Meiklejohn Civil Liberties Institute Archives logo


Search in this volume

Case Number: 

Enter a specific case number or use * as wildcard, e.g., 303.15, 303.*

Case Title: 

Enter keywords from the title of a case, e.g., carpenters union

Case Description: 

Enter keywords from the description of a case, e.g., segregation school
- 1 -



Letter: Arthur J Goldberg to Orison Marden, Esq, Human rights conventions should be ratified. Cong Rec—Sen, S 10607, Aug 2, 1967.

Proposed legislation: HR 9876, S 990: establishes US Comm on Human Rights to prepare for US participation in 1968 Intl Human Rights Year. Cong Rec—House, H 5534, May 11, 1967; Je 14 1967, S 8187.

Speech: William Proxmire, Senate failure to ratify UN Human Rights Treaties disservice to UN delegation. Cong Rec—Sen. Jan 30, 1967, S 1071; Je 1, 1967, S 7567.


Article: Anon, entered by Glenn Cunningham, The Sup Ct is not supreme. Cong Rec—House. Je 26, 1967, H 7998.

Proposed constitutional amendment: 12-year terms for Sup Ct justices. Cong Rec—House. Aug 25, 1966, 19821.

Articles: Merle William Loper, The Court of Chief Justice Hughes: contributions to civil liberties. 12 Wayne 535-95.

John F Marvin, A constitutional prejudice for liberty and equality: Mr Justice Goldberg. 34 Missouri 289-324.


Book: Brandt Aymar, Edward Sagarin, Pictorial history of world's great trials. Crown. 1967. &10.

Articles: Dan H McCullough, History of first amendment of acts of Sept 24, 1789 and Mar 2, 1831. 12 S Dakota 171-257.

Jerome A Barron, Access to press: new first amendment right. 80 Harvard 1641-1678.

Simon E Sobeloff, Federalism and individual liberties—can we have both? 1965 Washington 296.

Thomas J Bennett, Quentin L Quade; Court as legislator: A crucial system. 10 St Louis 92.

Frank R Strong, Judicial review: tri-dimensional concept of administrative-constitutional law. 69 W Virginia 249-76.

Edwin H Greenebaum and Willard W Wirtz, Separation of powers: the phenomenon of legislative courts. 42 Indiana 153-91.

J Wilson McKenney, Teaching the Bill of Rights in California. Saturday Review, Mar 19, 1966.

Robert M O'Neil, Approach to teaching the Bill of Rights, Teachers College Record, Dec, 1963.

Book: The Bill of Rights: A source book for teachers, Calif State Dept of Educ, 1967.

Speech: Lyndon B Johnson, Dissent and American accomplishments. Cong Rec—Appendix. Je 28, 1967, A 3315.

FREEDOM OF SPEECH, PRESS, ASSEMBLY (10-99) See also Association (200-299)
Form: Memo on unconstitutionality of prior restraints on exercise of First Amdt liberties, by Victor Rabinowitz. CIVIL RIGHTS HANDBOOK pp 135-138; and see pp 75-89.

Note: Free speech and prior restraints: Kovach v Maddux (238 F Supp 835, MD Tenn 1965). 27 Maryland 57-64.

10. Licensing (and 203, 204, 257, 264)
11. Of Meetings (see also 201)

11.20. ACLU v Burbank, Calif, City Council (Los Angeles Super Ct, #873069) ACLU sought permission to hold public meeting in Library Auditorium; denied: ACLU "educational," not "cultural" organization. Nov 29, 1965: ACLU filed petition for writ of mandate: denial of free speech, assembly, and due process (vagueness). Sept 19, 1966: Super Ct granted writ.

A L Wirin and Fred Okrand, Esqs, 257 S Spring St, Los Angeles 90012.

11.26. American Friends Service Comm, Liberal Religious Peace Fellowship v Anaheim City Council (Orange Co Super Ct) Pl-organizations received permit from Def to hold meeting in city-owned bldg on rights of COs on May 12, 1967. May 9: permit withdrawn. Pls sued for restraining order prohibiting Def from denying permit to Pls for another meeting on same subject at future date: city ordinance unconstitutional: sets no standards for granting or withholding permit. Pending.

Richard Petherbridge, David Cadwell, Esqs, 323 W Fifth St, Los Angeles 90013, for ACLU.

11.27. Coleman v Director of Parks and Recreation (Los Angeles Super Ct) Pl, associated with Freedom Now Comm, applied to Def for permit to use park for speech by Stokely Carmichael. Co Bd of Supervisors passed resolution to bar Carmichael from speaking; Def denied permit. Nov 23, 1966: Pl sued for injunction against enforcement of resolution, for order requiring issuance of valid meeting permit. Def demurred. Nov 25: Ct overruled demurrer, enjoined interference with meeting: denial of park use for protected speech would be unconstitutional.

A L Wirin, Fred Okrand, Laurence R Sperber, Esq, 257 S Spring St, Los Angeles 90012, for ACLU.

11.28. Kidd v Pasadena School Dist, Bd of Educ (Pasadena Muni Ct) Jan 4, 1967: Citizens Task Force Study Comm on High School Districting, special comm of Bd of Educ
- 2 -

studying de facto segregation, held meeting; barred press and public, including Pl. Jan 17: Pl petitioned for writ of mandate to open comm meetings to silent attendance of public and press: right to attend under Govt C §§54950-54958 (Ralph Brown Act). Pending.

Robert E Burke, Esq, 323 W Fifth St, Los Angeles 90013, for ACLU.

11.29. San Bernardino v Fowler (San Bernardino Muni Ct) Def, honorary state cyclops of KKK, held meeting on private property, with permission of owner, without county permit; arrested: violation of co ordinance requiring meeting permits for all groups not headquartered in county. Feb 1967: Ct held ordinance unconstitutional.

A L Wirin, Esq, 257 S Spring St, Los Angeles 90012, for ACLU.

11.30. Wirin v Los Angeles Bd of Educ (Los Angeles Super Ct) Pl, ACLU attorney invited to speak at E Los Angeles College, promised &25 honorarium. Def refused to pay Pl: Pl refused to sign Levering disclaimer oath. Pl sued: Oath unconstitutional. Def paid Pl &25 before time for answer expired. Case moot.

And see Calif loyalty oath case at 262.18.

12. Of Motion Pictures (see also 14, 52)
Article: Robert J Klein, Film censorship: American and British experience. 12 Villanova 419-456.

Comment: Constitutional problems in obscenity legislation protecting children. 54 Georgetown 1379-1414.

12.11. Landau v Fording (Berkeley) (388 US 456) Winter 1964: Pl-exhibitor cancelled showing of Genet film "Un Chant d'amour" under police threat of arrest and confiscation; sued to enjoin police interference. Super Ct held it had no power to issue preliminary injunction. Calif Sup Ct denied hearing on writ of mandate to compel issuance. Feb 18, 1965: Super Ct denied injunction; held film obscene, despite expert testimony on artistic value and social importance of depicting prison conditions. Ct of App—1st Dist affirmed. Je 12, 1967: USSC granted cert and affirmed (Black, Douglas, Stewart and Fortas would grant and reverse).

Albert Bendich, Esq, 2550 Telegraph Ave, Berkeley; Neil F Horton, Esq, First Western Bldg, Oakland, for ACLU of No Calif.

12.25. Cusak v Teitel Film Corp (Chicago) (Ill Sup Ct, # #40214, 40215) Police chief refused to issue permit to Def to exhibit film, "Rent-a-Girl"; Def requested Pl, Motion Picture Appeal Bd, to review. Jan 24, 1966: Pl viewed film, took it into custody. Feb 9: Pl filed complaint, seeking injunction against showing of film. Def moved to strike and dismiss: (1) ordinance under which Pl operates is unconstitutional, (a) prior restraint of expression has heavy presumption of invalidity, (b) no authority in Pl to retain custody of film, deprivation of property without due process, (c) delay between time of viewing film and time of summons to Def constitutes unconstitutional restraint upon freedom of expression, (d) no constitutionally valid definition of obscenity; (2) complaint vague, uncertain evasive. Cir Ct denied Def's motions. Appeal argued before Sup Ct; pending.

Elmer Gertz, Esq, 120 S LaSalle St, Chicago 60603; Miller and Miller, Esqs, One N LaSalle St, Chicago 60602.

12.26. Interstate Circuit v Dallas (CA 5) (366 F2d 591) 1966: CA upheld Dallas ordinance creating review Bd to whom motion picture exhibitors are required to submit their classifications of pictures as either "suitable" or "unsuitable" for viewing by persons under 16 unless accompanied by "parent, guardian, husband or wife." Ct rejected argument ordinance unconstitutionally vague; held "a properly drafted classification statute is a constitutional method of protecting children from motion pictures obscene as to them."

Note: 67 Columbia 1149-1168.

12.26a. Re Birmingham Ordinance (ND Ala) 1966: Action filed contesting validity of ordinance (1) creating bd to determine whether film is `moral and proper' for viewers under 18, (2) requiring exhibitors to display sign indicating classifications. Ct granted temporary injunction staying operation of bd pending decision of suit.
12.27. Fine Arts Guild v Seattle (Wash Sup Ct) Def's Film Censorship Ordinance provided for (1) city censor bd, (2) age classifications for viewing films, (3) restrictions on theatre advertisements. 1966: Super Ct held ordinance unconstitutional as prior restraint with no procedure for immediate appeal, stated age classification provisions could be reformulated as long as no prior restraint. Def's appeal to Sup Ct pending.

Ray Brown, Esq, ACLU, 2190 Smith Tower, Seattle.

12.28. Columbia Pictures v Chicago (DC Ill) Nov 1966: Under censorship ordinance, Police Supt ruled no one under 17 could see Pl's film "Georgy Girl." Motion Picture App Bd aff'd. Nov 16: Pl released film under restriction. Nov 28: Pl sued for restraining order against ordinance enforcement; declaratory judgment that ordinance is void for depriving Pl and public of liberty without due process; refund of moneys paid for prior permits. Pending.
12.29. Re 41st St Theater (NYC License Dept) A Pet sought license renewal. Dept opposed renewal: films show "immorality, perversion, lewdness, homosexuality." Pending.

Albert Angel, Esq, 1 Wall St, NYC; Alan H Levine, Esq, 551 Fifth Ave, NYC; both for ACLU.

12.30. Ginsberg v NY, United Artists Corp v City of Dallas (USSC) Challenges to Dallas and NY State laws prohibiting the showing of objectionable films to minors. Oct 1967: Pending in USSC.

Amicus brief by ACLU, 120 Broadway, NYC and Texas CLU, 1601 Nat'l Bankers Life Bldg, Dallas.

13. Of Peddlers, Literature Tables (and 112, 152)

13.3. Fort Worth v Craik, Dist Judge (Tex Sup Ct, #B-40) 1966: Charitable Solicitation Comm denied fund raising permit under Fort Worth City Code Ch 32 to Nat'l Foundation, operator of March of Dimes: Cost of fund-raising exceeds 20% of contributions. City Council sustained ruling. Jan 10, 1967: Dist Ct enjoined enforcement of penal sections of Code. Jan 13: Sup Ct held: restraining order void. Feb 8: Sup Ct denied motion for reh'g; held: equity will not determine originally the validity of criminal regulation without showing of irreparable injury to vested property rights.

Brown, Herman, Scott, Young and Dean, Esqs, 203 Fort Worth Club Bldg, Fort Worth.

- 3 -

13.4. Ohio v Lodico (Bowling Green) (Ohio Sup Ct) Def arrested for selling "Young Socialist" on public sidewalks without a license; convicted. Jy 12, 1967: Sup Ct reversed: licensing ordinance constitutes prior restraint on speech and publication.
14. Of Books, Magazines (and 22, 52)
Article: Horace W Fleming Jr, Georgia literature commission. 18 Mercer 325-336.

Note: Constitutionality of Oklahoma Literature Commission. Holding v Nesbitt (259 F Supp 694, WD Okla 1966). 20 Oklahoma 184-189.

Proposed Legislation: S 1584 to create Commn for Elimination of Pornographic Materials. Cong Rec—Sen. Ap 19, 1967, S 5475.

S 188 establishes Commn on Noxious and Obscene Materials. Cong Rec—Sen. May 10, 1965, S 6593; May 11, 1967, S 6680.

14.19. Putnam's v Callissi (NJ Sup Ct) Je 1964: Pl-publisher sought to enjoin enforcement of ban on sale, distribution of "Memoirs of Fanny Hill." Dec 7, 1964: Ct denied injunction, held book obscene: no social value, appeal to prurient interest, patently offensive, "hard core pornography." Mar 21, 1966: USSC, in Memoirs, 383 US 413, held book not obscene. Def refused to consent to dismissal: USSC decision confined to particular facts of case. On appeal, Pl argued: (1) decision in USSC case controls, requires reversal; (2) in any event, principles established in Memoirs require reversal on present record. Sup Ct took directly; Jy 1967: argument pending.

Rembar and Zolotar, Esqs, 521 Fifth Ave, NYC.

14.20. Pennsylvania v Robin (Pa Sup Ct, #180,181) 1961: Com Pleas Ct enjoined sale and distribution of "Tropic of Cancer." Def's appeal attacks Roth, 52.3, 354 US 476, obscenity statutes 18 PS §3832.1. (1961) and PL 1330 (1959) as unconstitutional violation of First and 14th Amdts and Pa Const Art I, §7. Pending.

Amicus brief for Phila ACLU, by Gilbert M Cantor, Esq, 1300 Two Penn Center Plaza; Julian E Goldberg, Esq, 2028 Delancy Pl, both of Phila, Pa.

Case note: 13 Wayne 410-417.

14.21. Long v Anaheim, Garden Grove (4th Dist Ct of App) 1966: Pl, leader of Socialist Labor Party, publisher of Weekly People, sued for injunction restraining enforcement of Def city ordinances requiring license to distribute newspaper: ordinance does not apply to political parties, or, if it does, is unconstitutional under guarantee of freedom of press. Ct held ordinance properly applied. Pl's appeal to 4th Dist Ct of App pending.

Tony Geram, Esq, 8408 Sierra Ave, Fontana; A L Wirin, Fred Okrand, Laurence R Sperber, Esqs, ACLU, 257 S Spring St, Los Angeles.

14.22. Fed'l Trade Commn v Rodale Press (FTC) Commn sought prohibition against health book advertising. Def maintains advertising which truthfully reflects book contents (regardless of their falsity) is constitutionally protected. Pending.

William Warfield Ross, L Speiser, Esqs, 1424 16th St NW, Washington, DC, for ACLU.

15. Of Miscellaneous Activities
Proposed Legislation: S 2128 repeals equal time for candidates provision of Communications Act. Cong Rec—Sen. Jy 17, 1967, S 9700.
15.18. In re Bridge Theatre (Manhattan) (NY License Dept) Apr 1966: Def, off-Broadway theatre, presented program including vignette against US involvement in Vietnam; License Commr observed show, found "foul and lewd language derisive of the United States and its role in Vietnam ... coupled with an attack on President Johnson and ... a flag-burning," children 5 to 8 yrs old used as actors without consent of Mayor's office. Apr 11: Commr ordered immediate show-cause h'g on theatre ownership license. Dec 1, 1966: 8 of 9 charges dismissed after h'g. Charge of serving liquor to audience pending.
15.19. Residents of Yorktown Heights v Yorktown Heights School Bd (NY Sup Ct) Def granted permission for Am Field Service benefit at school, starring singer Pete Seeger. Pls, 8 residents, sought to enjoin concert: "controversial songs should not be sung on public property," riot feared. Jan 30, 1966: Sup Ct dismissed: "no showing ... of ... immediate irreparable injury to the public weal," adequate police would be present.

Edgar A B Spencer, Esq, Grace Lane, Ossining, NY.

15.20. Chavez v Visalia Muni Ct (5th Dist Ct of Apps, Civil #776) Pl-labor organizer used sound truck. Complaint filed in Porterville Justice Ct; violation of Tulare Co Loudspeaker Control Ordinance. Pl demurred, overruled. Pl sought writ of prohibition in Tulare Co Super Ct: denied. Nov 20, 1967: Ct of Apps reversed: ordinance unconstitutionally overbroad, Bd of Supervisors not given standards.

Marvin Stender, Esq, 123 2nd St, San Francisco 94105.

15.21. Sonoma Co v Gottlieb (Santa Rosa Muni Ct) Def-retired entertainer permitted persons to camp semi-permanently on his ranch. Aug 7, 1967: Arrested; misdemeanor running organized camp unsanitarily, without license; freed on &276 bail. Aug 13: Def pleaded not guilty; campers "personal guests." Trial set Aug 15. Pending.
16. Of Parades (and 55, 63)

16.3. Hicks v Cutrer (Bogalusa) (ED La, #66,225) Aug 23, 1966: Pl brought class suit for city Negroes to declare unconstitutional a city ordinance regulating marches and parades and to enjoin its enforcement. Sept 15: Trial; decision pending.

Richard B Sobol, Esq, LCDC, 2209 Dryades St, New Orleans 70113.

16.4. Sumrall v Birdsong, Busby (Shubuta) (SD Miss) Aug 20, 1966: Pls participated in civil rights march; police broke up march. Pls sued for injunction restraining Defs-local officials from failing to protect demonstrators, Jy 1967: DC ordered Defs to protect peaceful marches, established rules for marches: (1) marchers must give 24 hrs notice of route; (2) marches must be during day only, no singing or chanting; (3) marchers must go two abreast on side of street, may not march in front of City Hall.
16.5. Bogalusa v 54 Defs (Muni Ct) Jy, 1967: Bogalusa Civic & Voters League sought parade permit. Police denied: although under fedl DC order to protect civil rights demonstrations, manpower insufficient to police both march and American Legion 4th of July parade. League paraded 3
- 4 -

blocks, 42 arrested: parading without permit, disturbing peace. Subsequent courthouse picket; 14 arrested: trespassing, interfering with police. Pending.

And see Guyot, 51.Miss.4.

20. Administrative Restrictions
21. By US Customs

21.5. Teague v US Customs Service (SD NY) Nov 14, 1966: Def notified Pl that shipment of 5000 books from Vietnam would be detained until Pl obtained license under Trading with Enemy Act (50 USC App §5(b) (1)) and Foreign Assets Control Regs, 31 CFR §500.204 (amended, 32 Fed Reg 7829-30(1967)). Pls refused to apply for license. Dec 30: Pls sued for declaratory and injunctive relief attacking laws as restricting free speech. Aug 4, 1967: DC dismissed complaint; held laws constitutional: "During this period of undeclared but nevertheless very real wars involving this nation, the Trading with the Enemy Act is a diplomatic weapon, the importance of which cannot be gainsaid."

Henry Winestine, Esq, for ACLU, 30 E 42d St, NYC.

22. By US Postmaster (and 12, 14)
Proposed Legislation: S 926 permits return of unsolicited obscene mail to Postmaster Genl. Cong Rec—Sen. Feb 9, 1967, S 1880.
22.19. Re PO Employee (Postal Inspector Service) Postal inspectors inserted ad in correspondence club bulletin under fictitious female name. Resp answered by mail. Inspectors confronted Resp with letters in his home, accused him of felony. Resp signed paper authorizing inspectors to search house for bulletin. Inspectors seized book, letters to Resp's wife as "obscene," insisted Resp sign incriminating statement, told Resp not to leave town. Resp forced to resign, personnel file marked "resigned while under investigation ... for mailing obscene letters." After objections by Resp's counsel, PO (1) agreed to cease entrapping ads, (2) replaced notation above with "resigned," (3) returned book and letters.

Nat'l Capital Area Civil Liberties Union, 1424 16th St NW, Washington, DC.

23. On Government Information and Secrecy
Article: Bob Krause, Army house arrest of reporter on Kwajalein. Cong Rec—Appendix. Apr 12, 1967, A 1759.
24. On Students and Professors (see also 56, 262, 281, 342, 571)
Book: David P Gardner, The California oath controversy. Univ of Calif Press. 1967. &6.50.

Articles: Alvin L Goldman, University and liberty of its students: a fiduciary theory. 54 Kentucky 643-682.

Educational "establishment" agrees on more student rights. Science, Aug 4, 1967.

Symposium: Education and the law. 42 N Dakota 603-774.

24.30. Morial v Orleans Parish School Bd (ED La) Pl-Negro teacher seeks declaratory judgment on La statute requiring dismissal of teachers who advocate racial integration, and injunctive relief against its enforcement. Pending.

NAACP Legal Defense and Education Fund, Inc, 10 Columbus Circle, NYC.

24.31. Finot v Pasadena Bd of Ed (2d Dist Ct of App, #29716) 1963: Pl-teacher transferred to non-classroom job for wearing beard. Super Ct denied writ of mandate for restoration to classroom teaching. Apr 18, 1967: Ct of App reversed: administrative prohibition on teachers' wearing of beards deprived Pl of liberty without due process; beard is protected expression of personality; no showing made that Pl's beard disrupted educational process or would prevent enforcement of rule against student beards—hence no public interest overrides Pl's rights.

Slaff, Mosk and Rudman, Esqs, 1801 Sunset-Vine Tower, Hollywood; Wirin and Okrand, Esqs, 257 S Spring St, Los Angeles for ACLU as amicus.

And see Forstner, 25.12.

24.37. California v Savio (Univ of Calif—Berkeley) (USSC) (388 US 460) Sept 21, 1964: Univ administration announced new rules prohibiting on-campus soliciation of funds, recruitment of students for off-campus political activity. After negotiations, demonstrations, disciplinary actions, Dec 2: 1000 students entered Univ administration bldg to stay. Dec 3: Gov Brown took charge from Sacramento; 3:30 a.m. Chancellor ordered students to leave or face arrest: many students went limp. 700 police from 2 cities and state highway patrol dragged out and arrested 796 Defs; charges: trespass in public building (Pen C §602(o)), failure to disperse (§409), resisting arrest (§148). Dec 4: student and teaching assistant strike.

Dec 8: Univ Academic Senate (of tenure profs) voted 824-115: (1) all Univ restrictions on content of speech or advocacy should end, (2) student discipline should be in hands of faculty comm, (3) no Univ action should be taken against students involved in current protests.

Jan 6, 1965: Defs filed notice that pending case may constitute a "big case," citing 25 Fed Rules Decisions 351; filed demurrer alleging statutes on their face and as applied (1) deny due process and equal protection because arbitrary and vague; (2) deny free speech, impose prior restraints, limit academic freedom under US and state constitution: filed motion for pretrial hearings and consolidation of cases, with long brief on (1) need for joint trial to insure justice to Defs, in public interest, in interest of administration of justice— rather than ct-proposed 80 trials of 10 Defs each; (2) need for pretrial in this crim case as in civil cases; (3) statutory history, construction show statutes here not intended to apply to mass student sit-in of Univ bldg. Ct overruled demurrer, granted limited pretrial on basis of ct's inherent power.

101 Defs pleaded nolo: to be sentenced; 2 requested jury trial; 5 had charges dropped against them; 9 sent to juvenile ct. State rejected Defs' request for 1 mass jury trial, for 1 representative jury trial; agreed to 1 nonjury trial of 150.

Apr-June, 1965: nonjury trial of 150; 529 agreed to be bound by decision. All acquitted on failure to disperse (Pen C §409); some found guilty of trespass (§602(o)), others of trespass and resisting arrest (§148). June-Jy: 530 sentenced; on one count &56 fine, 1 yr probation (requiring refraining from participation in "illegal" demonstrations); on 2 counts, &56 fine, 1 yr probation on 1st count; &100, 10 days in jail, suspended, and 1 yr probation on 2d count. 186 rejected probation; resentenced: on 1 count, &100 or 10 days; on 2 counts, &100 or 10 days, and &150 or 15

- 5 -

days. 12 Defs, mostly leaders, up to 90 days in jail plus probation; most rejected probation; resentenced: up to 120 days. All but 51 appealed. Feb 8, 1966: DCA upheld Juvenile Ct decision which found 4 juveniles guilty of trespass, resisting arrest. Feb 28: 574 Defs joined in petition for reh'g. DCA denied reh'g. Apr: Calif Sup Ct denied petition by 574 Defs to intervene, for habeas, or leave to appeal, to make additional findings. Je 12, 1967: USSC dismissed appeal; denied cert.

Malcolm Burnstein, Esq, 1440 Broadway; John J. Dunn, Esq, 1924 Broadway; Stanley P Golde and Howard Jewel, Esqs, Latham Square Bldg; Joseph Landisman, Esq, Am Trust Bldg; and Milton Nason, Esq, Latham Square Bldg, all of Oakland; Prof Richard M Buxbaum, UC Law School, and Henry M Elson, Esq, 2020 Milvia, both of Berkeley; Norman Leonard, Esq, 1182 Market, San Francisco.

See A suggestion for dismissal—containing faculty documents and creative analysis of current academic freedom problems, filed Jan 1965 by 210 Profs, incl Prof Jacobus tenBroek, UC Poli Sci Dept, Berkeley, from whom copies may be ordered.

Brief: Henry Elson, Esq, 2020 Milvia, Berkeley 94704. &5.

Berkeley Free Speech Defense Counsel, Mass criminal trials: Need for pretrial. 24 The Guild Practitioner 44-56 (Spring 1965), Box 673, Berkeley, Calif.

And see Poland, 55.Calif.18; Aronson, 58.Calif.20.

24.41. Burnside v Byars (Philadelphia, Miss) (CA 5, #22,712) 50 Negro students suspended from public school for wearing CORE buttons; 44 reinstated. Dec 1964: complaint for injunction filed: state benefit cannot be conditioned on foregoing First Amdt rights. DC denied. Appeal argued.

L H Rosenthal, Esq, 518 E Capitol St, and Henry M Aronson, Esq, 507½ N Farish St, Jackson, Miss; Melvin M Wulf, Esq, ACLU, 156 Fifth Ave, NYC.

24.43a. Johnson, McCente v Montgomery (Alabama State College) (MD Ala, N Div, Cr ##11,740-11,741-N) (245 FSupp 25, 10 RRLR 1260) Apr 20-21, 1965: Demonstrations on campus, sit-in at College president's office protesting lack of academic freedom, inadequate bldgs. 1 am: 16 Negroes and whites arrested: trespass. Apr 24-25: CORE worker, 2 suspended students sought to enter campus, arrested: trespass. Defs removed to fedl DC. Aug 3: DC held: Defs' conduct illegal so no basis for removal under 28 USC §1443(1) or Edwards, 552.SC.3b, 370 US 229, Hamm, 552.SC.4d, 379 US 306, Rachel, 58.21, 342 F2d 336 (aff'd 384 US 780), Peacock, 55.Miss.5a (rev'd 384 US 808) or Cox, 51.25, 348 F2d 750; no basis under §1443(2) because Defs not arrested for any acts done in official capacity; remanded. Sept 27: Rec Ct convicted 7: &50 and costs; &1,600 bond forfeited for nonappearance of 6 at trial. Appeal pending.

Charles S Conley, Esq, P O Box 4038, Montgomery.

See Forman, 55.Ala.8.

24.45. California v Peters, Cuddy, Friel, Kitchinsky, Namais (San Francisco Muni Ct, ##K 31207-31214) May 14, 1965: Def SF State student spoke at SF City College at request of City College students but without requisite permission of City College admr. Def speaker and 2 Def State students arrested: refusal to disperse (Pen C §416), willful interference with classroom conduct (Educ C §13558.5). Defs moved to dismiss: statutes unconstitutionally overbroad on face and as applied, College rules unconstitutional prior restraint. Peters, Namais acquitted on 2 counts; jury hung on 1, no retrial. Friel, Kutchinsky acquitted on all counts. Cuddy convicted of trespassing and failing to disperse. Appeal pending.

Ephraim Margolin, Esq, 683 McAllister; Marshall Krause, Esq, 503 Market St, both of San Francisco, for ACLU.

24.51. Jones v Bd of Regents (U of Arizona) (DC Ariz, #2142-Tuc) 1966: Pl, non-student, attempted to pass out anti-Vietnam war leaflets on campus; arrested: violation of ordinance prohibiting non-student's distributing leaflets on campus. Defs moved to dismiss; order to show cause submitted. Pending.

S Leonard Scheff, Esq, 1535 East Broadway, Tucson 85719, for ACLU.

24.53a. John S Hodge v Principal, Valley High School, J C Cantrell and Jefferson Co Bd of Educ (Jefferson Cir Ct) 1966: Pl-parent sued Defs for suspending high school junior for wearing Beatle-type haircut. He is now attending school by ct order. Pending.

Edwin W Paul, Esq, Center Bldg, Louisville.

And see Mutzambezi, 553.Pa.4.

24.53b. Poll v Knorr (Wash Sup Ct) Def suspended Pl, 13-year old honor student, for refusing to cut his long hair. Ct granted temporary restraining order; at subsequent hearing for preliminary injunction, judge dismissed. Appeal to Wash Sup Ct pending.

David R Hood, Michael H Rosen, Esqs, ACLU, 2190 Smith Tower, Seattle.

24.53c. Thompson v Redondo Union High School Dist (Los Angeles Super Ct, #C-885593) Pl denied right to run for student body office: platform advocated that student government should set standards of dress and grooming. Pl filed petition for writ of mandate. Pending.

Paul Cooksey, Esq, 155 Town and Country Rd, Orange, Calif.

24.53d. Marshall v Oliver (Va Sup Ct of App) (87 S Ct 319) Pl-students (Richmond Professional Institute), state school, denied re-registration: Pls wore beards, long hair in violation of school regulation. Pls sued for admission. Nov 23, 1965: Cir Ct dismissed: enforcement of regulation not unreasonable or arbitrary. Sup Ct affirmed. Sept 9, 1966: cert filed: violation of First, Ninth, 14th Amdts, Nov 14, 1966: USSC denied cert.

Howard H Carwile, Esq, 10 S 10th St, Richmond.

And see Forstner, 25.12.

24.54. Goldberg v Regents of Univ of Calif—Berkeley (1st Dist Ct of App) Def-Univ dismissed 1 Pl-student, suspended 3 others, all participants in "dirty word" demonstrations. Aug 31, 1965: Pls sued for reinstatement. Ct sustained Def's demurrer without opinion. Pl argued: Univ regulation (students "should adhere to acceptable standards of good conduct") void for vagueness; h'g and punishment infringed First Amdt rights by determining Pls used obscene language without considering context in which words used or whether there was any redeeming social value in their use; procedural unfairness of Univ h'g. Ct of App affirmed; Sup Ct denied petition.

Donald Kerson, Esq, 341 Market St, San Francisco.

- 6 -

24.56. Pickering v Bd of Educ (Will Co) (USSC) (225 NE2d 1) 1964: Pl-teacher submitted letter, critical of Def-school bd and supt, to local newspapers. Sept 24: letter published. Oct 8: Def-bd voted to dismiss Pl: letter contained many false statements, injurious to bd, admr, and school. Def-Bd held h'g, confirmed dismissal of Pl. Pl sought review under Administrative Review Act. Mar 2, 1966: Cir Ct affirmed Bd decision. Pl appealed to Sup Ct: (1) Pl's right of free speech infringed—(a) criticism of public officials by statements not knowingly or recklessly false is protected, (b) fact of gov't employment does not alter constitutional standards which must be applied; (2) Def-Bd lacked statutory authority to dismiss Pl; (3) grounds, even if proper for dismissal, not irremediable. Sup Ct affirmed. Nov 6, 1967: USSC noted probable jurisdiction.

Ligtenberg, Goebel & DeJong, Esqs, 134 No LaSalle St, Chicago 60602.

Harry Golter, Esq, 105 W Adams St, Suite 400, Chicago 60603, for amicus ACLU.

24.59. Snyder v Bd of Trs, Univ of Illinois (Chicago) (ND Ill) State legislature passed Clabaugh Act: prohibits instructors and other Univ employees from extending "to any subversive, seditious, and un-American organization . . . the use of [University facilities] for any purpose of carrying on, advertising or publicizing the activities of such organization." Defs used statute to keep Communist speaker off campus. Pls, faculty and students at Univ, seek to enjoin Defs from continuing to enforce statute. DC denied Defs' motion to dismiss for lack of Fedl question. Motion for summary judgment pending.

David J Krupp, Robert Plotkin, Esqs, 208 S LaSalle St, Chicago 60604, for ACLU.

24.60. Dickson v Sitterson (U of NC) (MD NC, #C-59-G-66) 1963: NC legislature passed Speaker Ban Law: Chancellor of state-supported universities must give express approval before designated speakers (known Communists, those who have pleaded Fifth Amdt, those who advocate overthrow of govt of US or NC) can speak on campus. SDS invited Herbert Aptheker, historian, Communist Party member, and Frank Wilkinson, chairman of Natl Comm to abolish HUAC, to speak on campus; acting Chancellor denied clearance. SDS organized Comm for Free Inquiry (CFI), broad-based coalition of student groups, headed by Pl, student body president. Speakers given new invitation. Mar 9, 1966: Aptheker and Wilkinson spoke on campus; campus police interrupted meeting, ordered crowd off campus; they moved off campus and continued speeches. CFI sued in DC, seeking injunction against legislature: (1) legislature has no right to tell Univ president how to regulate speakers, (2) speaker ban applies only to political left, thus violating right to equal protection, (3) legislative restriction on speakers is prior restraint, violates 14th Amdt as a bill of attainder. Feb 1966: Case argued before 3-judge ct.

MacNeil Smith, Esq, Jefferson Standard Bldg, Greensboro, NC; Dan Pollitt, Esq, University of North Carolina Law School, Chapel Hill, NC, for amicus NC ACLU; William Van Alstyne, Duke Law School, Durham, NC, for amicus AAUP.

And see Klopfer, 365.12.

24.61. TAE Assn, Inc v Birmingham Bd of Educ (Oakland Co Cir Ct) 1966: Pl-fraternity challenged constitutionality of state statute prohibiting fraternities and sororities. Def moved for summary judgment. Pending.

John B Kiefer, Esq, ACLU, 1256 Penobscot Bldg, Detroit.

24.62. In re M Ridgeley Clark (Amherst) (Northampton Super Ct) Pl, age 12, wore black armband to school as symbol of mourning for dead in Vietnam war. Je 2, 1967: Pl suspended; petitioned for revocation of suspension. Je 9: Ct denied petition.
24.62a. Tinker v Des Moines Independent School Dist (CA 8, #18642) Pls wore black arm bands to school to protest Vietnam casualties; suspended. Pls sued (42 USC §1983) for injunction and nominal damages; submitted to 3-judge panel, withdrawn after oral argument. To be reargued en banc in Oct term, 1967.

Dan Johnston, Esq, 917 Savings and Loan Bldg, Des Moines, Iowa.

24.63. Athos v Fremont Unified School District (Alameda Co Super Ct) 1966: Pl suspended for long hair. Judge signed temporary restraining order, issued preliminary injunction requiring that Pl be re-admitted pending trial on merits.

Newman, Marsh and Furtado, Esqs, 22274 Main, Hayward, Calif.

24.64. Myers v Arcata Union High School District (Humboldt Co Super Ct) 1966: Pl suspended from school: "extreme hair style." Pl petitioned for mandamus; Ct stayed suspension pending trial. Nov 10: Ct issued mandamus preventing school officials from taking any action against Pl because of his hair length: regulation on hair styles too vague. Appeal pending.

Lawrence A Truitt, Esq, ACLU, 503 Market, San Francisco, Calif.

24.65. Akin v Riverside Bd of Educ (Calif Ct of App) Sept 1965: Bearded Pl denied admission to Def's high school; entered private school. Sept 1966: denied admission to public school: "Better Grooming Code" demands that students be clean-shaven. Pl appealed to local Bd of Educ; Bd refused to hold h'g. Pl sued for writ of mandate to compel his admission; Ct denied order. Pl appeals: Defs have not shown that Pl's beard will disrupt classroom decorum. Pending.

Tony Geram, Esq, 8408 Sierra, Fontana.

24.66. Harris v Bd of Educ (Haverford) (Delaware Co Ct of Common Pleas, #1333-1967) High school student had "Prince Charles" haircut. Oct 1966: school authorities required student to cut hair, which he did. Jan 1967: School ordered student to cut hair; he refused, suspended until hair cut. Student's father filed suit: right to go to school is basic right of citizenship under US and Pa Constitutions. Feb 3: Ct of Com Pleas suggested boy cut hair, then return to school; took case under advisement. Feb 9: Def ruled boy would not be re-admitted unless hair cut. Feb 13: Student cut hair, returned to school. Pending.

Allen Olmsted, Esq, Packard Bldg, Philadelphia 19102.

24.67. Bd of Educ (Edison Township) v New Jersey State Bd of Educ and Bertin (Super Ct, App Div, AM-433-66) May 24, 1967: Pl suspended Def Bertin, senior class president and honor student: long sideburns. Acting Commr of Educ refused to stay suspension. Je 7: State Bd of Educ reversed Commr; ruled Def could graduate with class. Je 10: Ct affirmed Bd.

- 7 -

Jack Wysoker, Esq, 313 State St, Perth Amboy, NJ.

24.68. ACLU v Texas 1967: Pl brought suit challenging loyalty oath required of students and teachers at state supported colleges and universities and state employees. Atty Genl declared students no longer required to sign oath. As to non-students, pending.

Dallas ACLU, 202 S Ervay, Dallas.

See teacher loyalty oath cases at 281.

24.69. Arizona State University v 3 Students (Ariz State Univ Discipline Bd) 3 students distributed 1931 anti-war poem by E E Cummings "I sing of Olaf glad and big," which speaks kindly of conscientious objector, unkindly of patriotic attempts to break resistance. Univ charged students with "conducting oneself in manner that might discredit the university." Bd took no disciplinary action. Co atty refused to prosecute under obscenity and "flag defamation" laws.

Sandor Shuch, Pasquale Cheche, Esqs, 3500 N 15th Ave, Tucson, for ACLU.

24.70. Chamless v Tuskegee (MD Ala) Def-administrators expelled Pl-nursing student for using "foul language" to off-campus roommate. Pl sues for readmission: no hearing or opportunity to face accusers; student rights same as those of other citizens, cannot be subjected to capricious rule of administrators. Pending.

ACLU Southern Regional Office, 5 Forsyth NW, Atlanta.

24.71. Chicago v Swenson (Cook Co) (Cir Ct) Dec 1966: Members of College Teachers Union struck. Chicago filed suit to enjoin strikers, Ct issued injunction, union members defied order. Cir Ct convicted local president (30 days, &1000 fine) and union (&5000 fine) for contempt.
24.72. Re Cutrie (Office of Sup't of Philadelphia Schools) Resp-9th grade teacher had predominantly Negro class recite rhyme "Eenie meenie minie moe," including racial slur. Parents and NAACP demanded apology, disciplinary action. Apr 6, 1967: Resp suspended. Apr 7: H'g pending.
24.73. Bock, Anderson v Murphy (Los Angeles Co Super Ct) Jan 18, 1967: UCLA student newspaper issued "Intro," art supplement, including review, drawing of amorous couple by George Grosz, review of Burrough's "Nova Express." LA Co Supervisors asked Gov Reagan to investigate, declared Intro "highly decadent." LAPD and City Atty began investigation. Jan 24: Communications Bd (9 students, 1 faculty, 1 administrator) suspended "Intro" indefinitely. Jan 25: Pl-students sought mandamus compelling Def-UCLA Chancellor stop "Daily Bruin" from publishing "dirty words and salacious material." Pending.
24.74. Hodes v Garrison (SD NY, #67 Civ 1412) Jan 1967: High school newspaper editor distributed mimeo copies of editorial critical of administration, previously banned by Def-principal, to students off-campus. Def dismissed Pl as editor. Apr 13: Pl-mother of ex-editor sued for his reinstatement in DC: denial of Pl's right of free speech; Def lacks jurisdiction over off-campus activities. May: NY Corporation Counsel advised School Bd Pl's rights violated, declined to defend. Je 10: DC ordered Pl reinstated as editor.

Neil Fabricant, Esq, 156 5th Ave, NYC, for NYCLU.

24.75. In re McGlone (Mt Diablo Bd of Educ) Resp-high school teacher fired, allegedly for wearing miniskirt and other misconduct. Je 29, 1967: Calif State H'g officer found none of 20 charges "sufficient cause for not re-employing" Resp. Bd of Educ h'g pending.

Peter Franck, Esq, 2890 Telegraph, Berkeley, Cal.

24.76. Joslyn v Claremont Graduate School (Los Angeles Super Ct, #912532) Fall 1965: Pl took written preliminary doctoral exams; passed 3 of 5. Spring 1966: Pl repeated two exams; was notified he failed both. Apr 4: Def notified Pl of termination from PhD program. Apr 25, 1967: Professor wrote Pl of error: only one exam failed. Je 27: Pl sued to enjoin dismissal, require reevaluation of exam answers and grade, restore student status: arbitrary, capricious, bad faith dismissal and grading. Pending.

Daniel N Fox, 632 N Park Ave, Pomona, Calif 91766.

24.77. Robinson v Sacramento School Dist (Cal Sup Ct) 1964: Def outlawed student membership in Manana Club, high school sorority. Pl-member sought restraining order; Super Ct granted order. 3d Dist Ct of App reversed: club was a secret society (prohibited by Calif Educ Code), fostered "undemocratic spirit." Dec 1, 1966: Cal Sup Ct denied petition for review.
24.78. New York v 6 Cornell Students (Ithaca) (NY Sup Ct) Students at Cornell Univ issued literary magazine. Univ safety director confiscated 130 copies; students protested at rally where 6 students sold copies, were arrested under obscenity law, later released. DA sought injunction restraining sale of magazine: it contained "obscene, lewd, disgusting" article. Jan 20, 1967: Sup Ct issued temporary injunction. Jan 27: Sup Ct dissolved injunction stating magazine contained "much that is vile and evil," but that its sale could not be forbidden: it meets "test against pruriency," is entitled to protection of First Amdt.
24.79. Stacy v Williams (Oxford) (ND Miss, #WC6725) Nov 1966: State Bd of Trustees of Institutions of Higher Learning adopted speaker ban resolution: bars persons who "will do violence to the academic atmosphere . . . persons in disrepute in the area from whence they come, those charged with crimes and other moral wrongs . . . who advocate a philosophy of the overthrow of the government of the US." 1967: Young Democrats and Institute of Civics invited Aaron Henry, state NAACP president, to speak at Univ of Mississippi; Henry had been approved by Trustees as guest lecturer and named in approved Dept of HEW grant to Institute. May 25: Chancellor rescinded invitation extended by Institute, based on 1962 arrest; see Henry, 59.27a. Je 30: Pls sought declaratory and injunctive relief from imposition of ban. Jy 7: DC issued preliminary injunction covering Institute only; held University and Henry had binding contract; ban would constitute impairment of obligation of contract prohibited by Art I, US Constitution. DC ordered briefs presented on merits and motion for 3-judge court. Pending.

Douglas Wynn, Esq, Box 1295, Greenville, Mississippi 38701.

24.80. Puentes v Bd of Educ (USSC, #562) (223 NE2d 45) Pl-high school teacher wrote letter to Bd of Educ criticizing Bd for not retaining another school teacher. Bd suspended Pl for 7½ months for "conduct unbecoming a teacher," "insubordination." NY Ct of App affirmed suspension: no
- 8 -

violation of First, 14th Amdts where substantial evidence existed that letter was defamatory, malicious, false. Sept 1, 1967: Appeal filed.

Ernest Fleischman, Esq, 120 E 41st, NYC.

24.81. Watts v Seward School Bd (USSC, #325) (421 P2d 586, 88 S Ct 84) Pl-school teacher circulated open letter among other teachers seeking support for ouster of school sup't. School Bd discharged Pl. Alaska Sup Ct affirmed discharge: making false charges reflecting on Sup't's ability constituted "immorality" within meaning of statute. Jy 3, 1967: Petition for cert filed: (1) Did discharge abridge rights of speech and association? (2) Was statute authorizing discharge for "immorality" void for vagueness?

Joe P Josephson, Esq, Anchorage.

24.83. Healey v Keppel (Fellowship Review Bd, Office of Educ, HEW) Pl rejected for military service: failure to complete Security Form, "Close & continuing relationship" with Chmn of S Calif Communist Party, Pl's mother. Pl applied for NDEA fellowship. Def-Commr of Educ denied; same grounds. Jy 1967: Fellowship Review Bd reversed: Pl may take oath of allegiance in good faith.

Lawrence Speiser, Esq, ACLU, Washington, DC.

24.84. Wright v Texas Southern U (SD Tex) (12 RRLR 1185) Student-Pls suspended from state university for participation in demonstration. Pls sued for readmission, alleging violation of First Amdt rights, denial of notice and opportunity for h'g in violation of due process. Sept 1967: DC ruled: (1) student entitled to notice and h'g before suspension from state university; (2) question here re 3 Pls was sufficiency of notice and adequacy of h'gs; (3) one student given notice to report to dean's office and had adequate h'g; other 2 students did not receive h'gs because of their failure to leave accurate addresses with school.

And see Franklin, 54.27.

24.85. Estaban v Central Missouri State College (WD Mo) Mar 29-30, 1967: Pls participated in spontaneous student demonstrations; suspended for participation in "riot" which "resulted in property damage to state property . . .," tho no contention Pls directly caused any of damage. Pls sued, claiming denial of due process: (1) no h'g, warning or notice of specific charges prior to suspension; (2) only informal meetings with Dean and Pres, no time to prepare defenses, no opportunity to present defense; (3) no opportunity to be represented by counsel; (4) no right of appeal. Oct 3: DC directed Pls be given new h'g: 14th Amdt directs that due process be afforded state college students before suspension, tho due process is not as formal as that required in criminal cases.

Irving Achtenberg, Esq, Merchants-Produce Bank Bldg, 531 Walnut; Michael White, Esq, Homesavings Bldg, both of Kansas City, Mo 64106.

25. On Miscellaneous Activities
Opinion: Acting Corp Counsel of Dist of Columbia, Jy 12, 1966, declares unconstitutional regulations of Bd of Library Trustees restricting types of meetings and literature distribution in DC public libraries. Newsletter on Intellectual Freedom V, XV.
25.11. Belshaw v City of Berkeley (1st Dist of App) Jy 22, 1963: Pl-fireman wrote letter to local newspaper criticizing decision of city officials' creating salary differential between firemen and policemen; suspended. Personnel found against Pl. Pl sought mandamus. Dec 31, 1964: Super Ct granted writ: Pl did not use inflammatory language or urge unlawful conduct; personnel rules "vague and overbroad," violating due process, free speech. Ct of App affirmed: "public employee may speak freely, as long as he does not impair the administration of the public service in which he is engaged."

Albert M Bendich, Esq, 2550 Telegraph Ave, Berkeley; James Goodwin, Esq, BAND, San Francisco; Marshall W Krause, Esq, 503 Market St, San Francisco, for ACLU.

25.12. Forstner v Civil Service Commn (1st Dist Ct of App) Aug 1966: DCA affirmed decision of Super Ct: Pl wrongfully fined for refusal to shave off beard, entitled to salary for 9 mths he was off job; dismissal can be predicated only on order which superior officer is entitled to give and entitled to have obeyed, but such order must be reasonably related to duties of employee.

And see Finot, 24.31.

25.15. Sokol v Pacific Telephone and Telegraph Co (Calif Sup Ct) (418 P2d 265) Oct, 1961: Pl's phones removed without notice or h'g, business destroyed because Def received letter from Police Chief that phones being used to aid illegal purpose. H'g before PUC: held no evidence phones being so used, ordered phones permanently restored. Pl sued for damages sustained during 14 days he was without phones. Def argued Super Ct had no jurisdiction: Def acting under PUC rule that Co not liable if acting on basis of letter from law enforcement officer. Super Ct rejected defense. Calif Sup Ct granted writ of prohibition against prosecution of suit pending PUC ruling. PUC held procedure constitutional. Pl appealed. 1966: Sup Ct held PUC rule unconstitutional: (1) phone is essential means of communication, thus any restraint raises questions of free speech, (2) PUC rule does not conform to due process requirements. Sup Ct did not allow Pl to press his damage suit: Def merely following PUC rule. Calif Atty Genl filed petition for reh'g: decision will seriously hamper fight against organized crime; denied.

Marshall Krause, Leo Borregard, Esqs, ACLU, 503 Market St, San Francisco 94118.

Regulations: Dec 31, 1966: Cal Public Utilities Commn requires court order to remove telephone in allegedly illegal use, to conform to Sokol, 25.15.

Case notes: 55 California 566-580; 67 Columbia 773-779; 12 Villanova 661-665.

25.16. NYCLU v New York Telephone Co (NY Public Service Commn, #23894) Def has tariff requiring recorded telephone messages to include name and address of sponsoring organization or individual. Pl challenged rule. Complaint dismissed; no review sought because of doubtful standing to sue.

Henry Winestine, Esq, 30 E 42nd St, NYC 10017.

25.16a. In re Proposed New Rule on Recorded Public Announcements on Telephone Co Facilities (Calif Pub Util Commn, #8335) Jan, 1966: Telephone co proposed rule requiring all subscribers transmitting recorded public announcements over facilities of Pacific Telephone to include in recorded message name of organization or individual responsible for service, address at which service provided; failure to comply
- 9 -

to be cause for termination of service. Proposed rule arose out of controversy over weekly series of recorded announcements called "Let Freedom Ring" which attacked many groups, PTA, Anti-Defamation League. June 1967: Commn adopted rule. Pet for rehearing denied. Dec 1967: Pet-ACLU filed appeal in Sup Ct; pending.

Reed H Bement, Esq, 405 Montgomery; Marshall W Krause, Esq, 503 Market, both of San Francisco.

25.17. Minneapolis Fed of Teachers, Local 59 AFL-CIO v Obermyers (Minn Dist Ct, 4th Jud Dist) State statute bars teachers from collective bargaining and striking. Pls challenge constitutionality of statute: violation of rights of equal protection, association and speech, substantive due process. Pending.

Gary B Crawford, Esq, 760 Northwestern Bank Bldg, Minneapolis, for amicus ACLU.

And see Dumpson, 62.6a.

25.18. Bagley v Washington Township Hospital District (Calif Sup Ct) (421 P2d 409) Pl, hospital employee, member of recall committee contesting election of several incumbent directors of hospital district (a public entity). Pl fired by Def. Trial ct upheld firing: since Pl had no civil service protection, could be fired for any reason. DCA affirmed: person who can be fired `without cause' can be fired for any reason whatsoever. Dec 20, 1966: Sup Ct reversed.

Marshall W Krause, Esq, 503 Market St, San Francisco 94118.

And see Rosenfield, 261.18.

25.19. Firestone v 1st Dist Dental Society (NY Co Sup Ct) Def requires members to submit articles and speeches for approval prior to delivery. Pl seeks to enjoin Def from such activity. Trial pending.

Emanuel Redfield, Esq, 37 Wall St, NYC 10005.

25.20. Hillside Community Church v Tacoma (Pierce Co Super Ct) Pl contracted with city busline to place sign on buses: `End the War in Vietnam Now—Through Peaceful Negotiations.' City received complaints, ordered signs removed. Pl sued to enjoin city from removing signs. Def answered: will not allow signs `inimical to best interests of US and against established policy of US.' Trial pending.

Donald J Horowitz, Esq, IBM Bldg, David Skellenger, Esq, Norton Bldg, Seattle; Allan Overland, 950 Pacific, Tacoma.

25.20a. Kissinger v New York Transit Authority (SD NY) Pl sued to compel Def to contract subway advertising space for an anti-war poster. Pending.

Marvin Schlesinger, Esq, 156 Fifth Ave, NYC 10010.

25.20b. Wirta v Alameda-Contra Costa Transit District (Calif Sup Ct) Sept 10, 1965: Women for Peace requested advertising space on buses for peace message. Defs refused: policy to accept only commercial or purely election ads. Super Ct granted preliminary injunction restraining Defs from refusing to accept ad. Ct of App reversed. Dec 21, 1967: Sup Ct affirmed injunction order: without showing clear and present danger, transit authority not entitled to refuse ads expressing constitutionally protected opinions for reasons of administrative convenience; time, place and manner of advertising may be regulated to accommodate all those desiring ad space.

Joseph R Grodin, Esq, Russell Bldg; Marshall W Krause, Esq, ACLU, 503 Market St, both of San Francisco.

25.21. Tepedino v Dumpson (NY Ct of App) Pls, employees of Welfare Dept, wrote letter to HEW criticizing practices of NY Welfare Dept; suspended. Sup Ct denied reinstatement. Appeal pending.

