cuit,

The Law

The statute, under which the

"Chicago Eight" are currently

being tried, punishes anyone

who, while travelling in inter-

"state: -or foreign ecommerce, has

the intent at the time of travel

to (a) incite a riot; (b) organize,

promote, encourage, participate

in, or carry on a riot; (c) com-

mit any act of violence in fur-

therance of a riot, or (d) to aid

or abet any person in inciting

or participating in or carrying

on a riot or committing any act

of violence in furtherance of a

Yiot, performs or attempts to per-

form any other overt act for any

of the above purposes during the

course of his travel or any time

thereafter.

Inhibits Travel

ACLUNC has contended that

the statute is unconstitutional

because it unnecessarily inhibits

interstate travel, is both. vague

and excessively broad under the

First Amendment, and permits

punishment of one who has an

"evil" intent at one time but

later abandons it and commits

acts innocent in themselves.

No Standing To Sue

"The United States Court of

Appeals held that the Panthers

were "merely" witnesses before

a Grand Jury rather than defend-

ants, and therefore lacked the ca-

pacity to challenge the constitu-

tionality of the law.

The Panther's attorneys have

indicated that they will likely ask

the U, S. Supreme Court to re-

view the Ninth Circuit's decision.

ACLUNC will continue its ami-

cus curiae support.

ACLU NEWS

NOVEMBER, 1969

`Page 4

half of Mandel, argued to the

same court that its earlier limi-

tation was obviously no help,

since arrests for conduct pro-

tected by the First Amendment

continued to occur under 653g.

Split Decision

In a 2-1 opinion, the court did

not go so far as to declare the

section unconstitutional. How-

ever, it ruled 1) that Mandel's

conduct was protected by the

First Amendment and was not

"loitering" within the meaning

of the statute; 2) that in order

to violate Section 653g one must

intend, while loitering, to com-

mit another crime; 3) that since

Section 653g was designed to

protect children from sex mo-

lesters, it may be (although the

court did not squarely decide)

that the section is not violated

unless one loiters with the pur-

pose of committing a sexual of-

fense.

No Delinquency Issue

In the Court of Appeal the

Attorney General had suggested

that Mandel may have been loi-

tering with the purpose of com-

mitting the crime of contribut-

ing to the delinquency of a

minor-this because one of his

leaflets, attached to the police

report, urged a student strike on

a stated future day. The court

rejected this suggestion, pointing

out that in order to contribute

to a minor's delinquency one

must tend to cause him to be a

truant, and truancy requires at.

least three unexcused absences.

Urging absence on one future

day hardly fits that descripition,

and, hinted the court, if it did

there would be further consti-

tutional problems raised.

Majority Opinion

The majority opinion, au-

thored by Justice Richard Sims

and concurred in by Justice John

Molinari, concluded on this note:

A society which recognizes the

right of personal and corporate

wealth to hire experts and lobby-

ists to avoid contributing through |

taxes more than necessary to-

ward a controversial undeclared

war cannot, without widening

the generation gap, stifle those

who, through ostensibly legal

means, seek to organize and ad-

vise students in opposition to an

existing governmental policy

which they are expected to de-

fend at the sacrifice of life and

limb.

Dissent

Justice Richard Elkington dis- -

sented, saying "I cannot believe

that the First Amendment ex-

tends protection to an adult who,

in defiance of the law of Cali-

fornia, gees upon school grounds

and there endeavors to foment a

student strike."

Mandel was represented in the

Court of Appeal by Donald Ker-

son of the office of Garry, Drey-

fus, McTernan, and Brotsky.

Sonoma Annual

Meeting

November 25

Jessica Mitford, author of the

recent book on the trial of Dr.

Spock, as well as "The American

Way of Death," will be the fea-

tured speaker at the annual

meeting of the Sonoma Chapter,

to be held Tuesday evening, No-

vember 25, Members will receive

further details in the mail.

Cleophas Brown

PoliceAbuse Case

In High Court

A petition has been filed in

the Supreme Court of California

asking it to review and reverse a

Court of Appeals decision which

held that Cleophas Brown of

Richmond cannot set aside his

conviction by means of a Writ of

Habeas Corpus.

ACLUNC maintains that

Brown's conviction for resisting

arrest is unconstitutional because

the trial judge in the Municipal

Court refused to instruct the jury

on his theory of the case.

The resistance to arrest was

supposed to have occurred when

Brown, who had been stopped

for a minor traffic law infringe-

ment, refused to get into a po-

lice car unless an officer other

than the one arresting him was

called to accompany them, Ac-

cording to Brown, and the testi-

mony of other witnesses to the

event, Brown wanted the other

officer to join them because he

had been the victim of an un-

provoked beating by the arrest-

ing officer and was consequently

afraid of being alone with the

officer. The trial eourt declined

to instruct: the jury; as' trial-de--

fense counsel Milton Nason *re:.

quested, that such.a fear was a

valid ground for declining to en-

ter the police car alone with the

arresting officer.

The Appellate Division of the

Superior Court in Contra Costa

County upheld the trial judge's

decision and ACLUNC then

asked the Court of Appeal to is-

sue a Writ of Habeas Corpus re-

leasing Brown from a convictior.

in which the jury was not in-

structed that he had a constitu-

tional right to resist excessive po-

lice force. The Court of Appeal

denied the writ and an original

Writ of Habeas Corpus was then

filed in the Supreme Court. That

court, in February of last year,

rendered a decision in the case

of People v. Curtis which said;

in effect, that in a case such as

Brown's the requested instruc-

tion should have been given. On

the same day that it rendered

the Curtis decision the Supreme

Court issued an order requiring

the Court of Appeal to hear

Brown's case.