Morris P Glushien, Esq, 1710 Broadway; Jerome B Kauff, Esq, 1501 Broadway; Ernest Fleischman, Esq, 230 Park, all of NYC.

25.22. Council on Religion and Homosexual v California State Fair (Sacramento Super Ct) May 1966: Def assigned Pl space for exhibit on homosexuality at fair beginning Aug 31. Aug 26: Def cancelled Pl's permit. Pl sought writ of mandate from Super Ct to compel Defs to reverse decision. Sept 1: Super Ct held Def within its rights in refusing booth: no contract signed, fair management has complete discretion. Fair police ordered Pl pamphleteers away from gate, then relented.

Herb Donaldson, Esq, 333 Franklin St, San Francisco.

25.23. Barbour v Sheet Metal Workers Intl Assn (Detroit) (ED Mich, #25155) Pl-union member criticized union leadership and members; Def expelled him: union misconduct. Ct held expulsion void: violates free speech, contract, Labor Management Act §411(A) (2). No appeal.

Ernest Goodman, Esq, 3200 Cadillac Tower, Detroit; Erwin B Ellman, Esq, 1800 Penobscot Bldg, Detroit 48226, for amicus ACLU.

Lawrence Karlton, Esq, 1107 9th St, Sacramento.

25.25. 5th Ave Vietnam Peace Parade Committee v New York Port Authority (NYC) (SD NY) Pl-peace group distributed leaflets in concourse of bus terminal. Port Authority tried to ban distribution. Pl sought injunction. May 5, 1967: DC granted injunction; held it is "citizen's fundamental right freely to express his views in public places," Pl can peacefully distribute leaflets in terminal if does not impede pedestrian traffic or bus service.

And see criminal cases at 51, 55.

25.26. In re Gray (CA 9) 1963: Pet, post office worker, addressed meeting of county Democratic Central Comm; discharged by Civil Service Commn: violation of Hatch Act. DC affirmed discharge. CA reversed: Pet's speaking "reflects no more than the public expression by [him] of an opinion on a political subject which . . . activity (is) protected . . ." Commn reinstated Pet.

William S McLennan, Public Service Bldg, Portland, for ACLU.

25.27. In re State Bar Rules (Cal Sup Ct) 1967: State Bar proposed amendment to rules of professional conduct, to prohibit lawyers from writing "self-laudatory" books about themselves and their experiences at the bar. ACLU brief opposed adoption of rules on grounds of vagueness and interference with free speech of lawyers. Pending.

ACLU, 503 Market St, San Francisco.

25.28. NAACP v KNEW, Michaels (Oakland) (FCC) Radio talk show host interviewed identifying herself as undercover FBI agent and called civil rights leaders and organizations Communist-inspired and extortionists. Aug 24, 1967: Comp filed charges with FCC: Resp-interviewer supports racial discrimination and racist attitudes, does not grant equal time to opposing points of view. Pending.
- 10 -

25.29. Nevens v City of Chino (Calif) (5th Dist Ct of App) City Council rule barred use of tape recorder at public city council meetings. Pl sued for declaration that First Amdt protects right of spectator-reporter to use recorder. Super Ct dismissed. Ct of App reversed. Def rescinded rule before trial on merits; case dismissed.

Tony Geram, Esq, 8408 Sierra, Fontana, for ACLU.

25.30. Overseas Media Corp v McNamara (CA DC, #20590) Defense Dept refused Pl access to Post Exchange facilities in Far East for distribution of "Overseas Weekly" despite proven popularity. DC upheld Def's prohibition of distribution: Defense Dept has unreviewable discretion to determine what items of merchandise to handle. Feb 17, 1967: appeal filed. Pending.

Warren Woods, Betty Murphy, Esqs, 1735 K St, Washington, DC 20006; Richard G Brueckner, Esq, Lawrence Speiser, Esq, 1424 16th St, Washington, DC, Marvin Karpatkin, Esq, 156 Fifth Ave, NYC, for amicus ACLU.

25.31. Lucke v Davis (USSC, #402) Pl-Municipal Ct employee wrote letter to chief judge critical of operations of his dept. Md Personnel Commr discharged Pl. Baltimore City Ct affirmed. Apr 7, 1967: Md Ct of App affirmed: appeal dismissed as untimely due to ministerial error. Jy 20: Petition for cert filed: (1) Did First Amdt bar discharge if letter was not scurrilous or disloyal; (2) Did collateral attack on validity of docket entry constitute denial of due process. Pending.

Leonard J Kerpelman, Esq, Baltimore.

25.32. Marshall v Sawyer (USSC) (365 F2d 105; 385 US 1006) Pls excluded from premises licensed for gaming, including nongaming portions, as "persons of notorious or unsavory reputation or who have extensive police records." Pls sued in fedl ct; dismissed. CA 9 held: exclusion not barred by 14th Amdt; lists with names of excludable persons compiled by Nevada Gaming Commn not bills of attainder since not legislative acts. Jan 9, 1967: USSC denied cert.

William B Beirne, Esq, A L Wirin, and Fred Okrand, Esqs, 257 S Spring St, all of Los Angeles.

25.33. Re Mural (NYC Human Rights Commn) Jamaica Savings Bank lobby decorated with mural "Historical Pageant of Long Island," including `Banjo Billy,' Negro Revolutionary War figure. Je 1966: Civil rights groups picketed bank, claiming portrait stereotypical, prejudicial. Je 15: H'g; NYCLU opposed removal: protest "a cultural witchhunt." H'g officers recommended painting be changed or removed. Pending.

NYCLU, 156 Fifth Ave, NYC.

30. Economic Restrictions
(see also 251, 261, 268, 281, 571)

Article: Jerome A Barron, Is free speech audible? Current, Aug 1967.

Proposed Legislation: HR 16203 requires restrictions and disclosure of campaign funds. Cong Rec—House. Aug 30, 1966, 20412.

30.15. Weaver v Jordan (USSC) (411 P2d 289, cd 385 US 844, 1966) Nov 8, 1964: California voters passed Prop 15, outlawing pay television. May 19, 1965: Super Ct held Prop 15 conflicted with guarantee of free speech, pay TV could not be banned: "Since the right (of free speech) is worthless without an effective means of expression the guarantee extends to both the content of the communication and the means employed for its dissemination." Mar 2, 1966: Sup Ct affirmed. Oct 6, 1966: USSC denied cert.

Marshall Krause, Esq, 503 Market St, San Francisco, for amicus ACLU.

30.17. Smith v SNCC, Albany Movement (CA 5) 1963: Def civil rights groups picketed white Pl's store. 1965: Pl sued in state ct for damages. Aug 5, 1965: Defs petitioned for removal to DC MD Ga: purpose of suit to intimidate, harass and obstruct Defs in exercise of First Amdt rights. (Defs also answered: Pl's own malice, hate, ineptness, negligence and want of business acumen sole and proximate causes of his injuries.) DC remanded to state ct. Appeal pending in CA 5.

C B King, Esq, Box 1024, Albany, Ga; Howard Moore, Jr, 859½ Hunter St NW, Atlanta.

For background, see US v Rabinowitz, 55.Ga.35, 366 F2d 34 (CA 5 1966) at X DOCKET 11, 93, 137; XI DOCKET 7, 66; XII DOCKET 11.

And see Sims, 73.Ga.6.

30.18. Hurwitz v Directors Guild of America, Inc (SD NY) (364 F2d 67, 385 US 971, 62 LRRM 2653) Jy 1965: Def and Screen Directors Int'l Guild (SDIG) agreed to merge: SDIG members automatically become members of Defunion subject to condition they take loyalty oath. Pls, members of SDIG, refused to swear to oath: Def denied them membership. Pls moved for restraining order and preliminary injunction. SD NY denied motion: (1) no showing of irreparable injury; (2) Labor Management Reporting and Disclosure Act "permits reasonable qualifications thereof in a Union's constitution and by-laws." CA 2 held invalid anti-subversive oath of private organization as violative of NY common law. Dec 5: USSC denied cert. Jan 27, 1967: SD NY ordered retroactive admission of Pls and abolition of oath requirement.

Nanette Dembitz, Melvin L Wulf, Esqs, ACLU, 156 Fifth Ave, NYC 10010.

Case note: 40 S California 372-383.

30.19. In re Virginia Collins (New Orleans) Pl-organizer in New Orleans-based OEO welfare council permitted protest meeting against police brutality to be held at OEO's community center. Je 15, 1966: Pl discharged. Appeal pending.

Gerald Federoff, Esq, American Bank Bldg, Rm 813, New Orleans.

And see Collins, 51.La.8; 16-year-old, 430.12.

30.20. US v Lenske (Portland, Ore) (CA 9) (383 F2d 20) Apr, 1964: DC convicted Def-atty of income tax evasion. Oct 7, 1966: CA reversed DC: (1) IRS agent who investigated Def included in his report files of FBI and local police on Def's political activities, stated he had "reason to believe Lenske is a Communist"; CA held "this ct will not place its stamp of approval on a ... crusade to rid society of unorthodox thinkers and actors, by using Fedl income tax laws and Fedl cts to put such people in the penitentiary"; (2) IRS agent miscalculated Def's tax deficiencies and "such gross miscalculations make it evident that some element foreign to the functions and duties of a Fedl tax officer was corroding his judgment." On retrial, DC convicted. Aug 28, 1967: CA withdrew
- 11 -

unpublished opinion on 1966 appeal: IRS agent's statements not properly in appellate record; reversed conviction: insufficient and speculative evidence, erroneous denial of discovery; denied reh'g. Madden, J, in separate additional opinion, reiterated grounds for first reversal.
30.21. Re Mikesell, Berg, Pimentel (Berkeley) (NLRB) Pets, Airco-Temescal employees, attempted to organize union. Je 23, 1967: Pet Mikesell filed affidavit with NLRB: offered bribe to vote against union. Aug 14: Pet Mikesell put anti-war poster on wall; fired: chronic insubordination. Aug 15: Pets Pimentel and Berg fired: lack of incoming work. Pets claim firings were for union activities. Pending.

And see Garcia, 427.5a.

40. Contempt (see also 63, 330s, 390s)
41. Of Federal Courts
Civil contempt in federal courts: Griffin v Co School Bd (363 F2d 206, CA 4, 1966). 24 Washington and Lee 119-125.
41.8. Harris v US (382 US 162) Facts: XI DOCKET 62. Case note: 12 Wayne 699-704.
41.10. US v Chandler (CA 2, #31036) Nov 1965: Draft cards burned at NYC rally. Def allegedly found and kept unburned portion of friend's card. Oct 21, 1966: Def subpoenaed in Edelman, Cornell, Lisker, 123.82, refused to answer questions re possession of card or presence at rally; held in contempt. Nov 3: Contempt h'g. Dec 8: Ct sentenced Def to one day probation. Jy 12, 1967: CA reversed with instructions to acquit: not "perfectly clear" that answers might not provide US with evidence to try Def as accessory or for misprision of felony; no question of immunity.

Mordecai Rosenfeld, Esq, 233 Broadway, NYC 10007.

41.11. Cheff v Schnackenberg (USSC) (341 F2d 548, 384 US 373) 1954: complaints issued against individual Def and Holland Co before Fed'l Trade Commn re unfair competition, deceptive trade practices. Extensive h'gs. 1958: FTC issued cease and desist order. Co appealed. FTC sought pendente lite order from CA. Aug 1959: FTC issued order. 1959: CA upheld FTC jurisdiction to issue order. 1961: FTC affirmed order on the merits. Mar 1962: FTC sought contempt order. Apr 1963: CA issued order to show cause. 3 CA judges denied Def's motion for jury trial, 10 day h'g; guilty: 6 mths. Je 6, 1966: USSC (6-2) affirmed, Clark, J: no right to jury trial for petty offenses when sentence is 6 mths or less. (White, J, took no part.) Douglas, J (Black, J), diss: contempt is a "crime" within meaning of US Const, Art III, §2 and a "criminal prosecution" within meaning of Sixth Amdt, both of which guarantee jury trial.

Joseph E Casey, Esq, Ring Bldg, Washington, DC.

Casenotes: 1967 Duke 632-664; 51 Minnesota 962-7.

41.12. Shillitani, Pappadio v US (USSC) (345 F2d 290; 235 FSupp 887, 346 F2d 5; 384 US 364) Grand jury investigating violations of fed'l narcotics laws subpoenaed Defs, who refused to answer questions, invoking privilege against self-incrimination. DA requested DC to grant immunity (18 USC §1406); DC granted immunity, including any pending criminal prosecution; Defs continued refusal to answer many questions. DC, without jury, found Defs in contempt: 2 yrs but with "purge clause"—unqualified right to release if Defs answered questions. Je 6, 1966: USSC (6½-1½) vacated, Clark, J: (1) this was civil contempt, for which Def can be confined until compliance without indictment or jury trial; (2) since grand jury term had expired, Defs must be dismissed. (White, J, took no part.) Harlan, J (Stewart, J, in part), diss.

Albert J Kriger, Esq, 401 Broadway, NYC 10013; Jacob Kossman, Esq, 1325 Spruce St, Philadelphia 19107.

42. Of State Courts
Note: Contempt without cause: Newby v Dist Court of Woodbury Co (147 NW2d 886, Iowa 1967). 12 S Dakota 353-363.
42.24. Indiana v Neal (Hamilton Co Cir Ct) June, 1965: Cir Ct judge decreed all moving traffic offenders will get jail sentence regardless of crime or past record. Def, newspaper editor, criticized—"an excellent example of shotgun justice"; arrested for criminal contempt; bail set at &50,000; maximum penalty 3 mths and &500. Pending.
42.25. In re Jankunis (Butte Co Super Ct, #44064) Dec 23, 1965: Defs, Chico State College prof and students, allegedly handed out leaflets in view of jurors during last day of profanity trial of another Prof, di Tullio, 52.84; arrested, contempt. Super Ct granted writ of habeas corpus, Defs released pending h'g: indirect contempt and acts not contemptuous but within constitutional guarantee of free speech, no clear and present danger to judicial process being involved. Pending.

A John Merlo, Esq, 645 Normal, Chico, Calif.

And see California v di Tullio, 52.84.

42.26. Oregon v Buchanan (Eugene) (Ore Sup Ct) Def-managing editor of student newspaper of U of Oregon refused to tell grand jury names of persons from whom she obtained material for story on marijuana. Je 28, 1966: Cir Ct convicted Def of contempt: no statute protecting reporters who fail to divulge sources; "the right and remedy of the State ... defeated and prejudiced by the respondent in her contempt." Motion for new trial denied. 1968: Ore Sup Ct affirmed: no right violated.

Arthur Johnson, Esq, 641 Pearl St, Eugene, Amici: American Society of Newspaper Editors; Sigma Delta Chi.

And see cases at 24.

42.27. Chicago v Vidnjevich (Chicago) (Muni Ct) Bldg inspector with ct order calling for inspection of hqtrs of Nazi Party not allowed into hqtrs. Pl brought contempt-of-court suit against Def. Pending.
42.28. New York Co Lawyers' Assn v Dacey (NY Co Sup Ct) 1966: Resp Crown published, sold 600,000 copies of Resp Dacey's book, "How to Avoid Probate." Jan 1967: Pet instituted suit under §750B, NY Jud Law, to have Resps held in contempt for illegal practice of law, to enjoin sale of forms, documents attached to book. Resps deny unlawful law practice; attack §750B as vague, restriction on freedom of press; deny §750B grants power to issue injunction. Je 30: Sup Ct held Dacey in criminal contempt; issued injunction. Appeal pending.

Satterlee, Warfield and Stephens, Esqs, James F Dwyer, Esq, Jean C Lucas, Esq, Robert M Callagy, Esq, 277 Park Ave, NYC, 10017.

Amicus: NYCLU, 156 Fifth Ave, NYC.

- 12 -

42.29. Salveson v Wilkins (Washington Sup Ct) Def refused to enter grand jury room without her attorney. Judge summarily held Def in contempt. On appeal, Def asserts right to jury trial: "contempt" not committed in presence of judge. Argument pending.

Donald Davidson, Esq, Logan Bldg, Seattle, for amicus ACLU.

42.30. Re David W Rees (Yolo Co Super Ct) Jan 5, 1967: Pet arrested: traffic citation. Feb 6: Trial judge ordered Pet to cut his hair or be held in contempt of court for 1 day. Pet refused. Dec: Super Ct set aside sentence: Pet's appearance did not interrupt proceedings.

Lawrence Karlton, Esq, 1107 9th St, Sacramento.

And see cases at 24.53.

42.31. DeStefano v Illinois (USSC) (212 NE2d 368; 385 US 821, 989) Criminal Def showed continued misconduct, disrespect, open defiance of trial ct's authority; contempt: Trial ct imposed 1-year sentences for each of 3 contempts, concurrently. 1966: App Ct affirmed, no abuse of discretion. Sup Ct aff'd. June 31: cert filed; questions: did trial ct err in denying state's motion for sanity h'g due to suggestive nature of Def's conduct? Were sentences cruel and unusual punishment? Dec 12: USSC granted motion to amend petition; denied cert.

Julius L Echeles, Esq, 30 N LaSalle, Chicago, Ill; James M Shellow, Esq, 660 E Mason, Milwaukee, Wis.

42.32. Bloom v Illinois (USSC, #52) (220 NE2d 475, 386 US 1003) Trial ct found Def-lawyer guilty of criminal contempt for writing will for dead man. Ill Sup Ct affirmed: no constitutional right to jury trial even when criminal contempt charge results in 2-yr sentence; prosecutor's comment on Def's failure to testify even if improper was not prejudicial. Apr 17, 1967: USSC granted cert.

Anthony Bradley Eben, Esq, 6 E Scott, and Herbert F Friedman, Esq, 1755 E 55th, both of Chicago.

43. Of Other Agencies
(see also 270s, 330s)
50. Criminal Sanctions
Articles: Joseph F Costanzo, Jr, Public protest and civil disobedience. 13 Loyola 21-56.

George Edwards, Order and civil liberties: complex role for police. 64 Michigan 47.

Lewis F Powell, Jr, A lawyer looks at civil disobedience. 23 William and Mary 205-231.

Comment: Contemporary civil disobedience. 41 Indiana 477-505.

51. Against Disorderly Conduct and Similar Offenses (and 16, 55)
And see Hanover Equities, 533.Ill.5.
51.Ala.3. Alabama v 200 Defs (Dallas Co Cir Ct, Ct of App) Sept-Oct 1963: 200 persons (adult and juvenile) arrested during voter registration demonstrations: (1) parading without a permit, (2) unlawful assembly. 15 Defs convicted of (1), appealed; had new trial; convicted; appealed; 2 affirmed. 5 Defs convicted of (2): 180 days, &100 fine, &1000 peace bond. Other trials and appeal pending.

Peter Hall, Esq, 1630 4th Ave N, Birmingham; NAACP Legal Def & Educ Fund, 10 Columbus Circle, NYC.

51.Ala.5. Alabama v Boone (Marengo County) (SD Ala) Arrests made following demonstrations; action removed to federal court. Je 4, 1965: motion to remand heard. Sept 16: motion to dismiss filed. Remand. granted.

Oscar Adams, Esq, 1630 4th Ave N, Birmingham.

51.Ala.6. Alabama v Days (Greensboro) (SD Ala) Jy 30, 1965: Civil rights demonstrators arrested when they attempted to march without a permit. Removed to federal court. Motion to remand pending. Sept 17: Motion to dismiss filed. Remand granted. Pending.

Oscar Adams, Esq, 1630 4th Ave N, Birmingham.

51.Ala.7. Tuscaloosa v Bonner (Muni Ct) Aug 19, 1966: Citizens Action Comm held march protesting slum conditions; Def called in by marchers to restore order after leaders arrested. Def dismissed demonstrators, then Negro policeman took Def aside and cursed at him; Def asked for his badge number and was arrested: disorderly conduct. Muni Ct found Def guilty; 6 mths' hard labor, &100 fine. Def's appeal pending.

And see cases at 304, 429.

51.Ala.8. Recorder's Ct of Bessemer v Thomas, Stout (ND Ala SD, ##66,140, 64,210) Persons participating in voter registration drive arrested: using public park. Defs removed to DC. Mar 1, 1966: H'g on motions to remand in both cases. DC remanded to state ct on basis of Forman v Montgomery. 55.Ala.8. Appeal to CA 5 dismissed.

David H Hood, Esq, 2111 5th Ave N, Bessemer, Ala.

51.Ala.9. Tuscaloosa v Crawford (Tuscaloosa Muni Ct) Apr 1, 1967: Def-Caucasian, professor at Stillman College, gave integrated party; arrested: disorderly conduct, running disorderly house. City Solicitor moved to dismiss; Ct denied motion: "The country won't be safe to live in if you let (these people) take over." May 1: trial. Je 21: Ct announced it would postpone decision until Def and family move to new neighborhood "out of (their neighbors') reach." "No law passed by the state or the United States is more powerful than a custom (segregation) 100 years old."
51.Ala.10. Wright v Montgomery (MD Ala, #2480-N) (245 FSupp 17, 335 F2d 930, 384 US 1009) Mar 1965: 167 students arrested during Selma-Montgomery march: disorderly conduct, loitering, disobedience. Muni Ct prosecutions removed to DC, remanded. Feb 17, 1966: CA 5 affirmed remand. Je 20: USSC denied cert. Trials set again in Muni Ct; fed'l action to enjoin state action brought in DC. DC refused temporary relief; CA reversed, sent case to DC for decision on merits. Mar 25, 1968: DC held for Defs. Appeal to CA pending.

Morton Stavis, Benjamin Smith, Esq, Law Center for Constitutional Rights, 116 Market St, Newark 07102.

51.Calif.5. California v Huss, Krause, McLaughlin, Holstein, Reeves (Los Angeles) (Calif Sup Ct) 1963: Defs-Nazis arrested: creating disturbance at "Salute to Israel" rally. Nov 11: All Defs convicted of conspiracy to incite riot; 4 of felonious assault. Jan 2, 1964: Sentences: 1-10 yrs down to 10 mths. ACLU amicus brief alleges instruction violated First Amdt by permitting jury to convict if altercation began because persons entering auditorium were angered
- 13 -

by picket signs. 1966: Ct of App reversed conspiracy convictions. Petition for h'g in Sup Ct pending.

A L Wirin, Esq, 323 W Fifth St, Los Angeles, for ACLU.

51.Calif.7. Carmiencke v Muni Ct, Santa Monica (2d Dist Ct of App, #2 Civ 28779) Aug 1964: Def arrested while wearing topless bathing suit on public beach: outraging public decency (Pen C §415), disturbing the peace (Pen C §650½). Oct: Def sought writ of prohibition in Sup Ct alleging denial of due process on grounds of vagueness, infringement of First Amdt, Sup Ct transferred to Dist Ct of App. Pending.

Ronald E Landers, Esq, 400 S Beverly Dr, Beverly Hills. Amicus: ACLU of S Calif, 323 W 5th, Los Angeles 90013.

51.Calif.12. California v Weger (Pasadena) (USSC) Je 12, 1966: Def walking at 3:30 am; stopped by officer, identified self but refused to say where he lived; arrested: violation of Pen Code §647(e): disorderly conduct to "loiter or wander upon the streets or from place to place without apparent reason or business" and to refuse "to identify himself and to account for his presence when requested by any peace officer to do so, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification." Def demurred: section unconstitutional; infringes right of self-incrimination; violates Miranda, 353.41, too vague. Muni Ct sustained demurrer. App Dept affirmed. Je 5, 1967: Ct of App reversed: failure to identify oneself "anarchistic and hostile to all law." Jan 14, 1968: USSC denied cert.

Allen I Neiman, Esq, 849 So Broadway, Los Angeles.

And see cases at 57.

51.Calif.13. California v Atkins (Los Angeles Super Ct) 1967: Def arrested: violation of Yorty anti-riot act (Pen C §§404.6, 448a, 451a, 452, 454—455). Def challenges constitutionality of statute: (1) vagueness; (2) denial of equal protection: law exempts labor unions and union members from coverage. Pending.

ACLU, 323 W Fifth St, Los Angeles 90013.

And see Davis, 51.Calif.14.

51.Calif.14. California v Davis (Los Angeles Muni Ct) Sept 28, 1966: Def-Negro present at disturbance at dance at youth center; arrested: disturbing peace, violating 1967 Yorty anti-riot law. Def convicted: intending to cause riot by engaging in conduct which urged riot or urged others to riot "at a time and place and under circumstances which produce a clear and present danger of acts of force or violence ..." Def appealed: statute infringes rights of speech and assembly; is vague, arbitrary and capricious in application. Pending.

Theodore A McCabe, Esq, ACLU, 120 El Camino Dr, Beverly Hills.

And see Atkins, 51.Calif.13.

51.Calif.15. San Francisco v Simpson (Muni Ct) June 1967: Def, hippie, arrested twice: public nuisance (blocking traffic); Def said 1 arrest made while he was handing out leaflets urging tolerance of hippies. July: trial: hung jury. Def then pleaded guilty to violation of San Francisco Traffic Code §15 (failure to obey lawful order of policeman): probation.

Simpson in propria persona.

51.Calif.16. California v 5 Puppeteers (San Francisco Muni Ct) Oct 30, 1966: Defs presented puppet show, part of which satirized police, on Haight St; arrested: violation of Calif Pen Code §370: creating public nuisance. Nov 28: Dismissed on motion of DA: vagueness of statute.

Richard Wertheimer, Paul Halvonik, Esqs, 503 Market St, San Francisco, for ACLU.

51.Conn.3. Turner v LaBelle (DC Conn) (251 FS 443) After Watts revolt (429.) North End Community Action Project scheduled public civil rights meeting to show solidarity with people in Watts. NECAP informed police of proposed meeting, told no permit necessary. Aug 17, 1965: meeting held; Pls, members of NECAP, addressed crowd of 100—150. After speeches, symbolic coffin carried to city hall; 40 demonstrators present, including Pls; scuffling—police lieutenant injured; Pls arrested: breach of peace. Pls sent other demonstrators home; some demonstrators stoned cars and broke windows. Pls released on bond until criminal term of Super Ct, beginning Oct 5. Oct 4: Pls filed complaint seeking (1) injunction against enforcement of §53—44 (inciting to riot): used to curtail free speech and civil rights activity; (2) to restrain Defs, state officers and police chief, from hindering Pls' exercise of constitutionally guaranteed rights and privileges. Jan 25, 1966: DC Conn denied injunctive relief: since there is readily apparent construction available for rehabilitating statute in single prosecution and since Pls did not show bad faith of Defs in enforcing statute or that there would be irreparable harm to Pls, ct is justified in abstaining from staying proceedings in crim ct. Criminal charges pending.

Emanuel Margolis, Esq, 25 Bank St, Stamford, Conn.

51.Conn.4. Hartford v Smith, Harris (Hartford Muni Ct) Sept 14, 1966: Defs, among 150 Caucasian and Negro welfare recipients, sought meeting with Bernard Shapiro, state welfare commr, to present demands for increased welfare payments and standards. Defs arrested: Disorderly conduct. Pending.

And see 17 Demonstrators, 51.NY.33; and 420s.

51.DC.3. District of Columbia v Reed (DC Ct of Gen Sess Cr # DC 2021-67) May 11, 1967: Ct held conviction for loud and boisterous talking requires presence of 3 or more persons acting in concert for unlawful purpose.
51.DC.4. Williams v Dist of Columbia (CA DC #20,927) (227 A2d 60, 1967) Nov 6, 1965: Def-laundromat manager one of 5 persons standing on "busy" sidewalk in front of laundromat. Police ordered group to move on. Def stayed, said "no God damn policeman," "no son of a bitch" could make him move; Def moved 3—4 feet, said "I dare you to lock my God damn ass up." Def arrested: disorderly conduct (DC Code §22-1107), failure to move on. At trial, Ct dismissed failure to move on, citing Shuttlesworth, 55.Ala.4c, found Def guilty of using profane, indecent, obscene words, suspended sentence. Def appealed to Dist of Columbia Ct of Apps, moved to proceed in forma pauperis; granted, for trial transcript at gov't expense, denied. After Tate v US (369 F2d 245, 1966) Def again moved for transcript; denied. Mar 7, 1967: conviction affirmed. Def appealed to CA DC, sought leave to proceed in forma pauperis; granted. Def moved for summary reversal. Aug 4, 1967:
- 14 -

denied. Def argues: (1) no breach of peace threatened, unlawful police order was provocative; (2) since physical resistance to unlawful arrest is legal, verbal protest must be lawful; (3) no obscenity test met, statute unconstitutionally vague on its face; (4) denial of trial transcript improper; (5) prosecution incorrectly brought by Corp Counsel in name of Dist of Columbia, not by US Atty in name of US. Oral argument pending.

Ralph J Temple, Esq, Nat'l Capital Area Civil Liberties Defense & Education Fund, Suite 501, 1424 16th St NW, Washington, DC 20036; John E Vanderstar, Esq, 701 Union Trust Bldg, Washington, DC 20005.

51.Fla.3. Florida v Marks (Pompano Beach Muni Ct, #D1250) Je 21, 1966: Def, Caucasian grocery store owner, allegedly slapped 10-yr old Negro boy; crowd of Negroes gathered at store; police escorted Def and wife to jail. Def convicted: assault and battery: &15 fine, &5 court costs. Appeal pending.
51.Fla.3a. Florida v 24 Defs (Pompano Beach Muni Ct) After events in Marks (51.Fla.3) crowd grew to 600; some threw bottles at passing cars; police moved into the area, crowd threw rocks and bottles. Defs arrested: unlawful assembly, loitering, disorderly conduct. All charges dismissed on nolle prosequi.

Stedman Stahl, Esq, 200 SE 6th St, Alcee Hastings, Esq, 303 SE 17th, Ft Lauderdale.

51.Ga.8. Atlanta v 72 Demonstrators (Atlanta Muni Ct) Sept 6, 1966: White policeman shot and wounded a fleeing Negro he was trying to arrest on charge of car theft. Crowd gathered; members of SNCC addressed them; later crowd became disorderly. Mayor spoke to crowd, unable to calm them. 72 persons arrested: disorderly conduct. Pending.

And see Carmichael, 51.Ga.8a.

51.Ga.8a. Carmichael v Allen (ND Ga) (267 FSupp 985) After events in 51.Ga.8, Pls, leaders of SNCC, arrested: disorderly conduct, insurrection, riot (Code of Ga 26-901, -903, -904, -5301, -5302; see 2-7 `disorderly conduct,' Charter, Related Laws and Code or Ordinances, Vol II, 1022). Pls brought class action to restrain enforcement of statutes: (1) they violate First Amdt rights, (2) they are void for vagueness, (3) some previously declared unconstitutional. Pls moved for 3-judge fedl ct under 28 USC 2281, 2284, to determine the proceeding. Motion granted. Dec, 1966: Ct enjoined prosecutions under insurrection and insurrectionary literature statutes, §§26-901—26-904. Ct also held Atlanta disorderly conduct ordinance unconstitutional on its face. Ct abstained from determination on constitutionality of riot law: (1) language of statute and of indictment did not show interference with First Amdt right, (2) Pls failed to carry burden of proof that purpose of prosecution is to discourage First Amdt activity. (See Dombrowski, 245.16d). Pls seek further stay to litigate the statute's constitutionality in state cts in non-criminal proceeding. Pending.

Howard Moore, Jr, Esq, 859½ Hunter St, NW, Atlanta 30314; William Kunstler, Arthur Kinoy, Esqs, 511 Fifth Ave, NYC 10017; Len Holt, Esq, 250 Nicholson St, NE, Washington, DC; Morton Stavis, Dennis Roberts, Esqs, 744 Broad St, Newark; Michael Standard, Esq, 30 E 42nd St, NYC 10017.

And see cases at 54.

51.Ga.9. Atlanta v Ricks (Fulton Co Grand Jury) Jy 3, 1967: Negro patron of store became angry when told restroom "closed for repairs"; police summoned, patron arrested. Crowd gathered. Def-SNCC member arrived, greeted with "black power" cheers, arrested. Scuffle followed; windows broken, 4 arrested. Jy 5: Super Ct judge charged grand jury to investigate, decide on indictments for incitement. Hearing on Def-Ricks, 2 others, on incitement to riot, disorderly conduct charges postponed to Aug 17. Pending.
51.Haw.2. Hawaii v Butler, Sarant (Hawaii Sup Ct #4663, 1st Cir Ct #37105.6) Oct 17, 1966: Defs carried hanged effigy at Pres Johnson's speech, arrested: disorderly conduct (Rev L Haw §314-2(a)). Feb 10, 1967: Defs moved to dismiss on constitutional grounds; denied. Defs moved for bill of particulars; granted. Mar 28: Jury trial. Apr 4: found guilty. Apr 21: Butler fined &500, Sarant &200. Nov 6: Appeal to Sup Ct filed. Issues: (1) vagueness of statute, (2) evidence entered beyond scope of bill of particulars, (3) police may not prevent protest because others angered. Pending.

James A King, Esq, 63 Merchant St, Honolulu.

51.Ill.11. Chicago v Forbes (Chicago) (Muni Ct) Sept 10, 1966: Def-Lt in Am Nazi Party, self-professed minister, led march thru Southside Negro district, started chant. Arrested: disorderly conduct, interfering with police. Ct-appointed atty, Negro, argued Def arrested merely because his clerical garb made him stand out as leader of parade. Def waived jury trial; judge found him guilty; &300 fine. Appeal pending.

Fred Ross, Esq, 166 W Washington, Chicago, Ill.

51.Ill.12. Chicago v Grady (Cir Ct Cook Co) Def ticketed for traffic violation, allegedly beaten by arresting officer; charges: disorderly conduct, resisting arrest. Trial Je 20, 1967. Pending.

Burt Weinstein, Esq, 188 W Randolph, Chicago, for ACLU.

51.Ill.13. Chicago v Chelmowski (City Crim Ct) Oct 1966: Rumors circulated in high school that Negroes had raped white student in washroom. Kiwanis club offered &1000 for substantiation, Chamber of Commerce blamed American Nazis for circulating rumor. Oct 31: Defs-5 American Nazis distributed literature, picketed school; arrested: disorderly conduct. Pending.
51.Ill.14. Chicago v 30 Defs (City Crim Ct) May 21, 1967: Memorial service for Malcolm X. White persons allegedly crashed service, were asked to leave, then ejected. Police allegedly entered, harrassed meeting. Angry crowd formed on street, dispersed by police. 3 officers, 7 others injured, 30 Defs arrested: disorderly conduct, resisting arrest, incitement to riot. Pending.
51.Iowa.1. Des Moines v 7 Defs (Des Moines Muni Ct) Jy 2, 1967: Rock-throwing disturbance after youth dance. Police, with help of local youth employed by antipoverty program, quelled disturbance. 7 arrested: disturbing the peace; released on own bond. Pending.
51.Minn.1. Minnesota v Johnson (Minn Sup Ct) Jy 1966: Minn Comm to End War in Vietnam held protest rally; 7 arrested: breach of peace; failure to display flag at public meeting (Minneapolis Code §872.040). Muni Ct dismissed flag charge; held flag ordinance unconstitutional; convicted
- 15 -

4 Defs of breach of peace. Appeal pending challenging ordinances which "make it illegal to advocate, advise or teach pacifism, disregard of law, teaching crime or violence."

Stephen Schwarts, Esq, ACLU, Builders Exchange, Minneapolis 55402, for ACLU.

51.Miss.4. Guyot v Pierce; Strother v Thompson (Jackson) (CA 5) 372 F2d 654, 658, 1967) Je 1-18, 1965: Nearly 1000 civil rights workers arrested: failing to get permits to parade, distribute handbills. Je 19: Pls sued in DC for injunction against enforcing ordinances. CA 5, treating DC's delay as denial, granted pending appeal of DC order when entered. Aug 9: CA, treating matter as mandamus, ordered DC to make return, continued injunction. Aug 24: DC denied preliminary injunction. Pls appealed. Feb 14, 1967: CA held parade ordinance void for vagueness; handbill ordinance violative of First and 14th Amdts: no standards for issuance or denial of permit.

Prof John R Honnold, Univ of Pa Law School, Philadelphia; Marian Wright, Esq, 538½ N Farish, Jackson; Melvin Zarr, NAACP Inc Fund.

51.Miss.8. McLaurin v Greenville (USSC, #633) (187 So2d 854) Defs, Negro civil rights workers, stood on steps outside municipal bldg while trial ct in session, shouted to crowd protesting disorderly conduct convictions of 2 Negro girls; arrested: disturbing peace, resisting arrest. Trial jury found Defs guilty. Miss Sup Ct held: (1) First and 14th Amdts do not bar convictions, (2) no evidence in record that trial ct refused to permit Defs to show pattern or practice of systematic prosecutorial exercise of peremptory challenges to strike Negroes from jury. Jan 9, 1967: USSC denied cert (385 US 1011), Warren, CJ, Douglas, Brennan, JJ, diss.

Jack Greenberg, Melvyn Zarr, Esqs, NAACP Inc Fund, Suite 2030, 10 Columbus Circle, NYC 10019; Anthony G Amsterdam, Esq, U of Pennsylvania Law School, 3400 Chestnut St, Philadelphia 19104; R Jess Brown, Esq, 125½ N Farish St, Jackson, Miss 39201.

And see cases at 512.

51.Miss.9. Mississippi v Guyot (Jackson Cir Ct) May 12, 1967: Negro killed near Jackson State College. Protest boycott of white-owned stores. Def, chairman of MFDP, urged Negro shoppers not to enter white-owned stores; arrested: disturbing peace, interfering with business. Pending.
51.Mo.2. Kansas City v Bethel (Kansas City Muni Ct) Jy 10, 1967: 4 vice squad officers arrested 3 Negroes in park: bootlegging. Crowd gathered, officers called for reinforcements; rock throwing began, police used tear gas. Crowd quieted; persons including Def Bethel (minister, CORE member) talked to officers. 11 persons arrested: disorderly conduct, breach of peace by lewd and offensive language. Muni Ct convicted: &50 fines, 1 Def fined additional &25 for damaging police car. 3 Defs appealed. Pending.
51.NJ.5. Perth Amboy v 8 Puerto Ricans (Muni Ct) Jy 22, 1966: City passed ordinance prohibiting loitering. Jy 31: youth arrested: loitering. 200 persons gathered at intersection to protest, dispersed when youth released on &50 bail. Aug 1: 600 persons rioted; 7 police, 2 others injured, 8 arrested: being disorderly persons. Spokesman asserted loitering ordinance conflicts with Latin-American custom of gathering in marketplace to meet friends. Pending.

See also 5th Ave Vietnam Peace Parade Comm, 25.25.

51.NY.14. Callender v New York (USSC) (386 US 779) July 15, 1964: Def, CORE chairman, with CORE-member undercover police agent, attempted to make citizen's arrest of NYC Mayor Wagner for misappropriation of public funds by expenditures on construction projects that discriminate against Negroes in employment, despite city and state FEP laws. Arrested: disorderly conduct. Nov 25: convicted; 60 days. App Div affirmed. Ct of App affirmed. May 8: USSC dismissed appeal for want of jurisdiction.

Richard Miller, Allan H Levine, Nanette Dembitz, Esqs, 60 E 42nd St, NYC.

51.NY.16. New York v Ferguson (NYC Crim Ct, #C 11961) May 9, 1965: Def played mandolin in Washington Sq Park; arrested: disorderly conduct. Aug 5: Def acquitted. Aug 8: Def played mandolin in Washington Sq Park; arrested: disorderly conduct, felonious assault, resisting arrest. Sept 9: acquitted.
51.NY.16a. New York v Traficant (NY Sup Ct, App Div, 1st Dept) Def, mandolin-playing troubadour, acquitted on charges of playing in "wrong part of park." 1966: Def rearrested: disorderly conduct, resisting arrest. Convicted. Appeal pending.

Martin Berger, Esq, 377 Broadway, NYC.

51.NY.22. New York v Forman, Lewis (NYC Crim Ct) Mar 21, 1965: 5 Defs held sit-in at South African consul general's office, arrested: intrusion on private property, disorderly conduct; &50 bail each. Charges later dropped with Ct's consent.

Martin Berger, Esq, 377 Broadway, NYC.

51.NY.25. New York v Nelson (App Term, 2d Dept, #N 1714/65) Def argued verbally with policeman; arrested: disorderly conduct (NY Pen C §722(2)) NY Crim Ct: Def convicted. App Term affirmed.

Robert I Fisher, Esq, 40 Wall St; Henry M diSuvero, Esq, NYCLU, 156 Fifth Ave, both of NYC.

51.NY.27. New York v Koppersmith (NYC) (App Term, 2d Dept, #B8867) Mar, 1966: Def attempted to hold press conference on sidewalk with school children as school being dismissed; arrested: violation of Pen Law, §722(2), disorderly conduct. Def convicted. Argument on appeal: no showing of abusive or threatening language or intent to breach peace; statute used to limit protected speech. App Term affirmed.

Henry M diSuvero, NYCLU, Allan R Tessler, Esqs, 50 Wall St, NYC.

51.NY.31. New York v Scott, Steine (Suffern Co Ct) Jy 4, 1966: Defs, members of CORE, lay down in road to halt firemen's parade in protest of fact that volunteer fire company is virtually all-white; convicted of disorderly conduct; appeal pending.
51.NY.32. New York v Green (NYC Muni Ct, Crim Div, #A 7879/66) Je 23, 1966: Def participated in rent control demonstration; arrested: felonious assult. Charge reduced to assault 3rd degree, violation of §1851 Pen Law (resisting arrest). Jan 27, 1967: acquitted.

John L Edwards, Esq, 160 Broadway, NYC.

- 16 -

51.NY.32a. New York v Gray, Vaughan (NYC Muni Ct, # #C9936/66, C9937/66, B6204/66) Je 23, 1966: Defs took part in rent control demonstration; arrested. Jan 27, 1967: Gray acquitted of resisting arrest; both convicted of disorderly conduct: &50 or 10 days. Fines paid.

John L Edwards, Esq, 160 Broadway, NYC.

51.NY.35. New York v 64 Defs (Queens Crim Ct) Oct 7, 1964: Demonstrators protested Bd of Educ proposal to bus white children from school; arrested: disorderly conduct. Dec 3: Crim Ct dismissed: lack of jurisdiction. State appealed. Sept 30, 1966: App Term reversed. Complainant school official withdrew charges. Dismissed.

Bernard Kessler, Esq, 277 Broadway, NYC.

51.NY.36. New York v 38 Hippies (NY Crim Ct) May 30, 1967: Defs gathered in Tompkins Square Park to play music, sing. Police told Defs to desist or leave park; fighting followed; Defs arrested: disorderly conduct, felonious assault, resisting arrest, violation of Park Dept regulations. Je 30: Ct dismissed charges; held arresting officers did not have reasonable grounds to believe a crime was being committed.

Ernest Rosenberger, Esq, 56 Pine St, NYC.

51.NY.37. New York v Shapiro (NYC Crim Ct, # #C 18278-66 to 18331-66) Dec 15, 1966: 61 Defs picketed and sang beyond police barricades in front of Army induction center; arrested: disorderly conduct (§722(2) (3)). Feb 7, 1967: most Defs pleaded guilty: 60 days suspended. Mar 14: 6 Defs tried; convicted: &50 or 5 days; 2 also convicted of resisting arrest: 10 days and &200. Apr 4: 3 Defs convicted: 30 days suspended.

Jonathan R Goldberg, Esq, 401 Broadway, NYC.

51.NY.38. New York v Antonetty (NYC) (Crim Ct) Dec 20, 1966: Parents, civil rights workers took over Bd of Educ meeting hall, set up own "school bd" preventing regular bd from resuming public h'g on budget. Sit-ins occupied hall for 3 days; police then evicted, arrested 12 demonstrators: interfering with lawful meeting, disorderly conduct, interfering with public officer, intruding on real property.
51.NY.39. New York v Yost (Crim Ct, NYC) Jan 22, 1967: Defs-23 demonstrators displayed posters (Thou Shalt Not Kill—Vietnam) during mass at St Patrick's Cathedral, walked silently up aisle, arrested: unlawful intrusion on private property, unlawful assembly, disturbing religious meeting, public nuisance, disorderly conduct. Mar 23: Preliminary hearing: Defs laughed at DA objection; Ct warned Defs of contempt. Defense: This was proper exercise of free speech right; church immunity from political discussion lost when Cardinal Spellman discussed war in Vietnam visit. Sept 25: trial. Pending.

Victor Rabinowitz, Esq, 30 E 42nd St; Harold Rothwax, Esq, 320 E 3 St, both of NYC.

51.NY.40. Sprowal v New York (USSC) (385 US 649) Appt distributed non-commerical leaflets to students on public street near school without permission of school officials: arrested: loitering in or about school bldgs without permission; convicted. 1966: NY Ct of App held NY statute not vague, nor prior restraint of First Amdt rights. Jan 23, 1967: USSC dismissed for want of fedl question.
51.Pa.2. Philadelphia v Dortort (Pa Sup Ct) Sept 20, 1963: Defs conducted sit-in at city office, protesting policy on relocating residents of substandard housing. After 5 pm Defs refused to leave, arrested. Oct 1963: Magistrate convicted Defs of disorderly conduct (18 P.S. 4406); breach of peace charges dismissed. Appeal: (1) construction of statute requires finding Defs disturbed resident of locality, annoyed member of traveling public, or disturbed peace; (2) conviction infringes First Amdt freedoms, as defined in Edwards, 372 US 229, and Terminello, 337 US 1. On appeal and retrial in Quarter Sess Defs acquitted of disorderly conduct. Defs again charged: unauthorized use of city facility, breach of peace. Defs filed 28 USC §1443 removal petitions; DC remanded, denied injunction against prosecutions. Defs found guilty of unauthorized use of city facility (resulting in civil, not criminal, judgment); breach of peace charge dismissed. Mar 19, 1965: Super Ct affirmed: case not reviewable on merit; no denial of due process in imposing penalty for violation of ordinance when Defs acquitted on common law charge arising out of identical act, or in using criminal procedure to reach civil judgment. Petition for cert pending before Pa Sup Ct.

William Lee Akers, Esq, Suite 805, One East Penn Sq Bldg, Harry Lore, Esq, 135 S 19th St, both of Philadelphia.

51.Pa.4. Philadelphia v Branche, Brower (Philadelphia) (City Ct) Aug 26, 1967: 2 members of group called Young Militants addressed 200 people at rally. Aug 27: arrested: breach of peace, inciting to riot, disorderly conduct, conspiracy: &1000 and &500 bail. Pending.
51.Tenn.7. Tennessee v Dewart (Nashville) Mar 15, 1967: 3 Defs, 40 other anti-war demonstrators picketed Pres Johnson at State capitol. Defs halted, sat in front of Presidential limousine; arrested: disorderly conduct. Defs released on bond after alleged "manhandling, slapping." Mar 16: DA dropped charges, purportedly "not to make martyrs out of (Defs)."
51.Va.7. US v Williams, Mathie (ED Va, Alexandria) Defs, pacifists, demonstrated at Pentagon. May 9, 1967: arrested: disorderly conduct, disturbing peace. Defs waived right to trial in DC, tried by US Commr; convicted: 30 days suspended, 6 mos probation.
52. Against Obscenity (see 12, 14, 22, 303, 580)
Note: Due to the very large number of cases in this category, only US Supreme Court opinions are reported.

Testimony: Am Library Assn before Select Subcom on Education, House Comm on Education and Labor; HR 2525, Obscenity and Pornography Commn bill. Newsletter on Intellectual Freedom Jy, 1967.

52.85. Chance v California (USSC) (88 SCt 253) 1966: Def arrested: selling obscene pictures. Super Ct convicted, refused to certify to higher state ct. Nov 6, 1967: USSC per curiam (8—1) granted in forma pauperis petition for cert; reversed, citing Redrup, 52.92. Harlan, J, diss.
52.86. Austin v Kentucky


52.91. Gent v Arkansas


52.92. Redrup v New York (USSC) (386 US 767) 2 Defs sold books, magazines to police, residents; DA in 52.91 brought civil suit to enjoin distribution of issues of 8 magazines. 2 Defs convicted; injunction granted. Je 12, 1967: USSC
- 17 -

(7—2) reversed, per curiam: distribution of these publications is protected by First, 14th Amdts from governmental suppression, whether criminal or civil, in personam or in rem; JJ differ on reasoning behind decision. Harlan, J, (Clark, J), diss.

Stanley Fleishman and Sam Rosenwein, Esqs, 1680 N Vine, Hollywood; Emanuel Redfield, Esq, 60 Wall Street, NYC.

52.94. Rosenbloom v Virginia (USSC) (388 US 450) 1964: Def-seller arrested: §18.1-228 Code of Va 1950 (obscenity); convicted: &200 reduced to &25 on appeal. Je 12, 1967: USSC (8—1) granted cert, reversed, citing Sunshine Book Co, 355 US 372. Harlan, J, diss.

Seymour Horwitz, Esq, Central National Bank Building, Richmond; Melvin L Wulf, Esq, ACLU, 156 Fifth Ave, NYC.

52.95. Aday v US (Mich) (sub nom US v W Coast News Co, 30 FRD 13, 216 FSupp 911, 228 FSupp 171, 357 F2d 855, rev'd 388 US 447) Def convicted of mailing copies of "Sex Life of a Cop" into Mich, under fed'l obscenity act providing multiple choice of venue; CA 6 affirmed. Je 12, 1967: USSC granted cert; per curiam reversed (8—1), citing Redrup, 52.92, 386 US 767. Warren, CJ, (Brennan, J), would remand in light of A Book Named . . ., 383 US 413, Harlan, J, conc, citing his opinions in Roth, 354 US 476, Manual Enterprises, 370 US 478. Clark, J, diss.

Stanley Fleishman, Esq, 1680 N Vine, Hollywood.

Amicus for ACLU by Rolland R O'Hare, Esq, 3610 Cadillac Tower, Erwin B Ellmann, Esq, 1800 Penobscot Bldg, both of Detroit; Melvin L Wulf, Esq, 156 Fifth Ave, NYC.

52.96. Corinth Publications v Wesberry (USSC) (146 SE2d 764, 388 US 448) Civil action for declaratory judgment that book, "Sin Whisper" obscene; no jury; trial; judgment for Pl. Je 12, 1967: USSC, per curiam (6—2—1) granted cert and reversed. Warren, CJ, would set for oral argument. Clark, J, diss. Harlan, J, diss.

Stanley Fleishmann, Esq, 1680 N Vine, Hollywood.

52.97. Fort v Miami (USSC) (195 So2d 53, cd 88 SCt 231) 1965: Def-artist created 6 fiberglass statues, displayed in backyard for sale. 2 policemen confiscated statues, arrested: c.61-7, Laws 1961: Fla Stat §847.011(1)(a) (possession of of obscene statues for sale); convicted; affirmed. Oct 23, 1967: USSC (6—3) denied cert. Stewart, J, (Black, Douglas, JJ), diss: Def convicted under ordinance based on Fla statute containing unconstitutional definition of obscenity from Roth, 354 US 476, rather than test in A Book Named . . ., 383 US 413.
52.98. Central Magazine Sales v US (USSC) (sub nom US v 392 Copies . . ., 373 F2d 633, rev'd 88 SCt 235) Pet imported Danish nude magazines; Customs seized magazines (19 USC §1305), CA 4 upheld seizures. Oct 23, 1967: USSC (6—2) granted cert and reversed, citing Redrup, 52.92. Warren, CJ, diss. (Marshall, J, took no part.)
53. Against Defamation (see also 61)
Note: Conviction for dissemination of derogatory literature is unconstitutional invasion of First Amdt freedoms: Cincinnati v Black (220 NE2d 821, 1966). 18 Syracuse 634—637.
53.8. Ashton v Kentucky (USSC) Facts: XII DOCKET 10.

Case note: 19 Florida 307-310.

53.11. Illinois v Thomas (Franklin Co Cir Ct, #55 CR 80, 86). Def criticized judge's handling of tort action by posting placards on Def's car; charge: criminal libel (38 Ill Rev Stats 27-1,2). Feb 6, 1967: Trial; hung jury; no motion by Pl for retrial.

David C Long, Esq, 19 S La Salle; Barton Joseph, Esq, 134 N La Salle; both of Chicago.

54. Against Sedition, Anarchy, Syndicalism
(see also 63, 241-44, 429)

Book: SNCC writers and photographers, Perspective on the Atlanta rebellion. &.50. SNCC, 360 Nelson St SW, Atlanta, Ga 30313.

Proposed Legislation: Prohibits flag desecration. Cong Rec—House, Sen. Ap 17, 1967, H 4197; Apr 18, 1967, H 4290; Apr 25, 1967, S 5806; Apr 26, 1967, H 4697; May 4, 1967, H 5098, 5104; May 4, 1967, H 5096; May 11, 1967, H 5382; Je 20, 1967, H 7489.

Proposed Resolution: H Con Res 450, Stokely Carmichael should be prosecuted for sedition. Cong Rec—House. Aug 3, 1967, H 9940.

Speech: William E Minshall, Charge Carmichael with treason. Cong Rec—House. Jy 31, 1967, H 9600.

Letter: John J Williams, to Atty Genl, listing USC sections presently applicable against interstate agitators. Cong Rec—Sen. Aug 9, 1967, S 11203.

Analysis: Thomas I Emerson, HR 421, Anti-riot bill. N Calif Comm To Abolish HUAC, PO Box 77221, San Francisco 94107.

54.9. New York v Epton (USSC) (252 NYS2d 388) Jy 18, 1964: Negro-Def, Progressive Labor leader, made speech in Harlem about police killing of Negro youth; later a riot occurred. Aug 5: Grand jury indicted Def (Pen L §161): conspiracy to advocate criminal anarchy, criminal anarchy, conspiracy to riot; first such indictment in NY since Gitlow in 1919 (268 US 652, 1925); Def released on &10,000 bond. Dec 20, 1965: Def convicted. Jan 27, 1966: Def sentenced: 1 yr on each charge, running concurrently. Mar 15: Def released on &25,000 bail pending appeal on petition for habeas corpus. Dec 8, 1966: App Div affirmed conviction without opinion. May 16, 1967: Ct of App affirmed. Petition for cert pending in USSC.

Eleanor Jackson Piel, Esq, 36 West 44th St, NYC 10036.

And see Anderson, 24.49; Gilligan, 304.61; McAdoo, 333.20.

54.12. US v Bowe, Collier, Sayyed (CA 2) (cd 385 US 401, 1966) Jan 1965: Four Defs and undercover police agent allegedly planned to deface national monuments, including Statue of Liberty and Washington Monument, by use of explosives. Spring 1965: One Def pleaded guilty; others convicted. Appeal to CA 2; issues: entrapment; racial prejudice in jury selection, racial hostility in trial. Apr 30, 1966: CA affirmed convictions, rejected Defs' argument that prejudicial news articles prevented fair trial; held "time and careful questioning of prospective jurors" could assure fair trial; while news reports were prejudicial because they contained derogatory facts that could not properly have been admitted into evidence, they were not so "outrageously inflammatory" as to warrant reversal; said it made no difference that such facts were given to press by FBI and US Atty's office. Nov 21: USSC denied cert.

Len Holt, Esq, 250 Nicholson NE, Washington, DC; Mark Lane, Esq, 415 Lexington Ave, NYC.

- 18 -

54.14. Los Angeles v John Harris (LA Super Ct) Sept 1966: Defmember of Progressive Labor Party authored pamphlets commenting on police practices in Negro ghetto, distributed during inquest into shooting of Deadwyler, see 429. Pamphlets stated, "George Washington and the American revolutionaries never went to King George's court for justice. They smashed King George's court. . . . Bring Parker, Yorty and Bova to trial for murder in a court of the people; if 80% of us don't work (in the ghetto), you don't produce. Production can be stopped." Def arrested: criminal syndicalism (illegal to "advocate, teach or aid and abet" use of force or violence to accomplish "a change in industrial ownership" or effect "any political change"). Pending.

Frank Pestana, Esq, 1680 N Vine, Hollywood; A L Wirin, Esq, ACLU, 257 S Spring St, Los Angeles.

And see 429s; Carmichael, 51.Ga.8a.

And see Dawson, 303.71.

54.15. Georgia v Wilson, Simmons (Atlanta) (Rec Ct) Aug 18, 1966: Negro SNCC members demonstrated at induction center; 12 arrested: disorderly conduct, disturbing the peace, resisting arrest; 4 charged with assault on police; 1 with insurrection. Aug 19: 12 Defs tried on lesser charges; convicted: 3 mths. Defs appealed; Ct rejected bond. Oct 20: Defs released on bond. Feb 1-2, 1967: Def Wilson tried for assault; convicted: 3 yrs. Insurrection charge dropped after state statute again held unconstitutional.

Howard Moore, Jr, Esq, 859½ Hunter St NW, Atlanta 30314.

For federal charges against same Defs, see Schutz, 125.26.

And see Carmichael v Allen, 51.Ga.8a.

54.16. Selma v Carmichael, House, Taylor (4th Jud Cir) Nov 5, 1966: 3 SNCC members arrested at voting rally; inciting to riot, resisting arrest. Defs removed to DC. Nov 7: DC remanded. (See Carmichael at p 35.) Nov 22-29: Recorder's Ct convicted Taylor: blocking traffic, resisting arrest; fined &77; convicted Carmichael and House: inciting to riot; &100, 60 days hard labor.

And see Carmichael, 54.16a.

54.16a. Carmichael, Dallas Co Independent Free Voter Organization, et al v Selma, Judges, City Prosecutor, et al (SD Ala, N Div, #4335-66) Apr 1967: 3-judge fedl ct heard arguments in Pets' suit to have riot statute declared unconstitutional because of vagueness and its chilling effect on speech. May 18: DC stayed appeal of convictions in state ct pending its disposition of constitutional attack on statute. Pending.
54.17. City of Prattville, Ala v Carmichael (Augusta Co Ct) Je 12, 1967: Def, while speaking to Negro group, approached by police; after shouting match Def arrested: disorderly conduct. Later, shots exchanged between police and Negroes, 3 officers wounded, 10 Negroes arrested; inciting to riot. Def-Carmichael refused bail until 10 Defs could make bond. Pending.

And see Houser v Hill, 304.Ala.9.

54.19. Kentucky v McSurely (Sup Ct Pikeville Cty) Aug 11, 1967: Defs-poverty workers arrested in homes, Sedition (Ky Rev Stats 432.040). Sept 11: Grand Jury indicted Defs and Def-Braden, Southern Conference Educational Fund Executive Director, and Def-Mrs Braden. Sept 14: 3-judge fedl ct (2-1) enjoined Pl from prosecuting, declared Act unconstitutional in McSurely, 580.19.

Dan Jack Combs, Esq, 207 Carolina Ave, Pikeville, Ky; Morton Stavis, Esq, 744 Broad, Neward, NJ; Arthur Kinoy, Esq, 511 Fifth Ave, NYC.

And see Key List Mailing, Jy 9, 1967; SNCC, 449 14th St, San Francisco 94103.

54.20. Rap Brown v Clark (ED La) Aug 20, 1967: Negro citizens invited Pl-SNCC chairman to speak in Baton Rouge. Aug 22: Def-US Atty Genl obtained indictment against Pl from Fed'l grand jury: interstate firearm transportation by person under indictment (15 USC §902(e)). Aug 20: Def-Gov threatened to arrest Pl under La RS 14:113 (treason), RS 14:115 (criminal anarchy). Sept: Pl filed complaint against fedl, state officials for 3-judge ct to determine unconstitutionality of statutes, and for injunction restraining fed'l and state enforcement of fed'l and state statutes, other intimidation; declaratory judgment of statutes' unconstitutionality. Pending.

Murphy Bell, Esq, 214 East Blvd, Baton Rouge; William Kunstler, Arthur Kinoy, Esqs, 511 Fifth Ave, NYC; Morton Stavis, Esq, 744 Broad St, Newark 07102; Howard Moore, Jr, Esq, 859½ Hunter St NW, Atlanta; Harriet Van Tassel, Dennis J Roberts, Esqs, 116 Market St, Newark 07102.

54.21. Maryland v Brown (Cambridge) (Co Ct) Jy 24, 1967: Def-SNCC leader made speech in Cambridge, followed by riots and arson. Warrant issued: inciting riot, arson. Jy 27: Def arrested in Virginia under fedl warrant: unlawful flight to avoid prosecution; released; arrested under state fugitive warrant. Pending.

William M Kunstler, Esq, 511 Fifth Ave, NYC.

Also see Brown v Fogel, 403.17.

See statement of Rap Brown, Key List Mailing, Jy 9, 1967; SNCC, 449 14th St, San Francisco 94103.

54.22. Ware v Nichols (MD Miss, #GC 6511) (256 FSupp 562) Negro Pets were arrested: violating Miss criminal syndicalism statutes. Pets filed fedl complaint to enjoin prosecution. 3-judge fedl ct convened. Resps moved to dismiss, Pets moved for summary judgment. Mar 29, 1967: 3-judge ct declared state statute unconstitutional.

Carsie Hall, Jack Young, Esqs, 115½ N Farish; R Jess Brown, Esq, 5161 Gault; all of Jackson 39201; Charles S Ralston, Melvyn Zarr, Esqs, NAACP Inc Fund.

54.23. New York v Stanford (Sup Ct, Queens) Je 21, 1967: 16 (Revolutionary Action Movement) arrested: 2 for conspiracy to murder Roy Wilkins, Whitney Young, others; 14 for conspiracy to advocate anarchy. 5 released on bail. 4 Defs, Bd of Education employees, suspended. Je 23: Arraignment. Def's motion to reduce bail (&2500 to &40,000) denied. Def's motion to instruct Pl to refrain from public statements granted. Jy 19: Defs moved to dismiss anarchy indictments. Aug 10: hearing on motion to dismiss postponed. Def-Stanford extradited from Pennsylvania, arraigned for conspiracy to murder, pleaded not guilty. Pending.

George R Spitz, Esq, 401 Broadway, NYC; Jean Condon, Esq, 8 Warren Pl, Brooklyn 11201; Paul, Weiss, Rifkind and Garrison, 575 Madison Ave, NYC 10022; Paul O' Dwyer, Esq, 350 Central Park, NYC.

- 19 -

54.24. Ohio v Brown (Dayton) (Muni Ct) Je 15, 1967: Def-SNCC chairman made speech in Dayton, followed by racial disturbances. Aug 8: charges filed against Def: advocational criminal syndicalism. Pending.
54.25. Tennessee v George Ware (Nashville) (Davidson Co Grand Jury) (DC Tenn) Def-SNCC leader stated "Black people have to achieve power by any means necessary"; came to teach at Nashville's Liberation School. Tenn Rep asked Sessions Ct to issue warrant for Def's arrest. Aug 22, 1967: Def arrested: sedition, &10,000 bail. Aug 24: State Dept revoked Def's passport for trip to Cuba: violation of restrictions imposed by US. Aug 28: Def filed for writ of habeas corpus in DC to prevent Tenn prosecution. Aug 30: Grand jury refused to indict Def because he had not advocated any specific, overt act.

Reber Boult, Jr, Esq, American Trust Bldg, Nashville.

54.26. Tennessee v Ware, Stephens (Nashville) (Cir Ct) Apr 6-8, 1967: Stokely Carmichael spoke at symposium at Vanderbilt Univ. Negro ejected from Negro-owned restaurant at owner's request; rioting. Defs arrested: inciting to riot; &2500 bond. Pending.
54.26a. SNCC v Tennessee (MD Tenn) Facts as in Ware, 54.26. City officials blamed rioting on Carmichael. Pl sued, denying Carmichael responsible, asking state inciting to riot statute be declared void. Pending.
54.27. Texas v Franklin (176th Dist Ct, Harris Co, ##126330-126332) May 16-17, 1967: Riot at Texas Southern Univ (Negro); police fired 2000 rounds, then stormed dormitory. One officer shot dead, 2 wounded. 488 students arrested, released within 24 hrs; 5 students charged with felony riot, 2 released, &10,000 bond. June 2: grand jury indicted 5 Defs: murder, assault to murder (under Tex doctrine that persons committing felony by mistake during commission of another felony guilty of both). At least one Def in jail at time of shooting. Nov 27: Trial scheduled.

And see Wright, 24.84.

And see Key List Mailing, Jy 6, 1967, SNCC, 449 14th St, San Francisco 94103.

54.28. Brooks v Briley (Nashville) (MD Tenn) (274 FSupp 538) Apr 9, 1967: Pls-SNCC leaders and other civil rights workers arrested: disorderly conduct, vagrancy, inciting to riot, carrying dangerous weapons, loitering, unlawful assembly. Pls brought class action to restrain enforcement of statutes, ordinances and common-law prohibition against inciting riots, moved for 3-judge fedl ct. 3-judge ct empanelled. Oct 9, 1967: ct held: (1) allegations of bad faith and scheme or plan to harrass Pls sufficient to raise fedl constitutional question and support jurisdiction; (2) action not properly maintainable as class action; (3) request for injunction denied: situation not such to require equitable remedy; defenses could be given in course of trial. Appeal pending.

I T Creswell, Jr, Esq, 623 Stahlman Bldg, Nashville 37201; Wm Kunstler, Arthur Kinoy, Esqs, 511 Fifth Ave, NYC 10017; Dennis Roberts, Harriet Van Tassel, Esqs, 116 Market St, Newark 07102; Howard Moore, Jr, Esq, 859½ Hunter St NW, Atlanta 30314; Morton Stavis, Esq, 744 Broad St, Newark 07102; Michael Standard, Esq, 30 E 42d St, NYC 10017; C B King, Esq, P O Box 1024, Albany, Ga 31702.

55. Against Picketing, Leafleting, Demonstrating
(see also 51, 123, 541, 542, 551, 552)

Form: Motion to dismiss indictments in Southern breach of the peace cases, by William B Murrish and Mayor B Frieden. CIVIL RIGHTS HANDBOOK 66 75-89.

Articles: Francis A Allen, Civil disobedience and legal order. 36 Cincinnati 175-195.

Ted Finman, Stewart Macaulay, Freedom to dissent: Vietnam protests and words of public officials. 1966 Wisconsin 632-723.

Peter B Work, Injunctive relief for economically-directed civil rights picketing. 38 Colorado 516-539.

Paul Encimer, Century Plaza demonstrations. WIN, 5 Beekman St, Rm 1033, NYC 10038. Jy 1967.

Book: ACLU of So Calif, Day of Protest, Night of Violence: The Century City Peace March. Sawyer Press, P O Box 46-653, Los Angeles 90046, 1967. &1.50.

Comment: Regulation of demonstrations. 80 Harvard 1773-1788.


Article: George Nobbe, New Left: America's "Red Guard." Cong Rec—House. Ap 3, 1967, H 3424.

Leaflet: CNVA Boston-to-Pentagon march. Cong Rec—App. May 9, 1967, A 2289.

Speech: William G Bray, Anti-Vietnam week communist-controlled. Cong Rec—House. Apr 3, 1967, H 3473; Apr 12, 1967, H 4036.

Harry F Byrd, Communist mastermind Vietnam Day. Cong Rec—Sen. Apr 18, 1967, S 5384.

Joe D Waggonner, Articles show Dr King aids communists. Cong Rec—May 3, 1967, H 5040.

Edwin E Willis, Vietnam Week demonstrations. Cong Rec—House. May 8, 1967, H 5178.

O C Fisher, Dr King's draft evasion advocacy criminal. Cong Rec—App. May 9, 1967, A 2293.

55.Ala.8. Forman v Montgomery (Montgomery Muni Ct) (355 F2d 930, cd 384 US 1009) 1965: State troopers denied access to sidewalk at Capitol at finish of Selma-Montgomery freedom march. Marchers paraded in street until police ordered them to leave street, then sat down, went limp. 167 Negroes and whites (SNCC workers) arrested: disorderly conduct, disobeying orders, loitering. Defs removed to DC; City moved to remand; DC held h'g. Aug 3, 1965: DC held Pls did not prove official or quasi-official capacity required by 28 USC § 1443(2); no discrimination or deprivation of equal rights as required by 28 USC § 1443(1): remanded to Rec Ct. CA affirmed, USSC denied cert, citing Rachel, 58.Ga.14, 384 US 780. Nov 18, 1966: trial held: judge found guilty: &100 each and 30 days in jail, jail sentences suspended on good behavior.

William Kunstler, Arthur Kinoy, Esqs, 511 Fifth Avenue, NYC; Martin Berger, Esq, 377 Broadway, NYC; John Thorne, Esq, 510 N Third St, San Jose, Calif; Joseph Levin, Esq, 1225 Penobscot Bldg, Detroit; Charles Conley, Esq, 530 S Union St, Montgomery.

55.Ala.10. Jefferson Co Bd of Educ v SCLC (Birmingham) (ND Ala) Jan 14, 1966: 300 demonstrators, mostly students, blocked traffiic in downtown Birmingham as part of voter registration campaign. DC granted Pl's motion to enjoin Def from recruiting and leading students in demonstrations during school hours. Jan 18: Def appealed: allege fedl cts lack jurisdicition. Pending.
- 20 -

55.Ala.12. Selma Bus Lines v King (SD Ala) Defs boycotted Pl-bus lines. Pl sued for damages. Defs removed to DC. Pl moved to remand. Defs filed motion to dismiss. Feb 2, 1966: Pl withdrew motion to remand. Pending.

Peter Hall, Esq, 1630 4th Ave N, Birmingham, Ala.

55.Ala.13. Alabama v Hester, Lombard (Tuscaloosa) Mar 24, 1967: Defs participated in anti-war picket demonstration at affair honoring Secy of State Rusk. Went onto Univ of Ala property; arrested: violation of rule forbidding non-Univ people from demonstrationg on Univ property. Released on bond. Pending.
55.Ala.14. Alabama v Boone, Rudolph, Hunter (Montgomery) (Muni Ct) Defs led march to Governor's Mansion; arrested: refusing to obey officer. July 1967: convicted: 6 mths hard labor, &100 fine.

Solomon Seay, Esq, 2901 McDonough, Montgomery 36104.

55.Ala.15. Bd of Educ v Barnett (Crenshaw Co) (MD Ala) Persons demonstrated on and near school grounds, interfered with operation of schools. Pls brought action in state ct for injunction, contempt citation, removed to DC. Feb 28, 1966: H'g on motion for preliminary injunction. March 2: DC remanded case.

Gray and Seay, Esqs, 2901 McDonough, Montgomery 36104; Charles H Jones, Jr, Gerald Smith, Charles S Ralston, Esqs, NAACP Inc Fund.

55.Ariz.1. Arizona v Horn, Morgan (Tucson) (Pima Co Super Ct, #92225) Sept 29, 1965: Pl alleged 6 Defs, NAACP and CORE unlawfully assembled, loitered, picketed, demonstrated at U of Ariz, sought injunction; restaining order issued. Defs filed motion to quash, answer alleging: State-supported Univ maintains 2 lists of student housing: (1) nondiscriminatory, (2) anti-Negro, in violation of 14th Amdt, 42 USC §8200, so State does not come before Ct with necessary clean hands; peaceful picketing for lawful purpose. Oct 11: Ct issued preliminary injunction against all gathering or picketing on Univ campus. Defs' objections pending. Oct 26: Defs filed answer and counterclaim seeking orders that Univ's discriminatory housing practices unconstitutional and that Univ cease such practices. Pending.

W Edward Morgan, Esq, 45 W Pennington, Suite 407, Tucson.

55.Calif.12. California v 5 Demonstrators (San Jose) Jy 20, 1965: 5 Defs entered Food Machinery and Chemical Corp, producers of war materials, to leaflet employees about peace; arrested: trespassing. 1 Def pleaded nolo contendere: &100 or 20 days; 2 Defs plead guilty: &100 or 20 days each; 1 Def certified to juvenile ct: 1 Def found guilty: &250 fine, &26 assessment penalty suspended, informal probation 1 yr.

John Thorne, Esq, 510 N 3rd, San Jose.

55.Calif.14. California v Amey, Sanders, Smith (Berkeley-Albany Muni Ct, C 11993, 11994, 11987) Apr 12, 1966: Defs part of crowd of 4,000 demonstrating against war in Vietnam; fighting occurred when police entered building from which demonstrators were speaking with amplifying equipment without permit. 2 Defs arrested: interfering with police, Def Amey: battery on a police officer. Demonstrators moved to City Hall, another scuffle with police trying to clear street; 7 arrested: disturbing the peace, resisting officer. Amey pending in Super Ct; Sanders 6 mths probation; Smith dismissed.

Carlton Innis, Esq, 2437 Durant, Berkeley.

55.Calif.18. Berkeley v Poland (Muni Ct) Aug 24, 1966: Def arrested for distributing leaflets on Berkeley campus of Univ of Calif after police informed him of violation of Mulford Act (prohibiting certain activities on campus by non-students). Def put on 18-mths probation.

And see Aronson, 58.Calif.20.

55.Calif.19. Re Berry (Sacramento) (Ct of App) Sacramento Super Ct issued injunction prohibiting picketing or demonstrating near Co buildings; Pet and 70 others arrested: carrying signs. 4 petitioned Ct of App for habeas corpus: Ct held 4 could not be tried for violating injunction, declined to hold injunction void on face. Issues on appeal to Sup Ct: injunction unconstitutional as infringement of free speech and right to petition govt for redress of grievances. Pending.

Lawrence Karlton, Esq, 1107 9th, Coleman Blease, Esq, 2667 11th, both of Sacramento 95818; Paul Halvonik, Esq, 503 Market, San Francisco, for ACLU.

55.Calif.20. California v Havens (Bakersfield Muni Ct) Def-minister read Jack London's "Definition of a Strikebreaker" to striking grape workers; arrested: disturbing peace. Ct acquitted: First Amdt grounds.

Milton M Younger, Esq, ACLU, Sill Building, Bakersfield.

55.Calif.21. California v Gould (Los Angeles Super Ct, App Dept) Defs, American Nazis, held black-face counter-picket of CORE picket lines; arrested. Convicted. App Dept reversed.

A L Wirin, Esq, ACLU, 257 So Spring St, Los Angeles 90012.

55.Calif.22. Oakland v Stephens (Oakland Muni Ct) Aug 15, 1967: Def-wife of draft refuser, 5 others blocked entrance to Oakland Army Induction Center; arrested. Def, weak from 10-day fast, carried to police car; Def forcibly fingerprinted. When case called, Def refused to leave holding cell. Judge entered cell, explained charges and rights to Def. Aug 21: Def accepted probation, 3 others sentenced to jail terms.
55.Calif.23. Giumarra Bros Fruit Co v United Farm Workers Organizing Committee, AFL-CIO (Kern Co) (Super Ct Calif, #100011) Persons picketed vineyards to organize workers. Aug 18, 1967: Pl sued for injunction restraining pickets. Super Ct issued temporary restraining order limiting pickets to 3 at each side of main entrance, must stand at least 50 ft apart.

Jerome Cohen, Esq, P O Box 130, Delano.

55.Colo.1. Perdew, Phillips, Deluxe v Denver (Colo Sup Ct, #22668) Jan 6, 1966: Defs went to Fedl Bldg to protest failure of fedl govt to enforce 1965 Voting Rights Act and murder of Samuel Younge; asked to leave; refused; arrested: Sec 842.1, Denver Rev Muni Code: disturbance of peace. Apr 27, 1967: trial. May 5: guilty: &100 each. Defs appealed: Ct erred: (1) in delivering instructions to jury in chambers instead of open court: denial of public trial; (2) in refusing to give Defs tendered instructions that (a) Defs could not be found guilty if actions provoked by improper invasion of constitutional rights by employees of fedl govt,
- 21 -

(b) Defs had right to be free from unreasonable searches and seizures under Fourth Amdt, (c) it is not illegal to distribute leaflets in fedl bldg, (d) conflict between muni ordinance and constitutional right must be resolved in favor of constitutional right; (3) in denying Defs' motion to dismiss for lack of jurisdiction: Sec 842.1 unconstitutionally vague and overbroad. Pending.

Forrest C O'Dell, Esq, 815 Majestic Bldg; Harry K Nier, Jr, Esq, 1700 Broadway, both of Denver, Colo 80202.

55.DC.5. US v 7 Defs (CA DC, #3798) Mar 11, 1965: 7 staged sit-in inside the White House to protest re Selma, Ala; arrested. Je 22: convicted, 180 days: &300 appeal bond. Jy 5, 1966: DC Ct of App affirmed. CA DC affirmed.
55.DC.6. District of Columbia v Freedom, Jalbert (CA DC, ##3901-3907) Aug 9, 1965: 1000 attended Assembly of Unrepresented People to read Declaration of Peace, listen to anti-Vietnam War speakers; police warned of arrests if demonstrators crossed 1st St toward Capitol, ordered to disperse; people sat down, sang, listened; 300 arrested: unlawful assembly (22 DC Code §1107), disorderly conduct (22 DC Code §1121)—apparently for going limp when arrested. Most Defs pleaded, no trial: &50. 7 Defs moved for jury trial: denied because misdemeanor; 2 acquitted, 5 convicted: 15 days and &200 (or additional 30 days) per count because of taking time of ct for trial. &1500 appeal bond/count. DC Ct of App affirmed. May 22, 1967: CA DC vacated judgment, citing Feeley v DC (#20275), companion case: original informations void for vagueness (constitutional issues, however, not directly touched).

Stanford Robbins and Richard Shlakman, Esqs, 815 Connecticut Ave NW, Washington, DC, for ACLU.

55.Ga.39. Kunney v Holt (MD Ga, Albany Div) (Baker Co) Jy 1965: Picketers beaten severely several times in direct view of law enforcement officers, several times attempted to obtain warrants against offenders: unsuccessful. Aug: Class action filed for temporary restraining order, order to show cause and permanent injunction against local officials' interfering with Pl-civil rights workers' rights of picketing, assembly, petition for redress of grievances, to halt coercion of Negro citizens seeking to register to vote, to send children to white schools, and to protect marchers from beatings and other harassment. Denied.

C B King, Esq, Box 1024, Albany, Ga.

55.Ga.40. Americus v 23 Demonstrators (MD Ga, Americus Div) Aug 2, 1965: Defs picketed market for fair hiring; white bystanders assaulted 2 demonstrators; demonstrators arrested: disorderly conduct, violation of city ordinance. Removed to DC. Pending.

C B King and Dennis Roberts, Esqs, Box 1024, Albany, Ga.

55.Ga.41. Barnum v Chambliss (Americus) (MD Ga, Americus Div, #582) (247 FSupp 794, 11 RRLR 136) Aug 1965: Whites attacked Pl-civil rights demonstrators while police watched. Pls brought class action for temporary restraining order, preliminary and permanent injunction restraining Def police officials from denying Pls' right to march, and failing to protect Pls from harassment. Complaint alleges pattern of discriminatory law enforcement. Show cause order granted. Defs filed cross-claim against Pls to cease demonstrations in violation of city ordinance, including all future violations, moved to dismiss. Nov 15: After extensive hearings (1600 pp), DC denied Pls' motion for injunction, found Pls' witnesses not telling the truth.

C B King and Dennis Roberts, Esqs, Box 1024, Albany, Ga.

See also Southwell, 501.Ga.5, Ga. 5a.

55.Ga.42. Americus v Lewis (MD Ga, Americus Div) Aug, 1965: Def civil rights workers in pray-in in front of 2 white churches, arrested: disturbing worship. Methodist Church dropped charges. Removed to DC. Pending.

C B King and Dennis Roberts, Esqs, Box 1024, Albany, Ga.

55.Ga.43. Americus v 5 Sound Truck Riders (MD Ga, Albany Div) Def members (Sumter Co Movement) planned protest of general conditions of Negroes in Americus, brutal beating of photographer, demonstrators, announced mass meeting from car with sound equipment, arrested: "riding in a sound truck with the sound too loud." Sept 3, 1965: Petition for removal filed: vagueness of ordinances, real purpose of arrests to hinder free speech, denial of equal protection, right to petition, and Pls could not obtain fair trial because of earlier disturbances. Pending.

C B King, Esq, Box 1024, Albany, Ga.

55.Ill.6. Chicago v Gregory, Ambrose (Ill Sup Ct) 1965: Defs picketed Mayor's house in civil rights demonstration; hostile bystander reaction; Defs arrested: violation of disorderly conduct ordinance. Issues: (1) Defs' obligation to disperse upon confrontation by hostile bystanders, (2) Defs' right to picket home of public official in residential neighborhood. Defs convicted. App Ct aff'd. Appeal to Sup Ct pending.

Ronald Silverman, Esq, 19 S LaSalle St, Paul Goldstein, Esq, 5519 S Hyde Park Blvd, both of Chicago.

55.Ill.7. Jewish War Veterans v Nazi Party (Chicago) (ND, E Div) (260 FSupp 452, 12 RRLR 49) 1966: Pl sought injunction against Def's meetings and other activities: will result in deprivation of Pl's rights of privacy, freedom of religion. DC denied: no immediate danger. Later Pl sought temporary restraining order against Def's demonstrations in Jewish areas during Jewish high holy days. DC granted: right "to practice one's religion safely peacefully and with dignity" is protectable; disturbances may occur.
55.Ill.8. Chicago v Hennershot (Ill Sup Ct, #39704M) Defs, civil rights workers, handed out leaflets advertising local civil rights rally; arrested: littering. Issue: constitutionality of trial ct's application of anti-littering ordinance, unconstitutional vagueness of ordinance on face. Je 21, 1967: City admitted error, moved for reversal; ct granted.

Robert M Grossman, Esq, 11 So LaSalle, Suite 815, Chicago 60603.

55.Ill.9. Park District of Chicago v Lyons (Chicago Cir Ct) Ordinance bars distribution of leaflets in parks. Oct 17, 1966: Def-pastor convicted: placing religious tracts in parked cars. Nov 25: motion for new trial denied; Def fined &25, filed notice of appeal to Ill Sup Ct: ordinance too broad and denies religious freedom. Pending.

S T Sutton, Esq, 193 First St, Elmhurst, Ill.

73.La.2a. Louisiana v Amos (Jonesboro) (DC La) Jy 21, 1965: 16 civil rights workers, local Negroes picketing; arrested: disturbing the peace, resisting arrest, unlawful assembly;
- 22 -

&500 to &1500 bond each. Jy 26: Defs removed to DC, filed petitions for habeas corpus, motion to reduce bail. When Defs posted bond, DC dismissed habeas petition as moot. Je 27, 1966: DC remanded on basis of Peacock, 55.Miss.5a, 384 US 808. CA denied Defs' petition for stay. Trial in state ct pending.

Richard B Sobol, Esq, LCDC, 2209 Dryades St, New Orleans, La 70113.

55.Mass.2. Massachusetts v Belton, Lavelle, Somers (Hampden Co Super Ct) 1965: Defs in civil rights demonstration; arrested: disturbing the peace. Defs challenged legality of arrests, abridgment of free speech, assembly. Convicted; appeal pending.

David Burres, George M Nassa, Esqs, 20 Maple St, Spring-field, Mass.

55.Mass.3. Boston v Matthei (Boston Muni Ct) Nov 21, 1966: Defs, 2 18-yr old pacifists, began Fedl Bldg vigil protesting draft evasion convictions of 2 persons. Arrested, with Def-sympathizer who leaped into patrol wagon: disobeying officer. Nov 26: Ct offered to dismiss if Defs would abandon vigil; Defs refused, refused to plead or obtain counsel. Convicted; 5 days or &5. Defs refused fine; carried to jail.
55.Miss.3. Calhoun v City of Meridian (Meridian Muni Ct; SD Miss, Meridian Div, ##5168-5192) Je 13, 1964: Defs picketed Kress, Woolworth's and Newberry's; arrested: obstructing sidewalk (Ord §28.10). Muni Ct found Defs guilty. Defs appealed to Co Ct for trial de novo. Bond: &200 each. Defs filed removal petition to DC. Jy 7: DC remanded to Muni Ct. CA 5 stayed remand order pending appeal.

Don Loria, Esq, Cadillac Tower, Detroit; Charles Markels, Esq, 105 S LaSalle St, Chicago; Nat'l Lawyers Guild Comm for Legal Assistance in the South, 3200 Cadillac Tower, Detroit.

For removal, see 55.Miss.3 at p 36.

55.Miss.3a. Brown v City of Meridian (CA 5, #21730) May 1964: Defs civil rights workers standing in front of five-and-dime store advising potential customers not to trade with store, arrested: 7 charged with breach of peace, 1 with interfering with another's business. June 10: 28 USC §1443 removal petitions filed. Police Ct convicted Defs. See 55.Miss.3a at 73, p 36 for removal proceedings.

Betty Ann Cooper, Esq, 294 Washington St, Boston; Carsie Hall, Esq, 115½ N Farish St, Jackson, Miss; Anthony G Amsterdam, Esq, 3400 Chestnut St, Philadelphia, Pa.

55.Miss.7. Cameron v Johnson (Hattiesburg) (USSC Misc, #1773) (262 FSupp 873, 381 US 741; 88 S Ct 127) Apr 13, 1964: Pls-civil rights leaders sued Def-Miss Gov and other state officials to enjoin enforcement of 1964 Miss anti-picketing statute (House Bill #546). 3-judge DC denied relief (2-1), dismissed. USSC (381 US 741), per curiam (6-3), vacated and remanded for proceedings not inconsistent with Dombrowski, 245.16d, 380 US 479, with DC considering whether 28 USC §2283 bars fedl injunction. Dec 24, 1966: Reconvened 3-judge ct found statute had been constitutionally applied in preventing interference with orderly use of courthouse facilities, thereby distinguishing Dombrowski; DC not authorized to enjoin criminal prosecutions; though not concluding on merits, ct ruled there was "probable cause" for prosecutions; complaint dismissed with prejudice (2-1). May 15, 1967: Appeal filed: (1) Does USC §1983 constitute express exception to injunction bar of Section 2283 of Judicial Code? (2) Does evidence of selective enforcement of statute for purpose of deterring exercise of federal rights warrant federal declaratory and injunctive relief? (3) Is Miss statute void for vagueness? Oct 9: USSC granted forma pauperis petition, noted probable jurisdiction.

Arthur Kinoy and William Kunstler, Esqs, 511 Fifth Ave, NYC; Benjamin Smith, Esq, 305 Baronne St, Bruce Waltzer, Esq, 335 Decatur, both of New Orleans; Morton Stavis and Harriet Van Tassel, Esqs, Law Center for Constitutional Rights, 116 Market St, Newark; L H Rosenthal, Esq, 406 W Capitol, Jackson, Miss.

55.Miss.9a. Mississippi v Hartfield, Anderson (Hattiesburg) (CA 5, ##21811, 21813) Apr 1964: 18 and 44 persons arrested under anti-picketing act, HB 546. Defs removed to SD Miss; remanded without hearing. CA 5 granted stay of remand, pending appeal. See removal aspects at 55.Miss.9a, at p 36.

Ben Smith, Esq, 305 Baronne St, New Orleans.

55.Miss.11. Collins v City of Jackson (CA 5) 1964: 13 ministers, theological students, racially mixed, arrested for disturbing public worship (Miss Code §2009) and trespass. For removal proceedings, see 55.Miss.11 at p 36.

Ben Smith, Esq, 305 Baronne St, New Orleans.

55.Miss.20. West Point v Lockard (West Point) (DC Miss) Apr 23, 1966: Defs, 11 civil rights workers, picketed; arrested: obstructing traffic, blocking sidewalks. Cases removed to DC. Pending.

Alvin J Bronstein, Esq, LCDC, 603 N Farish St, Jackson, Miss 39202.

55.Miss.21. West Point v Buffington (West Point) (DC Miss) Apr 30, 1966: Defs, 128 civil rights workers, marched; arrested: obstructing traffic. Cases removed to DC; pending.

Alvin J Bronstein, Esq, LCDC, 603 N Farish St, Jackson, Miss 39202.

55.Miss.22. Mississippi v 18 Boycotters (Belzoni) (Cir Ct) July 8-9, 1966: Defs, local civil rights workers, picketed in boycott of white stores; arrested: boycotting, trespassing, obstructing sidewalks, total of 24 charges. At trial, 17 charges dismissed by acquittal, 3 Defs found guilty. Defs' appeals pending.

Alvin J Bronstein, Malcolm Farmer III, Esqs, LCDC, 603 N Farish St, Jackson, Miss 39202.

73.Miss.16. Mississippi v Allen (Magnolia) (CA 5) March 1 and 2, 1965: Demonstration at cthouse: 92 arrested: anti-picketing statute. Apr 23: Defs removed to DC. State moved to remand. Je 12: DC granted remand. Je 21: DC stayed remand pending appeal. 1966: CA reversed, remanded to DC for evidentiary h'g. Pending.

Alvin J Bronstein, Malcolm Farmer III, Esqs, LCDC, 603 N Farish St, Jackson, Miss 39202.

55.Miss.25. 265 Defendants v Grenada (ND Miss) Oct 20, 1967: Negro students boycotted 4 schools alleging harassment by white students, administrators; 287 suspended. Oct 24: demonstration, 200 arrested: violation of "legal order"; students under 12 released to parental custody. Oct 25: demonstration, 30 arrested: failure to disperse. Oct 27: demonstration, 16 arrested. DC denied habeas, retained
- 23 -

jurisdiction, advised Defs to seek state relief. Nov 2: students returned to classes.

Marian Wright, Esq, 538½ N Farish St, Jackson 39202.

And see Grenada School Bd, 63.58.

55.NH.2. New Hampshire v Benson, Harvey (Stafford Co Super Ct, #1087-66) Apr 21, 1966: Defs, pacifists marchers, arrested for carrying signs without parade permit. Defs refused to post bail of &50 each. May 2: Defs released. Sentences remitted in all cases except Harvey, who is free on recognizance pending appeal.

Melvin L Wulf, Esq, ACLU, 156 Fifth Ave, NYC.

55.NJ.2. Greeman v Township Committee of Mahwah (NJ Super Ct, Town Division-Bergen Co DOCKET # PW) 1966: Pl challenged handbill distribution ordinance: requires distributor of pamphlet, flyer or handbill to first be fingerprinted, give history of himself and his organization, give place of employment, residence, describe criminal record, if any, give explanation of leaflet or product, pay &5 license fee; Police chief can deny or revoke permit without h'g. Issues: unconstitutional restraint on free speech, prior censorship, illegally discriminates between religious and non-profit organizations and other persons and organizations. Pending.

Seymour Goldstaub, Esq, 449 60th Street, West New York.

55.NY.6. William Turner v New York (USSC) (265 NYS2d 841, 218 NE2d 316, amended 219 NE2d 879, 386 US 773) Aug 8, 1964: assembly in Duffy Square against Vietnam war; small crowd listening peacefully to speeches. While 2 policemen on horseback and 12 patrolmen dispersed crowd, one person hit horse with cardboard placard, one hit policeman, one lay down; arrests: disorderly conduct; charge did not list post-dispersion facts. Convicted. App Term affirmed, based on post-dispersion facts; Hofstadter, J, diss. May 8, 1968: USSC (7-2) dismissed writ of cert as improvidently granted. Douglas, J (Fortas, J), diss: ". . . conviction on one ground may not be sustained on grounds that might have been charged but were not."

Osmond K Fraenkel, Esq, 120 Broadway, NYC.

55.NY.8. New York v Potter, Wiley (NY Sup Ct, 1st Jud Div, ## C 5639-65, B2964-65; C 5624-65, B 2961-65) Mar 19, 1965: Student and civil rights groups picketed, sat down at Chase Manhattan Bank in protest against bank's policy of making massive loans to Govt of Union of South Africa, thus supporting practice of racial repression. SDS, CORE officials, 47 others arrested. Potter: resisting arrest dismissed; disorderly conduct: 5 days workhouse suspended; Wiley: both charges dismissed.

Floyd E Feldman, Esq, 32 Ave C; Burton H Hall, Esq, 136 Liberty St, both of NYC.

55.NY.11. New York v Rosenberg (Sup Ct, App Term, 2d Dept) 1965: Defs, 3 pamphleteers, tended table, distributed pacifist handbills on public sidewalk; arrested: "constructing a vault" on sidewalk in violation of Administrative Code. App Term reversed: against weight of evidence.

Ellis B Levine, Esq, ACLU, 156 Fifth Ave, NYC.

55.NY.12. New York v Dorsey (NY Co Crim Ct) 1966: Def, member of Socialist Labor Party, distributed handbills on 42nd Street; arrested: violation of anti-littering ordinance which specifically exempts political literature. Dismissed on merits.

David Dretzin, Esq, ACLU, 156 Fifth Ave, NYC.

55.NY.15. NYC v Green (NYC Crim Ct) Sept 21, 1966: Negro pickets staged demonstration to block opening of Intermediate School 201 in E Harlem until Negro principal, Negro supervisors, teaching of African Negro history, promotion of neighborhood school concept. Police arrested 5 Negro men, women: disorderly conduct, interfering with policeman performing duty. Pending.
55.NY.16. New York v Katz (Ct of App) 1966: Def distributed leaflets on Vietnam war at sidewalk table; charged with placing an obstruction on public sidewalk in violation of Admr Code. Dec 28, 1967: Ct of App declared statute unconstitutional: void for vagueness.

Isidore Silver, Esq, NYCLU, 156 Fifth Ave, NYC.

55.NY.18. Hempstead v Kidd (City Ct) Jan 21, 1967: Def, 2 other youths sat in to demand integration of village's all-white volunteer fire dept, arrested. May 1: Ct found Defs guilty; 7 days. (First jail sentences for demonstrators on Long Island.)
55.NY.19. Street v NY (USSC) Je 6, 1966: Pl-Negro burned American flag in protest of the shooting of James Meredith during his march through Miss. Arrested and charged with disorderly conduct and "casting contempt" on the flag (NY Penal Law §1425(16)(d)). Crim Ct acquitted on first charge, convicted on second. App Term of Sup Ct and, Jy 7, 1967, NY Ct of App affirmed, Ct of App passing on the constitutional issues. Oct 1967: appeal in USSC pending.

David T Goldstick, John Somers, Albert H Blumenthal, Esqs, 10 E 40th St, NYC.

55.SC.3. DeLee v St George (Dorchester Co Ct; ED SC) Sept, Oct 1965: Voting books open one day/mth; many Negroes registered, 600 on line when office closed. US announced fedl voting registrars to be sent. Def CORE leaders arrested: violating anti-picketing ordinance. Cases removed to fedl ct. Pending.

And see 63.43.

55.Tex.1. Houston v Schact (Corp Ct, #76-027, 866) Je 1967: American Legion staged back-the-war parade; fighting between Marines and peace demonstrators picketing parade. Def-picket arrested: failure to move on. Pending.

Morris Bogdanow, Esq, 411 Melrose Bldg, Houston 77002.

55.Va.4. Re 20 Demonstrators (ED Va, Alexandria Div) May 12, 1967: Defs demonstrated at Pentagon; arrested: unwarranted loitering on fed'l property without proper credentials. May 18: trial.
55.Va.5. Hubbard v Virginia (Va Sup Ct of App) (152 SE2d 250, 12 RRLR 32) Jy 12, 1963: Civil rights worker engaged in demonstration against allegedly discriminatory employment practices; watchman warned Def; police arrested him: trespass, illegal picketing; convicted. Jan 16, 1967: Sup Ct of App affirmed: Def wilfully violated trespass statute by remaining on plant's premises, violated picketing statute by lying down at entrance gate of plant to block it.
- 24 -

55.Va.6. Re Suzanne Williams (Wilmington Muni Ct) Apr 29, 1967: Def participated in Boston to Pentagon Walk for Peace; arrested: leafleting on wrong side of highway. Apr 30: convicted: 20 days.
56. Against and Concerning Minors (incl Contributing to Delinquency) (see also 24, 430, 560)

56.24. Dokes v Arkansas (USSC, #109) (409 SW2d 827, 88 SCt 212) Defs arrested after interracial gathering in apartment: contributing to delinquency of minor. Cir Ct affirmed. On appeal, Defs argue search and seizure; racially motivated arrest. Ark Sup Ct affirmed: wife's invitation to police to enter dwelling constituted waiver; evidence that minors present at gathering where alcohol served sufficient to meet due process requirements. Oct 16, 1967: USSC denied cert.

Delector Tiller, Esq, 2305 Ringo, Little Rock.

57. Against Vagrancy, Loitering

57.10. City of Albany v Harris (Dougherty Co Super Ct) Jy 5, 1964: Defs-SNCC workers refused admission to local swimming pool; asked manager reason for exclusion; arrested at manager's request: idling, loitering, loafing. Jy 9: Rec Ct convicted, denied motions to dismiss based on 1964 Civil Rights Act and other constitutional grounds. Appeal: (1) Whether Defs can be convicted solely on evidence of refusing to leave private property promptly when told to do so; (2) whether ordinance, as applied to Defs' conduct, is void for vagueness; (3) whether it was error for Rec Ct to deny Defs' counsel chance to cross-examine pool owner and present other evidence to bring his business within 1964 Civil Rights Act, Title II; (4) whether state, through its police and courts, are denying equal protection by arresting and prosecuting Defs. Super Ct granted cert. Pending.

C B King, Esq, Box 1024, Albany, Ga.

57.13. New York v Miller (NY Sup Ct, App Term, 1st Dept) Mar 24, 1964: Def, male, arrested while wearing women's clothing and makeup: vagrancy. NY Code Crim Proc §887(7) defines vagrants to include persons wearing disguises. Legislative history shows intended to prohibit wearing disguise as aid to commission of crime. Crim Ct convicted. Issues on appeal: (1) construction of code; (2) whether prohibition of this conduct violates due process as arbitrary and unreasonable, since conduct not inimical to public welfare.

Arthur Galligan, Esq, 20 E 46th St, NYC; Janet Johnson and Nanette Dembitz, Esqs, for amicus NYCLU, 156 Fifth Ave, NYC.

57.18. Alabama v Levin (SD Ala) Sept 1965: White SCOPE worker arrested: vagrancy. Def removed to DC; pending.

Peter Hall, Esq, Birmingham; NAACP Inc Fund.

57.24. Detroit v Wedlow (Mich Ct of App) Aug 12, 1965: Def talking with friend on sidewalk; ticketed: loitering. Recorder's ct found Def guilty: &10 fine. Def appealed: ordinance void for vagueness. Pending.

Richard Krandle, Esq, 2450 Guardian Bldg, Detroit 48226; ACLU amicus brief by Sheridan Holzman, Esq, 1600 Washington Blvd Bldg, Detroit 48226.

57.25. New York v Hirshborn (App Term, 1st Dept) 1966: Challenge to narcotics prosecution on claim seizure illegal because entrance obtained unlawfully: challenge to vagrancy law making it offense for men to wear women's clothes in public. App Term affirmed. Ct of App denied appeal. USSC denied cert.

Gerald Zuckerman, Esq, 36 W 44th St, NYC.

And see Abrams, 337.1.

57.26. In re Hoffman (Los Angeles) (Calif S Ct) Labor Day, 1966: 15 Defs handed out leaflets about Fort Hood Three, 126.13, in train station; RR police told them to leave private property; arrested: loitering in station, remaining longer than necessary to do business with common carrier (LA Muni C §421.11.1). Muni Ct found 6 Defs not guilty: arrested in main waiting room, area exempted from ordinance; 9 Defs guilty: arrested in courtyard. App Dept aff'd. Dec 1967: Cal S Ct reversed (4-2): (1) littering done by people who took leaflets; (2) streets, parks must be open for First Amdt activities, Hague v CIO (1939) 307 US 496, and their regulation must be valid public purpose: overbroad restrictions unconstitutional if not required to prohibit activities that interfere with use of public place; (3) immaterial that Pets could have distributed leaflets elsewhere.

Michael Hannon, Esq, 323 W 5th, Los Angeles 90513, for ACLU.

57.27. Fenster v Leary (USSC; NY Ct of App, #248) (386 US 10) 1964: Def arrested 3 times: being a person "who not having visible means to maintain himself, lives without employment." Def sought 3-judge fedl ct to enjoin prosecution under vagrancy statute, CCP §887(1). Ct held statute not alleged to be vague, to involve First Amdt rights, or to require prolonged litigation to determine constitutionality; no showing of irreparable injury; abstained from deciding validity of statute. Feb 13, 1967: USSC, per curiam (8-1), granted motion to affirm; Douglas, J, diss. Jy 7: NY Ct of App (5-2) held act unconstitutional: "unreasonably makes criminal and provides punishment for conduct (if we can call idleness conduct) of an individual which in no way impinges on the right or interests of others."

Emanuel Redfield, Esq, for ACLU, 156 Fifth Ave, NYC.

And see cases at 420s.

58. Against Trespassing
(see also 541, 542, 551, 552)
58.Calif.9. California v Burbridge (San Francisco) (USSC) (cd 386 US 1030, 1031) Mar 1964: Def and 243 other demonstrators sat in at mass demonstrations against discriminatory hiring at Sheraton-Palace Hotel. Agreement signed to hire minority group members by hotel assn, unions, demonstrators. All convicted of unlawful assembly, disturbing the peace by Muni Ct; Burbridge received 9 mths, others small sentences and fines. DCA, Calif Sup Ct refused to hear. Questions in petitions for cert: (1) Were demonstrators denied due process, equal protection by systematic exclusion of Negroes from juries through use of peremptory challenges? (2) Were demonstrators denied due process, equal protection by imposition of varying sentences by judges who assumed identical conduct, personal history, and character of defendants? (3) Did judges' offer to substantially lower sentences if demonstrator would change not guilty plea to "nolo contendere" deny due process, jury
- 25 -

trial, and fair sentences? (4) Is ban on unlawful assembly (Penal C §407) and disturbing the peace (Penal C §415) void for vagueness? May 8, 1967: USSC denied cert.

Gov Brown commuted Burbridge's sentence after 30 days. Uncertain to what extent nondiscrimination agreement being followed.

Hartley Fleischmann, Esq, 593 Market St; Aubrey Grossman, Esq, 1095 Market St, both of San Francisco.

58.Calif.11. California v Wright (Los Angeles) (Super Ct, App Dept) May 1964: During campaign against Proposition 14 (see Mulkey v Reitman, 533.Calif.26, 87 S Ct 1627), 14 persons demonstrated against discriminatory policies outside meeting of Southwest Realty Board; arrested: trespass (Pen C §602(j), and breach of peace (§415). After 7-week jury trial, Defs acquitted of state charges, convicted of blocking exit (muni ordinance): 9 Defs-&50 or 5 days; 5 Defs-&100 or 5 days plus 10 days suspended and 3 yrs probation. Appeal pending.

Randolph Moore, Jr, Esq, 4038 Buckingham Road; Benjamin N Wyatt, Jr, Esq, 4213 S Broadway, both of Los Angeles.

ACLU of S Calif filed amicus brief.

58.Calif.18. California v Comfort, Goldberg (Oakland) (USSC) 1964: Long controversy between ex-Sen Knowland's Oakland Tribune and Ad Hoc Comm to End Discrimination over newspaper's allegedly discriminatory employment policies. Dec 12: Comm decided against civil disobedience; dissident faction sat in at gate; Comm leaders monitoring picketline and 16 sit-ins arrested: trespass, disturbing peace, failure to disperse, constituting public nuisance. 7 convicted, others pending: 30 days, 20 days, year probation. July 22, 1966: Douglas, J, ordered Comfort freed pending possible review of case. Def contends he was speaking at public meeting where sit-in was urged by others but not endorsed by Def. USSC denied cert.

Robert Treuhaft, Edward Dawley, and Malcolm Burnstein, Esqs, 1440 Broadway, Oakland.

58.Calif.20. California v Aronson (Berkeley Muni Ct) Mar 25, 1966: Def, ex-prof who had refused to sign Levering loyalty oath, refused U of Calif requests to leave Peace Rights Organizing Comm table on campus; arrested: violation of Mulford Act: misdemeanor for non-student to refuse to leave campus upon request of authorized Univ officer if "liable to interfere with the peaceful conduct of activities on the campus." Feb 14, 1967: After trial, found not guilty: no breach of peace.

Arthur Wells, Esq, 2890 Telegraph, Berkeley.

And see Poland, 55.Calif.18.

58.Calif.20a. California v Thomson (Berkeley-Albany Muni Ct, #13878) Def sitting in chair at UC Student Center Lounge with eyes closed. Campus police wakened him, asked if he were student and who he was. He said he was not a student, arrested: trespass (Pen C §602(1)). DA agreed to dismiss case: statute requires warning and request to leave at time other than arrest itself.