The Court of Appeal, after

hearing, denied Brown's request

for a Writ of Habeas Corpus

holding that Habeas Corpus

could not be used to attack a

judgment resting on erroneous

jury instructions.

In the petition to the Supreme .

Court, prepared by Paul Halvo-

nik and volunteer attorney

Thomas Silk of San Francisco,

ACLUNC contends that Brown

has been the victim of a miscar-

riage of justice which must be

corrected: "Petitioner is a Rich-

mond Negro who maintains that

he was abused by a police offi-

cer, The complaint is not a novel

one and perhaps the jury will not

prefer his version of the facts

over that of the officer. But the

petitioner has a right to have

this extremely serious charge

considered by a jury in his de-

fense to a criminal prosecution.

To deny him that right on the

ground that habeas corpus is not

an available remedy is to under-

mine the very rights that the

Great Writ is supposed to vindi-

cate."

"Seasons Change'

The ACLU sponsored film on

the riots and demonstrations at

the time of the Democratic Con-

vention in Chicago will be shown

two more times before it is re-

turned to the National office.

Napa-Thursday, November 6,

8 P.M. at Napa College. See lo-

cal publicity or call George Link,

226-5911.

`Oakland-Friday evening, No-

vember 7, at the Harris home, 39

Crest Road, Piedmont. There will

be wine tasting at 8, the films

will be shown at 9, and coffee

and conversation will follow. A

$1 donation to the Council will

be requested.

Blacks Excluded

Challenge to

Racist Selective

Service Board .

Charles Wingfield is a young black man who was born

and raised in Lee County, Georgia. While in high school,

Wingfield, inspired by the example of the late Dr. Martin

Luther King, vowed to commit his life to the liberation of

blacks and the philosophy of non-violence. Wingfield be-

came an organizer for the Stu-

dent Non-Violent . Coordinating

Committee in Macon, Georgia in

the early 1960's and consequent-

ly became a target of the Ku

Klux Klan. The local Klan car-

ried their vendetta against young

Wingfield to such an extent that

they fired into his home at-

tempting to kill not only him but

his family. The local sheriff in- .

vestigated the incident and con-

cluded that Wingfield had fired

the bullets into his own home.

C. 0, Claims Rejected

Jn, fear - of his life, Wingfield

eyentually. left. Georgia and mi-

grated to the north where he

finished high school and entered

Antioch Gollege. After complet-

ing his studies at Antioch he

filed for. conscientious objector

status with his local, Lee County,

draft board. He was not sur-

prised when his board rejected

his application, a clerk of the

board had once told him that

"the Niggers around here was

happy until you started writing

on the bulletin board." Wing-

field's administrative appeal

from the denial of the conscien-

tious objector classification was

equally fruitless and he re-

ceived an order to report for

`induction into the armed forces.

On the advice of ACLUNC,

Wingfield, who has lived in the

Bay: Area' for -the past 2 years,

had his order to report for in-

duction transferred to Oakland

where he appeared on the ap-

pointed day and refused to sub-

mit to induction.

Lily-White Board

Wingfield is now a defendant

in the Federal Court for his

failure to submit to induction.

At his trial his early and en-

during commitment to eradicat-

ing racial discrimination and his

devotion to non-violence will be

the principal issues. His attor-

ney, staff counsel Paul Halvonik,

contends that the Georgia local

board was powerless to order

Wingfield's induction because it

was illegally constituted. The

Lee County draft board has al-

ways been lily-white and, Hal-

vonik contends, this `systematic

exclusion of Blacks from the lo-

cal boards must vitiate an order

to report for induction just as

systematic exclusion of Blacks

from juries must vitiate a con-

viction,

Similar Case

A similar claim was rejected

by the United States Court of

Appeals for the Fifth Circuit in

the ACLU's Southern Regional

Office case of Cassius Clay (Mu-

hammad Ali) v. United States.

The United States Supreme

Court, however, granted review

of the Clay case and reversed

on a separate issue. Halvonik

contends that the action of the

United States Supreme Court -

casts grave doubt upon the va-

lidity of the Clay decision, a de-

cision which, in any event, does

not bind the District. Court in

Northern California. Moreover,

the reasoning in the Clay deci-

sion was extremely faulty.

Fact-Finding Function

The United States Court of

Appeals there held that a local

draft board should be compared

to a malapportioned legislature,

the actions of which are valid

even though the body is illegally

constituted, rather than a dis-

criminatorily selected jury, the

actions of which may be _ at-

tacked because of illegal consti-

tution. But the function of the

selective service board is quite

unlike that of the legislature and

very like that of the jury. A leg-

islature makes broad decisions

of policy rather than determina-

tions of fact. A selective service

board, like a jury, does not make

broad policy decisions but rather

"adjudicates" facts such as the

credibility of witnesses. In Wing-

field's case, for example, the

local board explained to the ap-

peal board that Wingfield was

not trustworthy and that "it is

a well known fact that in our

county he was a leader of ra-

cial troubles and that is the time

he left here."

Basis of C. 0. Claim,

Wingfield's case also raises

another interesting constitutional

point. When applying for con-

scientious objector status he

based his claim on his non-vio-

lent history and beliefs in the

philosophy of John Donne that

"any man's death diminishes

me." That was the extent of his

claim, he did not claim to be-

long to a pacificist religious sect

stating, rather, that he was an

"atheist."

The Wingfield trial will occur

before Federal District Judge

Albert Wollenberg in November.

At that time it may be deter-

mined whether the Lee County

board had the power to order

a young black to report for in-

duction and whether an avowed

atheist may claim conscientious

objector status.

The first right of a citizen

Ts the right

To be responsible

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