Henry Elson, Esq, 2020 Milvia, Berkeley 94704.

58.Calif.21. California v Henderson, Manganiello (Redwood City Muni Ct) May 16, 1966: Defs stood in front of truck loaded with empty bomb shells at entrance to napalm plant; arrested: creating public nuisance. Tried; convicted: Henderson: 10 days; Manganiello: &110 fine, 1 yr probation.
58.Calif.22. California v Hutchinson, Calvelage (Muni Ct) May 25, 1966: Defs-housewives blocked truck carrying napalm; arrested: trespass. Ct instructed jury to consider Defs' claim of allegiance to "higher law" under Nurnberg rule; jury convicted.

H Reed Searle, Esq, 1884 The Alameda, San Jose.

58.Calif.24b. US v Bishop, Smith, Tavalin and Kangas (ND Calif) (261 FS 969) Aug 1966: Def-peace demonstrators arrested for trespass on government property, 18 USC 1382. Gov't moved to quash Defs' request for jury trial because "petty offense" denied. DC dismissed cases against some since US didn't own Pt Chicago; after jury hung, dismissed remaining Defs. No Gov't desire to retry.

Alan Brotsky, Esq, 341 Market St, San Francisco; Peter Franck, Esq, 2890 Telegraph Ave; Gabriel Werbner, Esq, both of Berkeley; James T Heavy, Esq, 1430 Franklin St, Oakland.

Article: Garwood Smith, Port Chicago Trial (Or How I Learned to Stop Worrying and to Stall the Bombs). 26 Guild Practitioner 114 (1967).

And see cases at 126.

58.Calif.26. California v Voorhees, Johnson (Muni Ct Contra Costa Co) Aug 1966: Defs stood in front of napalm trucks at Port Chicago Naval Base. May 1967: Trial held, Ct refused to allow testimony on international and moral law, found Defs guilty of charges of public nuisance, obstructing arrest.
58.Calif.27. California v Chavez, Saladini, Hartmire (San Diego Super Ct) Defs, NFWA director and 2 sympathetic ministers, sought to talk to farm workers at their houses on DiGiorgio Farms property; arrested: trespass. Justice Ct found Defs guilty. Defs' appeal pending.

William F Gavin, Esq, Spreckles Theater Bldg, 123 Broadway, San Diego, for ACLU.

58.Calif.28. Parrish v Muni Ct (Stanislaus Co Super Ct, #93389) Je 30, 1966: Pet, field supervisor, Calif Center for Community Development (OEO-funded) debated officials in Welfare Bldg past 5 PM closing, left only after officials agreed to aid his client. Aug 25: Similar debate; bldg locked at 5 PM. 8:30 PM: Co DA, Police Chief ordered Pet to leave. Pet refused unless promised aid for client; arrested: Pen Code §602(o) (trespassing). Arraignment; Pet demurred; (1) No allegation Pet lacked lawful business, (2) bldg must be open 24 hrs, (3) §602(o) unconstitutional. Resp-Muni Ct overruled, set Oct 21 trial date. Oct 17: Pet sought writ of prohibition, trial stay in Super Ct; alternative writ granted. Oct 26: Resp filed demurrer, motion to recall and quash. Nov 9: H'g. Jan 31, 1967: Super Ct permanently stayed trial: (1) §602(o) applies to sit-ins, (2) Welfare Bldg is "public," DA is "custodian" within statute, (3) Welfare Bldg needn't open 24 hrs, (4) Pet's lawful business ceased when asked to leave, (5) §602(o) not unconstitutionally vague, (6) but, Je 30 acquiescence led Pet to believe he had apparent lawful business; prosecution would entrap Pet, entrench upon First Amdt activity.

Albert Bendich, Esq, 2550 Telegraph Ave, Berkeley; Coleman Blease, Esq, 1107 9th St, Sacramento.

And see cases at 420s.

- 26 -

58.Calif.30. Oakland v Kennedy (Oakland Muni Ct) Jy 27, 1967: 125 persons picketed Oakland Army Induction Center. Police ordered picketers to move on; 13 sat on pavement, arrested on complaint of building manager: maintaining a public nuisance, trespassing, disturbing the peace. &716 bail each. Jy 31: Ct sentenced Defs: &22 fine or 2 days jail: 10 elected jail, 2 sentenced to 30 days suspended: 1 minister—fine suspended conditioned on 6 mths without similar arrest.
58.Calif.31. Oakland v Ganoung (Oakland Muni Ct) Je 29, 1967: 600 persons picketed Oakland Army Induction Center; 20 blocked entrance, arrested on complaint of building manager: trespassing, disturbing the peace. Defs released on &600 bail. Jy 19: All Defs pledged no contest; &22 fine or 2 days jail. 7 Defs paid fines, 13 went to jail.
58.Fla.4. Adderley v Florida (USSC) (385 US 1020) Facts: XI DOCKET 68 at 58.52; XII DOCKET 1 for opinions. Case notes: 19 Alabama 478-484; 55 California 549-558; 44 Denver 300-306; 45 N Carolina 724-740; 18 Syracuse 637-642; 18 Reserve 1396-1404; 8 William & Mary 455-459.
58.Ga.14. Georgia v Rachel (USSC) (382 US 957) Facts: X DOCKET 17—XI DOCKET 9. Case notes: 19 Florida 388-391; 14 UCLA 1159-1170; 20 Vanderbilt 177-182; 13 Wayne 456-467.

And see other removal cases at 73.

58.Ga.15. US ex rel Tolg v Grimes (Atlanta) (CA 5) (355 F2d 92, 11 RRLR 328, 1966) Je 1963: Rel-white sociologist picketed restaurant, allegedly blocking entrance; arrested: trespass. May 1964: state ct convicted: &1000, 18 mths (14 suspended if Rel agreed not to demonstrate illegally). Rel moved for new trial; denied: Rel did not receive notice of denial. Rel began serving sentence; time for appeal expired; Rel sought habeas corpus in DC. May 1964: DC denied writ: Rel had standing because failure to appeal was not willful; but (in absence of state equal accommodations policy) trespass statute was constitutional on face and as applied. Jan 24, 1966: CA reversed: retroactive effect of 1964 Civil Rights Act made conviction illegal; Ga's explicit waiver of exhaustion of state remedies gives DC jurisdiction; state habeas corpus, as applied in Ga, would be inadequate remedy.

Howard Moore and Donald L Hollowell, Esqs, 859½ Hunter St NW, Atlanta.

58.Mich.2. Michigan v Halprin (Mason Muni Ct) Oct 1966: 4 students passed out leaflets opposing war at Marine Corps exhibit on Michigan State campus, arrested; trespassing. Mar 30, 1967: convicted, 30 days.
58.NY.5. New York v Day, Knapp (Syracuse) (NY Sup Ct, 5th Jud Dist Indictment #65-167) Spring 1965: CORE initiated campaign to change allegedly discriminatory employment policies of Niagara Mohawk Power Co. Demonstrations, sit-in in office of Co president: 11 arrested, 4 Defs stalled-in at plant entrances for 2 hrs, chained selves under cars; arrested. Def-Knapp attempted to dissuade police from removing demonstrator from beneath car without first cutting chains which bound him to it; arrested: interfering with arrest. Def Day indicted on 4 counts of assault, 2d degree; pleaded not guilty. Day's charges reduced to 3rd degree. He pleaded guilty: 1 yr (suspended) and &100.

Faith Seidenberg, Esq, State Tower Bldg, Syracuse.

58.Ohio.1. Ohio v Mitchell, Ferguson, Shuttlesworth, Powell (Cincinnati Muni Ct, Crim Div, ##78384, 78385, 78387, 78388) Defs picketed Drake Memorial Hospital asking fair treatment for Negro employees. Hospital administrator told Defs to cease picketing: they refused; Defs arrested: trespassing. Defs moved to dismiss: on public roadway and not interfering with pedestrians. Motion overruled; Defs found guilty; 1 yr probation and costs. Defs' motion for stay of execution granted. Defs' motion for new trial denied. Appeal pending.
59. Against Miscellaneous Criminal Activities
Proposed Iegislation: DC anticrime bill. NY Times, Je 27, 1967.

Calif gun laws. SF Chronicle, Jy 29, 1967; Aug 1, 1967.

59.27a. Mississippi v Aaron Henry (Miss Sup Ct, #42652) (154 So2d 289; 174 So2d 348; 379 US 443; 198 So2d 213; 388 US 901) 1961: Def, state NAACP pres, arrested for improper advances to white youth; convicted. Cir Ct affirmed. Miss Sup Ct reversed: search of Def's car, parked in his driveway, illegal without warrant, tho Def was at time of search in custody and Def's wife consented and gave police the key. On reconsideration, Sup Ct affirmed conviction: tho search unlawful, failure to object at trial waived Def's right to have evidence excluded. Jan 18, 1965: USSC (5-4) vacated and remanded. Brennan, J, "for a hearing on the question whether the Pet is to be deemed to have knowingly waived decision of his fedl claim when timely objection was not made to the admission of the illegally seized evidence"; "A litigant's procedural defaults in state proceedings do not prevent vindication of his fed'l rights unless the State's insistence on compliance with its procedural rule serves a legitimate state interest"; USSC will consider this question in each case. Black, Harlan, Clark, Stewart, JJ, diss. 1965: Miss Sup Ct remanded to trial ct for determination of waiver issue. 1967: Trial ct held no intentional waiver. Miss Sup Ct reported finding of intentional waiver to USSC. Je 12: USSC denied motion to reinstate judgment; said further proceedings should follow final state judgment. Jy 10: Miss Sup Ct reinstated original conviction. Petition for cert pending.

R Jess Brown, Esq, 125½ N Farish, Jackson; Jack H Young, Esq, 115 N Farish, Jackson 39201.

59.31. US v Hensley, Stacy, Turner, Engle (cd 87 SCT 2139) Je 17, 1963: Defs, Ky miners, arrested on charges of violating federal train wreck statute (conspiracy to blow up RR bridge). Defs freed on bail. Def-Stacy turned State's evidence. Oct 1963: Fedl grand jury indicted 5 miners, 1 dynamite supplier. Feb 7, 1964: Gov't filed motion to remove trial from Jackson (coal field area) on ground of impossibility of securing jurors not intimidated by Defs. DC denied. Jy 1964: Charges against Def-Gibson dismissed on motion of US; 4 Defs convicted. CA 6 affirmed. Je 17, 1967: Petition for cert denied. Application for re-hearing pending: (1) denial of right to counsel—after counsel retained, Defs questioned by commr; (2) failure to grant separate trials; (3) voluntariness of confessions question for jury before considering general verdict; (4) failure of Gov't to make record of grand jury proceedings; (5) Ct's failure to strike testimony of Gov't witnesses whose prior statements FBI destroyed; (6) improper conduct of Dept of
- 27 -

Justice witnesses; (7) unlawful searches and seizures; (8) no proof Defs intended to wreck train.

Paul O'Dwyer, Esq, 40 Wall St, I Philip Sipser, Esq, 50 Broadway, Leonard B Boudin and Henry Winestine, Esqs, 30 E 42d St, all of NYC; Dan Jack Combs, Esq, Pikeville, Ky; Committee for Miners, 96 Greenwich Ave, NYC.

59.37. Mississippi v Hancock (Leflore Co Ct) Mar 31, 1964: Def charged with perjury for failing to admit felony conviction on voter registration form. Def served sentence in 1961, claims he had no lawyer, was not guilty of felony. Bond—&5,000. Removed to DC; remanded; appeal and motion to quash pending.

Ben Smith, Esq, 305 Baronne St, New Orleans.

And see cases at 501.Miss.

59.60. Berkeley v MacKaness (Berkeley Muni Ct) Sept 13, 1966: After being cited for jaywalking, Def arrested for violation of Military & Veterans Code, §614d, when he sat down on curb with American flag knotted around his neck in cape fashion. Found guilty: 15 days (suspended), 1 yr ct probation.

Michael Ballachey, Esq, 2020 Milvia, Berkeley.

59.62. Hawaii v Lombardi and Kent (Honolulu) Mar 21, 1966: Defs displayed caricature of flag with dollar signs replacing stars, and with stripes dripping blood; arrested: desecrating American flag. May 25: found guilty; fines &25-&50; 30-day suspended sentence. Jan 6, 1967: On appeal, nolle prosequi.

Speech: Cong Matsunaga, Right to dissent defended by Judge Masato Doi. Cong Rec—App. Jy 13, 1967, A 3547.

59.70. Detroit v Judith Bowden (Mich Ct of App, #1821) Jy 8, 1965: Def arrested: violation of ordinance prohibiting `known prostitute . . . to repeatedly stop pedestrian or motor vehicle operator by hailing, whistling, waving of arms' in public place. Def convicted; fine and probation. Def appealed: denial of due process—ordinance dispenses with proof of criminal intent. Ct of App found ordinance unconstitutional. Appeal to Mich Sup Ct denied.

ACLU amicus brief by Maurice Kelman, Esq, 1600 Washington Blvd Bldg, Detroit 48226.

59.71. New York v Eisenberg (Brooklyn Crim Ct) Mar 5, 1967: DuBois Clubs coordinator allegedly interfered with arrest of other club member during a near riot. May 25: Def convicted. Jy 7: sentencing.

Paul Chevigny, Esq, NYCLU, 156 5th Ave, NYC 10010.

59.72. Alabama v Taylor (Selma) (Recorder's Ct) Nov 5, 1966: Def, SNCC field worker, arrested: blocking traffic and resisting arrest. Nov 22: convicted: &77.
59.73. Alabama v House (Selma) (Recorder's Ct) Nov 5, 1966: Def, SNCC field secretary, arrested: inciting to riot. Nov 29: convicted: &100 and 30 days hard labor.
59.74. Alabama v Hadnott, Moorer, Leon, Sims (Prattville) (Co Ct) Spring 1966: Defs in civil rights protest demonstration arrested: assault with intent to kill. Mar 13, 1967: Defs pleaded guilty to reduced charges of simple assault; &25-&100 fines.
59.75. Kirkland v Wallace (Greene Co) (CA 5) Pls engaged in boycott demonstrations; arrested: violation of Ala antiboycott statute. Pls sued for: (1) preliminary injunction against prosecution of Pls, (2) declaration that statute unconstitutional. Ala Atty Genl dropped charges against Pls, moved Pl's complaint be dismissed: action now moot, use of statute was `slip up.' DC dismissed complaint. Pls appealed: mere existence on books of such statute is restraint on First Amdt rights of peaceable petition. Pending.

Donald A Jelinek, Esq, LCDC, 31½ Franklin St, Selma, Ala 36701.

59.76. California v Pollack (San Francisco Muni Ct) Def, member of drama group, played in park; police requested identification, told Def to "come along," struck him. Def arrested: (1) destruction of public property, (2) disturbing peace, (3) resisting arrest, (4) committing battery on policeman, (5) using profane language in presence of women. Ct dismissed (1), (2); Muni Park Code provisions preempted by state law, no damage to property. Jury acquitted Def on (4), (5); hung on (3). Dist Atty dropped case.

Ephraim Margolin, Esq, 683 McAllister; Evander Cade Smith, Esq, 333 Franklin; both of San Francisco.

59.77. California v Smith (Monterey Super Ct) Spring, 1966: Defs, 4 students, camped out on ranch property without owner's consent; arrested: violation of Pen C §602(1): misdemeanor to enter and occupy property without owner's consent. Apr: convicted. Jan 3, 1967: Super Ct reversed: transient overnight use of small area in large ranch not type of conduct which legislature intended to prohibit by use of word `occupy.'

Francis Heisler, Esq, PO Box 3996, Carmel, Calif 93921.

59.78. Los Angeles v Monroe (LA Muni Ct) Dec 10, 1966: Defexec director, ACLU of Calif, observed rally on Sunset Strip protesting police harassment of teenagers; arrested: interfering with police officer, failure to identify self (Calif Pen C §647e): misdemeanor if person loiters or wanders on streets or from place to place without apparent reason or business and fails to identify self to officer. Dec 14: Def arraigned; refused to plead pending filing of demurrer to constitutionality of failure-to-identify charge. Feb 7, 1967: Muni Ct enjoined police or prosecutor from commenting on arrest, held failure-to-identify provision unconstitutional. Sup Ct and Ct of App affirmed. Charge dismissed.

A L Wirin, Allen Neiman, Esqs, ACLU, 323 W Fifth St, Los Angeles.

And see Monroe, 354.14; Weger, 51.Calif.12.

59.79. California v Brown (Sacramento Super Ct) Sept 17, 1966: Def-evangelist held meeting in tent, on private property, whose dimensions exceeded 100 ft; arrested: loudspeaker violated ordinance prohibiting amplification of speech except for "outdoor sports" beyond 100 ft. Je 7, 1967: Super Ct declared ordinance unconstitutional as violation of equal protection.

Lawrence Karlton, Esq, 1107 9th St, Sacramento.

59.80. San Francisco v 29 Haight-Ashbury Defs (San Francisco Muni Ct) Jan 14, 1967: Defs, among others, participated in `love meet,' gathering on Haight Street; arrested: disturbing peace, failure to disperse, resisting arrest. Defs out on bail. Pending.
59.81. San Francisco v Edmundson, Heron (San Francisco Muni Ct) Jan 16, 1967: Defs picketed Purity store in support of
- 28 -

Delano strikers' demand that Perelli-Minetti wines be removed from shelves. 2 girls allegedly drove car into line of pickets, 1 made citizen's arrest of Def-Edmundson: malicious mischief. Def-Heron arrested: interfering with arrest. Pending.
59.82. In re Mark Comfort (Oakland Muni Ct) Feb 1967: Police attempted to arrest Def's neighbor, who resisted; Def, civil rights worker facing other trials, offered to help police; arrested: interfering with arrest, disturbing the peace. Apr: acquitted.

And see Comfort, 58.Calif.18.

59.83. California v Bethea (Sacramento Muni Ct) May 2, 1967: 30 Def-members of Black Panther Party entered State Assembly chamber bearing firearms in protest against pending anti-gun legislation; Sgts-at-arms ejected Defs. Police disarmed, arrested Defs: Fish & Game code section prohibiting loaded guns in vehicle. Jy 21: 6 Defs pleaded guilty to misdemeanor: disrupting legislative session. Felony conspiracy charges dismissed. All charges against 9 Defs dismissed: insufficient evidence. Aug 11: 5 Defs sentenced: from 90 days, 3 yrs probation to 10 days, 2 yrs probation.
59.84. California v Gurner and Maginnis (San Mateo Co) (Super Ct) Defs led class on self-induced abortions, passed out written information and "abortion kits"; arrested: advertising any means for producing abortion (Bus & Prof C §601). Defs claim statute violates First Amdt. May 19, 1967: h'g.

Marshall W Krause, Esq, 503 Market; Patrick Hallinan, Esq, 345 Franklin, both of San Francisco, for ACLU.

59.85. California v Gray, Coleman (Los Angeles Muni Ct) Defs, civil rights workers, placed signs reading "B—, B—, B—" alongside those already posted in behalf of candidates for political office; arrested: violation of ordinance prohibiting placing of placards on private property without consent of owner. Convicted. Defs appeal: denial of First Amdt rights: Defs convicted but others putting up political signs were not. Pending.

David Binder, Esq, ACLU, 3810 Wilshire, Los Angeles.

59.86. California v Cooks (San Diego) (Super Ct, App Dept) 1967: Def-bartender advised patron being questioned by police not to show ID unless told why he was being questioned. Police arrested Def: Resisting arrest (Pen C §148). Trial Ct dismissed in interests of justice (Pen C §1385), Def's speech constitutionally protected. State appealed; App Dept reversed: verbal act, like non-action (going limp) can be resistance.

Louis Katz, Esq, 1540 6th St, San Diego 92101.

59.87. Atlanta v Carmichael (Atlanta Muni Ct) Je 20, 1967: Def-SNCC Field Secretary ordered to move on by Atlanta police captain; refused; arrested: failure to move on. Je 20-21: disturbances; one Negro killed. Je 22: Def convicted, sentenced &53 fine or 50 days. Je 25: Def released on &1000 appeal bond.

Howard Moore, Jr, Esq, 859½ Hunter St NW, Atlanta 30314.

59.88. Chicago v 19 Defs (Chicago) (City Ct) Apr 9, 1967: Defs attended party sponsored by Student Mobilization Comm and Chicago Peace Council; police arrived without warrant, not permitted to enter house. Defs arrested: disorderly conduct; Def-Abrams, owner of house, arrested: aggravated assault, resisting arrest, selling liquor to minors, keeping disorderly house, contributing to delinquency of minors. May 10: Trial.
59.89. Louisiana v Tyson (USSC, #604) (241 FSupp 142, 176 So2d 147, 382 US 942) Def-Plaquemine civil rights leader charged with unauthorized use of rented car. Ct denied motion to quash bill of information. Def removed to DC; La moved to remand. May 10, 1965: DC remanded: (1) mere local prejudice against Def not sufficient ground for removal; (2) 28 USC §1443 does not authorize removal as no state law prevents Def from receiving fair trial, no showing that cts and DA not fair, impartial, unbiased. Trial ct convicted. La Sup Ct affirmed. Dec 6: USSC denied cert. Appeal on due process issues now pending before CA 5.

Smith and Waltzer, Esqs, 305 Baronne St, New Orleans.

59.90. In re James Griffin (Detroit) 1967: Teach-in held at Wayne State University; members of right-wing group "Breakthrough" tried to disrupt meeting; Pet attempted to remove them; arrested: disturbing the peace; convicted. Appeal pending.

Lee Molette, Esq, 2436 Guardian Bldg, Detroit 48226.

59.91. Mississippi v Chinn (Hinds Co Ct) June 1966: Night before Meredith March to arrive in Canton, bomb exploded in Freedom House; Def, leader of Canton civil rights movement, went with others to investigate; scuffling, shooting; white man wounded. Def arrested: assault and battery with intent to kill. Def moved for change of venue: could not get fair trial in Canton; motion granted. Trial pending in Hinds Co Ct.

Alvin J Bronstein, Malcolm Farmer III, Esqs, LCDC, 603 N Farish St, Jackson, Miss 39202.

59.92. Chisum v Fitzpatrick (Issaquena Co, Miss) (Cir Ct) Sept 8, 1966: Def-law student doing research for school desegregation suit by following school bus to find out whether it passed homes of Negro children, whether too crowded to carry them. Pl-bus driver swore out warrant for Def, charging: reckless driving. Justice of Peace ruled Def guilty, &100 fine. Def appealed. Cir Ct changed charge to following bus too closely. Jury could not agree on verdict, judge declared mistrial.

And see cases at 522.Miss.

59.93. New Jersey v Baird (NJ Sup Ct, #M-318 Sept Term 1966) Def, Dir of Parents' Aid Society, described birth control methods and displayed birth control devices; arrested: dissemination of birth control information in public (NJS 2A:170-76). Def fined &100 and 20 days. Monmouth Co Ct affirmed. Apr 18, 1967: appeal filed in Sup Ct; claim: statute abridges free speech. Pending.

Robert I Ansell, Esq, 513 Bangs Ave, Asbury Park, NJ 07712.

Amicus by McCarter & English, Esqs, 550 Broad St, Newark, NJ, for Planned Parenthood.

59.94. US v Leary (ED NY) Oct 10, 1966: Def LSD cultist arrested: failure to register with US Customs as narcotics user upon entering and leaving country (18 USC §1407). Pending.
59.95. New York v Twelve Masked Demonstrators (NYC Crim Ct) Aug 7, 1967: 30 picketed USN destroyer returned
- 29 -

from Vietnam; 12 wore death masks, arrested: NY law forbidding masquerading by groups greater than 3. Pending.
59.96. US v Brown (SD NY) Aug 19, 1967: Def-SNCC chairman arrested in NY on La complaint: carrying firearm on interstate flight while under indictment. US Commr set bail at &25,000, denied motion to reduce. Aug 21: Def again moved to reduce; denied. Def sought order to show cause in DC; granted. Aug 22: New Orleans fedl grand jury indicted Def. In NYC, bail reduced to &15,000; Def freed. Aug 24: Def sought permission to leave jurisdiction for speech tour, granted; h'g on removal to La DC continued to Sept 14. Pending.

William Kunstler, Esq, 511 Fifth Ave, NYC.

And see Brown v Clark, 54.20.

59.97. US v Hawke, Marin de Montmarin (Buffalo) (WD NY) 1965: Defs, British and French, arrested: violation of Munitions Control Act: exported bombers to Portugal without required license. Defs claimed they had approval and assistance of US Govt, through CIA. Oct 1966: Defs acquitted.

Edwin Marger, Esq, Seybold Bldg, Miami, Fla.

59.98. Ohio v Russell, McCann (Cleveland) (Com Pleas Ct) Nov 13, 1965: Police and Liquor agents raided benefit for The Militant; arrested 30 persons: disorderly assembly; rearrested :4 illegal sale of liquor; rearrested 4: assaulting police officer. 3 charged with liquor violation pleaded no contest: fined &100; 4th acquitted. Jy 12, 1966: disorderly assembly charges dismissed: faulty warrants. Jy 23: at height of Hough ghetto outbreak, 30 rearrested on disorderly assembly charge. Defs contend second arrest constitutes double jeopardy, ordinance unconstitutional. Feb 6, 1967: 8 Defs convicted: &20 and ct costs; charges against 22 dismissed. Appeal pending.
59.99. Pennsylvania v Williams, Middleton, Ballard (Levittown) (Buck Co Ct) Mar 5, 1966: Def-Negroes demonstrated at police hqtrs: discrimination in hiring; arrested. Nov 29: Ct dismissed resisting arrest charges; Defs agreed to pay ct costs.
59.100. Swain v Tennessee (Tenn Sup Ct) (407 SW2d 452; 12 RRLR 23) Police arrested Negro: extortion; convicted. Def appealed: his actions amounted only to legal efforts to induce businessman to employ more Negro salesmen. Oct 7, 1966: Sup Ct affirmed: Def's efforts for Negroes was attempt "to erect a facade of legality to cover or obscure his true and sinister intent and purpose to extort."
59.101. Dallas v Wilkes (Co Ct) Aug 26, 1967: Defs, minister and 3 women members of Dallas Comm for a Peaceful Solution in Vietnam, carried picket signs in downtown mall; arrested: violation of week-old ordinance banning use of mall for unusual acts without police permit. Pending.
59.102. Virginia v State Prison Guard (Richmond Co) Dec 8, 1966: Va Gov Godwin posted &1000 reward for information leading to arrest and conviction of cross burners. Jan 1, 1967: Police arrested 5 persons, incl penitentiary guard, for burning crosses on public property. Gov said flaming cross "is a symbol of terror ... which must be wiped out."

And see Price, 590.10.

59.103. Virginia v Price (Richmond) (Hustings Ct) Def burned cross in public. Mar 16, 1967: All-white jury convicted Def; 3 yrs.
59.104. Bardwell v Griffin (La Crosse, Wis City Ct) Def authored "Black Like Me," autobiographical recounting of experiences of white impersonating Negro in Deep South. Def lectured in city despite right wing attacks. Je 1966: Pl-13 year old sued Def-author for damages on ground of mental and moral injury suffered from reading book. Pending.

Johns, Pappas, and Flaherty, Esqs, 616 Exchange Bldg, 205 Fifth Ave S, La Crosse, Wis.

59.105. Fayette Co v Hortenstine (Somerville, Tenn) (Genl Sess Ct) Dec 1966: White civil rights worker stopped by police: no wheel tax sticker on car. Woman protested: not resident of Co, car had not been in Co for requisite 45 days; arrested. Co Genl Sess Ct fined her; she refused to pay, served 20 days in jail.

Southern Conference Educ Fund, 3210 Broadway, Louisville 40211.

59.106. New York v Radich (NYC City Ct) Artist displayed American flag shaped like a cadaver hanging from a noose to express opposition to Vietnam war in way deliberately intended to be shocking and offensive. Police summoned gallery owner to appear in ct for violating NY penal code. Def contends artist's right to create art sacred even to warrant offending some citizens; as sacred as man's religion. Pending.

Aryeh Neier, Esq, NYCLU, 156 Fifth Ave, NYC.

60. Civil Sanctions (and Contempt Charges)
61. Against Defamation, Libel, Slander
(see also 53)

Comments: Vindication of reputation of public official. 80 Harvard 1730-1756.

Immunity for libel of candidates: Fignole v Curtis Publishing Co (247 FSupp 595, 1965) 20 Arkansas 194-195.

61.9. New York Times Co v Sullivan (376 US 254) Facts: VIII DOCKET 9—IX DOCKET 42. Case note: 50 Marquette 556-559.
61.11. NY Times v Connor, Birmingham, Bessemer City Commrs (CA 5) (365 F2d 567) Facts: X DOCKET 19—XII DOCKET 1. Case note: 52 Iowa 1034-1042.
61.17. Franklin v Paradise American Legion Post 259 (Butte Co Super Ct, Calif, ##39103, 39906) Feb 1962: Pl social studies teacher took group of students to human rights conference sponsored by Am Friends Service Comm. Feb-Oct, 1962: Def-Legion and officers wrote letter to newspaper attacking conference, allegedly attacked Pl in written and spoken statements. Oct 1962: Pl won patriotism award from Natl Freedoms Foundation. Oct 21, 1962: Pl sued for defamation, &850,000 damages. Feb 20-21, 1964: Calif Assembly Comm hearings (Ryan) on alleged attacks on Pl and academic freedom. Apr 17: Ct dismissed 13 charges, ordered 13 Defs to answer 7 charges. 1967: After trial, verdict for Pl: &16,500.

Robert Hoffman, Esq, 179 E 6th St, Chico, Calif.

61.18d. Pauling v Globe-Democrat (USSC) (362 F2d 188, 388 US 909) 1961: Pl filed suit for publication of allegedly defamatory
- 30 -

letters. Mar 19, 1964: ED Mo held for Def. On appeal CA 8 held: prominent scientist who actively thrusts himself into public discussion of controversial foreign policy questions cannot recover in libel suit against newspaper that, without actual malice, published editorial which falsely stated he had been held in conetempt of Congress. Sept 6, 1966: petition for cert filed in USSC. Issue: does rule of NY Times, 61.9, 376 US 254, extend to prominent scientist who is not public official or employee but who has publicly expressed views on matters of public concern? June 12, 1967: USSC denied cert.

John Raeburn Green, Lewis C Green, Thomas C Coleman, Esqs, 314 N Broadway, Boatman's Bank Bldg, St Louis, Mo.

Case notes: 16 Buffalo 496; 32 Missouri 154; 42 Washington 654; 13 Wayne 392.

61.26. John Birch Society and Welch v NBC (Fort Worth) (ND Tex, CA-4-336, 337) Oct 6, 1964: Pls sued for libel and slander, alleging Huntley and Brinkley linked Pls to criminal conspiracy to purchase arms; asked &4 million damages. Pending after preliminary motions by Def.

Cantey, Hanger, Gooch, Cravens & Scarborough, Esqs, 1800 First Nat'l Bank Bldg, Fort Worth.

61.27. Dan Smoot v League of Women Voters (Grand Traverse) (CA 6, #16565) Def-League urged, in monthly bulletin and local newspaper, that Pl's TV program be viewed "with a critical eye." Mar 9, 1964: Pl filed libel suit for &1 million. Sept 25: DC denied continuance past Oct 14: issue should be resolved before Nov election so that libel suit would not operate as political weapon to diminish League's effectiveness. Oct 12: DC denied Pl's motion to dismiss with prejudice; Def entitled to vindication of its name by trial. Dec 30: CA reversed; ordered dismissal: abuse of discretion to deny Pl dismissal with prejudice. Defs filed "assessment of costs" in DC, including atty's fees, due to vexatious bad faith of Pl. Pl filed for writ of prohibition to prevent DC h'g Def's motion. Dec 13, 1965: CA issued writ: DC does not have discretion to award atty's fees in legal (as opposed to equitable) proceedings when not authorized by statute.

Harold S Sawyer, Charles E McCallum, Esqs, 300 Michigan Trust Bldg, Grand Rapids.

61.29. Walker v Associated Press (USSC, #150-'66) (393 SW2d 671, 388 US 130) Sept 1962: Massive riot by whites at U of Miss when fedl marshals helped admission of first Negro student (Meredith v Fair, 522.Miss.1, VI DOCKET 122—VIII DOCKET 47, 306 F2d 374 (1962)). Def distributed news dispatch that Pl, former Genl, personally led charge against marshals. Je 1964: Pl filed libel suit for &2 million compensatory and punitive damages. Trial ct instructed jury: compensatory damages awardable if dispatch not substantially true; add punitive damages if actuated by ill will, entire want of care. Jury verdict for Pl: &500,000 compensatory, &300,000 punitive. Trial ct set aside punitive damages; held inapplicable New York Times v Sullivan, 61.9, IX DOCKET 42, 376 US 254 (1964). Both sides appealed; Tex Ct of App aff'd; Tex Sup Ct denied writ of error. Je 12, 1967: USSC (9-0) reversed; Harlan, J (for 4): see joint opinion with Curtis, 61.29a. Warren, CJ, conc: Pl cannot recover under NY Times test; Pl was "public man in whose public conduct society and the press had a legitimate and substantial interest." Black, J (Douglas, J), conc with Warren but would reject NY Times test. Brennan, J (White, J), conc.
61.29a. Curtis Publishing Co v Butts (USSC) (225 FS 916, 351 F2d 702, aff'd 388 US 130) Def published article in SatEve Post that Pl, well known athletic director of state Univ, pd by private assn, fixed game. Pl brought diversity libel suit: &5 million compensatory and &5 million punitive damages. Issues at trial: truth of article, method of its preparation. Jury verdict for Pl: &60,000 general and &3 million punitive damages. Trial ct reduced to &460,000 by remittitur. After USSC decision in New York Times, 61.9, 376 US 254 (1964), Def moved for new trial; rejected: NY Times inapplicable; evidence of reckless disregard for truth. CA 5 affirmed (2-1). Je 12, 1967: USSC affirmed, Harlan, J (for 4): (1) Altho Def may have known about NY Times case before USSC decision, failure to mention it not knowing waiver; (2) different standards required for "public officials" and "public figures"; (3) new test for "public figure" who is not "public official": he may also recover damages for defamatory falsehood whose substance makes substantial danger to reputation apparent, on showing "highly unreasonable conduct constituting ... extreme departure from ... standards of investigation and reporting ordinarily adhered to by responsible publishers"; (4) Def did not satisfy standards.

Warren, CJ: (3) new test unworkable as guide for juries, does not afford First Amdt protection for speech and debate; (2) no basis in law, logic, or First Amdt policy for adopting separate standards of proof for "public figures" and "public officials" because of recent "blending of positions and power" of gov'tal and private sectors; (1) Def did waive First Amdt defense; (5) reviewing facts, USSC should affirm judgment for Pl under NY Times test; conc in result.

Black, J (Douglas, J), diss; agree with Warren on (3); (5) USSC should not review factual questions, should abandon NY Times and adopt rule: First Amdt intended to leave press free from harassment of libel judgments.

Brennan, J (White, J) agreed in part with Warren, would remand for new trial re jury instructions.

Herbert Wechsler, Esq, 435 W 116th St; William P Rogers, Esq, both of NYC.

See joint opinion in Walker, 61.29.

61.29b. Associated Press v Walker (USSC, #306) (191 SW2d 727) Facts similar to 61.29. Oct 29, 1965: Jury rendered verdict of &2,250,000. La Ct of App affirmed: record shows Def's account was libelous per se, made with knowledge of their falsity or reckless disregard for truth, hence with actual malice, reduced verdict to &75,000. Oct 16, 1967: USSC reversed, per curiam; remanded for further proceedings not inconsistent with USSC decision in Curtis Publishing Co, 61.29a, and Walker, 61.29b, 388 US 130, 170 (1967).

William P Rodgers, Leo P Larkin, Stanley Godofsky, Guy C Quinlan, Arthur Moynihan, Esqs, all of NYC.

61.30. Frick v Stevens (Carlisle, Pa) (Cumberland Co Ct) Pl, child of late industrial tycoon Henry Clay Frick, sued to enjoin sale of Def-historian's book entitled "Pennsylvania, Birthplace of a Nation" claiming it pictured her father as brusque, autocratic exploiter of workingman, whereas, in Pl's opinion, he always complied with highest principles
- 31 -

of ethics, good conscience, Christianity. June 16, 1965: h'g. Aug 2: Def moved to dismiss: suppression of Def's book would violate First Amdt. Pending.

George F Douglas, Jr, Faller and Douglas, 27 W High St, Carlisle, Pa.

61.31. Gilligan v M L King, Farmer, CORE, Gray, Epton, Progressive Labor, Harlem Defense Council (App Div, 1st Dept) Jy 16, 1964: Pl policeman fatally shot Negro youth: riots followed in Harlem and Bedford-Stuyvesant (see Epton, 54.9, 54.9a, 54.9b). 1965: Pl cleared by Review Bd. May 27: Pl sued Def individuals and organizations for &3,750,000 damages for libel for preparing and publishing pamphlet with Pl's picture: "wanted for murder." Defs moved to dismiss. Sup Ct partially denied motion. Appeal pending: comment characterizing Pl as "murderer" is privileged under First Amdt; Pl acted in official capacity and created notorious public event.

Alan Latman, Nanette Dembitz, Esqs, 156 Fifth Ave, NYC, for ACLU as amicus.

And see Epton, 54.9, 54.9a, 54.9b; Barnett, 333.20.

61.31a. Gilligan v M L King (ND Ga) Facts: see 61.31. 1965: Pl filed libel suit in Ga DC for Def's alleged statements on TV re killing, asked &1,500,000 damages. Nov 16: Def moved to transfer trial to NYC. DC held burden on Def to prove prejudice. Pending.

Abraham G Levin, Esq, 598 Madison, NYC.

And see Epton, 54.9, 54.9a, 54.9b; Barnett, 333.20.

61.36. Dodd v Pearson, Anderson (DC DC) Apr 1966: Pl brought conspiracy and libel suit against Defs, newspaper columnists. DC granted Pl's motion to limit attendance at discovery deposition sessions to witnesses, atty's, and litigants. Jan 15, 1968: jury found for Def: no invasion of privacy because of Pl's position as public official.

John F Sonnett, Esq, 1000 Vermont Ave NW; Warren Woods, Esq, 1735 K St NW, both of Washington, DC.

61.38. Heine v Raus (261 FS 570) (DC Md) Def, Estonian emigre and employee of CIA, described Pl, Estonian emigre, as Soviet spy. Nov, 1964: Pl filed &110,000 defamation suit. Def moved for summary dismissal: as Gov't official acting properly within scope of his duties, Def has "absolute immunity" from slander suit. DC demanded CIA "go as far as it can go" in authenticating its claim to immunity for Def by specifying exact nature of its instructions to him. Apr 25, 1966: Def filed series of affidavits to satisfy Ct. Dec 18, 1966: DC dismissed on motion for summary judgment: activities of CIA to protect its foreign intelligence sources are within powers Congress granted to agency.

Ernest C Raskauskas, Robert J Standord, Esqs, Washington, DC.

61.39. Ballard v McCannon (San Diego Super Ct) Pl-doctor charged with raping patient; criminal trial: Pl acquitted. Pl filed civil suit against Def-policewoman: Def contacted various patients of Pl, making slanderous remarks about Pl. Defense: (1) Def acting within scope of employment, (2) Def privileged. Pl requests &5,000,000. Aug, 1967: Pending.

Gostin and Katz, Esqs, 540 6th, San Diego, Calif.

And see cases at 304.

61.40. Minsky v Stroden (Cook Co Cir Ct, #66-L-14547) Feb 3, 1966: Illinois FEPC held public h'gs on its rules and regulations. Def, president and owner of employment service corp, appeared at h'g of his own accord and spoke to Commn members about Pl, former acting director and legal counsel of Commn, complaining about Pl's method of checking Def's employment records since no complaint filed against Def with Commn. Feb 9, 10: part of Def's statements published in Chicago Daily Tribune. Pl filed libel suit: (1) Pl injured in reputation and good standing in profession as direct result of false, malicious, defamatory statements of Def in sum of &50,000, (2) Pl prays for &65,000 damages and costs. Pending.

Elmer Gertz, Esq, 120 So LaSalle St, Chicago.

61.44. Alabama v Reynolds (Recorders Ct) Def, SCLC worker, picketed store which refused to serve Negroes with sign "Why Support the KKK?"; arrested: criminal libel. Def convicted, fined &250. Appeal pending.

Donald A Jelinek, Esq, LCDC, 31½ Franklin St, Selma, Ala 36701.

61.45. Peet v Tocsin (San Francisco Super Ct, #544354) 1966: Def-publication allegedly libelled Pl-minister, officer of Methodist Federation for Social Action, as "Communist dupe." Pl served interrogatories demanding names of financial backers. Super Ct granted motion to compel answer. Ct of App affirmed. Calif Sup Ct affirmed. Def answered interrogatory.

Vincent Hallinan, Esq, 345 Franklin St, San Francisco 94102.

61.46. Hallinan v Patrick (San Francisco Super Ct, #574150) Def broadcast on TV in gubernatorial campaign that Pl was "paid agent of Castro conspiracy." Jan 5, 1967: Pl brought &2 million slander suit: admiration for Castro not based on avarice and cupidity. Pending.

Terrence Hallinan, Esq, 345 Franklin St, San Francisco 94102.

61.47. Lombardo, Mullally v Stoke, NYC Bd of Higher Educ (Queens) (NY Ct of App) Pl-professors complained they had been denied promotion because of anti-Catholic prejudice. Oct 1960: Def-college president issued press release about complaint. Pls filed libel suit. Sup Ct, App Div dismissed. Nov 29, 1966: Ct of App affirmed: Bd had absolute privilege to comment publicly and Stoke agent of Bd.
61.48. Ranous v Middleton, Wis School Bd, Hughes (Cir Ct) Nov, 1963: Pl allegedly shook student who was crying about Pres Kennedy's assassination, commented "she didn't like him, didn't vote for him, and he wasn't such a great president." Def sent letter of dismissal to her. Pl sued: letter defamed her by impugning her patriotic integrity; was wrongful breach of contract; Bd abused privilege by including letter in Bd minutes. Dec 3, 1966: jury awarded Pl &18,000.
61.49. Carroll v Princess Anne Co (USSC, #689) (247 Md 126) Aug 6, 1966: Before trial of Negro for rape, Nat'l States Rights Party held peaceful evening rally in front of cthouse, shouted threats to Negro onlookers; planned one for next evening. Aug 7: town, Co officials issued ex parte injunction forbidding Party to hold meeting for 10 days until matter heard in Cir Ct. Aug 17: at h'g, testimony that 25% of crowd was Negro, violence feared, though speakers specifically
- 32 -

denounced violence. Cir Ct enjoined Party from holding any rally for 10 mths. Md Ct of App affirmed temporary order, reversed permanent one: unreasonable time period considering circumstances. Nov 5, 1967: Petition for cert filed: temporary injunction was prior restraint of free speech; unconstitutional for lack of clear and present danger. Pending.

Melvin L Wulf, Eleanor Holmes Norton, Esqs, ACLU, 156 Fifth Ave, NYC; William H Zinman, Esq, 500 Equitable Bldg, Baltimore.

61.50. Arkansas v Baker (Pulaski Co Cir Ct) Mar 23, 1967: Defs, 2 newsmen, refused to give grand jury names of state legislators who had allegedly given them confidential information about attempted bribes on anti-gambling bill, arrested. Defs went before Cir Ct, refused again to divulge their sources, citing state law allowing reporter to refuse to divulge source of article to grand jury unless it proved article written maliciously or in bad faith. Defs held in contempt, sent back to jail.

And see Price, 373.24.

61.51. Becker v Philco Corp (USSC) (234 FSupp 10, 372 F2d 771, cd 88 SCt 408) Pls worked for Def; Def had contract with Dept of Defense; Dept to safeguard classified information (Exec Orders 10,865, 10,909), issued Industrial Security Manual requiring contractors to maintain security controls, report problems. Pls sued Def, alleged Def defamed them by false and malicious statements in report to Dept; Pls lost security clearance; Def discharged Pls. DC dismissed: Def's communication to Dept absolutely privileged. CA 4 affirmed. Dec 4, 1967: USSC denied cert. Warren, CJ: "This is an important case affecting the rights of millions of workers to vindicate their reputations and to make a living in the military-private industrial complex"; "I can see absolutely no justification for granting to a corporation contracting with the Gov't a greater privilege to defame than we have accorded to private citizens in commenting upon the conduct of public officials. This seems to me to be a complete inversion of First Amdt rights. A qualified privilege is clearly sufficient. . . . Since the Dept of Defense has no disciplinary power over the employees of a private corporation for defamatory statements, internal sanctions are unlikely." Douglas, J, diss.
62. By Injunction in Labor Disputes

Forms: Motion to vacate temporary injunction affidavit, memo of law, by Victor Rabinowitz. CIVIL RIGHTS HANDBOOK pp 131-138.

Notes: Pre-emption doctrine not applied to defamation suits in context of organizational campaign: Linn v United Plant Guard Workers, Local 144 (86 Sup Ct 657, 1966): 38 Colorado 619-622; 44 Texas 1400-1405; 20 Arkansas 195-196; 45 Oregon 144-148.

62.6a. Social Service Employees v Dumpson (NY App Div, 1st Dept) 1966: Pl brought suit challenging constitutionality of Condon-Wadlin Law forbidding strikes by public employees, requiring public employees who have participated in strike to work 2 days without pay, up to 30 days, for every day out on strike. Appeal pending.

Judith Vladeck, Esq, 170 Fifth Ave, New York.

And see Minn Fed of Teachers, 25.17.

62.7. DiGiorgio Corp v National Farm Workers Assn (Tulare Co Super Ct) March 15, 1967: Pl sought injunction against Def strikers picketing along public highway. Ct denied injunction.
63. By Injunction in Racial Situations
(see also 40s, 550s)
63.7. Wyatt T Walker v Birmingham (USSC) (181 So2d 493, aff'd 388 US 307) Defs, Negro ministers, sought parade permits; City officials denied them. Apr 10, 1963: City officials sought ex parte injunction against 139 individuals, 2 organizations continuing to sit-in, kneel-in, picket private stores, violate ordinance and statutes. Cir Ct granted TRO against mass processions without city permit. Apr 11: 5 of 8 Defs served with copies of writ; held press conference declaring intention to disobey injunction; held meeting to plan march. Apr 12-14: large parades held, Defs participated, little violence. Apr 15: Defs moved to dissolve injunction; City sought contempt citations against Defs; Defs argued injunction overbroad, restraint on free speech, parade ordinance unconstitutional and administered unconstitutionally. Cir Ct held Defs: (1) had not filed motion to dissolve injunction, (2) had not sought permit for parades, found Defs in contempt: 5 days and &50. Ala Sup Ct affirmed. Je 12, 1967: USSC affirmed (5-4), Stewart, J: Cir Ct had jurisdiction over Defs, citing Howat v Kansas, 258 US 181, Cox v La (1965) 379 US 536, Cox v New Hampshire, 312 US 569; USSC will not consider merits of Defs' constitutional claims because of (1) and (2): "This Court cannot hold that the Pets were constitutionally free to ignore all the procedures of the law and carry their battle to the streets."

Warren, CJ (Brennan, Fortas, JJ), diss: "I dissent because I do not believe that the fundamental protections of the Constitution were meant to be so easily evaded, or that `the civilizing hand of law' would be hampered in the slightest by enforcing the First Amdt in this case. . . . Indeed, it shows no disrespect for law to violate a statute on the ground that it is unconstitutional and then to submit one's case to the cts with the willingness to accept the penalty if the statute is held to be valid"; ordinance unconstitutional on its face; injunction contains same language; Howat is distinguishable and see In re Green (1962) 369 US 689.

Douglas, J (Warren, CJ, Brennan, Fortas, JJ), diss: "The rich can buy advertisements in newspapers, purchase radio or television time, and rent billboard space. Those less affluent are restricted to the use of handbills . . . or petitions, or parades, or mass meetings. This [First Amdt right] ... was flouted here."

Brennan, J (Warren, CJ, Douglas, Fortas, JJ), diss: Ala Ct of App held earlier ordinance void for vagueness, in Shuttlesworth (1965), 55.Ala.4c, 180 So2d 114; USSC has modified traditional rules of standing and prematurity to give First Amdt freedoms breathing space (Dombrowski v Pfister, 380 US 479); "We cannot permit fears of `riots' and `civil disobedience' generated by slogans like `Black Power' to divert our attention from what is here at stake—not violence or the right of the State to control its streets and sidewalks, but the insulation from attack of ex parte orders and legislation upon which they are based even when patently impermissible prior restraints on the exercise of

- 33 -

First Amdt rights, thus arming the state cts with the power to punish as a `contempt' what they otherwise could not punish at all."

Casenotes: 19 Syracuse 124-126; 17 American U 113-9; 33 Missouri 152-7; 52 California 517-26.

63.21. San Diego Gas & Electric Co v CORE (4th Dist Ct of App) (50 Cal Rptr 638) Jan 1964: Pl sued for injunction against mass picketing and sitting-in in protest of Pl's allegedly discriminatory hiring practices. Jan 17: Super Ct granted preliminary injunction. Apr 11, 1966: Dist Ct of App upheld limitations on number, manner of picketing as justified by evidence in trial ct of "unreasonable interference" with Co's business.

John W Porter, Esq, 1346 Garnet Ave, San Diego.

63.23. Curtis, Grand v Boeger (St Louis) (USSC) (374 SW2d 557, 227 FSupp 438, 236 FSupp 831, 240 FSupp 475, 331 F2d 675, 362 F2d 999, cd 386 US 914) Aug 30, 1963: Pl bank sought injunction against CORE picketing and sit-ins to get Negro tellers. Cir Ct issued temporary restraining order. Sept-Oct 5: CORE continued demonstrations. Cir Ct found 19 Defs in contempt: up to 1 yr, &1,000. Dec 6: Cir Ct issued permanent injunction. Jan 15, 1964: Ct of App denied habeas petitions of Defs—school teachers, attorneys, college students. Mo Sup Ct denied habeas. DC refused to exercise jurisdiction til Defs sought cert in USSC. Mar 2: CA 8 ordered Defs on bail, own recognizance; reversed, remanded, citing Fay v Noia, 452.1, 372 US 391. Mar 31, 1965: DC affirmed Cir Ct holding. 1966: CA 8 affirmed: (1) Taft-Hartley Act does not prevent ct from issuing restraining order to keep status quo pending determination of its own authority to grant injunctive relief; (2) contemnors who did not raise First Amdt issue in state ct cannot do so in fed'l habeas; (3) sentences within state penal statute cannot be attacked in fed'l habeas. Feb 13, 1967: USSC denied cert; Douglas, J, diss.

Charles R Oldham, Esq, 706 Chestnut, Robert B Curtis, Esq, 2847 Union Blvd, both of St Louis.

63.28. Boynton v Clark (Selma) (SD Ala, #3359-65) (10 RRLR 215, 1472, 11 RRLR 1143, 12 RRLR 620) Jan 22, 1965: Negro Pls sued Def-sheriff and others to enjoin their interference with voter registrations project. DC granted temporary restraining order, made clarifying amdt. Feb 26: DC granted leave to add Dallas Co Cir Judge Hare as Def. Apr 26: h'g on motion for further relief, order to show cause why Defs not in contempt of ct order. Apr 10: DC ordered Co Sheriff to disband civilian posse; enjoined Co officials from further interference with civil rights activities. Sept 2: DC found that on Feb 10 Def confronted group of orderly demonstrators, ordered them to disperse, on their refusal, required 4-mile "forced march"; held this action of arresting, harassing, intimidating demonstrators in contempt of Jan order; set &1500 fine; specified if further lacial unrest created, persons causing this condition shall be subject to previous restraining order. Jy 1, 1966: CA 5 vacated and remanded to DC on technical grounds. Feb 24, 1967: Def again held in civil contempt, ordered to pay &1500 to Atty Hall "as partial compensation for losses sustained as a direct result of this contempt of ct," and charged with ct costs.

Peter Hall, Esq, 1630 4th Ave N, Birmingham; NAACP Inc Fund.

63.43. Tracy v Robbins (DC SC, Charleston Div) Sept, 1965: Injunction and declaratory action challenged constitutionality of city picketing ordinance which requires anyone supervising picketing be more than 300 feet from picket line. Apr 14, 1966: dismissed as to Def-Mayor and Def-Town Atty, retained as to Def-Chief of Police. Mar 13, 1967: CA 4 dismissed appeal on dismissals. Pending.

Henry M diSuvero, Esq, ACLU NJ, 45 Academy St, Newark; Russel Brown, Esq, 39 Spring St, Charleston.

And see DeLee, 55.SC.3.

63.50. Madison Parish School Bd v Madison Parish Voters League (Tallulah Dist Ct) Jan 1966: Pl obtained ex parte preliminary injunction against demonstrations at Negro schools; Def filed motions to dissolve or modify injunction. Pending.

Alvin J Bronstein, Esq, LCDC, 603 N Farish St, Jackson, Miss 39202.

And see Louisiana v Davis, Whyte, 55.La.9.

And see Bogalusa Voters' League, 73.La.1.

63.51. Liberty Grocery v Moore (Leflore Co Cir Ct) Pl-grocery, boycotted by Negroes, sought injunction against Def, member of boycott. May 16, 1966: Ct issued preliminary injunction. Def removed case to DC; pending. Pl-grocery sold to new owner; Def moved to dismiss action and dissolve injunction. Pls moved to substitute new owner as Pl. Pending.

Alvin J Bronstein, Esq, LCDC, 603 N Farish St, Jackson, Miss 39202.

63.52. Guyot and US v Rainey (Philadelphia) (DC Miss) Je 1966: Pls participated in Meredith Mississippi Freedom March. In Philadelphia, Pls beaten and assaulted while Defs, Sheriff, Deputy, police officers, stood by. Pls sued to enjoin Defs from (1) interfering with march, (2) failing to protect peaceful demonstrators. Je 27: US intervened, DC denied temporary restraining order; but filing of suit resulted in highway patrol protection for marchers. Pending.

Alvin J Bronstein, Malcolm Farmer III, Esqs, LCDC, 603 N Farish St, Jackson, Miss 39202.

63.53. Chinn v Johnson (Canton) (SD Miss) Jy 16, 1966: civil rights march; Pls, 50 Caucasian and Negro demonstrators, arrested: breach of peace by failure to move on when ordered by police. Pls filed injunction action in 3-judge fedl ct to (1) enjoin prosecutions, (2) declare statute unconstitutional on its face: this kind of statute declared unconstitutional by USSC in Brown v Louisiana, 51.La.6, 383 US 131. Prosecutions continued indefinitely; Pls filed motion for preliminary injunction; Defs moved to dismiss. Pending.

Alvin J Bronstein, Malcolm Farmer III, Esqs, LCDC, 603 N Farish St, Jackson, Miss 39202.

63.54. Cunningham v Ingram (ND Miss) (12 RRLR 53) Civil rights demonstrators sued state, local enforcement authorities. Jy 22, 1966: DC enjoined Defs from interfering with peaceful protest activities, from withholding protection of those activities, dismissed state charges of parading without permit against members of Pls' class. Aug 24: h'g on charge of civil contempt. Motion for further injunctive relief pending.
- 34 -

Henry Aronson, Esq, NAACP Inc Fund, 538½ N Farish St, Jackson, Miss.
63.55. 24 Merchants v Civil Rights Organizations (Holly Springs) (DC Miss) Jy 1966: civil rights movement commenced boycott against downtown merchants. Aug: Pls sued Defs, all civil rights organizations and members; state ct granted ex parte preliminary injunction. Defs removed to DC. Picketing resumed; 3 cited for contempt of ct. CA 5 issued temporary stay on contempt proceedings in state ct. Panel of CA continued stay pending decisions in DC.

Alvin J Bronstein, Esq, LCDC, 603 N Farish St, Jackson, Miss 39202.

And see Liberty Grocery, 63.51; Chinn, 55.Miss.17, 17a; Belzoni, 55.Miss.22; Grenada, 55.Miss.24a; Selma Bus Lines, 55.Ala.12; Allen, 64.11.

63.56. Baker v Bindner (WD Ky) (274 FSupp 658) Mar 7, 1967: Demonstrations for Louisville open housing law. Mar 14: City Hall demonstration, demonstrators dragged from building. Apr 11: alderman rejected open housing law. Night marches began in white neighborhoods. Pl-city officials sought injunction, granted. Almost 1000 arrests; parading without permit, disorderly conduct, loitering, criminal syndicalism. Apr 21: 7 leaders held in contempt. June: "marathon sessions" disposed of only 7 cases; 483 postponed to May 13. May 1: 7 leaders jailed to serve 30-hr sentences. May 13: 20 more arrested. Oct: Pls filed class suit for injunction, declaratory judgment, 3-judge fedl ct. Oct 17: Ct (2-1) held unconstitutional Ky criminal syndicalism, vagrancy, banding together for unlawful purpose, acts, Louisville ordinances against parading without a permit, disorderly conduct, loitering: vague overbroad, violate First Amdt; Ct denied that arrests of demonstrators, not hecklers, were discriminatory, gave city 60 days to pass new, constitutional parade ordinance, said Ct "assumed" pending charges will be dismissed in local cts. Arrests continue under breach of peace statute.

Arthur Kinoy, Esq, 511 5th Ave, NYC; Morton Stavis, Esq, 744 Broad St, Newark, NJ; Dennis J Roberts, Esq, for Law Center for Constitutional Rights, 115 Market St, Newark, NJ 07102.

63.57. Jewell v Douglas (18th Jud Dist Ct, Parish of E Baton Rouge, #8988) Apr 21, 1967: Pl filed suit asking for preliminary injunction against NAACP picketing his drugstore. Je: trial.

Louis Berry, Esq, 1406 9th St, Alexandria, La; Robert L Carter and Joan Franklin, Esqs, NAACP, 1790 Broadway, 10th Floor, NYC 10019.

63.58. Grenada School Bd v Civil Rights Groups (ND Miss) Oct 20, 1967: Negro students boycotted 4 schools alleging harassment by white students, administrators: 287 suspended; demonstrations, many arrested. Nov 1: Pls sought injunction forbidding interference with school operation. Ct spoke out against boycott; continued action. Nov 2: Negro students returned to classes. Pending.

Marian Wright, Esq, NAACP, 538½ N Farish, Jackson, Miss.

And see 265 Defs v Grenada, 55.Miss.25.

63.59. US v Ayers (DC Miss) Fall, 1966: DC ordered school desegregation in Grenada. Crowd attacked Negro children, newsmen. 8 Defs charged with violating ct order. Je, 1967: All-white jury found Defs not guilty.
63.60. Moore v Weisman (Philadelphia) (ED Pa, #43120) Merchants sought injunction against Moore and NAACP forbidding street rallies, alleging loss of business. Jy 7, 1967: Administrative Judge granted temporary order. Jy 13: DC ordered City Ct order upheld 10 days, pending hearing. Jy 19: ACLU petition to intervene as amicus denied. Pending.
64. Against Miscellaneous Activities

64.12. Massachusetts v Suzanne Williams (Groton) (Circuit Ct) Jy 21, 1966: Def-17 yr old girl arrested: civil disobedience during launching of nuclear submarine. At arraignment, Def refused to stand up in ct: 30 days for contempt; no opportunity to explain noncooperation. Aug 19: Def dragged into ct; refused to stand, defended actions on ground that ct system perpetuated injustice, punished non-cooperative draftees; additional 60 days for contempt with judge's warning: I'm sure my successor will keep meting it out until you conform. Def, however, released after serving 67 days.

Arnold Klau, Esq, 234 Pearl St, Hartford, Conn.

64.13. Chronicle Publishing Co v Gain (Oakland) (ND Calif) Oct 17, 1967: Demonstrations took place at induction center; police allegedly assaulted newsmen with force and mace, prevented newsmen from gathering news by direction of police chief and others, thus depriving them of rights of press and free speech under First and 14th Amdts. Injunction suit filed against police chief, deputy police chief, mayor, city manager and others "in concert." Oct 18: temporary restraining order issued by DC.

Cooper, White and Cooper, Esqs, 44 Montgomery St, San Francisco.

64.14. Aluminum Co of America v Lincoln Towers Tenants (NY Sup Ct, App Div) Nov 1966: Pl-landlord raised rents. Deftenants hung sheets, aluminum foil from windows in protest. Dec 1966: Super Ct enjoined picketing, demonstration. Jy 8, 1967: App Div affirmed injunction against hanging sheets, foil, held injunction against picketing "entirely too broad."

And see cases at 423.

64.15. Sellars v NAACP (Forsyth Co, NC, Super Co, #34325) Suit for damages based on NAACP's picketing of Pl's store.

Richard C Erwin, Sr, Esq, 1223 Wachovia Bldg, Winston-Salem, NC; Robert L Carter, Joan Franklin, Anne G Feldman, Esqs, NAACP, 1790 Broadway, 10th Floor, NYC 10019.

64.16. Hornstein d/b/a Stanley's Dept Store v NAACP (Victoria) (ED Va, #4819) Sept-Dec 1965: Def boycotted Pl for refusal to denounce KKK. Pl sued for damages: boycott infringed First Amdt right to remain silent. Je 4, 1967: Ct ruled boycott legal; jury found no damage.

S W Tucker, Esq, 214 E Clay St, Richmond.

70. Procedural Problems
Practice tips: Osmond K Fraenkel, Procedural pitfalls in civil liberties cases. CIVIL RIGHTS HANDBOOK pp 31-40.

Class suits, by Libby Wernick Ginsberg. CIVIL RIGHTS HANDBOOKS pp 151-161.

Appeals in federal courts, by Siegfried Hesse. CIVIL RIGHTS HANDBOOK pp 187-200.

- 35 -

Analysis: Creative legal thinking under pressure. CIVIL RIGHTS HANDBOOK pp 44a-44h. And see discussion of lead ideas in constitutional litigation, pp 75-89.

71. In Alleging Standing To Sue

71.1. Manchel v Los Angeles (Dist Ct of App, #30082) (245 ACA 522) Persons sought declaration that LA Co ordinance imposing criminal sanctions on persons playing games of chance for money not applicable to persons playing panguingue, to enjoin arrests. Trial ct declared panguingue a game of skill: ordinance inapplicable to Pls' conduct, granted injunction. Oct 10, 1966: DCA reversed: Pls had no standing to test application of criminal statute by civil suit; no invasion of property right; invasion of mere personal rights insufficient. Dec 7, 1966: Calif Sup Ct denied Pls' petition for h'g.

Phalen G Hurewitz, Esq, 9107 Wilshire Blvd, Beverly Hills, California 90210, for ACLU.

72. In Raising and Preserving Constitutional Questions

72.2. Jacobs v New York (USSC) (388 US 431) Defs charged with misdemeanor (violation of obscenity act, NY Pen Law §1141), NYC Crim Ct convicted. Aug 1964: Sentencing: 60 days in Workhouse with execution of sentence suspended, and 1 suspended sentence and fine. Defs paid fine, appealed. Under NY CODE Crim Proc §470-a, suspended sentences can be revoked and replaced by prison sentences only within 1 yr from date of original sentence. Je 12, 1967: USSC dismissed appeal (5-4). Warren, CJ, diss: apparently dismissed for mootness; "The practical result ... is that States may insulate their convictions under laws raising constitutional questions from review on the merits by this Ct by the simple expedient of a suspended sentence where a time limit for the imposition of an executed sentence is short enough to run before an appeal can be taken to this Ct"; Def can be under continual fear of consecutive arrests, misdemeanor convictions, short or suspended sentences; this is particularly dangerous in First Amdt cases and in cases of possible forfeiture (of books, films). Douglas, J, diss: "... we have held that service of a sentence does not render a case moot where the conviction, if allowed to stand, will result in collateral disabilities such as a loss of civil rights"; in terrorem effect will be that "many will choose to comply with what may be an invalid statute." Brennan, J, would affirm. Fortas, J, would reverse.

Emil Z Berman, Esq, 100 William St, NYC 10038.

72.3. Zwickler v Koota (USSC) (213 NE2d 467; 261 FSupp 985, rev'd 88 SCt 391) 1964: Pl arrested: distributing anonymous handbills critical of US Congressman (NY Pen L §781-b). Convicted. Sup Ct, App Term reversed on state law grounds; Ct of App affirmed without opinion. Pl sued for declaratory and injunctive relief that Act unconstitutional on its face; 3-judge fed'l ct convened. Ct (2-1) dismissed, remitting Pl to defend later criminal charges or seek declaratory judgement in state ct. Dec 5, 1967: on direct appeal, USSC reversed (9-0), Brennan, J: (1) abstention doctrine is not appropriate simply because Pl could have asserted his rights in a state ct; (2) abstention doctrine may be appropriate when state ct could construe statute narrowly to save its constitutionality; (3) abstention not appropriate when claim is that statute is over-broad because state ct could not save constitutionality by narrow reading; (4) questions of abstention and injunctive relief are not the same; (5) "We hold that a fed'l dist ct has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction"; remanded for DC to decide whether to grant declaratory relief. Harlan, J, conc.

Emanuel Redfield, Esq, 60 Wall St, NYC 10005.

And see cases at 74.

73. In Removing From State to Federal Courts
Forms: All forms necessary in removal of state criminal cases, from petition through appeal from remand order, plus sample briefs, by Arthur Kinoy, Anthony Amsterdam, Claudia Shropshire. CIVIL RIGHTS HANDBOOK pp 72a-72ii.

Note: Removal aspects of cases raising other issues will be reported here, usually using the original DOCKET number.

USSC noted: No. of criminal cases removed from state to fedl cts: 1962—18; 1963—14; 1964—43: 1965—1,192 (incl 1,079 in CA 5).

And see removed cases in other sections.

Article: Frederick J R Heebe, Removal of state criminal prosecutions to fedl courts. 13 Loyola 57-70.

Comment: Removal of civil rights cases. 13 Loyola 134-149.

Proposed Legislation: S 1725 broadens grounds for removal of civil rights cases to fedl cts. Cong Rec—Sen. May 9, 1967, S 6488.

73.Ala.7. Hughley v Opelika (MD Ala) (251 FS 566) Sept 1, 1965: City officials refused parade permit claiming lack of jurisdiction; civil rights parade held: 64 arrested: parading without permit. Some released on bond, others fined without h'g. Defs removed all cases to DC; State moved to remand. DC retained jurisdiction, dismissed prosecution, reasoning that application of relevant ordinance to Pets was unconstitutional denial of rights of free speech, assembly.

Alvin J Bronstein, Esq, LCDC, 603 N Farish St, Jackson.

54.16. Selma v Carmichael (SD Ala, N Div, ##15,015-15,017) 12 RRLR 349) Facts: Carmichael, 54.16, p 18. Nov 7, 1966: DC denied removal; held Pets in urging people to vote not exercising right created by 1965 Voting Rights Act or other law providing for equal civil rights; cited Peacock, 55.Miss.5a, 384 US 808 (1966).
73.La.3. Vidalia v Demonstrators (Vidalia) (Mayor's Ct) (DC La) Sept 7, 1966: Defs attended voter registration meeting; arrested. Sept 8, 9: marches to protest arrests on Sept 7; some marchers arrested. Defs removed cases involving voter registration to DC. Pl moved to remand. Pending.

Richard B Sobol, Esq, LCDC, 2209 Dryades St, New Orleans, La 70113.

73.La.4. Homer v Demonstrators (Homer) (CA 5) Aug 23, Sept 9, 1966: Defs-Negroes participated in voter-registration march to Jonesboro; arrested: parading without permit, disorderly conduct. Defs removed one case to DC: (1) ordinances unconstitutional on their face, (2) voter registration activity affirmatively protected by fed'l law. DC remanded without h'g. Defs sought stay pending review of remand in CA. Pending.

- 36 -

Defs filed motion to quash 2d case; trial date: Oct 17.

Richard B Sobol, Esq, LCDC, 2209 Dryades St, New Orleans, La 70113.

55.Miss.3. Calhoun v City of Meridian (CA 5, #21,991) (355 F2d 209, 11 RRLR 343) Facts at 55.Miss.3, p 22. Defs filed removal petition in DC. DC remanded to Muni Ct. CA reversed DC remand order: (1) DC in error that removal petitions not timely because not filed before trial and petitions failed to state removable causes; (2) Miss procedure allowing appeal from Police Ct to Co Ct for de novo trial has effect of vacating judgment of Police Ct so Def's petitions were timely; (3) Allegations of discrimination in application of city ordinances sufficient grounds for removal; (4) prosecutions should be dismissed if proved arrests and prosecutions carried out for racial reasons; remanded to DC for h'g.

L H Rosenthal, Esq, 221 President St, Jackson, Miss; Samuel W Fancher, Esq, 716 Old Nat'l Bank Bldg, Spokane, Wash; Bernard J Fieger, Esq, 942 First Nat'l Bank, Detroit.

55.Miss.3a. Brown v City of Meridian (CA 5, #21,730) (356 F2d 602, 11 RRLR 340) Facts: 55.Miss.3a, p 22. Jan 26, 1966: CA reversed DC remand, remanded to DC for further consistent proceedings; held: (1) petitions for removal sufficiently alleged grounds for fedl jurisdiction; (2) technical local rules (eg, petitions must be filed in duplicate) should not be enforced where civil rights involved if requirements operate to bar access to fedl courts.
55.Miss.9a. Mississippi v Hartfield, Anderson (Hattiesburg) (CA 5, ##21811, 21813) Facts at 55.Miss.9a, p 22. Dec 8, 1965: Appeal argued in removal case on unconstitutionality of Miss stat (1964) #546, on its face and as applied. CA will hold up decision til Cameron, 55.Miss.7, decided on same issues.

Smith, Waltzer, Jones and Peebles, Esqs, 305 Baronne St, New Orleans.

55.Miss.11. Collins v City of Jackson (CA 5, #21538) Facts: 55.Miss.11 at p 22. SD granted motion to remand after h'g. Aug 1965: Appeal to CA based on local customs and policies, de facto denial of equal rights and state laws sanctioning and encouraging racial discrimination. Stay granted. Pending.

Smith, Waltzer, Jones & Peebles, Esqs, 305 Baronne St, New Orleans.

73.Miss.12. Mississippi v Archie (Jackson) (SD Miss) Je 21, 1965: Negro Def, 16, driving civil rights workers from Edwards to Jackson; arrested: crossing yellow line, speeding, improper license. Police did not permit Def to phone for counsel, allegedly harassed him. Justice of Peace tried him, without counsel; convicted: &232 or 3 mths. Def not permitted to call, without funds, jailed. Jy 17: Def notified family; Atty filed coram nobis; J P refused all papers. Jy 20: Def removed, DC set &200 bond; Def paid, released. Aug 26: DC granted state's motion for remand, stayed pending appeal. CA affirmed DC's remand order: compelled by Peacock, 55.Miss.5a, 384 US 808. Trial pending in state ct.

Alvin J Bronstein, Malcolm Farmer III, Esqs, LCDC, 603 N Farish St, Jackson, Miss 39202.

73.Miss.13. Jackson v Alexander; Alexander v Cox (SD Miss; CA 5) (348 F2d 894, 10 RRLR 1267) Je, 1965: Large civil rights demonstrations. Je 14: Police arrested 1100 whites and Negroes; parading without permit, leafleting. Pets presented 3 joint removal petitions for 400 Defs; DC refused to file under DC rule requiring individual petitions. Pets filed motions with DC for leave to file 3 petitions; judge did not rule. Pets filed petition for writ of mandamus in CA to DC to accept petitions. Je 24: CA held application in abeyance, suggested DC act promptly, citing Lefton, 73.1, 333 F2d 280. DC held each Pet must verify removal petition. Jy 13: CA adjusted DC rule: each Pet in city must verify; attys can verify for those absent. Cases awaiting decision in Guyot and Strothers, 51.Miss.4.

Alvin J Bronstein, Esq, LCDC, 603 N Farish St, Jackson; NAACP Inc Fund; Lawyers Comm for Civil Rights Under Law, 233 N Farish St, Jackson, Mississippi 39201.

73.Miss.27. Colored Baptist Association v Indianola School Dist (Sunflower Co) (CA 5, #22817) (369 F2d 795, 12 RRLR 350) School dist held eminent domain proceedings against Pl Baptist Assn. Assn filed removal petition in DC alleging Def Dist will deny fair trial, equal protection, rights under fedl civil rights acts. DC granted Def's motion to remand; Assn appealed. Dec 1, 1966: CA 5 ruled racial equality legislation does not prohibit condemnation suit by school dist, does not confer absolute right on private citizen not to be subjected to eminent domain actions, cited Greenwood v Peacock, 55.Miss.5a, 384 US 808, affirmed DC's judgment.
73.NY.2. Hutchinson v New York (CA 2) (CCH Employment Practices Guide, paragraph 9020) Civil rights Defs demonstrated against job discrimination: arrested; removed to DC. DC remanded. Defs' appeal to CA filed. Sept 20, 1965: Harlan, J, denied application for stay of remand order pending CA appeal. May 18, 1966: CA 2 affirmed remand: record did not indicate state ct bail policy was calculated to discourage or suppress legitimate civil rights activity.
73.NC.3. Hawkins v North Carolina (USSC) (365 F2d 559, cd 385 US 949) Aug 16, 1966: CA 4 held no cause for removal stated under §1443(1) Judicial Code by petition alleging Negro civil rights worker could not obtain fair state ct trial on charge of unlawful interference with voting registration commr and unlawful procurement of registration of unqualified voters despite Pet's allegation he merely rendered requested assistance to commr; made no representations about qualifications; and state's purpose was to harass and deter. Nov 14: USSC denied cert.

Jack Greenberg, Melvyn Zarra, Esqs, NAACP Inc Fund, 10 Columbus Circle, NYC; Prof Anthony G Amsterdam, U of Pa Law School, Philadelphia; J LeVonne Chambers, Thomas Wyche, Charles V Bell, Esqs, all of Charlotte, NC.

73.Va.1. Wallace v Virginia (Prince Edward Co) (USSC) (357 F2d 105, 384 US 891, 11 RRLR 374) Def, Negro law student and law firm employee, attempted to visit Negro demonstrators after their arrest; accosted by deputy sheriffs; arrested: disorderly conduct, assault. Def sought removal to DC under 28 USC §1443, claiming discrimination in arrest while upon lawful business and that trial in state ct would be by jury from which Negroes were systematically excluded. DC denied removal petition. Jan 21, 1966: CA 4 affirmed. Je 20, 1966: USSC granted cert; affirmed (5-4), citing Greenwood v Peacock, 55.Miss.5a, 384 US 808.

James M Nabrit, Esq, Howard Univ, Washington, DC; Charles H Jones, Esq, 109 N Dearborn, Chicago; Melvyn

- 37 -

Zarr, Esq, 100 Bradford St, NYC; S W Tucker, Esq, and Henry L Marsh, III, Esq, both of 214 E Clay St, Richmond, Va; Anthony G Amsterdam, Esq, Univ of Pa Law School, 3400 Chestnut St, Phila, Pa; Jack Greenberg, Charles Stephen Ralston, George E Allen, St, Esqs, NAACP Inc Fund.

73.Va.2. Virginia v Jones (CA 4, #10117) (367 F2d 154; 12 RRLR 358) Negro inmate allegedly killed prison guard. Def petitioned for removal to DC: death penalty almost always invoked against Negroes, Negroes excluded from juries. DC granted state's motion to remand; Def appealed. Sept 26, 1966: CA 4 affirmed remand, held DC may not grant removal on basis of custom of racial discrimination in judicial process within state, only when state or fedl law causes denial of accused person's rights in state cts.

And see cases at 512.

74. In Obtaining Three-Judge Federal Courts

74.1. Schackman v Arnebergh (USSC) (258 FSupp 983, 87 SCt 1622) Pl sued for declaratory judgment and injunction. CD Cal refused to convene 3-judge fedl ct. Pl appealed to USSC. May 29, 1967: USSC dismissed appeal: proper procedure is review in CA, Idlewild Bon Voyage Liquor Corp v Epstein, 370 US 713.
74.2. Moody v Flowers; Bd of Supervisors, Suffolk County, NY v Bianchi (USSC) (256 FSupp 195, 617; vac 387 US 97) Pls sued, alleging malapportionment in one Co in Ala, one Co in NY; 3-judge fed'l cts convened; decided cases. USSC noted probable jurisdiction on direct appeals under 28 USC §1253. May 22, 1967: USSC vacated (9-0), Douglas, J: USSC has jurisdiction of direct appeals only if cases were "required" to be heard by 3-judge cts; USSC construes 28 USC §2281 to authorize 3-judge ct only when: (1) state statute of gen'l and statewide application is sought to be enjoined, not ordinance or local resolution; (2) state officer performing state function pursuant to statewide policy is real party Def; since these factors not present here, 3-judge cts improperly convened; vacated so Pls may appeal to CAs.

Charles S Rhyne, Esq, 400 Hill Bldg, Washington, DC 20006; Frederick Block, Esq, 1919 Middle County Rd, Centereach, NY; Richard C Cahn, Esq, 425 New York Ave, Huntington, NY.

And see Sailors, 503.Mich.4.

3-judge ct cases: * ct held statute unconstitutional.

Anderson, 421.Ga.3; Baker*, 63.56; Bokulich, 512.Ala.15; Bond, 502.Ga.1; Boyd, 125.33; Brooks, 54.28; Rap Brown, 54.20; Burmeister, 304.NY.29; Cameron, 55.Miss.7; Carmichael*, 51.Ga.8a; Carmichael, 54.16a; Johnnie Chewie, 603.6; Chinn, 63.53; Connor*, 503.Miss.2; CORE, 535.15; Coxe, 282.17; Damico, 421.Calif.22; Del Bourgo, 127.2; Flast, 111.48; Gilmore*, 261.26; Harrell, 421.DC.6; Healey, 255.5; Hobson, 501.DC.1; Hosack*, 281.28; Kramer, 506.2; Krebs, 271.52; Lamont, 295.14; Leary, 57.27; Levitt, 245.15; Levy, 126.14; Loving, 561.6; McPherson, 421.Calif.17; McSurely*, 54.19; Moody, 74.2; Morris*, 503.Ga.5; O'Hare, 111.45; Petersen, 127.5; Professors, 281.21; Reed*, 255.4; Sailors, 503.Mich.4; Schneider, 268.22; Seversmith, 112.29; Smell, 421.NY.14; Smith, 421.Ala.1; Smith, 421.Pa.2; Stallworth, 421.Calif.14; Stamler, 271.50; Sumrall, 125.24a; Thompson, 421.Conn.4; US v Alabama*, 553.Ala.4a; US v Mississippi*, 501.Miss.15; US(Intervenor-Pl) v Sharkey Co Officials, 512.Miss.10; Waggoner, 421.Pa.3; Ware*, 54.22; Washington, 553.Ala.4; WEB DuBois Club, 211.16a; Weiss, 255.2; Wheeler, 421.Calif.18; Whitehill, 281.23; Williams, 421.Miss.2; Williams, 423.Ga.1; Williams, 423.Ga.2; Wirtz, 427.13; Zwickler, 72.3.

90. Miscellaneous Freedom of Thought
Debate: Closed session on CIA. Cong Rec—Sen. Jy 27, 1966, 16581.
90.6. Nick Cipy v Intl Bhd of Teamsters (ND Calif) Dec, 1965: Pl expelled from Union for malicious, slanderous, and unfounded attacks on union officials, harrassment, insults. Suit for reinstatement and damages for wages lost, injury to reputation, emotional distress and embarrassment on grounds of First Amendment and Labor-Management Disclosure Act of 1959 protections. Pending.

Marshall W Krause, Esq, ACLU, 503 Market St; Jerrold E Levitan, Esq, 1231 Market St, Penthouse, Whitcomb Hotel, both of San Francisco.

90.7. New York v Lewis (Queens Crim Ct) 1966: Def carried bumper sticker advocating peace in Vietnam: summons for advertising. Pending.

William Butler, Esq, 400 Madison Ave, NYC.

90.8. Chicago v Stewart (Cook Co Cir Ct, 1st Muni Dist) Def, male transvestite, periodically arrested under city ordinance prohibiting person from appearing in public dressed in clothes of opposite sex. Issue: constitutionality of ordinance. Pending.

Joan Miller, Esq, 5438 S Hyde Park Blvd; Ronald H Silverman, Esq, 19 S LaSalle St, Rm 1421, both of Chicago.

90.9. Re Philip Moran (NY Labor Dept App Bd) Nov 1966: Rel-newspaper editor resigned when chain management insisted he endorse Republican candidate. Rel sought unemployment compensation, claiming voluntary quitting with good cause. Regional office denied compensation: voluntary quit. Dept Referee reversed; "irreconcilable differences of opinion cost Rel his job." App Bd reversed Referee; "Rel knew he lacked complete authority."

Proposed Legislation: S 3 permits taxpayer suits challenging US aid to church-related schools. Cong Rec—Sen. Apr 11, 1967, S 4822; Je 23, 1967, S 8755.

Article: Donald A Giannella, The religious liberty guarantee. 80 Harvard 1381-1431.

Francis J Conklin: Religious fraud and the First Amdt. 2 Gonzaga 35-62.

And see Yost, 51.NY.39.

110. Separation of Church and State
Article: Philip B Kurland, Politics and the Constitution: federal aid to parochial schools. 1 Land & Water 475-495.

Comment: Public funds for transportation of pupils to private and parochial schools. 18 Mercer 453-460.

Note: What facts constitute "establishment of religion?" Truitt v Bd of Pub Works (221 A2d 370, 1966). 52 Cornell 814-826.

111. In Education
Articles: Paul G Kauper, Religion, higher education and Constitution. 19 Alabama 275-297.

Comments: Religious exercises and public schools. 20 Arkansas 320-353.

Textbook loans to parochial schools. 32 Brooklyn 362-386. Elementary and Secondary Education Act: implications of

- 38 -

trust-fund theory for church-state question raised by Title I. 65 Michigan 1184-1205.

Fed'l aid to church-affiliated colleges, universities. 19 S Carolina 231-48; 16 De Paul 409-20; 11 St Louis 464-74.

The Amish and compulsory education. 53 Virginia 925-952.

Notes: Public aid to sectarian colleges: Horace Mann League of US v Bd of Pub Works (220 A2d 51, 1966). 62 Northwestern 253-63.

State legislature may not require local school boards to lend textbooks to parochial school pupils: Bd of Educ v Allen (273 NYS2d 239, Sup Ct 1966). 20 Vanderbilt 640-46.

Study: Legislative Reference Service, American Law Div, Library of Cong; HR 8983 blocks grants to states for education, conflicts with state constitutional prohibitions against sectarian use of public funds. Cong Rec—House. May 18, 1967, H 5760.

111.29. Balgooyen v Los Gatos Joint Union High School Dist (Ct of App, 1st App Dist, Div 1, #22,813) 1962-63: Lengthy debate over propriety and legality of vesper services on public school property with participation of students and Christian clergy, and in connection with high school graduation. Apr 22, 1963: Co Counsel ruled use of school property by community organizations for vesper services not contemplated by Calif's Civic Center Act. Def-trustees rejected advice of Co Counsel, approved vesper services for June 1964 if sponsored by PTA. May 1964: Pl-parent of high school student sued. June 5: Super Ct granted temporary restraining order. June 8: Services held off school property. Sept 21: Super Ct denied permanent injunction: when public school property is not being used in the educational process it is ordinary public property, and First Amendment does not require restruction of its use. On petition for h'g in Calif Sup Ct, assigned to DCA. Argument: Apr-May, 1966. Pending.

Phillip Hammer, Esq, 300 W Hedding St, San Jose.

111.35. Horace Mann League v Maryland Bd of Public Works (USSC) (220 A2d 51, 385 US 97) Md legislature approved bond issue for &2.5 million to construct facilities at 4 colleges affiliated with churches. Pl filed suit alleging expenditure of tax revenues in this manner violates Md Const, First Amdt. 1966: Md Ct of App held: (1) grants for construction of dorms and classrooms at church-affiliated colleges that are not "sectarian" do not violate First Amdt establishment clause; (2) such grants at church affiliated colleges that are "sectarian" do violate establishment clause. Nov 14, 1966: USSC denied cert, dismissed appeal on (1), (2).

Leo Pfeffer, Esq, 15 E 84th St, NYC.

Casenote: 51 Minnesota 962-7.

111.39. Stearns Co Bus Case (Minn Dist Ct) 1966: Action to declare unconstitutional statute allowing bus transportation of private and parochial students by 2 Minn school districts. Pending.

D Haglund, Esq, 6500 5th Ave South, Wayzata, Minn.

111.40. Bd of Educ, Central School Dist No 1, NY v Allen, Rock (USSC) 1965: Statute passed requiring local public school bds and dists to purchase and, on individual request, to loan textbooks to all pupils including parochial pupils, in grades 7 to 12. Pl-school bd sued for (a) declaratory judgment that statute violates First Amdt and NY Constitution, (b) injunction restraining Def-state Commr of Education from appropriating moneys for acquisition of textbooks to use under program. Def moved to dismiss: (1) Pl lacks standing to sue, (2) statute benefits child, not school. Pls moved for summary judgment. Aug 26, 1966: Sup Ct granted Pls' motion, denied Defs' motion, held statute violated fedl and state constitutions. App Div reversed unanimously, 3 judges on standing issue, 2 on constitutionality. Je 1, 1967: Ct of App affirmed App Div (4-3): Pl had standing, but statute constitutional: secular texts "neutrally" provided to all pupils regardless of type of school they attend. Aug 7: Appeal to USSC filed. Pending.

Marvin E Pollock, Esq, 80 Pine St, NYC 10005.

111.41. Bowerman v O'Connor (RI Sup Ct) 1963: Rhode Island adopted statute directing local school comms, on request, to loan textbooks to all pupils in community, including parochial pupils. 1965: Pls, taxpayers, sued for declaratory judgment and injunction restraining Defs, members of local school bd, from using public funds for other than public schools. Sept 27, 1967: Super Ct held statute violates fedl and state constitutions. Appeal pending.

Harold E Adams, Esq, 302 Union Trust Bldg; William J Sheehan, Esq, 530 Hospital Trust Bldg; Milton Stanzler, Esq, 626 Industrial Bank Bldg; all of Providence, Rhode Island 02903.

111.42. DeSpain v DeKalb Co Community School Dist 428 (USSC) 1965-1966: kindergarten class recited verse of thanks daily. Mar 25, 1966: Pls, taxpayers and parents of child in class, sued in class action for injunction restraining Defs from allowing recitation to continue: verse a religious exercise in violation of First Amdt, state constitution. May: trial. Je 27: ND Ill dismissed on merits. Jy 26: CA reversed; stayed mandate pending petition for cert. Oct 23: Defs filed for cert.

Ralph Jones, Esq, One North LaSalle St, Chicago 60602.

111.43. Calvary Bible Presbyterian Church of Seattle v Univ of Washington (Kings Co Super Ct) Def-Univ offers course on `The Bible as Literature.' Pls, 2 churches and pastors, sued for injunction enjoining Defs from authorizing "any course of instruction dealing with historical, geographical, narrative or literary features of Bible": choice of texts, manner of presentation necessarily involve theological, religious considerations, violate state constitutional prohibitions against use of public money for religious worship, exercise, instruction. Def moved to dismiss: failure to state cause of action, lack of standing of Pl-churches. Ct dismissed Pl-churches; denied other motion. ACLU amicus brief: Pls' interpretation of constitution violates academic freedom. Je 14: Ct dismissed complaint on merits. Appeal to Wash Sup Ct pending.

Douglas J Smith, Esq, 1300 IBM Building; Michael H Rosen, Esq, for ACLU, 2101 Smith Tower, all of Seattle, Wash 98104.

111.44. Utevsky v Seattle School Bd (King Co Super Ct) 1966: Suit challenging constitutionality of Public Schools having compulsory assemblies during regular school hours addressed by evangelist and Fellowship of Christian Athletes. Case became moot before trial; dismissed.

Irving Paul, Esq, ACLU, 2190 Smith Tower, Seattle.

111.45. O'Hare v Detroit Bd of Educ (ED Mich) 1966: Def to provide
- 39 -

from tax money auxiliary school services (speech correction, teacher-counsellor) to non-public, parochial schools. Pls, Negro and white parents, teachers seek 3-judge fedl ct, injunctive relief: such expenditures for parochial schools violate Free Exercise and Establishment Clauses; involuntary assignment of teachers to parochial schools violates their religious freedom; Detroit parochial schools do not provide integrated education. State Atty Genl, parochial school parents intervened as Defs. 3-judge ct denied intervenors' motion to dismiss, granted motion to abstain from determination pending state ct construction of statute. Petition for mandate pending in state ct.

Erwin Ellman, Esq, 1800 Penobscot Bldg, Detroit.

111.45a. Special Dist for Educ and Training of Handicapped Children of St Louis Co v Wheeler (Cole Co Cir Ct) Pl-Dist supplies speech therapy classes. 1963-1964: service supplied in nonpublic schools. 1964-1965: services for nonpublic schools supplied in public school bldgs during regular school hrs. Def-state education officials refused to approve payments of state aid to Pl. Pl sued for declaratory judgment, recovery of disallowed payments. Oct 12, 1965: Ct ruled Pl not entitled to state aid: applicable Mo statutes do not permit such instruction during school hours; if statutes construed to permit establishment of such classes in parochial schools, they would contravene provisions in Mo Constitution prohibiting use of public funds for religious purposes. State Atty Genl intervened, filed petition for reh'g; denied. Pl appealed. Sept 12, 1966: Sup Ct affirmed.

James M Douglas, William G Guerri, Richard W Metz, Esqs, 705 Olive St, St Louis, Mo.

111.46. Alexander v Bartlett (Mich Ct of App) Pls challenged constitutionality of state school bus act providing use of public funds for transportation of students to parochial schools under First Amendment establishment clause. Defs moved for summary judgment. Cir Ct granted Defs' motion; denied reh'g. Appeal pending.

Kenneth Laing, Esq, 1504 Michigan Natl Tower, Lansing; Erwin Ellman, Esq, 1800 Penobscot Bldg, Detroit, 48266; Leo Pfeffer, Esq, Am Jewish Congress, 15 East 84th St, NYC 10028.

111.46a. Spears v Honda (Hawaii Cir Ct, 1st Cir, #17705) Facts and issues similar to 111.46. Oct, 1967: trial; decision pending.

Donald A Beck, Esq, P O Box 939, Honolulu 96808.

111.46b. Haverkamp v Page (DuPage Co Cir Ct) Facts and issues similar to 111.46. Issue: Are US and Ill constitutions and Ill School Code §22-10 (prohibiting grants in aid of church or sectarian purposes), in conflict with Ill School Code §29-4 which permits transport of parochial school pupils only to extent presently operating school buses have excess capacity, limits service to students living 1½ miles or more from schools on established bus routes? Pending.

Byron S Miller, Esq, 33 N LaSalle St; Milton I Shadur, Esq, 208 S LaSalle St; Harry S Miller, Esq, 22 W Monroe St, all of Chicago.

111.46c. McCanna v Sills (Bergen Co Super Ct) Facts and issues similar to 111.46. Pending.

Robert D Gruen, Esq, 15 Main St, Hackensack, NJ 07601.

111.46d. Fox, Jecker v Bd of Educ (W Milford) (NJ Super Ct) Facts and issues similar to 111.46. Jan 19, 1967: trial ct held for Pls: NJ bussing statute, as shown by legislative history, intended parochial school bussing only where incidental to transportation of public school children, between points on public school routes. No appeal taken.

Robert D Gruen, Esq, 15 Main St, Hackensack, NJ.

111.46e. Honohan v Holt (Franklin Co Ct of Com Pleas) Facts and issues similar to 111.46 re 1966 Ohio School Bus Law. Pending.

Bernard A Berman, Esq, Suite 1320, Superior Bldg, Cleveland 44114; John Childers, Esq, 40 South 3rd St, Columbus; both for ACLU.

111.46f. Taylor, Baker v Bd of Educ (W Clermont) (Clermont Co Ct of Com Pleas) Facts and issues similar to 111.46. Defs moved to dismiss. Dec 1, 1967: decision on motions pending.

Nichols, Spiedel and Nichols, Esqs, Hamilton Bldg, Batavia, Ohio 45103.

111.46g. Rhoades v School Dist of Abington Township #65 (USSC) Facts and issues similar to 111.46. Jan 17, 1967: Sup Ct issued consolidated decision; held Pa 1965 School Bus Law did not violate either state or US constitutions: bussing statute essentially welfare measure to protect students from various perils as they travel to school. Oct 9: Pls' appeal to USSC dismissed.

Victor J Roberts, Esq, 40 East Airy St, Norristown, Pa; Leo Pfeffer, Esq, Am Jewish Congress, 15 East 84th St, NYC 10028.

111.46h. Worrell v Matters (USSC) (cd 88 S Ct 36) Facts and issues similar to 111.46. Case consolidated with Rhoades, 111.46g. Jan 17, 1967: Sup Ct held statute constitutional. Oct 9: USSC denied cert.

William P Thorn, Esq, 150 Allandale Rd, King of Prussia, Pa; Leo Pfeffer, Esq, Am Jewish Congress, 15 East 84th St, NYC 10028.

111.46i. Eininger v School Dist of Philadelphia (Ct of Com Pleas) Facts and issues similar to 111.46. Action held in abeyance pending outcome of Rhoades, 111.46g, and Worrell, 111.46h. Pending on issues not raised in those cases.

Walter J Rabin, Esq, 1529 Walnut St; W Joseph Harrison, Esq, 123 So Broad St; Norman Bradley, Esq, 23rd Floor, Packard Bldg; all of Philadelphia, Pa; Rayond Jenkins, Esq, 140 E Butler St, Ambler, Pa.

111.48. Flast v Gardner (NYC) (USSC) Dec 1, 1966: Pls, taxpayers and a parent of children attending NY public schools, sued for 3-judge ct, declaratory judgment, injunction barring Defs, HEW Secy and Educ Commr, from approving expenditure of fedl funds to finance instruction or guidance services in parochial schools, or purchase of textbooks, library materials for use in such schools: violates Titles I, II of 1965 Fedl Elementary and Secondary Educ Act, violates First Amdt. Defs moved to dismiss: Pls lack standing to sue. Apr 27, 1967: DC granted Pls' motion for 3-judge ct, referred Defs' motion to dismiss to 3-judge ct. June 20: 3-judge ct (2-1) dismissed: lack of standing. Oct 16: USSC noted probable jurisdiction of appeal.

Leo Pfeffer, Esq, Am Jewish Congress, 15 East 84th St, NYC 10028.

111.48a. Polier v Bd of Educ (NYC) (Sup Ct) Facts and issues similar to 111.48. Pending.
- 40 -

Leo Pfeffer, Esq, Am Jewish Congress, 15 E 84th St, NYC 10028.
111.48b. Protestants and Other Americans United for Separation of Church and State v US (CA 6) Facts and issues similar to 111.48. Mar 20, 1967: SD Ohio dismissed: fedl taxpayer has no standing to sue in case essentially one to enjoin expenditure of fedl funds, citing Frothingham v Mellon, 262 US 447 (1923). Appeal pending.

Emanuel Nadlin, Esq, 300 Lowe Bldg, 127 So Main St, Dayton, Ohio.

111.48c. Smith v School Dist of Philadelphia (Phila Co Ct of Com Pleas) Facts and issues similar to 111.48. Pending.

Joseph R Siegert, Esq, 1420 Walnut St, Philadelphia, Pa.

111.48d. Carpenter v Gardner (ED Pa) Facts and issues similar to 111.48. Continued by agreement pending USSC decision in Flast, 111.48. Pending.

Stephen B Narin, Esq, 1315 Walnut St, Philadelphia 19107.

111.48e. Yurick v School Dist of Philadelphia (Philadelphia Co Ct of Com Pleas) Facts and issues similar to 111.48. Pending.

Stephen B Narin, Esq, 1315 Walnut St, Philadelphia 19107.

111.49. Clayton v Kervick (Mercer Co Super Ct) 1966: NJ statute created Educ Facilities Authority to assist public and private colleges in providing dormitories, other facilities. 1967: Def-State Treas refused to transfer funds to Auth: statute violates NJ constitution, First, 14th Amdts. Mar 1967: Pls, Auth, Commr of Educ, sued for declaratory judgment of constitutionality, injunction ordering Def to comply with statute. By stipulation, Assn of Independent Colleges and Universities in NJ intervened in support of grants to sectarian schools; taxpayer group intervened in opposition. Pending.

Alfred C Clapp, Esq, 744 Broad St, Newark 07102 (for Def); Lewis Stein, Esq, 13 Maple Ave, Netcong, NJ, Joseph B Robison, Am Jewish Congress, 15 E 84th St, NYC 10028 (for intervening taxpayers).

111.50. Opinion of Justices (NH Sup Ct) 1967: Governor requested opinion on new statute (Chap 421, NH Laws—1967) providing for payment of portion of income derived from State Sweepstakes to private and parochial schools. Pending.

Amicus briefs in opposition by Nat'l Council of Churches, Am Jewish Congress, ACLU.

111.51. Epperson v Little Rock School Bd (USSC) 1928: Ark statute adopted, prohibiting teaching of evolution, use of textbooks in which Darwinian theory discussed; violations punishable by &500 fine, loss of teaching status. Dec 6, 1965: Pl, science teacher, sued for declaratory judgment, injunction to prevent enforcement of statute: violation of First Amdt, free speech, separation of church and state. Defs demurred. State Atty Genl intervened. May 27, 1966: Ct held statute unconstitutional: violation of First Amdt; "truth or fallacy of arguments on each side of the evolution debate does not either contribute to or diminish the constitutional rights of teachers and scientists to advance theories and to discuss them." Je 5, 1967: Sup Ct reversed: statute "a valid exercise of the state's power to specify the curriculum in its public schools"; expressly refrained from deciding whether prohibition is limited to teaching theory of evolution is true. Appeal filed in USSC; pending.

Eugene R Warren, Esq, Tower Bldg, Little Rock 72201.

111.52. Southern v Tennessee (Chancery Ct, Knox Co) Jan 11, 1967: Pl-parent filed complaint attacking 1925 "monkey law" forbidding teaching of evolution in public schools: statute establishes Protestant Fundamentalism as state religion, denies free exercise of religion; mutilation of textbooks to conform to statute is "book-burning repudiation of . . . freedom of the press." Pending.

Tennessee Civil Liberties Union, Box 10423, Knoxville.

Legislation: May 16, 1967—Tennessee repeals statute forbidding school evolution instruction.

111.53. Garber v Kansas (USSC, #393) Def, member of Old Order Amish Mennonite Church, removed 15-yr old daughter from public school in violation of state law re school attendance to age 16. (Ch 409, 1965 Sess Laws; KSA 1965 Supp 72-4801; KSA 72-1106). Daughter enrolled in Amish Parochial Vocational School and Chicago correspondence school. Dist Ct convicted Def: rejected argument state's interest in assuring secondary education not sufficient to justify impairment of Def's religious principles; &5 fine. Kansas Sup Ct affirmed. Oct 23, 1967: USSC dismissed appeal for want to jurisdiction (Warren, CJ, Douglas, Fortas, JJ, diss).

E Dexter Galloway, Esq, 303 First Nat'l Bldg, Hutchinson, Kansas 67501; Marvin M Karpatkin, Esq, 660 Madison Ave, NYC 10021; Eleanor Holmes Norton, Esq, ACLU, 156 Fifth Ave, NYC 10010. Amici: ACLU; Natl Comm for Amish Religious Freedom, Box 669, East Tawas, Mich.

111.54. Hopkins, Goertz v McWilliams (Boerne Co) (Tex Sup Ct) Aug 1966: Def-school dist hired 2 nuns to teach, with understanding they could teach in clerical garb. Pls, local citizens, filed complaint with school bd; h'g date set. Pls requested postponement to take depositions of nuns; granted. Nuns refused to appear for depositions. Pls filed application for interlocutory order directing nuns to submit to depositions; Dist Ct granted order. Nuns petitioned for writ of prohibition against Dist Ct; 4th Ct of Civ App denied writ. Nuns appealed to Sup Ct. 1967: Mother Superior announced nuns could not teach in public schools after 1966-7 school year; Pl group disbanded. Case dismissed as moot.

Gordon L Holland, Esq, Boerne, Texas; Lyndon Olson, Esq, 823 Washington Ave, Waco.

111.54a. 2 Benedictine Sisters v Hopkins, Goertz (Kendall Co Dist Ct) Pls-nuns involved in Hopkins, 111.54, sued for declaratory judgment that it is lawful for nuns to teach in public schools in clerical garb: Texas statute prohibits inquiry as to religious affiliation of public school teachers. Defs filed plea in abatement: matter should first be decided by school district in administrative proceedings.

Gordon L Holland, Esq, Boerne, Texas, Lyndon Olson, Esq, 823 Washington Ave, Waco.

112. In Public Places (and 13, 151, 152, 261)
Proposed Legislation: S 2097 authorizes taxpayer suits in DC DC to determine constitutionality of Fedl aid to church-related institutions. ACLU Press Bulletin #2270, Je 20, 1966.
112.28. Murray and Cree v Goldstein (USSC, ##132, 133) (216 A2d 897, cd 385 US 816) Facts: XI DOCKET 16—XII DOCKET 21. Case notes: 54 Georgetown 1415-22.
- 41 -

112.29. Seversmith v Machiz (USSC) Aug 1964: Pls, taxpayers, sued for: (1) declaratory judgment that fedl statute granting exemption from taxes on unrelated business income to churches, conventions, associations of churches is unconstitutional; (2) injunction prohibiting Def, fedl dist income tax collector, from granting exemption. Pls moved to convene 3-judge ct; granted. Je 19, 1967: 3-judge ct held (2-1) Pls lack standing. Oct 16: USSC noted probable jurisdiction of appeal. Pending.

Leonard J Kerpelman, Esq, 500 Equitable Bldg, Baltimore; Leo Pfeffer, Am Jewish Congress, 15 E 84th St, NYC 10028.

112.31. Estate of Supple (San Francisco) (Cal Ct of App, 1st Dist, #1 Civ 23453) Testator left &200,000 to Roman Catholic agencies. Heir at law and assignee contested: incompetence; defective execution of will; fraud and undue influence by Church in inducing testation by teaching "ludicrous inventions" about hereafter and means of securing favorable treatment there. Sept 8, 1965: Super Ct sustained Archbishop's demurrer without leave to amend. Contestants appealed: Super Ct denied due process and equal protection in not allowing inquiry into truth of doctrines, good-faith belief in same by Church agents, whether doctrines taught testator were really those of Church (such inquiries into teachings of less influential sects having been permitted); incompetence and defective execution also triable fact issues. Dec 21, 1966: Ct of App affirmed: inquiry into truth of religious beliefs foreclosed by First Amdt; contestants' allegation of "insufficient information" for Church beliefs raised issue of truth, not good faith. Oct 9, 1967: USSC denied cert.

Vincent Hallinan, Esq, 345 Franklin St, San Francisco.

112.32. Protestants and Other Americans United for Separation of Church and State v O'Brien (DC DC) Je 1967: Pls sued to enjoin Postmaster Genl from issuing 1967 Christmas stamp, depicting Mary, Jesus (with hand on Missal) and angels: proposed stamp bordered on "proselytizing for Catholic Church," religious symbol violating First Amdt establishment clause. Sept 14: DC denied injunction: corporate and individual Pls lacked standing; no First Amdt violation (dictum). Pls moved for stay pending appeal; denied. Stamp issued.

Noel H Thompson, Esq, 919 18th St NE, Washington, DC 20006.

112.33. Paul v Dade Co (Fla Sup Ct) Lighted cross placed on Co courthouse every Christmas. 1966: Co Commn appropriated tax moneys for cross. Aug 1966: Pl, taxpayer, sued to enjoin expenditure of public funds for cross: with or without use of public funds, erection of cross on public bldg violates fedl, state constitutions. Def moved to dismiss: private funds donated to cover costs. Nov 15: trial; judgment for Defs on merits. Oct 23, 1967: Dist Ct of App affirmed: cross did not constitute establishment of religion. Petition for cert pending in Fla Sup Ct.

Howard J Hollander, Bernard C Pestcoe, Esqs, 25 W Flagler St, Miami 33130.

112.34. Lowe v Eugene (Ore Sup Ct) 1964: Defs, private citizens, at own expense, erected 51 ft neon-lighted cross in public park to replace wooden cross in same place since 1936. Def-City Council granted building, electrical permits. Apr 1965: Pls, citizens of different religions, sued for declaratory judgment that presence of cross violates First Amdt, injunction restraining Defs from maintaining cross. Defs argued: (1) Pls lack standing; (2) involvement of public authorities too minimal to constitute establishment of religion; (3) cross not religious symbol; (4) granting injunction would require city to take hostile rather than neutral position toward religion. Sept 1966: trial. Feb 18, 1967: Cir Ct held cross illegal encroachment, ordered it removed. Appeal by one of Def-corps that maintain cross. Pending.

Leo Pfeffer, Esq, Am Jewish Congress, 15 E 84th St; Marvin M Karpatkin, Esq, 660 Madison Ave; both of NYC; James P Harrang, Esq, 641 Pearl St; Charles O Porter, Esq, 858 Pearl St; Thomas Mapp, Esq, Univ of Oregon Law School, all of Eugene, Ore; Daniel Pollitt, Esq, Univ of NC, Chapel Hill, NC.

112.35. Lincoln v Page (NH Sup Ct) Oct 1966: Pl-voter sued Town of Meredith and its Moderator to enjoin invocations, other religious practices at town meetings: long-standing practice of opening meetings with invocations by ministers of various denominations constitutes establishment of religion, violates Pl's rights under First, 14th Amdts. Defs demurred. On stipulation, Belknap Co Super Ct approved submission of "reserved case" to Sup Ct. Pending.

Warren E Waters, Esq, 16 Center St, Concord, NH.

112.36. Lazarus v Bd of Commrs (Cincinnati) (Ohio Sup Ct) Def-Co contracted with Order of Franciscan Sisters: hospitals to be constructed by Franciscans to be sold to Def, then leased back to Franciscans to be operated by them as public hospitals. Nov 2, 1965: voters approved bond issue for hospital construction, without being advised of proposed lease-back agreement. Feb 1966: Pl-taxpayer sued for declaratory judgment, injunction restraining bond issuance, public expenditures for construction of sectarian hospitals: violation of First Amdt, state constitution. Feb 22: Ct granted temporary injunction. Mar 16: h'g; Ct terminated injunction, dismissed on merits. May 10: Pl filed notice of appeal; dismissed: Pl failed to comply with procedural requirements. Pl moved for leave to appeal. Feb 1967: Ohio Sup Ct denied motion. Case closed.

Steven Cohen, Esq, Provident Bank Bldg, Cincinnati, Ohio.

112.37. Reynolds School Dist #7 v Gardner (DC Ore) Defs, HEW Secy, US Genl Services Adm, propose under Fedl Property and Administrative Services Act to transfer public land at 10% of market value to Concordia College, religious institution. Pl public school dist applied unsuccessfully for some of land. Mar 7, 1966: School dist and taxpayers brought class suit for injunction preventing transfer: not authorized by Act, unconstitutional under First, Fifth, Tenth Amdts. Defs moved to dismiss: Pls lack standing. Defs announced cancellation of plans to convey. Case dismissed as moot.

Stephen King, Esq, Corbett Bldg; Jonathan U Newman, Esq, 1408 Standard Plaza; Frederick R Merrill, 317 SW Alder St, all of Portland, Ore; Leo Pfeffer, Esq, 15 East 84th St, NYC 10028.

120. Conscientious Objection to War
(see also 356, 362)

Chronological steps in Selective Service Process: Function of lawyer, student deferments, COs in Armed Forces. CIVIL RIGHTS HANDBOOK pp 235:1-134.

- 42 -

Bibliography: Meiklejohn Civil Liberties Library, Material on Selective Service and military cases. 19 pp. Meiklejohn Civil Liberties Library, Box 673, Berkeley, Calif 94701.

Books: Ginger, The New Draft Law: Manual for lawyers and counselors. National Lawyers Guild. 1967. &10.00; (looseleaf for law students &5.00). Box 673, Berkeley, Calif. 94701. [exactly same text as in CIVIL RIGHTS HANDBOOK pp 235:1-235:134.]

Central Committee for Conscientious Objectors, Handbook for Conscientious Objectors. 2016 Walnut, Philadelphia. &1.

Periodical: The Reporter for Conscience' Sake. 550 Washington Bldg, 15th and NY Ave, NW, Washington, DC 20005.

Referral panels of lawyers—Natl Lawyers Guild: 5 Beekman St, NYC BA 7-0385; 19195 Griggs St, Detroit 965-0050; 3175 W 6th St, Los Angeles DU 5-6111; % Grogan, 2020 Milvia St, Berkeley, TH 5-2823; Law Center for Constitutional Rights, 116 Market St, Newark, 622-1467.

Lawyers Referral Directory 1968. Nat'l Lawyers Guild, Box 673, Berkeley, Calif 94701. &1.15.

Monthly: Counterdraft (for draft lawyers and counselors), 6324 Primrose Ave, Los Angeles 90028. &1 plus contribution.

Selective Service Law Reporter. Public Law Educ Inst, 1029 Vermont Ave NW, Washington, DC 20005. &42 practicing attys; &36 libraries; &18 counseling services, law students, new attys.


Conference Report: Disagreeing votes on House amdt to S 1432 draft bill. Cong Rec—Je 8, 1967, H 6884; Je 12, 1967, S 8050; Je 14, 1967, S 8161; Je 14, 1967; S 8213; Je 20, 1967, H 7478.

Article: Overhauling the draft system: hard times for the reformers. Science, Jy 21, 1967.

Speech: George E Brown, Six churchmen oppose draft bill. Cong Rec—Appendix. Je 19, 1967, A 3102.

Articles: John P. Hederman, Law school student body presidents answer President's Natl Advisory Commn on draft opinion survey. Jan 1967 Student Lawyer 4.

Col Samuel H Hays, Military conscription in democratic society. Cong Rec—Sen. Mr 13, 1967, S 3625.

Harry A Marmion, Selective service: are there any alternatives? Cong Rec—Sen. My 11, 1967, S 6723.

Mark Hatfield, The draft should be abolished. Cong Rec—Sen. Je 21, 1967, S 8595.

Washington Post: NSA congress votes to organize resistance to draft. Cong Rec—House. Aug 21, 1967, H 10863.

Table: Legislative Reference Service, Comparison of major draft revision proposals. Cong Rec—House. Mr 20, 1967, H 2978.

Conference papers: Ford Foundation Conference on the Draft (Dec 4-6, 1966): The costs and implications of an all-volunteer force; Milton Friedman, Why not a voluntary army? Bruce K Chapman, Politics and conscription: a proposal to replace the draft; Thomas B Curtis, Toward a voluntary career army. Cong Rec—House. Mar 9, 1967, H 2441.

Speeches: Edwin E Willis, Vietnam Draft Hearings Comm plans to disrupt Armed Services Comm hearings. Cong Rec—House. Ap 20, 1967, H 4482.

Thomas B Curtis, Criticism of Clark Advisory Panel on Draft. Cong Rec—House. Jy 24, 1967, H 9199.

Letters: Thomas B Curtis—Secys of Commerce, Defense and Labor; Manpower utilization and the draft. Cong Rec—House. Ja 30, 1967, H 748.

Willard Wirtz, to Thomas B Curtis, Labor Dept and occupational draft deferments. Cong Rec—House. Au 23, 1967, H 11065.

Message to Congress: Lyndon B Johnson, Draft continuation and reform. Cong Rec—House. Mr 6, 1967, H 2137.

Proposed Legislation: S 1432 extends draft, requires local bds to follow fedl deferment guidelines, permits special calls of doctors, dentists; authorizes standby draft into USAR and NG units. Cong Rec—Sen. Ap 5, 1967, S 4611; My 4, 1967, S 6407; My 10, 1967, S 6662; My 11, 1967, S 6734.

Executive Order: Lyndon B Johnson. Permits parole (into armed forces or appropriate civilian work) of selective service violators. The Reporter for Conscience's Sake, 550 Washington Bldg, 15th and NY Ave NW, Washington, DC. May, 1967.

Speeches: Edward M Kennedy, Draft improvement. Cong Rec—Sen. Feb 23, 1967, S 2490; Je 14, 1967, S 8213.


Articles: Special issue, The Guild Practitioner: Henry N Smith, Conscientious Objection: A layman's view; Neal Blumenfeld, MD, Psychiatric examinations and reports on draftees; Peter Franck, Medical and Psychiatric unfitness for military duty; William G Smith, Lawyers and the classification process; Norman Leonard and Laurent Frantz, Judicial review of selective service orders; Ben Margolis, Trying a selective service case; E A Dawley, Special problems of black draftees; Garwood Smith, Port Chicago trial (Or how I learned to stop worrying and to stall the bombs). Summer 1967. &1.15. Box 673, Berkeley, Calif 94701.

Articles: Formation of the San Francisco Selective Service Panel; US v Tucker et al: Motion to dismiss indictments, Government's opposition to motion to dismiss indictments, order. The Guild Practitioner. Winter 1968. &1.15. Box 673, Berkeley, Calif 94701.

Ann Fagan Ginger, Minimum standards of due process in selective service cases—Pt I, 19 Hastings 1313-48 (1968).

Comment: The Selective Service, 76 Yale 160-99 (1966).


Statement: State Dept, Re formal declaration of war in Vietnam. Cong Rec—House. My 4, 1967, H 5090.

Senate GOP white paper on Vietnam. Cong Rec—House. My 9, 1967, H 5242.

Proposed Legislation: S Res 151 defines "national commitment" as formal action by legislative as well as executive branches. Cong Rec—Sen. Jy 31, 1967, S 10487.

H. Res 869 demands hearings on presidential scope of authority under Gulf of Tonkin resolution. Cong Rec—House. Aug 10, 1967, H 10329; Aug 14, 1967, H 10467.

Colorado House of Reps, Petition for Cong investigation into basis of Vietnam war. Cong Rec—Sen. Feb 21, 1967, S 2409.

Declaration: Genl Assembly of United Presbyterian Church, Declaration of Conscience on Vietnam. Cong Rec—App. Jy 12, 1967, A 3518.

Address: Chief Justice Earl Warren, Law and Peace. 16 Catholic U 249-255.

Speeches: Henry Steele Commager, John C Bennett, Abraham Heschel, On Vietnam, Key List Mailing p 416, Je 11, 1967. SNCC, 449 14th St, San Francisco, 94103.

Martin Luther King, Beyond Vietnam. Cong Rec—House. My 2, 1967, H 4970.

- 43 -

Jeffery Cohelan, Escalation will not bring peace. Cong Rec House. My 4, 1967, H 5135.

J W Fulbright, The price of empire. Cong Rec—Sen. Aug 9, 1967, S 11265.


Proposed Legislation: S Con Res 102 declares US prisoners in N Vietnam POWs within 1949 Geneva Convention. Cong Rec—Sen. Jy 21, 1966, 15841.

Statement: Wayne Morse, Protest against Hanoi US prisoner trials, Geneva convention text. Cong Rec—Sen. Jy 18, 1966, 15311.

121. Through Application for CO Status—Before Induction (and see 122, 125, 126, 127, 362)
Book: Ginger, The new draft law pp 235:45-235:64. 1967. Box 673, Berkeley 94701. &10.

Conscientious objector form: Problems, new decisions. CIVIL RIGHTS HANDBOOK pp 235:45-64.

Forms: Motions for acquittal in CO cases. CIVIL RIGHTS HANDBOOK pp 235:101-103.

Speech: George E Brown, Jr, Hearing procedures for COs should be restored. Cong Rec—House. Jy 16, 1967, H 7385.

Eugene J McCarthy, Selective conscientious objection. Cong Rec—Sen. Je 14, 1967, S 8188.

And see Nomland, 259.54; Weitzman, 259.55.

121.44. US v Gearey (USSC, #564) (260 FS 7, 368 F2d 144; 266 FS 161, 379 F2d 915) 1960-1964; Catholic Def given II-S. Apr 6, 1965: Def classified I-A; ordered to report for induction May 5; postponed to Jy. May 21: Def asked Bd for Form 150. Je 7: Bd received Def's completed Form. Je 17: Bd ordered Def to report for induction Jy 8, and for h'g Jy 6. At h'g, Def said he had recently decided to become a CO; Bd voted not to reclassify Def; made no finding whether Def's change of status was beyond his control (32 CFR Reg 1625.2); sent Def no notification required in Reg 1625.4 re refusal to reopen. Jy 8: Def refused induction; arrested. Feb-Mar, 1966: DC rejected offer of proof of Def's sincere CO beliefs, permitted character evidence; convicted: 2 yrs; &2,000 bail pending appeal. Oct 21: CA 2 held: (1) when CO form filed after applicant received induction notice, Bd must determine when Def became CO; (2) strong congressional policy requires meticulous procedural protections for COs, including statutory right to appeal, if CO application timely made; (3) CO prior to receipt of induction order who does not file Form 150 not entitled to reopening and appellate procedure because no change of circumstances beyond his control; (4) registrant may become sincere CO on receipt of induction order, if so, entitled to full review; remanded to DC to determine date Def attained CO position.

DC reinstated conviction. CA 2 affirmed: (1) lateness of CO claim properly considered as factor in denying Def's claim; (2) if Bd rejects claim only because it believes it is not genuine, unnecessary to determine when claim matured; (3) while Def's belief in use of force in self- defense is not inconsistent with CO to participation in war, this is not ground for reversal because other evidence of his opposition to participation in war is not undisputed; (4) DC did not err by refusing to let Def testify, because such testimony would have been irrelevant to issue of thought processes of Bd; mandate stayed pending filing of petition for cert. Nov 13, 1967: USSC denied cert.

Karpatkin, Ohrenstein & Karpatkin, 660 Madison Ave, NYC.

121.46. US v Fargas (SD NY, #66 Cr 792) Je 1, 1966: Def received order for induction Je 13; asked draft bd for Form 150. Je 9: Def filed completed Form 150, interviewed by bd. Je 10: Bd wrote it saw no reason to reopen or reclassify Def. Def filed appeal from denial of CO application. Jy 14: Bd filed summary on refusing to reopen, notified Def of continuing duty to report for induction. Oct 26: Def filed motion to dismiss indictment under Fedl Rules of Crim Proc 12: (1) Sixth Amdt and Rule 7(c) FR Cr P require indictment must clearly, accurately charge every ingredient of offense to inform Def and ct, citing US v Lamont, 271.1, II DOCKET 12, 72, 236 F2d 312 (1956); (2) indictment defective for failure to allege Bd properly classified Def before ordering his induction; (3) Bd never held h'g to evaluate Def's claim to CO status or when Def became CO, citing remand in Gearey, 121.44. Apr 5, 1967: DC denied motion: (1) indictment amply sufficient to inform Def of nature of charges against him; (2) validity of defense necessarily involves consideration of issues which will ultimately determine merits; granted alternate motion for bill of particulars, denied production of documents (FRCrP 17(f), (c).) Pending.

Rabinowitz, Boudin & Standard, Esqs, 30 E 42nd St, NYC, for Emergency Civil Liberties Comm.

121.47. Storey v US (CA 9, #20932) Mar 25, 1963: Def informed draft bd he was CO, requested Form 150 to become I-O. Apr 3: Def asked Bd whether his work at Boeing was considered defense work (since his local church said it wasn't); if so, he would quit. Bd did not reply. Apr 4: Def filed Form 150 as "Ambassador for Christ." Bd classified Def I-A, gave h'g, retained I-A, Def appealed. Natl church decided Boeing was defense work; Def quit job. Apr 20, 1964: App Bd classified Def I-A-O. Je 5: Bd refused to reopen to consider change in circumstance: quitting job. Je 9: Def refused induction. Jan 21, 1966: Def convicted; 4 years. CA 9 affirmed: (1) Whether Def should continue in job which might be construed as defense work was for his own conscience, not entitled to advice from draft board; (2) Def not denied due process because never furnished copy of letter mailed to appeal board about which he had no information because letter not derogatory, appeal bd prohibited by 32 CFR §1626.24 from considering such volunteered letters; (3) Local bd properly refused to reopen Def's case because Def had been ordered for induction and no change in status thereafter; (4) Def's employment at Boeing provided basis in fact for I-A-O classification; (5) not necessary Def be given warnings (Escobedo, 372.34, 378 US 478 and Miranda, 353.41, 384 US 436) at his hearing because proceedings not criminal in character. Petition for rehearing denied.

Ralph K. Helge, Esq, 285 W Green St, Suite 205, Pasadena.

121.48. US v Kronenthal (ND Calif, #39925) Dec 23, 1963: Def received induction order. Jan 7, 1964: Def wrote Bd refusing military service. Jan 10: Def did not report for induction. Jan 27: Bd mailed Def CO form; Def filled it out and returned it. Bd gave no notice of right to counsel or advice, personal hearing. Def arrested: refusal of induction. Pretrial brief alleges denial of due process, right to counsel, right to hearing, right to change claim after Seeger (380 US 163, X DOCKET 26, 102, at 121.32): Def was CO,
- 44 -

statute unconstitutionally vague, Def did not fail to exhaust administrative remedies. Trial; decision pending.

Aubrey Grossman, Esq, 1095 Market St, San Francisco.

121.51. US v Spiro (USSC, #874) 1962: Catholic Def filed CO form with local bd, basing application on Catholic "just war" doctrine, with supporting material from leading Catholics, publications. Bd classified Def I-A-O; Def appealed. Dec 15, 1964; App Bd classified Def I-A. Dec 21: Bd ordered Def to report for induction Jan 6, 1965. Dec 24: Def requested II-S; denied because part-time student. Dec 29: Def applied for induction postponement to process presidential appeal; State Dir denied. Jan 6, 1965: Def refused induction; indicted. Feb 1966: trial; convicted: 2 yrs. Aug 1967: CA 3 affirmed: Def failed to show harm in Bd failure to notify Def that: (1) advice of Govt appeal agent available, (2) agent had 10 days to request reconsideration or Presidential Appeal, (3) wait 10 days after sending classification before issuing induction order. Petition for certiorari pending in USSC: (1) Pl's advocacy of "just war doctrine" parallel to that of Jehovah's Witnesses, approved in Sicurella, 348 US 385, for COs; (2) Pl's religious beliefs preclude his being made to serve as violation of freedom of religion; (3) quick induction failed to give notice required by due process. USSC denied cert.

Esther Strum Frankel, Esq, 455 E 42nd St, Paterson, NJ 07504.

121.52. In re X (SSS App Bd ND Cal). Sept 14, 1964: X filed SSS Form 100 claiming CO status. Oct 5: withdrew claim by letter. Nov 10: Local Bd classified X as I-A. May 26, 1965: X filed SSS Form 150 seeking I-O (CO). Je 8: Local Bd denied. Appeal processed. May 18, 1967: X appeared before H'g Officer, who recommended denial: couldn't understand X's belief in Supreme Being and doubted that X could; X "has an inferiority complex and . . . is a born coward, and in attempting to conceal these defects and justify his existence, became active in the Anti-Vietnam war movement. . . . [I am] further prejudiced against [X] by reason of his past activities in opposition to the Draft and . . . the Vietnam war effort, . . ." Justice Dept CO Section recommended to Appeal Bd against I-O or I-A-O, said H'g Officer's comments "unfortunate," "The use of the word `prejudiced' . . . may be open to interpretation; however, we may be compelled to accept it at face value." Aug 28: Appeal bd review pending.

Marshall Krause, Esq, 503 Market, SF, for ACLU.

121.53. US v Gerald Wright (Santa Cruz Co) (ND Cal, Cr #41305) Def applied for CO status; bd denied. Je 17, 1966: Def ordered to report for induction; refused; charged: refusal to submit to induction. Def claims failure to provide adviser (SSS Reg 1604.41) voided induction order; since Def made out prima facie case of CO and record bereft of contrary proof, Bd abused discretion. Pending.

Heisler and Stewart, Esqs, Lincoln and Eighth, P O Drawer 3996, Carmel 93921.

121.54. US v Wilson (CD Calif, #468-Cr) Aug 9, 1966: Def, member of Beach Boys singing group, ordered to report for induction. Aug 26: filed CO form. Jan 3, 1967: declined induction. Def charged with evading draft. Je 27: DC acquitted: Selective Service Bd acted irregularly because induction ordered by one panel but signed by member of another panel.

J B Tietz, Esq, 257 So Spring, Los Angeles.

And see cases at 362.

121.55. US v Fetrow (DC Md) Def, agnostic, refused induction, sought I-O status; denied; filed Presidential appeal. Arrested: draft refusal. Jan 31, 1967: DC acquitted Def: Bd failed to issue new induction order after Presidential appeal allowed so original induction order not proper basis for indictment; noted that Def, tho not member of any church, came within Seeger, 121.32, 380 US 163. Feb 24: Bd classified Def I-O.

Donald A Jacks, Esq, 1725 DeSales NW, Washington, DC.

121.56. US v Prince (SD NY) Def applied for CO status; denied. Def refused to be inducted; arrested. Je 16, 1967: trial: hung jury. Retrial; hung jury. Sept 11, 1967: Retrial.

Conrad J Lynn, Esq, 401 Broadway, NYC.

121.57. US v Eldridge (SD Calif) Def sought I-O classification; local bd gave I-A-O; Def refused induction; arrested; convicted: suspended sentence and probation if Def works in hospital. Def appeals: felony conviction means legal and civil disabilities, when term of service over Def can again be drafted. Pending.

Lawrence Steinberg, Esq, 259 So Beverly Dr, Beverly Hills, for ACLU.

121.58. Porter v US (CA 7) (314 F2d 833) Nov 27, 1954: Def registered. Jan 17, 1955: classified I-A. 1956: Def joined Church of God. Oct 15, 1959: bd sent induction order; Nov: Def transferred to Dist of Col bd. Jan 6, 1960: New bd mailed induction order; never received by Def. Def learned of peace position of his Church, became CO, not advised of duty to inform bd of CO position. Apr: married woman with child by previous marriage. Jy: filled out form re new dependents; bd did not act. On learning FBI looking for him, Def voluntarily reported to FBI, who instructed him to report to local bd. Def did so; clerk did not offer SSS Form 150. Aug 1: induction order issued. Aug 8: Def requested SSS Form 150; bd never sent it. Aug 9: Def reported to bd, signed statement he refused to be inducted believing this constituted refusal of induction. Sept 9: declared delinquent. Dec 15: Def filed evidence re CO and dependents. Arrested; convicted. 1963: CA affirmed. Def filed motion to vacate sentence (28 USC §2255): bd never considered new data; DC denied. CA affirmed: marriage and development of CO do not amount to changes in status over which registrant has no control, bd could not reopen classification (Reg 1625.2); failure to report marriage promptly and request SSS Form 150 constitute waiver of claim for consideration; Def's evidence legally insufficient to cause reopening of classification.

Ralph K Helge, Esq, 285 W Green, Pasadena.

122. Through Application for CO Status—After Induction (see also 124, 356)

122.57. Re James M Taylor (Army—Ft. Ord, Calif) Jan 1966: Pet applied for discharge as CO; denied. Pet refused orders contrary to his beliefs; gen'l court martial: 3 yrs at hard labor, then dishonorable discharge. Oct 24, 1966: Bd of Rev affirmed findings of guilty, reduced sentence to 2 yrs. Jan 4, 1967: Unexecuted confinement portion of sentence remitted, dishonorable discharge changed to undesirable discharge.
- 45 -

122.59. Re Cpl John Morgan (Marines—Camp Lejeune, NC) Pet applied for discharge as CO; denied. Summer 1966: Pet published anti-war poetry newspaper, issue dedicated to "Jesus Christ and other subversives." Pet left Camp for protest rally in NYC, planned to return to face punishment. Arrested.
122.60. In re Paul Denison (ND Calif) Jan 1967: Pet filed request for discharge from Army as CO. Apr 3: denied. May 28: Pet put `on alert' for shipment to Vietnam, ordered to begin processing; Pet refused; confined to stockade pending court-marital. Je: Pet filed habeas petition: top military authorities have conspired to disregard AR 635-20 (re CO discharges). Jy 24: DC dismissed charges against Pet: Army should have charged disobeying order of Comm Genl, not Commanding Officer.

Peter Franck, Francis Heisler, Jeanette Hermes, Esqs, 2890 Telegraph, Berkeley.

122.61. Pvt Felix Chavez v Fergusson (CA 9) (266 FS 879, 1967) Pet joined Army, then became Jehovah's Witness. Pet refused to salute officer or put on uniform: religious belief; twice ct-martialed: 6 mths, forfeiture of all pay. Pet filed request for administrative discharge as CO; denied. Pet refused 3rd order; general ct-martial ordered. Pl sued to prevent ct-martial. DC issued temporary restraining order, then vacated it: DC without jurisdiction. Pl appealed: Army refused to honor its own Reg, denied discharge as CO though Pet qualifies. Pending.

Francis Heisler, Esq, PO Drawer 3996, Carmel 93921; Peter Franck, Esq, 2890 Telegraph Ave, Berkeley 94705.

122.62. Re Gary Gagner (Ft Dix) Pet, theological student, enlisted in Army; ordered to Ft Lewis for shipment to Vietnam: discovered he was CO; reported to Ft Dix rather than Ft Lewis: latter inconvenient for counsel. After week of "discussion," Army assigned Pet to Ft Dix. CO application pending.

Victor Rabinowitz, Esq, 30 E 42nd St, NYC 10017.

122.63. US v Brown, Gilliam (Genl Ct Martial, Ft Polk, La) Def-Brown told local bd he was CO. Bd failed to send CO form, classified Def I-A. Def inducted. Def-Gilliam, baptized Jehovah's Witness, unaware of eligibility for exemption, not with group of inductees when sworn and could neither take nor decline oath; inducted. Defs requested CO discharge, denied, inter alia, not members of formal religious sects. Defs arrested: failure to obey order, confined in stockade, later released pending ct martial. Issues: First Amdt free exercise of religion.

Charles Morgan, Esq, ACLU, 5 Forsyth NW, Atlanta, Ga.

122.64. David Brown v McNamara (CA 3) (263 FS 686) May 17, 1966: Pet enlisted in Army for 3 yrs; sent to basic training. Je 28: Pet submitted application for discharge as CO: pacifist, believed in Supreme Being, with supporting letters, under AR 635-20; Brigade Capt wrote Pet "sincere," beliefs "based on contacts . . . with Pacifistic Organizations . . . individuals rather than on Religious convictions." Disapproval recommended by Comm Off, Brigade Asst Adjutant, Base Comm Genl, Comm Genl 1st Army. Oct 6: Adj-Genl US Army denied CO because, inter alia, Dir of SSS would not have classified Pet I-O or I-A-O. Oct 7: Pet refused order to draw combat training equipment; special ct martial (Art 91 UCMJ): 3 mths & &37/mth, suspended. Oct 17: same order refused of commissioned officer; (Art 90); Pet confined under 1st conviction. Nov 29: Pet filed habeas petition. Dec 19: DC denied: fedl cts without jurisdiction to review military decision Pet not CO. Issues on appeal: (1) jurisdiction; (2) "basis in fact" for denying CO; (3) do DDD 1300.6, AR 635-20 violate due process: military administrative proceedings are subject to Fifth Amdt, AR denies right to present witnesses, argument, be heard orally, cross examination, confrontation, counsel, reasoned decision based on evidence; (4) equal protection denied because SSS registrants have fairer procedure. Nov 14, 1967: CA 3 affirmed: no evidence denial of discharge was "arbitrary, or capricious, or irrational," partly because Army Regs note that CO claims shall not be entertained if belief existed prior to entrance in Armed Forces; fedl cts do have jurisdicition to review substantive and procedural aspects of discharging COs via habeas corpus. Petition for cert pending.

Emerson L Darnell, Esq, 219 High St, Mt Holly, NJ; Marvin Karpatkin, Esq, 660 Madison Ave; Melvin L Wulf, Eleanor H Norton, ACLU, 156 Fifth Ave, all of NYC.

122.65. US ex rel Christensen v US Navy (ND Calif) Pet enlisted in Army, served; enlisted in Navy; became Quaker; applied for administrative discharge as CO; denied. Pet refused to obey order; special court martial convicted, sentenced to no punishment, recommended administrative discharge. Commanding Officer rejected recommendation. Pet again refused order; general court martial. Pet filed habeas petition: Navy arbitrarily denied request for administrative discharge. Apr 20, 1967: h'g; Resp claimed administrative discharges are matter of grace, DC lacks jurisdiction; case continued to May 11 to allow Resp to introduce evidence that Pet not CO or that impractical to discharge him.

Marshall Krause, Esq, ACLU, 503 Market, San Francisco.

122.66. Gillen v McNamara (ND Calif, #47352) Def classified I-A-O, inducted into Army. During basic training Def found his religious belief made it impossible to participate in any military activity even noncombatant; Def refused to accept pay, allowances; imprisoned. Feb 1, 1967: Def applied for discharge as CO; application denied; Def went AWOL. June 29: voluntarily surrendered, refused to obey orders, confined to stockade, solitary. Je 29: Pet sued alleging denial of free exercise of religion, denial of protection of establishment clause, requesting habeas writ, honorable discharge. Pending.

Lloyd E McMurray, Esq, 228 McAllister, San Francisco 94102.

122.67. US v Romero (Treasure Island) (Navy Ct Martial) Def member, Church of Christ, refused to attend Naval Reserve meetings. Oct 24, 1966: Def called to active duty; Def refused to obey orders. Oct 31: Def brought before Captain's Mast: 10 days restriction. Nov 30: Def refused to obey order to put seabag on draft and leave; ct martialed: violation of Uniform Code of Military Justice; 10 days restriction. Def sought discharge as CO; denied.
122.68. Re Jo Harry Muir (Ft Benning, Ga) 1964: Def enlisted in Army. Oct, 1965: re-enlisted for 6-yrs. Aug, 1966: wrote letter to battalion commander requesting discharge as CO. Army offered him non-combatant status; Def refused; appealed again. Dec: appeal denied; Def refused to wear uniform and perform military tasks. Jan 3, 1967: Def AWOL. Feb 23, 1967: court-martialed: disobeying an order, refusing
- 46 -

to wear uniform, going AWOL. Def discharged ACLU atty, pleaded guilty, offered to accept non-combatant status. sentenced: 2 yrs, dishonorable discharge, reduction of rank.

Capt Allan Koritzinski, JAG.

122.69. Noyd v McNamara (USSC, #722) (267 FS 701; 378 F2d 538) 1955: Pet became officer in Air Force. Dec 28, 1966: Pet applied for resignation or reassignment as CO to wars of aggression, especially Vietnam war. Jan 3, 1967: denied: not in best interest of AF, Pet hadn't proved self qualified as CO. Pet sued to enjoin AF from ordering him to report to Vietnam training unit or disciplining him for refusal. Mar 31: DC ordered temporary restraining order barring AF from assigning Pet to any combat, combat training, or combat support activities pending decision on suit. Apr 19: h'g; DC ruled civilian cts could not rule on Pet's case until military processes exhausted. Apr 27: Temporary order dissolved, Def's motion to dismiss granted. May 2: DC denied motion for stay of execution. May 16: CA 10 affirmed. Oct 13: petition for cert filed: (1) must Pet commit crime and submit to ct martial before getting fedl ct review of constitutional claims? (2) would this rule of exhaustion violate principle of Dombrowski, 245.16d, 380 US 479? (3) is in-service CO denied equal protection because not entitled to same judicial review on habeas as SSS registrant? (4) does Pet's application for CO status meet Act's standards?; (5) do AF procedures re CO's deny minimum due process? (6) was denial of CO void because AF did not follow its own Regs? Pending.

Marvin M Karpatkin, Esq, 660 Madison Ave, NYC 10021; William F Reynard, Esq, 507 Am Nat'l Bank Bldg, Denver 80202.

122.70. US v Lindsay (Ft Lewis) (Military App) Nov 1966: Def inducted. Sept 1967: Def felt he was CO, applied for I-A-O through AR 600-200 procedure, rejected, ordered to check out weapons, refused; court martialed: "wilfully disobeying superior officer." (Code of Military Justice Art 90). Ct of Mil App convicted, sentenced: 3 yrs, forfeitures, demotion, dishonorable discharge. Def's appeal to Convening Auth at Ft Lewis pending.

William L Hanson, Esq, 320 Central Bldg, Seattle 98104.

122.71. Re William Hayes (DC NJ) Feb 1966: Pet granted I-A-O. Sept 12: Pet entered service as noncombatant. Je 28, 1967: Pet requested separation as CO totally opposed to service. Oct 20: denied; Pet refused to carry out duties, placed in stockade, where he remains. Jan 28, 1968: at ct-martial, Pet pleaded guilty to refusal to obey orders, sentenced: (1) forfeiture of all pay; (2) reduction to Private; (3) bad conduct discharge; (4) 1 yr at hard labor. Pet contemplating fed'l ct action.

Esther Frankel, Esq, 455 E 42d St, Patterson, NJ.

122.72. US v Bash (Army JAG Bd of Rev #1, #CM 415759) Def volunteered for military service to avoid being drafted into combat unit, assigned to Defense Language Institute, decided this activity inconsistent with beliefs, refused to `legitimize values of Army by continuing to accept military service,' disobeyed order. Aug 2, 1966: special ct martial convicted Def: 5 mths. After release, Def complied with Regs while application for discharge as CO (Form 1049) pending. Jan 3, 1967: application denied. Def disobeyed order. Feb 6, 1967: general ct martial convicted Def: 3 yrs, dishonorable discharge, forfeiture of pay and allowances, rank reduction. On appeal, Def argued: Def placed in double jeopardy; Gov't wrongfully refused to grant administrative discharge; Def entrapped by being compelled either to deny status as CO or to defy direct order; question of CO claim wrongfully excluded; basis of ct martial invalid order; Def did not commit offense by statement of intention to disobey order to be executed in future; adverse decision on Form 1049 without "basis-in-fact"; finding contrary to facts and law; Def deprived of due process. Pending.

Francis Heisler, PO drawer 3996, Carmel, California 93921, Capt David S Cooper, Office of Staff Judge Advocate, Fort Ord, California 93921.

122.201. US ex rel Cary v Commanding Officer (ED Cal) Oct 7, 1961: Rel, 17, signed Navy contract for 4 yrs reserve, 2 yrs active duty. Summer 1963: 2-week active duty on submarine. May, 1965: Rel attended first reserve meeting, informed commanding officer he was CO, applied for discharge, submitted letters in support. Dec: application refused, though no conflicting evidence. Mar 1966: Rel called for active duty, stated CO again, second application for discharge refused. Rel ct martialed for refusing to obey orders, convicted: 2 mths in brig and &100. Jy, 1966: DC denied application for writ of habeas corpus. Rel ordered to San Diego; pending.

Marshall Krause, Esq, ACLU, 503 Market, San Francisco.

122.202. Re Charles Bricker (ND Calif) Pet voluntarily enlisted in Army reserves; later became CO. Army rejected his repeated attempts to obtain discharge, turned file over to draft board when he declined to come to meetings. Bd classified Pet I-A; Pet immediately applied for I-O; after h'g, board denied I-O, denied appeal because Pet a reservist. State App Bd denied CO on grounds Pet reservist; would not rule on validity of CO, did not allow Dept of Justice h'g usually accorded CO applicants. Nov 16, 1967: DC acquitted Pet of failing to report for induction; since bd granted h'g, Pet entitled to full procedural rights granted any CO, whether or not originally entitled, citing Vitarelli v Seaton, 251.9, 359 US 535.

Marshall Krause, Esq, ACLU NC, 503 Market St, San Francisco.

122.203. Craycroft v Ferrall (WD Wash, N Div, #7265) May 20, 1966: Pl enlisted in Navy Reserve Officer Candidate Program at U of Oregon. Feb 17, 1967: Pl asked to resign from ROC, applied for discharge as CO. Mar 13: disenrolled from ROC; poor attendance. Je 7: Under AR 635-20, Gen Hershey advised Def that Pl would not be classified as CO if matter were before SSS Bd. Je 13: CO discharge denied. Je 26: Pl sent 2nd request for discharge; denied Jy 3. Jy 11: Pl sued: to declare Pl CO and entitled to discharge; habeas corpus; temporary restraining order to bar removal from district, order to active duty, and ct martial; for 3-judge ct to determine that action taken under 50 USC App §436(j) as applied to Pl repugnant to First Amdt freedom of religion and Fifth Amdt due process. Jy 12: Pl ordered to active duty Aug 15. Jy 21: second discharge request disapproved. Jy 28: DC declined to grant injunctive relief after Gov't stipulation Pl's status would not be changed pending DC h'g. Sept 5: DC held: DC without jurisdiction; dismissed with prejudice. Nov: Pet arrested for failure to report; court-martialed; serving time.
- 47 -

John Caughlan, Esq, 615 Arctic Bldg, Seattle, Washington 98104.
122.204. Muller v Ignatius (ND Calif #48126) Je, 1967: Pet inactive reserve apprentice seaman notified his Commanding Officer of his desire for discharge as CO. Je 16: Pet received Naval manual relating to CO discharges and order for active duty. Je 27: Pet sent information noted in manual to Comm Off. Tho manual directs that Comm Off must interview all who request CO discharges, Pet instead interviewed by another officer, one apparently uninformed of qualifications and procedure for obtaining CO status. Sept 27: CO discharge denied. Oct 25: Pet again requested discharge, describing violations of Navy Regs re COs. Oct 26: Pet requested: (1) writ of habeas corpus directing release from active duty; (2) restraining order continuing release pending h'g on CO and directing h'g using SSS standards re CO in accordance with Navy Regs, and US Constitution. Oct 27: At DC h'g, US Atty conceded procedural error, recommended to Navy Chief of Staff new processing of Pet's application for discharge. Chief agreed; DC denied action pending issuance of new orders to Pet. Pending.

Ralph Johansen, Esq, Legal Aid Society of Alameda County, 905 55th St, Oakland 94612.

123. Through Noncooperation Before/At Induction
[These cases cover youth who refuse to register with Selective Service System; registrants who burn draft cards or return them to SSS; registrants classified I-O who later refuse to do alternative civilian service; registrants who apply for ministerial status (IV-D), are instead classified I-O and refuse to do alternative service.]

Articles: Morris D Forkosch, Draft card burning: effectuation and constitutionality of 1965 amendment. 32 Brooklyn 303-33.

Carl Rachlin, Draft cards and burning the Constitution. 32 Brooklyn 334-52.

Faculty note: Postscript to Miranda project: Interrogation of draft protestors. 77 Yale 300-19.

123.71. US v Daniels (CA 9) Def applied for CO; local bd classified I-O; Def did not report for I-W work and refused it. Arrested; tried; convicted. Def appealed. CA 9 held I-O CO who passed physical, exhausted bd appeal remedies ordered to report to bd for assignment to civilian employer, may defend criminal action for failure to so report: classification is invalid, reversing Bjorson v US, 272 F2d 244; stated "such a person has reached the brink in the selective process without going through the formality of reporting to the bd or the civilian employer" [and should therefore be apprised of his options].

J B Tietz, Esq, 257 So Spring, Los Angeles.

123.72. US v Dundas (San Francisco) (ND Calif) 1966: Def-CO in Peace Corps; US bombed No Vietnam; Def quit Peace Corps, wrote draft bd renouncing CO status, refusing to cooperate with bd in any way. Def arrested: disobeying order of draft bd. Apr 23, 1967: Def convicted: 18 mths.
123.73. US v Pitt (ED Mo, 66Cr 169(2)) Def, Jehovah's Witness, classified I-O, ordered to civilian medical duty; refused to serve. Nov 28, 1966: pleaded guilty: 5 yrs. May 29, 1967: CA affirmed sentence.
123.74. US v Tucker (CA 7) (374 F2d 731) Def, Jehovah's Witness, claimed ministerial exemption. Mar 10, 1964: Bd gave Def I-O. Def never formally appealed but wrote letters to bd objecting. Def refused civilian work assignment; arrested; DC held letters did not constitute appeal: convicted: 3 yrs. CA affirmed.

Daniel Tucker, Esq.

123.76. US v Chas A Jackson (CA 4) (369 F2d 936) Feb 1962: Def, Jehovah's Witness, applied for CO status and ministerial deferment; local bd classified Def I-O. No appeal. May 1964: Bd ordered Def to report for alternative service; Def refused; charged: refusal to perform I-O service. Oct 1966: Def appealed: (1) DC instructed jury only issue was failure to report, not correctness of classification, (2) DC excluded evidence of Bd member prejudice, (3) 15 mths between indictment and trial violates Sixth Amdt. CA affirmed: (1) Bd classification per Regs final even if erroneous; triable only if "no basis in fact" for classification; (2) Def's failure to appeal this issue through administrative App Bd precludes judicial review, (3) delay due to death of judge, not culpable oppressive conduct of Pl.

John R Goodwin, Esq, PO Box 123, Morgantown, W Va.

123.77. US v Miller (USSC) (367 F2d 72, 386 US 911, 1967) Def burned draft card; convicted: violation of 1965 Amdt to draft law re destroying card; free on bail. Fall 1966: CA 2 aff'd: "forbidding destruction of Selective Service certificates serves legitimate purposes in administering the system ... we find that the statute is neither arbitrary nor without purpose, that it is reasonably related to the power of Congress to raise and support armies...." Feb 1967: USSC denied cert. Def put on probation; refused to comply with condition and carry draft card. Apr 6: DC revoked probation, ordered Def to serve 2-yr sentence. Def moved in USSC to continue bail pending disposition of USSC petition for reh'g on basis of US v O'Brien, 123.81. Harlan, J, granted motion. Pending.

Marvin M Karpatkin, Esq, ACLU, 660 Madison, NYC 10021.

And see O'Brien, 123.81.

Notes: 11 NY Law Forum 584; 16 DePaul 485.

123.78. US v Witkowski (SD Iowa, #4-1124-C Crim) Oct 22, 1965: Def holding charred remains of draft card admitted deliberate destruction to protest severe penalties for the act; arrested; pleaded not guilty. Apr 1, 1966: Def changed plea to guilty: suspended sentence, &100 and 3 yrs probation conditioned on Def obtaining new draft card; probation terminated if Def inducted or enlists.

Jay H Honohan, Esq, 1 Washington St, Iowa City, Iowa.

123.79. US v Wilson (SD NY) Nov 6, 1965: Def, pacifist Catholic Worked, burned draft card; arrested. Mar 4, 1966: Def pleaded guilty, 2 yrs, suspended, probation conditioned on obedience to all laws. Arrested: refusal to report for induction: convicted, 3 yrs.
123.80. US v Cornell Edelman, Lisker (NYC) (SD NY) Nov 6, 1965: Defs burned draft cards in public protest of Vietnam War. Dec 21: Grand jury indicted Defs under new law making draft card destruction a felony. Nov 25, 1966: DC convicted, 6 mths. Jy 18, 1967: CA 2 affirmed.

Aryels Neier, Esq, and Alan H Levine, Esq, ACLU, 156 5th Ave, NYC.

And see Chandler, 41.10.

- 48 -

123.81. US v O'Brien (Boston) (USSC, #232) Mar 31, 1966: Def, 19, burned draft card in front of courthouse. Je 1: Def conducted own defense; convicted by jury. Jy 1: DA asked 2 yr sentence; DC conferred with Def's father, ruled: if Def cooperates and obtains new draft card, parole; if not, 4 yrs. Issues on appeal: see Miller, 123.77; violation of First Amdt for imposing conditional sentence under Youth Correction Act where terms of rehabilitation include giving up CO views. Apr 10, 1967: CA 1 held draft card burning act unconstitutional; (1) no proper purpose; (2) in singling out persons engaged in protest for special treatment, act strikes at core of what First Amdt protects; (3) burning was symbolic act coming within free speech protection; affirmed conviction on ground of nonpossession of draft card, remanded for vacating of sentence, resentencing on considerations divorced from burning. Oct 9: USSC granted petition for cert.

Howard Whiteside, Esq, 60 State St, Boston 02109; Marvin Karpatkin, Esq, 660 Madison Ave, NYC 10021.

123.82. Wills v US (USSC, #765) (384 F2d 943) Oct 15, 1965: Def-student wrote draft bd he had destroyed draft card, refused to carry another: Declaration of Independence, US Constitution, Nurnberg Judgment. Oct 21: Bd declared Def delinquent; Oct 23: reclassified Def from II-S to I-A, mailed notice. Jan 3, 1966: Bd mailed delinquency notice dated Oct 21, 1965. Jan 31: Bd ordered Def to report for induction. Feb 24: Def refused induction in writing; indicted. Def pleaded not guilty, waived jury. Sept 23: DC convicted, held Def not prejudiced by late delinquency notice (Knox v US, 200 F2d 398); failure to exhaust administrative remedies cures bd error, precludes DC consideration of classification; 5 yrs (2 yrs before parole recommended). Oct 3, 1967: CA 9 affirmed: (1) DC erred on administrative remedy issue; "delinquency-I-A" status different from plain I-A; delinquents inducted before volunteers, hence bd failure to properly notify Def of delinquency may have misled Def, affected Def's decision re administrative appeal; (2) destruction of card same as refusal to possess; bd may declare Def delinquent. Oct 25: Pet for cert filed.

Kenneth A MacDonald, David R Hood, Esqs, Hoge Bldg, Seattle.

123.83. US v Bonito, Thomas (SD NY) 2 youths allegedly burned draft cards in YMCA cafeteria. DC convicted: 1-18 mths suspended, 18 mths probation; 2-12 mths, probation after 3 mths, all suspended pending possible appeal.
123.84. US v Kiger, Baehler (SD NY) May 26, 1966: Defs arrested: destroying draft cards. Pending.

Marvin Karpatkin, Esq, 660 Madison Ave, and Henry M di Suvero, Esq, 156 5th Ave, NYC, for ACLU.

123.85. US v Rader (SD NY) Apr 21, 1967: Def arrested by FBI; charged by US Commr: burning draft cards while wearing Green Beret Reserve uniform "unlawfully and without authority" in peace demonstration; free on &1,000 bond. Apr 28: arraignment.
123.86. US v Solomonow (CA 2, #31413) Def tore signature from draft card to symbolize disaffiliation from SSS; arrested: knowingly destroying, mutilating draft card. Defense based, inter alia, on: SSS Regs do not define what should be on classification card, so tearing off signature does not constitute mutilation; card invalid because, under Adm Procedure Act, all govt documents dealing with public must be published in Fedl Register and draft card never so published. DC found Def guilty. Appeal pending.

Prof Irving Younger, NYU School of Law, NYC.

123.87. Oakland v Callison (Oakland Muni Ct) Nov 17, 1966: Def reported for induction, passed out leaflets telling ways to avoid induction, asked other inductees to sign petition protesting war in Vietnam; ordered to stop, refused: arrested: disturbing peace. Dec: trial, Def's defense: Army "had no right to suspend Constitutional rights while conducting induction"; hung jury. Jan 4, 1967: retrial. Pending.
123.88. US v Leong (CD Cal) Jan 24, 1967: Def reported for induction but did not finish being inducted. He wished to remain in induction center but because of non-conforming dress and behavior, was ordered to leave. Def indicted for draft refusal. Oct 12: Ct-appointed psychiatrist found Def sane but not qualified for induction. Oct 12: Psychiatrist at induction center found Def free of any mental disorder, alleged Def under influence of drugs. Indictment reinstated; pending.

William G Smith, Esq, 3175 W Sixth St, Los Angeles.

And see Leong, 123.88a.

123.88a. Leong v Wood (Los Angeles Co Super Ct, #921235; CD Cal #67-1850-F) Nov 9, 1967: Pl, Def in draft refusal case, 123.88, filed suit alleging medical malpractice against physician at induction center who had found him fit for medical duty, damages based on pain and suffering. US Atty filed removal petition to DC; Pl moved to remand. Mar 11, 1968: hearing in DC.

William G Smith, Esq, 3175 W Sixth St, Los Angeles.

124. Through Military Disobedience
(see also 122, 356)

Proposed Legislation: S 1414 amends Selective Service Act forbidding sending draftees to SE Asia without their consent. Cong Rec—Sen. Mar 10, 1967; Ap 14, 1967.

124.41. US v Howe (US Ct of Mil App, #19,846) Def student joined ROTC, graduated, entered service as 2d Lt. Nov 6, 1965: Def, in civilian clothes, carried sign in El Paso college peace walk, "End Johnson's Facist Aggression in Vietnam—Let's Have More Than a Choice Between Petty Ignorant Facists in 1968." MPs arrested Def; court martialed: (1) public use of disloyal language to promote disloyalty among troops and civilians (10 USC §934); (2) using contemptuous words against Pres (10 USC §888); (3) conduct unbecoming an officer and gentleman (10 USC §933). Law officer dismissed (1); ct martial convicted on (2) and (3): dismissed, forfeitures of pay, 2 yrs hard labor. Jan 27, 1966: reduced to 1 yr. Def filed habeas petition for release pending appeal; DC denied. Mar 22: Def released on Commandant's parole: may travel in US, not wear uniform, no duties. Jy 25: Genl Counsel threatened prosecution if Def made antiwar speeches. Sept 1967: Ct of Mil App affirmed: (2) §888 older than First Amdt, reiterated in 1775 Articles of War to date, does not violate First Amdt, citing Schenck, Frohwerk, Debs (1919) 249 US 47, 204, 211; Dennis (1951) 341 US 494; Def's conduct not protected—wise to restrict military comment on politics to prevent military takeover of civilian control; (3) not vague under Fifth Amdt.

Capt Kenneth J Stuart, JAG, and Eleanor H Norton, Esq, ACLU, 156 Fifth Ave, NYC.

- 49 -

124.42. Calello, Dwyer, Fisher v Resor (ED Va, Alexandria Div, # #4085, 4101, 4107); Baldouf v Nitze (SD Calif, # #3518-SD-K); Borden v McNamara, Nitze (DC Mass, #66-138-F) Pls, 3 Army captains, 2 Navy Lt cmdrs suing Army and Navy Secys to require Defs to accept Pls resignations, made after completion of minimum period committed for. Pls allege being held in involuntary servitude, in violation of 13th Amdt. Pending.

Elmer R Fay, Esq, 718 Queen St, Alexandria; Mizeur, Leeger and Hunter, Esqs, 1909 US Natl Bank Bldg, San Diego; Julian Soshinick, Esq, Boston.

124.43. Capt Curtis Johnson v US (Ft Campbell, Ky) (MD Tenn) Army Captain enlisted for 3 yrs; after 3 yrs over, Army extended enlistment. Pl sued to enjoin Army from sending him to Vietnam. Aug 29, 1967: DC ruled Army has authority to extend serviceman's enlistment without his consent.
124.44. Re Clemens G Brysky (Fort Polk) Def inducted; during bayonet drill put down his rifle, refused to pick it up; court-martialed: refusing to obey order. Pending.
124.45. US v Stapp (Ft Sill, Okla) (US Army Court Martial) Def, private, refused to obey order to open footlocker and turn over antiwar and socialist literature; court-martialed: refusal to obey order: reduction to lowest pay grade, unconfined hard labor, forfeiture of two/thirds of one month's pay.

And see Ilg, 124.45a.

124.45a. US v Ilg (Ft Sill, Okla) (Court Martial) Je 1, 1967: Def present at court-martial of Pvt Stapp, 124.45; Def accused superior officer of lying in his testimony against Stapp. Je 15: summary ct-martial: disrespect for superior officer; convicted: 30 days hard labor, reduction in rank and pay. Jy 16: hard labor sentence eliminated by officer who reviews court-martial decisions. Judge Advocate Genl Corps affirmed.
124.46. US v Petrick (US Army, Ft Hood) Def-21, draftee, continued receiving socialist and anti-war literature through and after basic training; circulated anti-war, black power, and socialist literature. Mar 30, 1967: Def questioned regarding political beliefs, declined to answer on ground of First Amdt. Army atty assigned to Def, Def informed of prospective court-martial. Army dropped charges: Def has right to free speech as long as conversations private, distribution individual rather than mass basis. Army considering administrative discharge. Pending.

Leonard Boudin, Victor Rabinowitz, Esqs, 30 E 42nd, NYC.

124.47. Townsend v Capt Greiczed (ND Calif, #47123) Sept 14, 1966: Pet reported for induction; signed oath disclaiming membership in subversive organizations; submitted to physical examination; refused to step forward or take oath: CO; told by officer to leave. May 13, 1967: Pet arrested: desertion. Pet filed habeas petition; h'g on facts at induction. Aug 16: DC granted writ, held Pet never participated in prescribed ceremony signifying induction by taking step forward and oath of allegiance; ordered Pet discharged from Army custody.

Phillip B Ziegler, Esq, San Francisco Neighborhood Legal Assistance Foundation, 1182 Market, San Francisco.

125. By Members of Minority Groups
(and see 121)

Article: E A Dawley, Special problems of black draftees. 26 Guild Practitioner 107 (1967).

Speech: Robert W Kastenmeier, The Negro and the draft, Cong Rec—House. Mr 6, 1967, H 2168.

125.19. US v DuVernay (CA 5) Def Negro failed to register for draft, refused induction because against fighting abroad when real battle should be against inequities in US. Aug 31, 1966: Def tried by interracial jury. Issue: denial of due process because of 100% white personnel on draft bds when Negroes are 32% of DC district. Convicted, 5 yrs. Issues on appeal: no Negroes on bd; bd spent 18 seconds/case on average; DC prevented Def's queries to bd chairman re his leadership in KKK. Pending.

Benjamin Smith, Esq, 1006 Baronne Bldg, 305 Baronne St, New Orleans.

125.20. Nunnally v US Army (Holly Springs) (DC Miss) Pl, Negro civil rights worker, notified by Def he was to be inducted; Pl claimed he was being drafted out of turn because of civil rights activity. Pl sued to enjoin SSS from drafting him: Pl denied equal protection by being subject to classification by all-white draft bd, when 70% of Co Negro. No h'g before induction date, but when Pl went to induction center, officials had heard of lawsuit and refused to draft him; Pl reclassified. Suit dismissed as moot.

Alvin J Bronstein, Esq, LCDC, 233 N Farish St, Jackson, Miss 39201.

125.21. Richmond and Von Key v Commanding Officer (CD Cal) (12 RRLR 19) Pet-draftees refused to report for induction on grounds that, as Negroes, they are not US citizens or actually treated as citizens, and cannot therefore be compelled to assume burdens of citizenship; Vietnam war unlawful, in violation of SEATO and UN Charter. Pets sought writ of habeas corpus. DC refused to consider broad issues, narrowing case to propriety of local bd actions. Oct 13, 1966: Petition denied.

And see Richmond, 125.21a.

125.21a. US v Richmond, Von Key (CD Cal) Prosecution for failure to report for induction; see facts and defenses at 125.21. DC denied Defs' motion for pretrial discovery on legality of Vietnam war. Def sought jury instructions: Not guilty if: (1) Negroes colonized, (2) order induced by Def's peace, rights activities, (3) Def avoiding crimes against humanity, (4) order resulted from Def's poverty, (5) Def, as Negro, in greater danger as soldier, (6) Army training in hatred violated Def's beliefs, (7) US kills civilians in Vietnam, (8) Def's conscience forbids killing non-whites for white-controlled US Govt, (9) Vietnam war a US invasion, (10) Def sought, and denied, counsel, (11) Bd action shocks sense of fair play, (12) Bd action discriminatory against Negroes, (13) Negroes excluded from draft and appeal bds, by selection or gerrymander of districts, (14) Bd failed to reopen case when notified Def's child born, (15) local bd members non-residents of district, (16) order resulted from Bd failure to keep informed re Def, (17) Bd's failure to tell Def basis of decision prejudiced his appeal, (18) Bd failed to inform Def he could claim CO, (19) Bd failed to proffer assistance to ignorant Def, denying him due process; DC denied. Von Key
- 50 -

acquitted: bd failed to change I-A classification when notified he was a father. Richmond convicted, failed to appear for sentencing.

George T Altman, Esq, 424 S Beverly Dr, Beverly Hills; Robert L Brock, Esq, 3208 S Central Ave, and Ben Margolis, Esq, 3175 W 6th St, Los Angeles.

Note: Ben Margolis, Trying a case under the Selective Service Law. 26 Guild Practitioner 100 (1967).

125.22. US v Reeves (Chicago) (ND Ill, #66 CR 179) Def, Negro, processed by Memphis draft bd, called for induction in Chicago, became member of Lord Jesus Christ of Apostolic Faith. Jy 20, 1967: Def applied for SSS 150; all white bd denied: religious sect not recognized. Def charged with draft refusal. US Atty filed nolle prosequi.

Leonard Karlin, Esq, 173 W Madison, Chicago 60602.

And see cases at 121.

125.23. Re Pvt William Johnson (Fort Dix, NJ) Apr 1966: Def Negro went AWOL claiming he was discriminated against and he opposed war in Vietnam because of its racist nature. Feb 21, 1967: court-martial sentenced Def: bad conduct discharge, 1 yr in stockade.
125.24. US v Sumrall (CA 5, #24064) May 10, 1967: Def Negro civil rights activist refused induction; claimed Negroes kept off draft and appeal bds; he was inducted out of order. Jy: SD Miss denied Def opportunity to raise defenses that: draft bds segregated, and 4 state criminal charges against Def were dropped to clear way for his induction. All-white jury found Def guilty of refusing induction; 5 yrs and &2,500. Appeal pending.

Jonathan Shapiro, Esq, Lawyers' Comm for Civil Rights Under Law, 233 N Farish St, Jackson, Mississippi 39201; Jacob Tanzer, Esq.

See Sumrall, 125.24a.

125.24a. Sumrall v Kidd (Clarke Co) (SD Miss, #4041) 1966: Pl Negro activist ordered for induction, see 125.24. Dec: class suit filed against Commander, Armed Forces Examining and Entrance Station (Clarke Co) asking 3-judge ct to bar all-white Mississippi draft bds from classifying or inducting any Negroes until entire system reconstituted; to declare 50 USC App §460(b)(3) unconstitutional under Fifth and 14th Amdts, 42 USC §1981. Pending.

Denison Ray and Jonathan Shapiro, Esqs, Lawyers' Comm for Civil Rights Under Law, 233 N Farish St, Jackson 39201.

125.26. US v Schutz (CA 5) Def, member of SNCC, ordered to report for induction May 3, 1966, date of Ala primary elections. May 4: Def reported; announced intention to refuse to comply with draft board: discriminated against because of civil rights activities; no Negroes on bd; not given opportunity to step forward or refuse to. Arrested. Oct 17: Convicted; appeal pending.

James Lewis, Esq, LCDC.

125.27. Oakland (Calif) v Penney (Muni Ct) May 17, 1967: Negro man received induction notice, went to Oakland induction center passing out leaflets stating he would go to jail before anybody was going to make him a killer; arrested: disturbing the peace. Pending.
125.28. Ali aka Clay v Gorden, J (USSC) (386 US 1002, 1018, 1027) Pet sought injunction against draft board ordering induction; WD Ky denied. Pet sought mandamus against Def-DC judge. Apr 17-24, 1967: USSC denied cert.

And see Clay, 125.28a.

125.28a. US v Clay (SD Tex, #67-H-94) Apr 28, 1967: Def, Black Muslim, refused induction: entitled to IV-D deferment as minister. May 2: US Atty Genl announced Def to be prosecuted. Def sought permanent injunction from CA 5 against prosecution: draft bd had no right to order induction because all-white, responded to public pressure for his induction; rejection of IV-D status denies minority religions right to appoint own ministers. CA 5 denied. May 8: Def indicted: refusal of induction. Je 6: convicted: refusal of induction; 5 yrs, &10,000. Pending.

Quinnan H Hodges, Esq, 811 First City Natl Bank Bldg, Houston 77002; Hayden C Covington, Esq, 405 Lexington Ave, NYC 10017.

125.29. US v Davis (CA 5) (374 F2d 1) At induction, Def, Black Muslim, for first time claimed CO status, refused induction. Arrested: convicted; DC ruled: (1) belated development of CO objection not change in status beyond control of registrant; (2) Reg 1625.2 prevents bd from considering CO claim after induction order mailed out; (3) peremptory challenge of all Negro veniremen at trial by US Atty not denial of due process or equal protection.

Ira DeMent, Esq.

And see cases at 512.

125.30. US v Nelloms (Atlanta) (ND Ala) Negro-Black Muslim refused to be inducted: members of his faith have nothing to gain by fighting for US. Def arrested. Je 23, 1967: Fedl jury convicted Def. Pending.
125.31. US v Johnnie Williams (SD NY) Jy 22, 1966: Def Muslim refused to step forward for induction, claiming Islamic faith forbade military service. Jy 26, 1967: Convicted of draft evasion: 2 yrs.

Resolution: New Mexico Senate, Requests draft changes for fairer treatment of Spanish-descent minority. Cong Rec—Sen. Ap 21, 1967, S 5669.

125.32. US v Arocho (DC Puerto Rico, #15-66) Def, resident of Puerto Rico, refused to be inducted into Army unless permitted to state his paramount allegiance to Puerto Rico instead of US. Trial pending.

Marvin M Karpatkin, Esq, 660 Madison Ave; Melvin L Wulf, Esq, ACLU, 156 Fifth Ave, all of NYC; Juan Mari Bras, Lorenzo Pineiro Rivera, Esqs, both of Puerto Rico.

125.33. Boyd v Clark (SD NY) Pls, Negroes, would-be fulltime college students, classified I-A by draft bd. Jy 31, 1967: Pls filed complaint: 1967 draft law, in granting automatic deferments to college students, unconstitutionally discriminates on economic grounds against those unable to afford to attend college at all or fulltime; sought 3-judge ct. Pending.

Victor Rabinowitz, Esq, 30 E 42nd St, NYC 10017.

125.34. Richard Williams v Commanding General (ND Calif) Pet, Shoshone Indian, drafted; requested hardship deferment; draft bd said he could get out after basic training. Pet went through basic training, informed he was being sent to Vietnam. Pet sued to restrain Army from sending Pet out of district: Shoshones not US citizens, cannot be drafted. Je 1967: DC granted temporary restraining order; dismissed:
- 51 -

Congress can impose citizenship on Indians. Jy 1: Pet refused to board flight to Vietnam. Aug 18: genl ct martial: refusing to obey officer, refusal to board flight to Vietnam; 5 yrs.

Peter Franck, Esq, 2890 Telegraph, Berkeley; J B Teitz, Esq, 257 So Spring, Los Angeles.

125.35. US v Garach (DC Conn, #11,885) Magazine featured Def in article on Americans who fled to Canada to avoid draft. Jan 4, 1967: Fedl grand jury charged Def with draft evasion, issued bench warrant for his arrest, &5,000 bond. Warrant not served: Canada has no extradition for draft offenses.

Manual for Draft-age Immigrants to Canada. Toronto Anti-Draft Programme, 2279 Yonge St, Suite 15, Toronto 12, Ontario, Canada. &1.

126. Based on Nurnberg Judgment
(and see 121, 123, 128)

Special Issue of The Guild Practitioner: Mary M Kaufman, Judgment at Nurnberg—An appraisal of its significance on its 20th anniversary; Statements, declarations and agreements leading to war crimes trials at Nurnberg and relevant documents; Francis Heisler, Problems in raising defense of international law; Milton Koss, Bibliography. Summer 1966. &1.15. Box 673, Berkeley 94701.

Articles: Mary M Kaufman, The individual's duty under the law of Nurnberg: the effect of knowledge on justiciability. Sam Rosenwein, International War Crimes Tribunal: Stockholm session, part II. The Guild Practitioner, Winter 1968. &1.15. Box 673, Berkeley 94701.

Bertrand Russell peace foundation, London bulletin. (6/yr). 12s. 49, Rivington St, London, E.C. 2, or 342 W 84th St, NYC 10024.

And see 58.Calif.21, 58.Calif.22, 58.Calif.24b, 58.Calif.26.

126.1. Eminente v Pres Johnson, McNamara, Rusk (USSC) (361 F2d, cd 385 US 929) Pl, French citizen and resident, owns property in N Vietnam, sues Defs, not in their official capacities, for bombing N Vietnam and damaging Pl's property in affirmative acts of war without US declaration solely to destroy system of production wholly outside US boundaries, not for public benefit of US but private benefit of special US interests, in violation of US constitution, treaties, and law of nations. Pl seeks injunctive relief, under 28 USC §§1332(a) (2), 1332(d), 1350, 1391, against Defs, not US govt, and damages incurred—over &1,000,000, argues immunity does not protect US officer, incl Pres, from liability as individual re acts and scienter clearly beyond his authority. Defs filed no answer. US Atty filed motion to intervene amicus to suggest Johnson not subject to ct's jurisdiction; DC dismissed all Defs. May 3, 1966: CA DC affirmed: damage to property in foreign country said to have been caused by US armed forces non-justiciable issue. Nov 6: USSC denied petition for cert.

George T Altman, Esq, 424 S Beverly Dr, Beverly Hills, Cal; Lola Boswell, Esq, 927 15th St NW, Washington, DC.

126.4. Luftig v McNamara (USSC) (373 F2d 664; cd 387 US 945) Sept 1965: Pl drafted. Jan 19, 1966: Pl filed petition to enjoin Defs from sending him to Vietnam: Vietnam war illegal because not voted by Congress, against US treaty commitment to UN, Def's action justified by Nuremberg judgment. Army transferred Pl. ND Calif dismissed: Pl not in jurisdiction. Pl filed in DC DC. Apr 5: case argued on merits; DC dismissed: (1) sovereign immunity; (2) cannot interfere with Army. CA DC affirmed: political questions beyond Ct's jurisdiction. Je 5, 1967: USSC denied petition for cert.

Stanley Faulkner, Esq, 9 E 40th St, NYC; Selma Samols, Esq, 517 11th NW, Washington, DC; Peter Franck, Esq, 2890 Telegraph Ave, Berkeley, Cal.

126.11. US v Mitchell (USSC) (363 F2d 323; cd 386 US 972, 1042) 1961: Def, 18, registered under Universal Military Training and Service Act. Aug 1961: Def arrested for civil disobedience re nuclear submarine; convicted; on release from jail received Sel Serv questionnaire. Oct 8: Def notified local bd of disaffiliation from conscription system. Bd sent delinquency notice, classification notice, letter advising classification depends on information from registrant. Dec 3, 1961: Def wrote 3-pp letter elaborating reasons; no response. Jan 31, 1964: Bd sent current information questionnaire. Feb 10: Def replied his position unchanged. Apr 2: ordered to report for physical. May 4: received delinquency notice. May 18: ordered to report June 10. Def notified Bd of his retention of counsel. Aug 18: Bd removed delinquency status, reopened classification. Sept 25: Bd ordered to report for physical. Nov 10: Bd sent notice of delinquency. Dec 14: Bd ordered Def to report for induction Jan 11, 1965. Def indicted for failure to report; &1,000 bail and travel restricted—lifted later. Def moved to dismiss under FRCrP Rule 12 and law of Nurnberg trial. DC Conn denied motion. Sept 7: jury trial opened. Sept 8: Def discharged atty, sought postponement to obtain new counsel; denied: DC appointed former asst DA over Def's objection. Def convicted: 5 yrs, &5,000.

Jan 9, 1966: CA reprimanded Def and others for picketing ct during oral argument. Jan 13: reversed conviction, ordered retrial: Def denied right to counsel of choice. Def made pre-trial motions for foreign depositions. Feb 21: DC denied: "immaterial." Mar 15: At trial US presented one witness, draft bd clerk to establish Def refused to report for induction. Def moved to dismiss: draft is part of criminal policy in conflict with international law and moral responsibility, Def's refusal to be drafted constituted refusal to participate in criminal activity for which he cannot be punished. DC denied motion. Def's witnesses, Prof Staughton Lynd and Ralph Schoenman, sec'y to Bertrand Russell, who had been to North Vietnam, took stand, identified, prosecution objected; DC ordered jury from room, established subject matter of witness' testimony, ruled it "irrelevant." Def attempted to subpoena: (1) Donald Duncan, who quit US Special Forces in Vietnam, (2) Vietnam reporters, (3) Genl Hershey, (4) Sgts McClure and Smith, captured and released by NLF, being held incommunicado on Okinawa by US Army. DC ruled all "irrelevant." DC allowed statements into record by Vietnamese, whom Def claimed North Vietnam govt had agreed to allow to come to testify, for appeal purposes, ruled them "irrelevant" for jury. DC did not allow Def to testify. Def atty, in summing up for jury, discussed "irrelevant" issues and testimony. DC charged jury to ignore "irrelevant" issues, decide only whether Def reported for induction. Mar 25: Def convicted. Apr 1: 5 yrs.

Dec, 1966: CA 2 affirmed. Feb 6, 1967: Def jailed. Mar 20: USSC denied cert, Douglas, J diss: Petition should be granted to answer sensitive, recurring questions; (1) whether Treaty of London is treaty within Art VI, cl 2; (2) whether

- 52 -

question re waging aggressive "war" is justiciable question in this criminal case; (3) whether Vietnam episode is "war" in sense used in Treaty; (4) whether Def has standing to raise question; (5) whether, if he has, it may be tendered as defense in criminal case or in amelioration of punishment.

Robert L Borrick, Esq, NYC; formerly William Kunstler, Esq, 511 5th Ave, NYC; Conrad J Lynn, Esq, 401 Broadway, NYC; Fyke Farmer, Esq, 311 American Trust Bldg, Nashville, Tenn; Leonard Boudin, Esq, 30 E 42nd St, NYC; Mark Lane, Esq, 156 5th Ave, NYC.

126.12. US v Conklin (SD NY) Dec 9, 1965: Def refused to report for induction "for reasons of conscience, morals, ethics, and philosophy," to prevent having to commit war crimes against Nurnberg judgment. Feb 10, 1966: Def arrested; &1500 bail, restricting Def to US. Apr 28: Def invited to join Peace Corps in Morocco; unable to leave US. Je 28: Def moved to dismiss complaint under Sixth Amdt guarantee of speedy trial. Je 30: US also moved to dismiss. Jy 11: DC dismissed. Jy 12: Def received order to report for induction Jy 26; did not report, indicted.

Def moved to dismiss: (1) indictment doesn't describe elements of offense, (2) Def cannot be convicted of both offenses: larger includes lesser, (3) orders of draft bd based on impermissible classification by bd in violation of 1st and 5th Amdts: §456(j) excludes from CO status those with "essentially political, sociological, or philosophical views or merely personal code": this defense capable of determination without trial of genl issue (FRCrP 12(b)). Apr 7, 1967: DC denied motion to dismiss: (1) indictment fully apprises Def what he must be prepared to meet, (2) specific terms of 50 USC App §462 define separate offense for each instance of failure to perform duty under Act or local bd order, (3) issues of constitutional law should not be determined on incomplete record, US not required to controvert Def's assertions re beliefs by affidavit on penalty of dismissal. Def moved for bill of particulars under FRCrP 7(f); DC granted: US did not object; Def entitled to (1) particulars of alleged failure to perform obligations, (2) statement of Regs claimed to have been violated, examinations he allegedly failed to submit to, directions he allegedly disregarded. Def moved for production of documents relating to war in Vietnam: FRCrP 17 (a); DC denied: cts will not examine purposes for which executive employs armed services in foreign military operations (US v Hogan, 369 F2d 359, 360 (CA 2 1966)). Def moved for leave to take depositions abroad: necessary element of wilfulness cannot be established if Def shows he earnestly believes conduct of US constitutes aggression condemned by international law; depositions will establish rational basis for Def's beliefs. DC denied: validity of Def's defense established only if Def takes stand at trial; he can testify fully re basis for his beliefs; even if there is valid "Nurnberg" defense it is not bar to prosecution of charges made. Pending.

Rabinowitz, Boudin, & Standard, Esqs, 30 E 42nd St, NYC, for Emergency Civil Liberties Comm.

126.13. Mora, Johnson, Samas v McNamara, Resor (CA DC, #1733-66) Je 30, 1966: Pl draftees sought preliminary injunction against being sent to fight in Vietnam, declaratory judgment that Vietnam war illegal because undeclared, violates treaties, Nurnberg judgment. Jy 1: Pls announced at press conference refusal to be sent to Vietnam. Jy 7: order that Pls be sent to Oakland changed to Ft Dix; Pls arrested on street, taken to Ft Dix, 2 put in hand irons. Jy 7-14: kept under administrative restriction. Jy 11: DC dismissed suit. Jy 14: Pls ordered to board plane for Vietnam; Pls refused 3 times. Put in solitary confinement. Sept 2: DC refused to enjoin cts martial pending appeal in CA DC. Sept 6-9: Pls tried, convicted: 3 yrs hard labor, dishonorable discharge for 1; 5 yrs, dishonorable discharges for 2. Oct 7: Pls complained of inhuman conditions in stockade. CA affirmed dismissal of injunction suit. Je 30, 1967: Military Rev Bd affirmed convictions, but made all sentences 3 yrs. Nov 6: USSC denied cert, Stewart, J (Douglas, J) diss: cert should be granted to consider 4 questions: (1) Is US activity in Vietnam a war under US Const, Art I, §8, cl 11; (2) If so, can President order soldiers to war without declaration by Congress; (3) What about US treaty obligations; (4) Re Tonkin Bay Resolution—do present US military operations fall within it; did it delegate power to President unconstitutionally? Douglas, J (Stewart, J) diss: Do London Treaty, SEATO Treaty, Kellogg-Briand Pact, UN Charter give rights to individuals or give rise to justiciable controversy? USSC should decide.

Stanley Faulkner, Esq, 9 E 40th, NYC; Selma Samols, 517 11th St NW, Washington, DC.

Ft Hood Three Defense Comm, 29 Park Row, NYC.

126.14. Levy v Corcoran (USSC, #576) Feb-Dec 1966: Pet MD, conscripted Army Capt, expressed disagreement with US policy in Vietnam in conversations with soldiers, in private letter to soldier in Vietnam. Dec: Pet ct martialed: (1) Art 133—conduct unbecoming officer and gentleman; (2) Art 134—disorders . . . to the prejudice of . . . discipline; (3) Art 90—failure to obey order to give medical training to Army Special Forces personnel. Apr 17, 1967: Pet brought class suit in DC seeking: 3-judge ct to declare Arts 133, 134 unconstitutional on their face and as applied for impermissible vagueness and Art 90 as applied to suppress free speech; injunction against their enforcement and Pet's ct martial due to "chilling effect." May 3: DC held it lacked subject matter jurisdiction. May 8: Pet filed petition in CA DC for mandamus writ to order DC to convene 3-judge ct, and for stay of ct martial; CA (2-1) denied both. May 10: Pet sought stay of same day's ct martial from Warren, CJ; referred to USSC conference; May 22: denied. Nov 13: USSC denied cert.

Charles Morgan, Jr, Laughlin McDonald, Esqs, 5 Forsyth St NW, Atlanta; Melvin L Wulf, Alan H Levine, Eleanor Holmes Norton, Esqs, 156 Fifth Ave, NYC; Lawrence Speiser, Ralph J Temple, Esqs, 1424 16th St NW, Washington, DC; Prof Anthony G Amsterdam, 3400 Chestnut St, Philadelphia, all ACLU.

And see Levy (ct martial), 126.14a; Levy (bail), 126.14b.

126.14a. US v Levy (Army General Ct Martial, Ft Jackson, SC) May 10, 1967: Ct martial opened against Def (Pet in 126.14). Def contended: (a) All charges would have been protected by First Amdt if Def a civilian and Army did not prove any clear and present danger to any compelling military interest from Def's conduct; (b) medical ethics forbade Def training Special Forces personnel because they were inadequately trained, were not supervised closely in practice, were permitted wide discretion in using drugs, were directed to use medicine as a weapon in violation of Geneva Conventions; (c) Special Forces committed war
- 53 -

crimes condemned by Nurnberg Judgment. Ct permitted some proof of (c) from Army manual, The Law of Land Warfare (Jy 1956), from Def's witnesses Robin Moore, Donald Duncan, Capt Peter Bourne re mutilation of dead, bounties, assassination, use of weapons causing unnecessary suffering, forcible removal and transfer of civilians, wanton destruction, summary execution and torture. Je 2: Ct held Def did not prove a, b, or c: convicted; 3 yrs. Military appeal pending.

Case description: Ira Glasser, Judgment at Ft Jackson, 4 Law in Transition Q 123.

For counsel, see 126.14.

For bail, pending appeal, see 126.14b.

126.14b. Levy v Resor (ED SC, #67-442) (US Ct of Mill App, Misc #67-9) Jy 6, 1967: After ct martial conviction, Pet, Def in Levy, 126.14a, filed petitions for habeas, bail pending appeal, and mandamus in DC and Ct of Mil App for release. DC denied habeas: bail entirely in discretion of Commanding Officer. Jy 7: USCMA denied writ. CA 4 affirmed. Petition for cert pending.
126.15. US v Oquendo (ED NY, #66 CR 326) Local draft bd classified Def 1-A. Def (Negro-Puerto Rican) wrote to draft bd: he could not conscientiously participate in war crimes US is committing. Draft bd ordered Def to report for induction; Def requested h'g before bd with attorney: Mar 7, 1966: bd denied counsel. Aug: Grand jury indicted Def for failure to report. Def contended induction order invalid: lack of fair cross-section of people on draft bd; individual should repudiate war crimes of his govt; denial of right of counsel at bd h'g violated due process. Feb 20, 1967: case called; pending.

A F Mana, Esq, Legal Aid, 225 Washington St, Brooklyn; Conrad Lynn, Esq, 401 Broadway, NYC.

127. Judicial Review of SSS Regulations, Orders, Induction (and see 121, 362)
Report: National Advisory Commission on Selective Service (Burke Marshall, ch), In Pursuit of Equity: Who serves when not all serve? Feb 1967. Supt of Documents, Washington, DC 20402. &1.50.

Regulations: Selective Service System Regulations, current statute, and continuing subscription to amended Regs: Supt of Documents, Washington, DC 20402. &6. Cited as "32 Code of Fedl Regulations 1600 et seq" or as "SSS Reg. 1601."

Memos: Selective Service System Local Board Memos: Supt of Documents. &4/yr.

Manual: Manual for Use of Government Appeals Agents: State SSS Headquarters.

Memo: American Civil Liberties Union, An attack on constitutionality of SSS Reg 1624.1(b) excluding counsel from local draft board h'gs. ACLU, 156 Fifth Ave, NYC 11225.

127.2. Del Bourgo v Mansfield (ND Calif, #45849) 1965: Pl filed From 100 after Seeger, 121.32, but without knowledge of Seeger from Def Bd or elsewhere, did not ask for Form 150. Pl later saw Form 150, assumed it did not apply to him. June, 1966: Pl refused to take Army physical to show opposition to war. Sept 1: Def ordered Pl inducted for delinquency. Sept 16: Pl consulted counsel, read Seeger, asked for Form 150. Sept 21: Pl refused induction; turned in Form. Oct 24: Pl sued Def for 3-judge ct: (1) to declare unconstitutional Def's order requiring use of pre-Seeger Form 150 because it is anti-Seeger test; (2) to order Def to consider Pl's Form 150 as if filed when Pl became CO and not when actually filed; (3) to rescind induction order. Feb 23, 1967: DC held: 3-judge ct not required because constitutionality of Act not contested; remedies not exhausted; dismissed complaint. Aug: DC denied petition for reconsideration. Sept: Pl sought I-O, II-S or I-S from Def; pending. Appeal filed in CA 9; pending. Jan 1968: Bd classified Pl I-A. Mar: Bd held personal appearance. May: Bd classified Pl I-O; case dismissed as moot.

Norman Leonard, Esq, 1182 Market St, San Francisco; Ann Fagan Ginger, Esq, 1715 Francisco St, Berkeley.

127.3. Pavloff v Local Bd #57 (ND Calif) Facts and issues similar to Del Bourgo, 127.2. Jy 11, 1967: Pl sued to restrain Def from inducting Pl, to order Def to allow Pl to file 150 Form and exercise all rights of appeal from classification, to enjoin Def from turning over Pl's Selective Service file to US Atty for prosecution. All motions denied.

Patrick Sarsfield Hallinan, Esq, 345 Franklin St, San Francisco 94102.

127.4. Strieter v Mclssac (Marin Co) (ND Cal) Jan 21, 1965: Pl registered, filled out Series VIII on Form 100, did not complete Form 150 because, on its face, limited to those with formal religious training and belief. Mar 8: USSC handed down Seeger, 121.32. Nov 12: classified I-A. May 19, 1966: classified II-S. Aug 17: classified I-A. Sept 19: received induction notice, sought counsel. Oct 10: completed Form 150. Oct 12: without h'g, Def notified Pl it had decided reopening not warranted. Oct 13: Pl appeared for physical exam; on Form DD 398 stated he was CO and opposed to combatant and noncombatant service. Mar 13, 1967: Pl ordered to report for induction. Apr 13: Pl sued to enjoin induction order, to order Def to reopen Pl's classification and afford Pl personal h'g, to defer taking any other action until he has been afforded opportunity to exhaust appeal procedure. Pending.

Phillip Ziegler, Esq, 532 Natoma, San Francisco 94103.

127.5. Petersen v Clark (ND Cal, #47888) 1961: Pl-draft registrant physically examined, declared `non-acceptable for induction.' May 31, 1965: Def-Bd mailed Pl DDF 62 stating Pl `acceptable for induction.' Nov 9: Pl classified II-S. Sept 28, 1966: Pl classified I-A. Pl requested forms for CO, occupational deferment. Jan 25, 1967: Pl asked Def-Bd to explain SSS Form 150. Def told Pl belief in traditional "God" necessary to truthfully apply for CO; Pl did not apply. Apr 23: Def affirmed I-A, forwarded appeal on occupational grounds only. Je 7: Appeal bd affirmed. Jy 7: Def ordered Pl inducted Jy 26. Jy 12: Pl consulted atty, heard about Seeger, 121.32. Jy 17: Pl submitted SSS 150; Def postponed induction. Aug 26: Def refused re-opening, re-classification. Sept 1, 6: Pl wrote Def for personal interview, appeal; no answer. Sept 7: Def ordered Pl inducted Sept 27. Sept 11, 13: Pl's counsel wrote to Def asserting Pl's right to interview; no answer. Sept 14: Pl in person requested SSS Form 151 from Def-clerk; denied. Sept 20: Pl filed for declaratory judgment by 3-judge ct, mandamus, injunction, restraining order alleging: (1) DC has jurisdiction—1967 Act §10(b)(3) does not prevent judicial review here or is unconstitutional, (2) Pl's beliefs within Seeger, (3) SSS Forms 100 and 150 inadequate,
- 54 -

quate, denial of First, Fifth Amdt rights, (4) Defs misled Pl on Jan 25, (5) induction order ends administrative process, (6) Pl entitled to personal interview, submission of SSS Form 151. After argument in DC, Def-Bd agreed to reconsider. Later, Bd ordered Pl inducted; Pl sought 3-judge fedl ct; issue: constitutionality of Act §10(b)(3) prohibiting judicial review before refusal of induction. Jan 1968: DC ordered 3-judge ct convened. Pending.

Doris B Walker, Esq, 1440 Broadway, Oakland.

Article: Norman Leonard, Laurent Frantz, Judicial review of selective service orders, 26 Guild Practitioner 85 (1967).

127.6. US v Butler (CA 6, #17, 579) Def refused to submit to induction: draft as applied to him is unconstitutional: when ordered to report for induction, conscription was unnecessary since quotas necessary to be filled at that time could have been filled with volunteers. Def moved for production of documents now in possession of Dept of Defense containing study of Govt which followed challenges to necessity of conscription in Congress; DC denied. At trial, DC excluded from evidence copies of Congressional speeches, comm hearings re draft law. Def convicted: 5 yrs. Appeal pending: conscription is such severe deprivation of liberty that due process requires Def be able to challenge constitutionality of induction order on basis that national security does not require compulsory draft.

Ralph Rudd, Esq, 33 Public Sq Bldg, Cleveland, Ohio.

ACLU amicus by Bernard Berkman, Marvin Karpatkin, Esqs, 156 Fifth Ave, NYC.

127.7. In re Shapiro (DC NJ, # #704-66, 51-67) Oct 1965: Bd classified Pet I-A. Jy 14, 1966: Pet filed complaint to stay induction and order bd to permit introduction of evidence for exemption or allow appeal to app bd; DC dismissed. Pet inducted into Army. Jy 20: Pet filed for habeas. Oct 4: DC denied application; held failed to exhaust military administrative remedies. Dec 12: Natl SSS denied administrative remedies. Jan 16, 1967: Pet filed habeas, claimed no bd quorum, no fair bd hearing. May 15: DC issued writ; ordered Pet released from Army; held no bd quorum nor majority vote violating 32 CFR §1604.56; Pet to receive time credit if subsequently lawfully inducted.
127.8. Donald Fass v Selective Service System (SD NY) Apr 6, 1967: Def failed to report for induction; sued for temporary order restraining induction proceedings and ordering examination by Selective Service medical bd to confirm or rule out alleged ailments. Apr 26: DC declined to issue order.
127.9. Katz v Tyler (USSC) (cd 386 US 942) Dec 1965: Pets, National Guard members and registrant who received induction order, sought restraining order against Pres Johnson, McNamara, and draft officials to prevent being drafted, claiming compulsory induction violates 9th Amdt rights. DC refused to convene 3-judge ct. Oct 19, 1966: CA 2 held Pets not entitled to mandamus compelling convening of 3-judge ct for hearing on constitutionality of UMT Act. Feb 27, 1967: USSC denied cert.

Henry M Holzer, Phyllis T Holzer, Esqs, 500 Fifth Ave, NYC.

127.10. Price v Kuenan (CD Calif) Pl filed Form 150 for CO; bd denied I-O. Pl requested personal appearance, as required by SSS Regs. Bd denied, invited Pl for "interview." Pl sued for injunction against bd to prevent pending induction. Je 1967: injunction granted.

J B Tietz, Esq, 257 S Spring St, Los Angeles 90012.

127.11. US v O'Connor (ND Calif, #41279) 1966: Def classified I-O; refused to do alternate service: (1) purpose of Selective Service System is maintenance of armed force; (2) mandatory civilian service is violation of First, Fifth, Ninth and Thirteenth Amdts; (4) power of gov't to withhold benefits does not grant to gov't power to unconstitutionally condition those benefits. Def indicted. Motion to dismiss pending.

Peter Franck, Jeanette Hermes, Esqs, 2890 Telegraph, Berkeley.

127.12. Stashuk v Clark (ND Calif) 1964: Pl filed Form 100 with bd. Jy 21, 1966: Pl classified I-A. Oct 14: after moving to NY, Pl wrote to bd requesting change of bd to NY. Nov 9: Bd replied that bd could not be changed; Pl (wrongfully) assumed bd would continue to use his former San Francisco address (his parents' home) as his permanent address; bd, however, changed his address to NY one. Nov: Pl moved to new NY address without notifying bd due to above assumptions. Mar 24, 1967: Bd sent notice on induction to old NY address. Pl did not receive or learn of induction notice until Jy when FBI contacted his mother in San Francisco. Pl then notified bd of new NY address. Jy 13: On learning he qualified for CO, Pl filed Form 150, including supporting letters. Sept 26: Pl filed with bd dependency questionnaire based on his new wife's pregnancy, and requested either I-O or III-A, filing also Form 151. Pl attempted to obtain relevant information from bd to no avail. Sept 27, 1967: US Atty wrote to bd declining prosecution, recommending III-A classification due to pregnancy. Oct 25: Bd refused to reconsider Pl's classification. Nov 17: Pl ordered for induction on Dec 14. Nov 29: Pl requested an appearance before the bd. Dec 3: Pl's wife's psychiatrist wrote to bd noting that separation from Pl during pregnancy could lead to "severe depression and psychotic break with reality," possibility of suicide. Dec 8: Bd refused to reconsider, denied Pl personal appearance. Dec 8-11: Pl's atty attempted to obtain review of classification and induction order from State Dir of Selective Service; office refused relief. Pl at no time informed of existence of appeal agent. Dec 13: Pl sued for declaratory judgment, mandamus, injunction, temporary restraining order; pending. Issues: (1) Pl's ignorance of classification standards, procedure, rights owing to failure of bd to so inform him; (2) hostility of bd toward CO applicants resulting in arbitrary, unreasonable actions in violation of Selective Service Act and Regulations.

Fay Stender, Esq, 501 Fremont Bldg, 341 Market St, San Francisco 94105.

127.100. Wolff and Shortt v Selective Service Local Bds 16, 66 (CA 2) (372 F2d 817) Pls, full-time students (Mich) classified II-S. Oct 15, 1965: Pls and others sat-in at Ann Arbor draft bd, Brothman and 29 Defs, 128.2. Dec 10: NYC Dir of Selective Service asked Def Bds to review Pls' classifications for violation of draft law, §12(a)—penal statute for failure or refusal to perform duty. Def sent Wolff delinquency notice; Defs reclassified both Pls I-A. Pls asked Defs to return I-A status; 2 other Defs had II-S restored by local bds; 1 restored by App Bd. Feb 17, 1966: Pls sought injunction to prevent orders of induction (28 USC
- 55 -

§1331). Jy 11: DC granted Defs' motion to dismiss: no jurisdiction to review orders of draft bds; no exhaustion of administrative remedies. Jan 30, 1967: CA 2 reversed; (1) local bds acted without jurisdiction; (2) attempts to secure relief within SSS would be futile; (3) threat to First Amdt rights of such immediate and irreparable consequence to Pls and others that prompt action by cts required to avoid erosion of precious constitutional rights; on remand, Pls must show &10,000 injury for fedl cts to have jurisdiction.

Robert Layton, Ralph Fine, Esqs, 405 Park Ave, NYC 10022; Alan H Levine, Esq, ACLU, 156 Fifth Ave, NYC 10010.

Case Note: 13 Albany 349.


Sen Hart, Cong Rec—Sen. Nov 14, 1967, S 16375; Nov 21, S 16884;

Sen Young, Cong Rec—Sen. Nov 30, 1967, S 17409-10;

Sen E Kennedy, Cong Rec—Sen. Dec 13, 1967, S 18489-18495;

Cong Kastenmeier, Cong Rec—House. Dec 14, 1967, H 16984-5.

Article: Maj Charles W Schiesser, JAGC, Legality of reclassification of SS registrants for protest activity. Cong Rec—App. Feb 27, 1967, A 933.

127.101. Natl Student Assn v Hershey (DC DC) Pls are NSA, Students for a Democratic Society, Campus ADA, and presidents of student gov't organizations (UC-Berkeley, Howard, Houston, G Washington, Wayne, Harvard, Oberlin, Notre Dame, Newark State, Minnesota, Illinois, Columbia, Colorado, Union Theological Seminary, Calif State College—LA), and president of Univ Christian Movement, suing on their own behalf and for those similarly situated. Dec 4, 1967: Pls sued SSS Dir under 42 USC 1981, 1983, 1985; 28 USC 1331(a), 1343(3), (4), 2201; &10,000 jurisdictional amount. Oct 24, 1967: Def issued Local Bd Memo 85 on actions when registrant returns draft card and confidential letter to all members of SSS: "Demonstrations, when they become illegal . . . will . . . produce much evidence that relates to the basis for classification and . . . violations of the act and Regs"; send all such information thru SSS to local bds, which should use it to reclassify registrants or declare them delinquent and order their immediate induction. Nov 8: letter made public. Nov 2: Tulsa local bd reclassified Ratliff from II-S: "your activity as member of SDS" not "to the best interest of . . . US Gov't"; Nov 9: Salt Lake City bd reclassified Huey after antidraft demonstration, see 127.104; Nov 24: White Plains bd reclassified Gibbons after returning draft card (see 123s). Pls desire to continue to express dissent under First Amdt.

Issues: directive void on face, as applied: vague, overbroad sweep creates chilling effect on exercise of First Amdt, Dombrowski, 245.16d, 380 US 479; violates Fifth Amdt due process; violates Fifth and Sixth Amdt rights of registrant subjected to punitive sanctions, incl: indictment, speedy and public trial, by jury, confrontation, assistance of counsel; violates separation of powers by altering legislation and sanctioning administrative trial; conflicts with statutory deferments in 1967 draft law; directive issued in violation of Adm Procedure Act (5 USC 552); Regs 1642.1, 1602.4 re delinquency violate all listed constitutional rights, and employ draft as administrative punishment.

Pls seek permanent injunction against Def enforcing directive or delinquency Regs; for declaratory judgment that they are void; for injunction requiring publication of all relevant SSS documents. Pending.

Eleanor Holmes Norton, Esq, 1424 16th St NW, Washington, DC 20036; Arthur Kinoy and William Kunstler, Esqs, 511 5th Ave, Melvin Wulf, Esq, ACLU, 156 5th Ave, all of NYC; Harriet Van Tassel, Esq, 116 Market St, Morton Stavis, Esq, Law Center for Constitutional Rights, 744 Broad St, both of Newark.

127.102. Anderson v Hershey, Michigan SSS Director, and SSS Local Bds (ED Mich, S Div) 17 Pls, all registered with Def local bds, classified I-Y, veteran honorably discharged, I-W, I-O, II-S, III-A, I-A. Oct 16 or Dec 4, 1967: 13 Pls returned to Def registration or classification card to advise Govt of dissent from military involvement in Vietnam; 4 Pls desired to do so but didn't out of fear of priority induction. Oct 24: Genl Hershey issued letter. Nov-Dec: Def bds sent delinquency notices to 2 Pls; reclassified 1 Pl from II-S to I-A; ordered 1 Pl I-O to do alternative service. Dec: Pls sued on grounds and for relief similar to Natl Student Assn, 127.101. Pending.

David Y Klein, Esq, 1331 1st Natl Bldg; Norton Cohen, Esq, ACLU, 830 Washington Blvd Bldg; Dennis James and James Lafferty, Esqs, Neighborhood Legal Services Center, 3546 Trumbull, all of Detroit.

127.103. Peffers v SSS Washington Appeal Bd and Local Bds (WD Wash, N Div, #7469) Defs classified 2 Pls as I-Y and II-S, ordered both to take Defense Dept physical exam. Jy 11 and Oct 5, 1967: Pls reported for exam, agreed to submit to exam, passed out leaflets inside induction center, ejected by officer in charge. Aug 17-Nov 28: Defs sent Pls: (1) delinquency notices for failure to cooperate at exam; (2) reclassifications to I-A; (3) induction orders. Oct 24: Genl Hershey issued letter. Dec 1: Pls filed class suit on grounds and for relief similar to Natl Student Assn, 127.101. Pending.

Michael H Rosen and Richard L Young, Esqs, ACLU, 2101 Smith Tower, Seattle 98104; Melvin Wulf, Esq, 156 Fifth Ave, NYC.

127.104. Huey v SSS Local Bd 22 (DC Utah, C Div) Oct 12, 1967: Def classified Pl II-S til Oct 1968. Oct 20: Pl and 7 others peacefully demonstrated near Army induction center. Oct 24: Genl Hershey sent letter to all SSS employees to reclassify demonstrators. Nov 6: without notice, Def reclassified Pl college student I-A. Dec 1: Pl filed suit on grounds and for relief similar to Natl Student Assn, 127.101. Pending.

G Kenneth Handley, Jr, Esq, 800 Continental Bank Bldg, and I Daniel Stewart, Jr, Esq, 2620 E 3900 S, both of Salt Lake City.

127.105. Kimball v SSS Local Bd 15 (SD NY, #67/—) Oct 16, 1967: 3 Pls, classified IV-A, IV-D, I-O, returned registration certificates to US Govt. Oct 24: Genl Hershey issued letter. Nov 14-21: 3 Def local bds sent delinquency notices (SS Form 304) to 3 Pls; 1 Def bd reclassified Pl from IV-D to I-A. Dec 1: Pls sued on grounds and for relief similar to Natl Student Assn, 127.101.

Robert Layton, Esq, 405 Park Ave, and Melvin L Wulf, Alan H Levine, and Eleanor Holmes Norton, Esqs, ACLU, 156 Fifth Ave, NYC.

127.106. Rev Bucher v SSS Local Bd 7 (DC NJ) Jy 14, 1958: Def classified Pl IV-D. Oct 16, 1967: Pl returned registration
- 56 -

certificate to US. Oct 24: Genl Hershey issued letter. Nov 15: Def reclassified Pl I-A without explanation. Nov 30: Pl filed suit on grounds and for relief similar to Natl Student Assn, 127.101. Dec 1967: Local Bd returned IV-D classification to Pl.

Emerson Darnell, Esq, 219 High St, Mt Holly; Morton Stavis, Esq, 744 Broad St, Robert A Carter, Esq, 180 University Ave, Henry M di Suvero, Esq, ACLU, 45 Academy St, all of Newark; Robert Layton, Esq, 405 Park Ave, NYC.

128. By Civilians (and see 50s)

128.1. Autenrieth v US (ND Cal, #48025) 1966: 100 Bay Area residents filed claims for refund of 22% of 1965 income taxes which directly financed Vietnam war on grounds: conscientious objection to war, desire to avoid prosecutions under Nurnberg judgment for participating in, financing war in violation of UN Charter, intl law, crimes against peace, humanity, genocide. IRS rejected claims for refund. Oct 10, 1967: class suit filed for refund. Pending.

Francis Heisler, Esq, P O Drawer 3996, Carmel, Calif; Peter Franck, Esq, 2890 Telegraph Ave, Berkeley.

Taxpayers Against War, PO Box 15394, San Francisco 94115.

128.2. Michigan v Brothman, Bloom (Ann Arbor) (USSC) Oct 15, 1965: Protest at local draft bd; 29 arrested: trespass. Muni Ct convicted Defs, &70 each and 15 to 20 days. Retried to jury in Cir Ct, raising Nurnberg defense; convicted. Dist Ct of App affirmed. Aug 22, 1967: Mich Sup Ct denied leave to appeal. Petition for cert pending.

Ernest Goodman, Esq, 3220 Cadillac Tower, and David Klein, Esq, Cadillac Tower, both of Detroit.

ACLU as amicus.

And see Wolff, 127.100.

128.3. Farley v Healey (SF Super Ct, #582425) (67 AdCalR 324) Pet circulated petition to place measure on Nov 7, 1967 SF municipal election ballot opposing Vietnam war. Aug 22, 1967: Pet submitted 21,000 signatures to Resp-Registrar of Voters, who, pursuant to advice of City Atty, refused to accept them. Aug 23: Pet filed mandamus petition. Aug 31: Super Ct denied. Mandamus petition filed in Cal Sup Ct. Sept 18: Sup Ct reversed: (1) Registrar of Voters exceeded magisterial power to see that procedural requirements are met in deciding what initiatives should be presented to electorate; (2) nothing in Charter restricts SF electorate's right to vote to municipal matters only: liberally read, it allows voting on public policy also.

Benjamin Dreyfus, Allan Brotsky, Esqs, 341 Market St, San Francisco 94105.

128.4. US v Weissman, Martin (Ft Sill) (DC Okla) Jy 29, 1967: Commanding Officer issued order barring Defs, members of Youth Against War and Fascism, from post. Jy 31: Defs entered post. Aug 20: Jury found Defs guilty: violating commander's order.
129. Miscellaneous
130. Denial of Tax Exemption to Institutions
(see also 202, 266)
130.8. Mikell v Williston (Chancery Ct, Dist of Chittenden) Vt statutes dating to 18th century make rental income from certain public lands payable to church coffers. Aug 1966: Pls, taxpayers and residents of Def-town, sued for declaratory judgment invalidating: (1) public trust under which Episcopal Diocese leases lands to town; (2) payment of rental income from lands to churches; (3) tax exemption granted on the lands: violate fedl and state constitutions. Pending.

William E Mikell, Esq, 144 S Willard, Burlington, Vt.

140. Sunday Closing Laws
150. Miscellaneous Restrictions
151. In Prisons
And see George, 555.Ark.1.
151.6. Cooper v Pate (CA 7) (324 F2d 165 (1963), rev'd 378 US 546 (1964) 1952: Pl sentenced to 2 100-yr terms after tavern killing. 1963: Pl-prisoner in Ill state prison prevented from receiving Muslim literature, sued prison officials. DC denied injunction, CA 7 affirmed: Pl's claim under 42 USC §1983 not sufficient considering discipline problems which could result from practice of religion, citing Chicago Police Dept report, sociological data from Brown, 347 US 483. Je 22, 1964: USSC reversed: taking as true allegation that Pl was deprived of privileges granted other prisoners, it was error to dismiss complaint. Je, 1965: DC held: Pl entitled to use of Koran, consultation with Muslim ministers, worship with fellow Muslims; not entitled to access to Muslim and Arabic periodicals, books, or release from segregation on grounds of religious discrimination. Je 27, 1967: CA affirmed: Pl failed to show other readings were central to his faith; did not consider Pl's claim against being held in segregation unit and therefore denied attendance at religious services; issue is new on appeal.

Robert S Solomon, Esq, 105 W Adams St, Chauncey Eskridge, Esq, 123 W Madison St, Ronald Silverman, Esq, 19 S LaSalle St, all of Chicago, for ACLU.

151.13. Smyth v Howard (USSC) (365 F2d 428; cd 385 US 988) 1966: CA 4 held First Amdt prohibits Virginia state penitentiary sup't from placing Black Muslim prisoner under maximum security for expressing desire to hold religious services and refusing to give names of his co-religionists. Dec 12: USSC denied cert.
151.14. Harris v Fitzharris (ND Cal) 1966: Prison officials refused to allow Pl-prisoner to have any religious books, religious counseling from Musliim ministers or meet with fellow members of his religion on basis Muslim religion preaches black supremacy and is too dangerous to be allowed to exist in prisons. Complaint pending.

Richard Bryan, Esq, 333 Pine, San Francisco.

151.15. Johnson v Dist of S Missouri Commrs (CA 8 #18398) (258 FSupp 669, 12 RRLR 370; 368 F2d 184) Prison officials allegedly refused requests of Pl-Black Muslim to attend Islam religious meetings. Pl filed suit seeking injunctive relief, award of damages under 42 USC §1983. Feb 21, 1966: DC ruled it should not interfere with internal prison administration, especially regulations necessary to maintain order, discipline; §1983 only grants cause of action against persons acting under color of state law, not fedl law; dismissed for failure to state cause of action. Pl appealed. CA 8 affirmed, noted case now moot: prisoners can now change religious affiliation, Bur of Prisons gave Pl permission to attend Muslim services.

- 57 -

Note: Suits by Black Muslim prisoners to enforce religious rights—obstacles to a hearing on the merits. 20 Rutgers 528-571.

152. In Other Places
Comment: Right of expression in prison. 40 S California 407-23.
152.11. Hollon v Pierce (3d Dist Ct of App) Pl-school bus driver fired from job after school trustees became aware of his religious views as published in fundamentalist tract and, allegedly, felt he was unstable: not fit to be bus driver. Pl sought mandamus: denial of freedom of religion, failure to show incompetence. Jy 31, 1965: Super Ct denied writ. Oct 1967: appeal argued. Pending.

Marshall W Krause, Esq, 503 Market St; Robert Laws, 646 Van Nuys Ave, both of San Francisco; Henry Saunders, Esq, 1428 West St, Redding; all for ACLU.

152.12. California v Petersen (Dist Ct of App) Fall 1966: Def-writer arrested for possession of marijuana. Defenses: freedom of religion (drug provides "inner harmony"); right to privacy; cruel and unusual punishment. Convicted; appeal pending.

Paul K Robertson, Esq, 777 N First St, San Jose.

152.13. Colorado v Mana Pardeahtan (Denver) (Denver Co Ct, Cr #9454) Colo law forbids use of peyote (48-4-2 CRS 63). Half-Apache Indian arrested: being under influence of, possessing, importing drugs. Def argues law unconstitutional as applied to him: discriminates against him as member of Native American Church which considers use of peyote sacrament essential to practice of its religious beliefs. Je 27, 1967: Ct ruled statute unconstitutional as applied to Def who used peyote in honest, good faith in practice of Peyotism, bona fide religion.

Eugene Deikman, Esq, 1700 Broadway, Denver 80202.

Note: Use of peyote as a free exercise of religion: State v Bullard (148 SE2d 565, 1966). 19 Florida 377-382; 28 Ohio State 369-377.

152.14. Massachusetts v Sheridan (Mass Super Ct) Def-Christian Scientist's child died of lung infection. Def charged with manslaughter: failure to provide proper medical care. Defense: reliance on religious healing does not show wanton and reckless disregard for life; charge denies Def freedom of worship. Nov 1967: Def convicted: 5 yrs probation. Pending.

Walter Jay Skinner, Esq, 19 Milk St, Boston.

152.15. Alabama-W Florida Methodist Conf v Prichard Northside Bible Church (DC Ala, Mobile) Def disagreed with parent church; withdrew from denomination and kept church property as authorized by Alabama's Dumas Act. DC held Act invalid.
200. Organizational Privileges Challenged
201. As to Meetings (see also 11, 63)

201.2. Sullivan Co Comm for Peace in Vietnam v Bd of Supervisors (Sullivan Co Sup Ct) 1966: Suit to prohibit Def from denying meeting facilities to political group. Pending.

Noel Tepper, Esq, 31 New Market St, Poughkeepsie; Jeremiah S Gutman, Esq, 363 7th Ave, NYC.

201.3. Madole v Barnes (Orange Co) (NY Ct of App) Je 14, 1965: Resp-Supervisors promulgated rule restricting non-judicial use of courthouse to political parties polling 50,000 or more votes at last gubernatorial election. Nat'l Renaissance Party applied for courthouse meeting permit; denied—allegedly right-wing. Pet-NRP director sued to compel issuance. Spec Term ordered permit to issue; App Div reversed. 1967: Ct of App reversed App Div, reinstated trial ct order: contested use restriction denies equal protection to minor parties; NRP meeting in courthouse would not immediately threaten public interest; Pet not required to prove NRP is political party.

Jeremiah S Gutman, Esq, 363 Seventh Ave, NYC 10001.

202. As to Tax Exemption (see also 130, 266)

202.4. US v Communist Party, Hall (SD NY) 1956: Internal Revenue Service held Def Party owed &261,050 in income and excess profits tax for 1951 plus &120,484 interest, penalties. Service collected &7,720 thru seizure and sale of Def's assets. Mar 20, 1962: US sued for &500,000 (1956 sum plus interest), alleging Def lost exemption as political party on passage of 1954 Communst Control Act. Motion to dismiss as to individual Defs granted; Oct 25, 1962: amended complaint filed. May 12, 1967: Dismissed with prejudice following disposition of Communist Party v Commr, 202.4a.

John J Abt, Esq, 299 Broadway, NYC.

202.4a. Communist Party v Commr of Internal Revenue (Tax Ct) Pet filed for redetermination of alleged &326,000 deficiency in 1951 and 1956 income and excess profits taxes. Sept 14, 1962: Tax Ct dismissed petition for failure to prove its filing was authorized by Pet. Apr 9, 1964: CA reversed order of Tax Ct. At trial, Tax Ct found deficiency. Feb 1, 1967: CA reversed, remanded for trial on issue of Pet's taxability. May 12, 1967: Tax Ct found no deficiency, per stipulation of parties.

John J Abt, Esq, 299 Broadway, NYC.

202.6. Re Christian Echoes Ministry (Internal Revenue Service) Nov 1964: IRS notified Ministry, parent organization of Rev Billy James Hargis' Christian Crusade, of intent to revoke tax exemption as religious organization under IRC §501(c) (3). Sept 22, 1966: exemption revoked: substantial attempts to influence legislation; intervention in political campaigns. Determination pending on years for which taxes due.
202.6a. Christian Echoes Ministry v US (ND Okla #67-C-114) Je 28, 1967: Taxpayer in 202.6 filed complaint for refund of 1966 Social Security taxes: illegal assessment and collection. Pending.
202.7. Parker v Commr of Internal Revenue (USSC) (365 F2d 792, 385 US 1026) Tax Ct found religious organization's commercial publications, projects promising subscribers financial reward prevented qualification for exemption as religious organization. CA 8 affirmed. Jan 16, 1967: USSC denied cert.

Horace J Donnelly, Esq, Am Security and Trust Bldg, Washington, DC.

203. As to NLRB Certification (see also 245, 291)

203.3. Dennis v US (USSC) (346 F2d 10, rev'd 384 US 855) Facts: XII DOCKET 1. Case note: 62 Northwestern 233-243.
- 58 -

204. As to Continued Existence (see also 63, 213, 223)

204.8. Arkansas ex rel Bennett v NAACP Legal Def & Educ Fund (Cir Ct, Pulaski Co, #44679) Dec 1958: Atty Genl sued to recover statutory penalty from Def for "doing business" in state without complying with foreign corporation registration statute. Oct 1967: pending.

NAACP Inc Fund, 10 Columbus Cir, NYC.

204.9. Arkansas ex rel Bennett v NAACP Legal Def & Educ Fund (Cir Ct, Pulaski Co, #45183) July 1958: Atty Genl sued to enjoin Def from violating Ark statute prohibiting corporate practice of law. Oct 1967: pending.

NAACP Inc Fund, 10 Columbus Cir, NYC.

204.19. Smith v Harrison (Wiggins, Miss) (Co Ct, #3018) Def and Pl's parents involved in auto accident. Pl sued for &1,500,000 damages; SNCC, NAACP, SCLC, CORE, COFO joined as Defs: Def negligent while acting as agent for the organizations. NAACP moved for summary judgment: Def was not NAACP employee and NAACP had no control over his actions. Fall 1967: Trial.

Jack Young, Esq, 115 N Farish St, Jackson, Miss; James M Nabrit, III, Esq, Howard University, Washington, DC.

204.21. Landlord v Wallace (New Rochelle City Ct) Hippies leased shop, running it as psychedelicatessen. Landlord began eviction action: Defs violated year's lease by sleeping there, keeping it open after 9 PM, loitering in streets. Defs argued this is harassment to force them out. Pending.

Steven Goldsmith, Esq, 10 Morgan Place, White Plains, NY.

210. Compulsory Registration
211. Under 1950 Internal Security (McCarran) Act
Articles: Rowland Evans, SNCC in Havana; Library of Congress, Interpretation of the Smith Act. Cong Rec—House, Aug 3, 1967, H 9920.

Speech: John M Ashbrook, DuBois Club recognition at U of Illinois. Cong Rec—House. Feb 16, 1967, H 1442.

Legislation: HR 10390 amends 1950 Internal Security Act, substituting registration by Atty Genl for self-registration, in response to Albertson v SACB (USSC) 211.1d, 382 US 70 (1965) Cong Rec—House. May 25, 1967, H 6362; adopted as 81 Stat 765, PL 90-237.

Proposed Legislation: S 2146, S Res 145, to abolish Subversive Activities Control Board. Cong Rec—Sen, House. Jy 21, 1967, S 9948; Jy 24, 1967, S 10043, S 10100, H 9187; Jy 25, 1967, H 9314; Jy 26, 1967, H 9493, S 10409; Aug 15, 1967, S 11521.

211.1a. US v Communist Party (CA DC) (367 US 1 (1961); 331 F2d 807 (CA DC 1963); cert den 377 US 968 (1964); 373 F2d 682 (1967)) 1961: Def indicted for failure to register as Communist-action organization. Dec 1964: DC granted Govt motion for retrial on 1961 indictment. Feb 25, 1965: Grand Jury returned 12-count indictment charging failure to register during period Feb 13-23, 1965; failure to file registration statement knowing volunteer available willing to sign form. Mar 5: DC granted Govt motion to consolidate both indictments for trial. Apr 2: Def moved to dismiss 1965 indictment: faulty premise of McCarran Act that Party is "conspiracy" directed from Moscow disproved by current real disagreements within Communist world. Nov 2: DC denied motion. Nov 4: At trial, 3 ex-CP member-FBI agents testified to their willingness to register Party. Jury found Def guilty on all 23 counts. DC imposed maximum &10,000 fine per count: &230,000. Appeal to CA argued: (1) violation of Fifth Amdt privilege against self-incrimination; (2) holding Party was "Communist-action organization" was administrative decision; (3) Communist movement as described does not exist; (4) denial of speedly trial; (5) violation of Eighth Amdt re excessive fines. Mar 3, 1967: CA reversed: Act "hopelessly at odds" with Fifth Amdt since registration of Party would result in prosecution under Smith Act. Apr 4: Justice Dept announced it would not appeal.

John Abt, Esq, 299 Broadway, NYC; Joseph Forer, Esq, 711 14th St NW, Washington, DC.

211.16. Katzenbach v W E B DuBois Clubs of America (USSC; SACB, #126-66) June 1964: DuBois Clubs founded. Mar 4, 1966: Atty Genl petitioned SACB to have Pet ordered to register as "Communist-front organization" under 1950 Subversive Activities Control Act §7 (b)-(d). Apr 27, 1966: Pet moved that petition be dismissed or proceedings halted pending outcome of Pet's injunctive suit, W E B DuBois Clubs, 211.16a. H'g before SACB: Feb 1968.

William M Kunstler, Esq, 511 5th Ave, NYC 10017; Terence Hallinan, Esq, 345 Franklin St, San Francisco.

And see DuBois Clubs, 211.16a.

211.16a. W E B DuBois Clubs of America, Bevel, Emspak, Lynd v Katzenbach (USSC, #515) Apr 26, 1966: Pls filed suit for interlocutory injunction, permanent injunction, and declaratory judgment to restrain Atty Genl from ordering it to register (211.16) on ground 1950 Subversive Activities Control Act §7 (b)-(d) void and illegal as violation of US Constitution, Art I, §9 Clause 3, Art III; First, Fifth, Eighth, Ninth, Tenth, 13th, 14th, and 15th Amdts. DC agreed to convence 3-judge ct to determine constitutionality of Act. May 5, 1967: 3-judge ct dismissed complaint. Je 12: Ct granted motion to prevent SACB from any further proceedings until USSC appeal settled. Dec 11: USSC (7-2) affirmed dismissal, per curiam: (1) Congress provided for administrative proceedings, review in CA DC; (2) can't permit Pls to have "important and difficult constitutional issues ... decided devoid of factual context and before it was clear ... [Pls] ... were covered by the Act"; (3) Dombrowski, 245.16d, 380 US 479, different—no criminal prosecution here. Douglas, J (Black, J), diss: (1) provisions of Act void on their face, no factual issues to resolve, so no reason for DC to abstain; (2) Act curbs, penalizes advocacy of "Communism," is "at war with the First Amdt"; (3) "Communism, as an ideology, embraces a broad array of ideas. ... The word `revolution' has of course acquired a subversive connotation in modern times. But it has roots that are eminently respectable in American history. This country is the product of revolution. ... Teaching and espousing revolution—as distinguished from indulging in overt acts—are therefore obviously within the range of the First Amdt"; (4) Act is overbroad; organization classified a "Communist front" faces serious consequences, yet its vindication would only come after protracted h'gs and appeals.

David Rein, Esq, 711 14th St NW, and Monroe H Freedman, Esq, 1424 16th St NW, both of Washington, DC; Arthur Kinoy and William M Kunstler, Esqs, 511 5th Ave, NYC 10017; Melvin L Wulf, Esq, ACLU, 156 5th Ave, NYC 10010.

- 59 -

Monroe H Freedman, Esq, Amicus for ACLU, 156 Fifth Ave, NYC.

212. Under 1954 Communist Control Act
213. Under State Laws (see also 204, 245)
214. Under Foreign Agents Registration Act
220. Listing
Statement: J Edgar Hoover on CPUSA, SWP, PLP, SDS, VDC, etc. Cong Rec—House. Sept 27, 1966, H 23073.
221. By the Attorney General of the United States
222. By Congressional Committees
Statement: Am Council on Education, Encourages confidentiality of student political organization membership lists. Science, Aug 4, 1967.
223. By State Authorities (see also 24, 281)

223.3. Elfbrandt v Russell (USSC) (384 US 11) Facts: XI DOCKET 75. Case notes: 38 Mississippi 321-328; 12 S Dakota 383-407.
240. Criminal Penalties for Membership
241. Under Smith Act: for Conspiracy
242. Under Smith Act: for Membership Only
243. Under 18 USC §2384
244. Under Kennedy-Landrum-Griffin Act
(see also 203, 291)
245. Under State Laws (see also 54)

245.15. Indiana v Levitt, Bingham, Morgan (SD Ind, #IP 65-C-462) 1963: Defs-students (Indiana Univ) indicted: subversion (§10-5201, Burns' Ind. Stats. (1951)) for "assembling for the purpose of advocating or teaching the doctrine that the government of the United States or the state of Indiana should be overthrown by force, violence, or any unlawful means. ..." Indictments dismissed; Defs reindicted. Cir Ct held: statute unconstitutional, no written opinion. State's appeal pending. Issues: (1) pre-emption by fed'l regulations in same field; (2) statutory vagueness and (3) restrictions on First Amdt liberties. Jan 25, 1965: Sup Ct reversed, held act constitutional. Jackson, J, diss: Act unconstitutional on face; vagueness, First Amdt restriction. Defs filed for 3-judge fedl ct; pending. State dismissed charges.

Leonard Boudin, Esq, 30 E 42d St, NYC, for Emergency Civil Liberties Comm; Daniel T Taylor, III, Esq, Louisville, Ky

Amicus for Ind CLU; John Wood and James Droege, Esqs, Indianapolis; Ralph Fuchs, Esq, Bloomington, Ind.

And see Levitt, 245.15a.

245.15a. Levitt v Indiana (SD Ind, Indianapolis Div) 1966: Suit by Defs in 245.15, Young Socialist Alliance and profs at Indiana Univ to enjoin enforcement of state anti-Communist act. Pending on motion for summary judgment, despite Ind's dropping of original action (245.15); State refuses to agree not to enforce statute in future.

Leonard Boudin, Esq, 30 E 42nd St, NYC, for Emergency Civil Liberties Comm; Daniel T Taylor, Esq, 514 Louisville Trust Bldg, Louisville, Ky

245.16b. Dombrowski v Eastland (USSC) (358 F2d 281, 387 US 82) Facts same as in Dombrowski v Pfister, 245.16d, 380 US 479 (1965). Sept 1963: Pls, 2 attys and official of Southern Conference Education Fund, alleged Defs, chairman and counsel for Internal Security Subcomm of Sen Judiciary Comm, tortiously participated in conspiracy with La officials to seize Pls' property, records in violation of Pls' Fourth Amdt rights, sued for injunction against use of documents, for their return, and &500,000 damages for false arrest, illegal seizure and conspiracy. DC DC granted summary judgment to Defs; CA affirmed. May 15, 1967: USSC, per curiam: (1) affirmed dismissal re Sen Eastland—record does not contain evidence of involvement in activity that could result in his liability due to legislative immunity; (2) reversed dismissal re Comm counsel Sourwine—sufficient factual dispute whether he actively collaborated with La officials to go to trial; less immunity for employee of legislative comm.

Prof Arthur Kinoy, Rutgers Univ School of Law, Newark, NJ.

245.16c. Pfister v Arceneaux (CA 5) (376 F2d 821) Facts same as in Dombrowski v Pfister, 245.16d, 380 US 479 (1965); v Eastland, 245.16b. Sept 1963: Pls, 2 attys and official of Southern Conference Education Fund, alleged chairman and atty for Sen Internal Security Subcomm tortiously participated in conspiracy with Def La officials to seize Pls' property, records. Mar 16, 1965: DC granted summary judgment to third-party Defs. Nov 14, 1966: CA reversed: Pls raised genuine issue of material fact whether chairman, members of La Comm were "acting in the sphere of legitimate legislative activity" which would entitle them to immunity; remanded.
246. Under 1950 Internal Security (McCarran) Act

246.1. US v Robel (USSC) (254 FSupp 291, 88 SCt 419) Spring 1961: USSC sustained Subversive Activities Control Bd's order requiring Communist Party to register as "Communist-action" organization under 1950 Subversive Activities Control Act, 50 USC §784. Oct 20: Order became final. Aug 20, 1962: Secy of Defense designated Todd Shipyards "defense facility" under Act §5(b). May 21, 1963: Def indicted for being Party member working at defense facility under §5(a)(1)(D). DC granted Def's motion to dismiss, finding indictment failed to allege Def's membership was "active," with "specific intent," requirements DC read into Act to save its constitutionality. Gov't appealed to CA 9, then certified to USSC on direct appeal. Dec 11, 1967: USSC affirmed (6-2), Warren, CJ: (1) §5(a)(1)(D) cannot be saved from constitutional infirmity by limiting application to active members with specific intent because it "sweeps indiscriminately across all types of associations with Communist-action groups, without regard to the quality and degree of membership, [and] ... runs afoul of the First Amdt"; (2) "the phrase `war power' cannot be invoked as a talismanic incantation to support any exercise of congressional power which can be brought within its ambit"; (3) "Congress has the power under narrowly drawn legislation to keep from sensitive positions in defense
- 60 -

fense facilities those who would use their positions to disrupt the Nation's production facilities"; (4) "when legitimate legislative concerns are expressed in a statute which imposes a substantial burden on protected First Amdt activities, Congress must achieve its goal by means which have a `less drastic' impact on the continued vitality of First Amdt freedoms."

Marshall, J, took no part. Brennan, J, conc in result. White, J (Harlan, J), diss.

Casenote: 19 Syracuse 785-9.

250. Civil Disabilities for Membership: Federal
251. In Federal Employment (see also 30, 268)
Proposed Legislation: S 1035, S 1036 prohibits coercion re donations and invasion of privacy of fedl employees. Cong Rec—Sen. Feb 21, 1967, S 2343.
251.56. Kearney v US Civil Service Commn (SD Calif) Je, 1966: Pl, post office employee, ran unsuccessfully for House of Reps seat in Republican primary; discharged: violation of Hatch Act §9(a): no employee in executive branch, or any agency, or dept of fedl govt may take active part in political management, political campaigns. Je 1967: Pl sued for reinstatement: §9(a) unconstitutional. Pending.

Tony Geram, Esq, ACLU, 8408 Sierra, Fontana.

251.57. Soltar v O'Brien (ND Calif) Pl refused consideration for Post Office position for refusal to answer loyalty oath questions required by Hatch Act. Mar 29, 1967: Pl filed suit alleging questions deprive him of constitutional rights to freedom of speech, press, association; violate due process: vagueness, uncertainty. Pending.

Jerome Falk, Esq, 650 California; Marshall W Krause, Esq, 503 Market, both of San Francisco, for ACLU.

251.58. Margetich v Civil Service Commn (Civil Service Commn Bd of App and Rev) Pet denied post as Social Security claims examiner: alleged past membership in Communist Party. Pet charged he had not been given h'g. 1966: App Bd set aside adverse suitability ruling: Pet's denial of Party membership did not constitute intentional false statement, great length of time had elapsed since alleged incident.

Lawrence Speiser, Esq, for ACLU, 1424 16th St NW, Suite 501, Washington, DC.

251.59. In re Employee (Office of Industrial Access Authorization Rev) Apr 1949: Rel-student probationary member of Communist Party. May 1950: Party expelled Rel as deviationist. Jan 1962: Rel, now gov't employee, called before screening board. Je 1962: Gov't issued statement of reasons denying Rel "secret" clearance. Nov 1963: H'g—Gov't presented no evidence or witnesses, so Rel did not testify. Nov 1965: H'gs reopened; again no evidence, no testimony. Jy 1966: Office held "secret" clearance for Rel "consistent with national interest"; Rel had no duty to prove negative, Gov't failed to confront Rel with accusers.

Ernest Besig, Esq, 503 Market, San Francisco, for ACLU.

252. As to Passport Applications and Right to Travel

Speech: William G Bray, Atty Genl should enforce 18 USC 1544 (passport misuse) against Carmichael. Cong Rec—House. Jy 26, 1967, H 9437.

252.35. Zemel v Rusk (USSC) Facts: X DOCKET 31—XI DOCKET 20. Case note: 50 Minnesota 977-984.
252.58. Travis v US (USSC) (241 FSupp 472, 353 F2d 506, rev'd 385 US 491) Def twice visited Cuba; arrested: unlawfully departed from US without bearing valid passport for Cuba; convicted on stipulated facts. CA 9 affirmed. Jan 10, 1967: USSC (9-0) reversed, Fortas, J: Gov't did not allege or prove that Def did not bear valid passport on each visit to Cuba via Mexico; under Laub, 252.59, area restrictions on use of otherwise valid passport are not criminally enforceable under §215(b).

John T McTernan, Esq, 3165 W 6th, Los Angeles.

252.59. US v Laub (USSC) (253 FSupp 433, aff'd 385 US 475) Defs indicted under 18 USC §371 for conspiring to violate 8 USC §1185(b) by recruiting and arranging travel to Cuba of 58 American citizens whose passports were not specifically validated for travel there. DC, after long trial, granted Defs' motion to dismiss. US took direct appeal. Jan 10, 1967: USSC (9-0) affirmed, Fortas, J: (1) In Zemel, 252.35, 381 US 1, USSC found authority for area restrictions in gen'l passport authority vested in Secy of State by 1926 Act, 22 USC §211a; (2) issue here is criminal act, §1185(b) which must be narrowly construed; (3) passport is document identifying citizen, requesting foreign powers to allow bearer to enter and pass freely, recognizing right of bearer to protection of Am diplomatic officers; (4) area restriction re Cuba did not refer to §215(b) or to criminal sanctions for travel there, but said purpose was to make clear US could not guarantee protection of US citizen there; (5) crimes cannot be created by inference, or for conduct gov't told citizen was available to him.

Leonard B Boudin, Esq, 30 E 42nd St, NYC.

Proposed Legislation: HR 11952 provides criminal penalties for travel ban violation, in response to US v Laub, 252.59, 385 US 475. Cong Rec—House. Aug 8, 1967, H 10110; Aug 10, 1967, H 10315.

252.62. US v Anton (SD NY, 64 Civ 2263) July 21, 1964: US Atty sued to replevy passports of 4 Defs who allegedly journeyed to Cuba in violation of 8 USC §1185b, and regulations thereunder. DC issued order to show cause returnable July 28. Dismissed on authority of US v Laub, 252.59, 385 US 475.

Leonard B Boudin, Esq, 30 E 42d St, NYC, for Emergency Civil Liberties Comm.

252.67. Wittman v Sec'y of State (CA DC, #20789) 1964: Pl visited Cuba. Def withdrew Pl's passport. Jy 8, 1966: Bd of Passport Apps affirmed. Feb 1967: Pl sought injunction, declaratory judgment. Feb 15: Def's motion for summary judgment and dismissal granted. Joint appeal with Gregory, 252.68, pending.

David Rein, Esq, 711 14th St NW, Washington, DC 20005; Leonard B Boudin, Esq, 30 E 42nd St, NYC 10017; Walter T Wittman, Esq, 25 E Salem St, Hackensack, NJ.

252.68. Gregory v Secretary of State (CA DC, #20789) Def told Pl Negro comedian travel to N Vietnam to entertain American POW's would be cause for cancellation of passport. Dec 27, 1966: Pl sued to enjoin Def from cancelling passport, to invalidate Def's regs which provide for revocation
- 61 -

of passports on travel to restricted areas. Feb 15, 1967: DC DC denied Pl's motion for preliminary injunction. Je 7: Appeal argued in CA with Wittman, 252.67. Pending.

Leonard Boudin, Esq, 30 E 42nd St, NYC 10017; David Rein, Esq, 711 14th St NW, Washington, DC 20005.

253. As to Army Discharges (see also 122, 341)

253.54. Re Airman (Air Force Discharge Rev Bd) Apr 8, 1960: Def enlisted in USAF. Def hospitalized when charges of fraudulent enlistment brought. Investigation related to Def's associations with his allegedly radical parents. Def signed statement admitting contributing money, buying books for Comm to Free Steve Nelson. May 10, 1961: Discharged dishonorably. Rev Bd examiner found "action ... inconsistent with ... Harmon," 253.4, 355 US 579. Mar 18, 1965: Pending before review bd.

ACLUNC, 503 Market St, San Francisco 94105.

254. As to Veterans Disability Payments

254.3. Thompson v McNamara (CA DC, #20,737) Pet, Spanish Civil War veteran, decorated as US hero after World War II. 1949: Pet convicted of violating Smith Act (see Dennis, 241.). 1953: arrested; convicted for failure to surrender for 3 yr Smith Act sentence. After serving 18 mths of contempt sentence, DC released Pet on &25,000 bond, pending outcome in Green, 411.2. After USSC decision in those cases, DC denied Pet's motion for release. USSC denied cert. 1954: Veteran's Administration stopped Pet's disability benefits under 38 USC §3504. Pet sued on ground forfeiture under §3504 requires showing veteran guilty of mutiny, treason, sabotage, etc, and no such charge or proof in Smith Act trial. 1965: DC granted Pet's motion for summary judgment: US not "at war" in Korea in 1950's. (See Thompson v Gleason, 254.2, X DOCKET 32—XI DOCKET 20.) Oct, 1965: Pet died. Gov't refused widow's request for burial in Arlington Nat'l Cemetery because of conviction under Smith Act. Mar 11, 1966: widow sued for declaratory judgment and injunction to require Gov't to permit burial there. Nov 29, 1966: DC dismissed complaint. Appeal pending: (1) Natl Cemetery Regs issued in violation of Admr Procedure Act; (2) Exclusionary Reg is unconstitutional as bill of attainder, ex post facto, denies due process, punishes exercise of First Amdt freedoms.

Wm Warfield Ross, Lawrence Speiser, Joel E Hoffman, Esqs, ACLU, 1424 16th St NW, Washington, DC 20036.

Pamphlet: Milton Wolff, Gerald Cook: The Arlington Case. 32 pp. Sylvia E Thompson, PO Box 262, Madison Square Station, NYC 10010.

255. As to Social Security Benefits (see also 263, 346, 422)

255.2. Weiss and Pollitzer v Gardner (USSC, #904) (263 FSupp 184, 386 US 9) Mar 1966: Pls filed suit for injunction and declaratory judgment against enforcement of non-Communist oath required for Medicare benefits on constitutional grounds. Gov't motion to dismiss denied. June 7: argument before 3-judge ct. Oct 11, 1966: Gov't motion to dismiss granted, remanded to DC on Gov't assurance inquiry was unconstitutional following dismissal of Reed, 255.4. Feb 13, 1967: USSC vacated and remanded with instructions to dismiss complaint as moot.

William D Zabel, Esq, 52 Wall St; Melvin L Wulf, Esq, 156 5th Ave, both of NYC, for ACLU.

255.4. Reed v Gardner (CD Calif) (261 FSupp 87) Pls sued for injunction and declaratory judgment against enforcement of non-Communist oath required for Medicare benefits. Jy 28, 1966: DC issued temporary restraining order enjoining Def from requiring oath of applicants, granted Pls' motion to convene 3-judge ct to decide whether order should be made permanent. Nov 14: 3-judge ct held: oath violates First Amdt rights of speech, association, assembly. Jan 4, 1967: Justice Dept announced it conceded oath unconstitutional, would not appeal panel's decision: citing Elfbrandt, 223.3, 384 US 11; threat to free speech and association overbalanced Dept's interest in denying Communists Medicare benefits.

A L Wirin, Fred Okrand, Laurence R Sperber, Esqs, ACLU, 323 W Fifth St, Los Angeles 90073.

Case note: 18 Mercer 495—497.

And see Weiss, 255.2.

255.5. Healey, Taylor v Gardner (CD Calif, #67-1179-S) 1950: McCarran Act changed Social Security Act to exclude payments by employers required to register as "Communist action" or "Communist front" organizations (Social Security Act §210 a 17). Aug 11, 1967: 2 officers of Communist Party sued, alleging Act is bill of attainder, requested 3-judge ct. Pending.

Ben Margolis, Esq, 3175 W 6th St, Los Angeles 90005.

Amicus by A L Wirin, Fred Okrand, Esqs, 257 So Spring St, Los Angeles 90012, for ACLU.

256. In Housing Projects (see also 423, 530s)
257. As to Federal License Applications
Regulations: FCC, Right of reply by station-criticized candidates. NY Times, Jy 6, 1967.

And see NAACP v KNEW, 25.28.

258. Through Deportation Proceedings
(see also 358)


258.15. Sherman v Immigration and Naturalization Service (USSC) (350 F2d 894, 385 US 276) 1906: Pet born in Poland. 1920: Pet entered US. 1937: Pet fought with Loyalists in Spain. 1938: Pet re-entered US. 1963: Resp-INS began deportation proceedings: Pet returned from Spain without inspection required of aliens. Sept 1964: Spec Inquiry Officer ordered Pet deported. Jan 1965: Bd of Imm App affirmed. Sept 1965: CA reversed deportation order, held deportation more serious penalty than many criminal sanctions; as "to long term resident ... Gov't must prove beyond a reasonable doubt the facts upon which deportation depends"; flimsy testimony of one witness as to events 28 yrs previous inadequate; remanded to Service. Nov 5: DC granted Gov'ts petition for reh'g for en banc determination. Jan 1966: CA 2, en banc, reversed. USSC granted motion of independent scholars to file amicus on question of burden of proof. Dec 12, 1966: USSC (7-2) reversed, Stewart, J: (1) burden of proof and scope of judicial review two different matters; (2) appropriate burden in deportation proceedings is same as in denaturalization cases: "clear, unequivocal, and convincing evidence." On remand, INS filed motion to terminate in BIA.

Ira Gollobin, Esq, 1441 Broadway, NYC; Joseph Forer, Esq, 711 14th St NW, Washington, DC.

- 62 -

Amicus brief by Prof Frank C Newman, U of Calif Law Bldg; Siegfried Hesse, Esq, 929 Oxford St, both of Berkeley.

258.18. Lahtinen v Immigration and Naturalization Service (BIA) 1942: Resp filed petition for naturalization, liting past membership in Finnish Workers Federation; INS never calendared petition for DC h'g. 1958: INS commenced deportation proceeding: claimed Federation (which ceased existence in 1941) had been affiliated with Communist Party. 1961: BIA ordered deportation. Je 12, 1967: BIA, on motion of INS, ordered order withdrawn and proceedings terminated; ruled INS had not presented "clear, unequivocal and convincing evidence" under test of Sherman, 258.15.

Ira Gollobin, Esq, 1441 Broadway, NYC.

258.19. Dymytryshyn v Esperdy (SD NY, 66 Civ 2375) Def, under §242(d), 1952 Imm and Nationality Act, ordered 13 alien Pls to: (1) report to Imm Office in person at specified intervals for identification; (2) submit to interrogation concerning employment, residence, travel movements. Aug 2, 1966: Pls filed suit to enjoin enforcement of order: (1) violates Fifth Amdt due process, equal protection; (2) inflicts punishment without charge or conviction of crime; (3) constitutes cruel and unusual punishment. Pending.

Ira Gollobin, Esq, 1441 Broadway; John Abt, Esq, 299 Broadway, both of NYC.

258.20. Berenyi v District Director, INS (USSC) (239 FSupp 725, 352 F2d 71, aff'd 385 US 630) 1956: Pet entered US from Hungary. 1962: Pet filed petition for naturalization: Have you ever, in US or elsewhere, been member of or connected with Communist Party directly or indirectly? Pet, under oath, answered No. At final h'g before DC, Gov't produced 2 witnesses that Pet had been member of Party in Hungary 1945-1948; Pet said he had attended Party functions under pressures but never member; Pet's wife, 4 witnesses testified he expressed strong opposition to Communist regime in Hungary. DC found Pet testified falsely in h'gs, had been Party member, denied citizenship. CA 1 affirmed. Jan 23, 1967: USSC (6-3) affirmed, Stewart, J: Under `2-ct' rule, USSC has no empirical expertise to set against lower cts' decisions on purely factual issues when no claim any constitutional issues at stake; (2) burden of proving deportability is on Gov't by "clear, unequivocal, and convincing evidence," but in naturalization case, burden is on alien to show eligibility in every respect; citizenship not denied for membership but for not telling truth.

Douglas, J, (Warren, CJ, Brennan, J), diss: Analyzing evidence shows evidence of membership was "clearly erroneous."

Leon B Savetsky, Esq, 41 E 42nd, NYC.

259. Through Denaturalization and Naturalization Proceedings (see also 358)
259.8. US v Bimba (SD NY, Civ #63c 1328) 1913: Def entered US, aged 19. 1926: arrested in Mass for blasphemy and inciting overthrow of gov't; charges dropped. 1927: Def naturalized. 1924-1964: Editor of Lithuanian daily. 1957: Rep Scherer (of HUAC) asked his deportation. Dec 1963: US sued to cancel Def's naturalization for concealment of material facts in application for citizenship, eg, 1926: Mass charges. Mar 1964: DC denied Def's motion to dismiss. Def pleaded affirmative defenses: (1) laches: facts on which denaturalization sought not acted on for 37 yrs; (2) res judicata: 1927 judgment granting Def citizenship adjudicated matters in complaint; (3) use of denaturalization proceedings to punish exercise of rights under First Amdt not proper purpose. DC denied Govt motion to strike (3). Jy 1967: following plea to Justice Dept by distinguished group of clergy, Dept agreed to drop suit.

Blanch Freedman, Esq (dec'd); Ira Gollobin, Esq, 1441 Broadway, NYC.

259.53. Re Application of Hirsh (CD Calif) Apr 1963: Pet filed for citizenship. Imm Service opposed application: Pet opposed to Vietnam war, Cuban blockade, HUAC; helped sponsor public forums with 2 Communist Party speakers and Marxist economist, attended public meeting sponsored by Communist Party; Pet not "attached to principles of US" nor concerned with its "peace and happiness." May 10, 1967: DC held that holding of such views did not make person unworthy of being US citizen.

Maynard Omerberg, Esq, 6290 W Sunset, Los Angeles.

259.54. Petition of Nomland (CD Calif) 1939: Pet immigrated to US, later applied for citizenship. Imm and Nat Service recommended she be denied: she would not swear to bear arms for US and did not qualify for religious exemption since she is atheist. Dec 13, 1967: DC held Pet eligible for citizenship: under Seeger, 121.32, 380 US 163, Pet is "not an atheist," since she believed in "an ordered universe."
259.55. Weitzman v US (Minneapolis) (US Immigration Service) Woman, S African citizen, applied for US citizenship, refused to take statutory oath to bear arms for US, based on religious belief which does not embody concept of Supreme Being. Application denied. May 1967: Pl sued: First Amdt religious grounds. H'g held. Pending.

Thomas C Kayser, Esq, MCLU, Minnesota Bldg, St Paul 55101.

260. Civil Disabilities for Membership: State, Local and Private
261. In State, Local Government Employment
(see 421)

Atty Genl's Opinion—New Hampshire: Dec 31, 1966: Atty Genl ruled NH loyalty oath unconstitutional; "A person may, legally, refuse to sign oath."

261.1. Wilkins v Carlander (Super Ct, Kings Co, #490844) Pl-warehouseman in cold storage plant of Port of Seattle brought action against Def-Commr, other officials of Port testing constitutionality of state law requiring state employees to take oath of non-membership in Communist Party and organizations on Atty Genl's list. Issues: does statute violate First and Fifth Amdts, deprive Pl of property in violation of 14th Amendment and constitute bill of attainder. Jan 1956: temporary restraining order issued, preventing dismissal for refusal to sign oath for indefinite time. In light of Baggett, 281.1a, 377 US 360, case may be considered closed.

John Caughlan, Esq, 615 Arctic Bldg, Seattle.

- 63 -

261.18. Rosenfield v Malcolm (Cal Sup Ct) (421 P2d 697) Sept 21, 1964: Pl-Asst Dist Health Officer, probationary employee, fired for refusal to resign from Ad Hoc Comm to End Discrimination. Dec 23: Pl sought mandate for reinstatement, back pay. Super Ct sustained demurrer without leave to amend. Jan 5, 1967: Cal Sup Ct reversed and remanded; lack of protected civil service status does not permit summary dismissal for political activities displeasing to superiors; "ultimate boundaries of (Pl's) rights are not set by Alameda Civil Service Comm rules but by the Constitution of the United States."

Marshall Krause, Esq, ACLU, 503 Market St, San Francisco.

261.20. Tabor v Montgomery Co (Cir Ct) May 1965: Pl social worker, CORE chairman, led picket line at Co office bldg protesting appointment of 2 alleged segregationists to Co Human Relations Comm. Pl fired by Welfare Dept: conduct unbecoming Co employee. Pl sued for reinstatement with back pay. 1966: Cir Ct overruled demurrer. Spring: Trial on Pl's suit for reinstatement as social worker.

Ronald Rosenberg, Richard B Wolf, Esqs, Md-ACLU, 10 E Center St, Baltimore.

261.23. In re Harold Supriano (San Francisco Civil Service Commn) Apr 14, 1966: Resp probationary worker, member of W E B DuBois Club, 211.16, dismissed on ground he falsely claimed family illness as reason for: (1) 1963 leave of absence when he went to Mississippi to do civil rights work, and (2) 1965 resignation prior to trip to North Vietnam. Apr 28: Resp restored to city payroll eligibility list but Commn refused to give back old job. Nov 3: SF CSC ruled Resp could not hold Social Service position for 1 yr, could be re-hired by Dept after that.
261.14. Partlow v Los Angeles Bd of Civil Service Commrs (Super Ct, #894,959) 1966: Pet, part-time city library employee, took clerk examination; qualified; after interview notified disqualified for having engaged in conduct which "would reflect adversely on, or bring discredit to the City of Los Angeles," ie: attending meetings of W E B DuBois Club, 211.16, and Youth Action Comm. Pet discharged from library job; same reason. Nov 4: Pet filed petition for writ of mandate to be placed on eligible list for clerk and reinstatement to messenger-clerk library job. Dec: Super Ct granted writ of eligibility; denied for reinstatement (former position exempt from classified civil service and Bd has no power relating thereto); held: Resp does not question Pet's loyalty; no final administrative or judicial determination of organizations' character.

Robert L Brock, Esq, 9465 Wilshire Blvd, Beverly Hills 90212.

261.25. Vogel v Co of Los Angeles (Calif Sup Ct, 68 Adv Calif 12) 1952: voters adopted Levering Oath, Art XX, §3 of state constitution: prospective Co employee must swear he does not advocate overthrow of state or fedl govts by force or other unlawful means, has not been member for 5 yrs of organization advocating overthrow, will not join such organization while employed by Co. Apr 20, 1967: Pl filed taxpayer's suit for injunction restraining Defs, Co officials, from enforcing oath: violation of 14th Amdt: vague; violation of First Amdt. May 16: Super Ct granted summary judgment, issued injunction: Defs may not spend Co funds to administer oath. Dec 21, 1967: Sup Ct affirmed: the public need is not so great as to outweigh the "impairment of constitutional rights"; persons may not be denied public employment solely by reason of their associations, citing Keyishian v Bd of Regents, 281.20a, 385 US 589.

A L Wirin, Fred Okrand, Laurence Sperber, Esqs, 257 So Spring St, Los Angeles, for ACLU.

261.26. Gilmore v Texas (ND Tex) (274 FSupp 75) Pl refused to take oath requiring all state employees to swear they are not members of any of 200 "subversive organizations" on Texas Atty Genl's list; dismissed from job as instructor at Dallas Co Junior College. Aug 30, 1967: 3-judge ct ruled oath unconstitutional.
262. In Teaching (see also 24, 267, 281, 342, 571)
Pamphlet: Academic Freedom Comm, ACLU, Academic freedom, academic responsibility, academic due process in institutions of higher learning. ACLU, 156 Fifth Ave, NYC. 30 pp. &.30.
262.13. Johnson v Wayne Township Bd of Educ (Passaic Co Super Ct, #L-26988-64 PW; NJ Commr of Educ) Bd discussed Pl's alleged "Communist" beliefs without opportunity for Pl to defend or present witnesses; Bd abolished Pl's position as science coordinator. Pl sued to re-institute his status as teacher and appealed to Commr. 1966: both pending.

Michael Gross, Esq, One Essex St, Hackensack, NJ, Amicus for NJ ACLU.

262.17. Re Pickering (Lockport) (Will Co Cir Ct, Ill) Tenure teacher wrote letter to local newspaper accusing Bd of Educ of mismanagement, issuing misleading statements re use of funds. Teacher dismissed, sought judicial review: interference with rights of free expression. Mar 3, 1966: Cir Ct upheld dismissal: "Freedom of speech does not protect the job of an employee whose conduct is against the interests of his boss. . . . The interest of the school is patently an overriding public interest and is one of such importance that it overrides the right of free speech." Petition for cert filed in USSC.

John Ligtenberg, Genl Counsel, Amer Fed Teachers, 134 N LaSalle, Chicago.

262.18. McLaughlin, Steele v Supt of Schools (Dolton, Ill) (Cook Co Cir Ct) Pls, teachers, organized AFT chapter; fired by Defs. Pls filed 2 suits: (1) for &1,000,000 for slander, malicious interference with contract; (2) for &200,000 for denial of free speech, association. Pending.

Andrew Leahy, Esq, 134 N LaSalle, Chicago.

262.20. Miller v Noe, Louisville School Bd (Jefferson Co Cir Ct) School year 1964-65: Pl-teacher under continuing contract received leave of absence, worked full-time as AFT staff representative. 1965: applied for another leave of absence; denied. Pl secured substitute, worked for AFT. Aug 1966: told by Defs that he had `voluntarily retired.' Pl sued: violation of his rights under Ky statutes as tenure teacher. Pending.
262.20a. Miller v Mosier, Clarksville Bd of Educ (Ind Cir Ct) 1966: Pl in Miller, 262.20, sought job in Clarksville while case pending in Ky; hired under full year contract. 18 days later, Pl fired: activities with AFT brought `discredit' to school, Pl already under contract in Ky, as evidenced by lawsuit. Pl sued for damages. Pending.
- 64 -

263. As to State Unemployment Insurance Benefits
(see also 255, 346, 421, 422)
264. As to State License Applications

264.6. Opinion of the Justices (NH Sup Ct, #5605) Applicant for commission as notary public and justice of peace refused to sign oath required by Subversive Activities Act (RSA 588) challenging its constitutionality. Atty Genl rendered opinion: oath unconstitutional. Feb 10, 1967: Gov, Executive Council adopted resolution asking Sup Ct for advisory opinion. Mar 24: Sup Ct advised oath unconstitutional under recent USSC decisions; vagueness, lack of specific intent standard.

Robert H Reno, Richard B Couser, Esqs, 95 N Main; George S Pappagianis, Esq, Atty Genl, State House, all of Concord.

265. In Proceedings Against Attorneys and Bar Applicants (see also 345, 361, 373)
Article: Sanford Jay Rosen, The ABA and the law professor: Bureaucracy and loyalty requirement. 19 Jour of Legal Educ 301 (1967).
265.30. Hallinan v Comm of Bar Examiners (Calif Sup Ct) (421 P2d 76) Pet, nat'l officer of W E B DuBois Clubs (see 211.16), passed bar exam. 1965: Def Sub-comm held h'gs; after 733 pp of testimony, found Pet lacks good moral character because of beliefs re civil disobedience, sit-in arrests at Sheraton-Palace (58.16), Auto Row (58.18); no evidence Pet advocated violent overthrow of govt; recommended against his admission to practice. Jan 1966: Full character Comm decided on more hearings. Apr 4: Pet petitioned Sup Ct for admittance claiming: (1) abuse by delay, (2) sit-in arrests not evidence of bad moral character. Dec 15, 1966: Sup Ct found: (1) admission to Bar is right, not privilege; (2) misdemeanor convictions for unlawful assembly, remaining at place of unlawful assembly, disturbing the peace, trespass to obstruct lawful business and unlawful entry all in connection with civil rights demonstrations where other less drastic means have first been attempted do not warrant refusal to certify because of lack of moral character: "If we were to deny to every person who has engaged in a `sit-in' or other form of nonviolent civil disobedience and who has been convicted therefore, the right to enter a licensed profession, we would deprive the community of the services of many highly qualified persons of the highest moral courage"; (3) Pet's resort to fisticuffs to settle personal differences, altho not praiseworthy, did not reflect on his honesty and veracity nor show him unfit for proper discharge of duties of atty.

Benjamin Dreyfus, Esq, 341 Market St, San Francisco.

Casenote: 55 California 899.

265.31. March v Calif Comm of Bar Examiners (Calif Sup Ct, #LA 29370) (67 Adv Cal 731) 1938-1955: Pet-bar applicant was at times member of Communist Party. 1939: Pet falsely denied CP membership before Dies Comm. 1959: Pet falsely denied membership before union trial comm. 1961: Pet registered as law student, therein admitted CP membership, h'gs; failed to specifically mention membership denials on application questionnaire (13(g)) "any incident of derogatory nature." Apr 1965: Pet gave same answers on bar admission application. After h'g in which Pet characterized membership denials as "unjustifiable," submitted numerous adulatory recommendations, Resp-Bd denied admission. Nov 16, 1967: Sup Ct reversed, ordered admission; (1) No intent to conceal misbehavior from Bd; (2) supporting letters entitled to great weight, citing Hallinan, 265.30; (3) without deciding whether misbehavior constitutes turpitude, Pet is "rehabilitated," of good moral character.

John T McTernan, Esq, 3175 W 6th St, Los Angeles 90005.

Article: Laurent B Frantz, Marshall W Krause, California test oaths for lawyers, 27 Nat'l Lawyers Guild Practitioner 30.

266. Through Deprivation of Right to Tax Exemption (see also 130, 202)
267. In Private Employment—Teaching (see also 24, 262, 281, 342)

267.1. Lynd v Ill Bd of Governors (Springfield Cir Ct) 1965: Yale prof visited N Vietnam in defiance of State Dept, went on leave to teach at Chicago State College which accepted him. Jy 18, 1967: Def rejected appointment due to N Vietnam visit. Pl filed suit to enforce appointment to faculty position. Aug 22: Ct dismissed suit. Pending.
268. In Private Employment—Defense Establishments (see also 344)
And see Becker, 61.51.
268.18. Margolin v US (US Ct of Claims) Pl denied security clearance, not paid pending h'g before Industrial Security Bd, which granted clearance. Suit filed for payment of loss of earnings during interim period. Apr 17, 1964: DC granted Pl's motion for summary judgment. Jy 8: DC denied Gov't's motion for reargument. Ct of Claims affirmed.

Stanley Faulkner, Esq, 9 E 40th, NYC.

268.20 McBride v Smith (formerly v Roland) (USSC, #1105) (369 F2d 65, 387 US 932) Coast Guard refused to issue validated merchant marine certificate to Pl merchant seaman, on basis of past membership in Communist Party, Int'l Workers Order, signing Communist Party nominating petition, attending summer camp attended by "sympathizers." 1964: Pl sued to compel issuance of papers. DC denied relief; CA 2 affirmed; USSC denied cert. Je 1967: Pet for reh'g filed in USSC.

Melvin L Wulf, Esq, 156 Fifth Ave, NYC, for ACLU.

268.21. Re Kaiser Employee (Office of Industrial Personnel Access Authorization Rev) Je 1965: employee, US citizen from Poland, denied secret clearance by Screening Bd: "You correspond with relatives in Poland ... you subscribe to Polish newspapers ... your social ... interests ... limited to ... persons of Polish background." Nov 1965: H'g before Review Bd. Jy 1966: Rev Bd reversed, granted secret clearance.

Ernest Besig, Esq, 503 Market, San Francisco, for ACLU.

268.22. Schneider v Roland (USSC, #196) (263 FSupp 496) Seaman, as condition for consideration of application for specially validated documents, required by Magnuson Act to answer extended questionnaire, re: connection with organizations on Atty Genl's list, political beliefs, reading People's World. He refused, further consideration suspended.
- 65 -

Pl sued for injunction against enforcement of Act through regulations. 3-judge fedl ct dismissed. USSC granted appeal, jurisdiction postponed to hearing on merits. Dec 11, 1967: oral argument.

John Caughlan, Esq, 620 Arctic Bldg; Michael Rosen, Esq, Smith Tower; Leonard Schroeter, Esq, and Charles Talbot, Esq, Central Bldg; all of Seattle, Wash.

269. In Private Employment—Other
270. Criminal Penalties for Nondisclosure
(see also 330)
271. Before Congressional Committees
(see also 222, 330)

Publications: Natl Comm To Abolish House Un-American Activities Comm, P O Box 74757, Los Angeles 90004.

Proposed Legislation: Hr 221 authorizes funds for HUAC. Cong Rec—House. Apr 5, 1967, H 3527.

Speeches: Augustus F Hawkins, Don Edwards, Leonard Farbstein, Daniel E Button; For abolition of HUAC. Cong Rec—House. Jan 10, 1967, H 73; Feb 21, 1967, H 1608.

Edwin E Willis, Response to Negro leader's petition against HUAC riot investigation. Cong Rec—House. Jan 30, 1967, H 720.

Edwin E Willis, HUAC espionage hearings. Cong Rec—App. Je 20, 1967, A 3127.

Report: HUAC biannual staff expenditures. Cong Rec—House. Aug 2, 1967, H 9874.

Article: Allen B Moreland, Congressional investigations and private persons. 40 S California 189-273.

Comment: Limitations on power of congressional investigations. 8 William & Mary 630-60.

271.50. Stamler, Hall v Willis, Ashbrook, HUAC (ND Ill) (371 F2d 413) May 1965: Pl-Dr, Director of Chicago City Health Dept Div on Adult Health and Pl-nutritionist subpoenaed by HUAC. Pls sued for injunction, 3-judge fedl ct re HUAC's constitutionality under First, Fifth Amdts. May 24: DC dismissed complaint; at HUAC hearing, Pls refused to testify due to pendency of suit. Pls appealed; CA denied Pls leave to remand to file supplemental complaint to describe Pls' refusal to testify at hearing. Intervening Pl-Appt, Milton Cohen, argues on appeal: (1) single judge does not have power to dismiss complaint requesting injunction from 3-judge ct; (2) if no 3-judge ct required, DC should have tried non-constitutional issues raised; (3) 3-judge ct must be convened when diversity or non-frivolous fedl question in injunction action; here both requirements are met; (4) HUAC violated its own rules for protection of witnesses; that violation is judicially reviewable. Dec 1965: CA denied gov't motion to dismiss petition. Jan 13, 1966: HUAC voted to seek contempt citations against Pls. Jan 17: Pls' attys asked House to delay action until decision by CA. Oct 18-19, 1966: After extensive debate, House voted (219-69) contempt citations against Pls (Cong Rec—Oct 18, 1966, H26437-26464; Oct 19, 1966, H26601-2, App A5402-5403). Nov: CA 7 reversed DC refusal to convene 3-judge panel; panel formed. Jy 18, 1967: 3 Pls indicted by grand jury.

Albert E Jenner, Jr, Esq, 135 S LaSalle, Chicago; Arthur Kinoy, Esq, 511 Fifth Ave, NYC.

Prof Harry Kalven, Jr, U of Chicago; Richard Orlikoff, Esq, 7 S Dearborn, Chicago for intervening Pl-Appt.

HUAC proceedings against Milton M Cohen, Cong Rec—Oct 18, 1966, H 26384.

271.51. US v Shelton (DC DC) Oct 1, 1965: HUAC hearings on KKK begun. 7 witnesses, 7 KKK members, failed to furnish records subpoenaed during h'gs, relying on First, Fourth, Fifth, 14th Amdts. Jan 13, 1966: HUAC voted to cite 7 for contempt of Congress. Feb 2: House cited Defs. March 3: Defs indicted separately. March 11: Defs pleaded not guilty; &500 bonds. Sept 16, 1966: DC jury found Def guilty of contempt of Congress. Oct 14: sentenced: 1 yr, &1000 fine. Free on bond pending appeal.

Lester W Chalmers, Jr, Esq, Branch Bank and Trust Bldg, Raleigh, NC.

271.52. Krebs v Ashbrook (HUAC) (DC DC, #2157-1966) 1966: HUAC subpoenaed Pl-dissenters from US foreign policy in Vietnam. Aug 15, 1966: in class suit, Pls moved: (1) to convene 3-judge ct under 28 USC §2282, Reed Enterprises v Corcoran (CA DC, 1965), 354 F2d 519, to consider constitutionality of Rule 11 (authorizing creation of HUAC); (2) for injunction to prevent enforcement of Rule 11; (3) for declaratory judgment on constitutionality of Rule 11; (4) for injunction restraining operation of HUAC's subpoenas against Pls. Issues: chilling effect of HUAC on exercise of First Amendment freedoms, Dombrowski, 245.16d, 380 US 479; Rule 11 void for vagueness; denial of due process; violation of rights of privacy under First, Fourth, Ninth, 10th Amendments; illegal and nonlegislative purpose of public exposure of witnesses to scorn and embarrassment. Aug 15: DC granted certification to convene 3-judge ct; temporary restraining order enjoining HUAC hearing and enforcement of subpoenas. Aug 16: chief judge, CA DC, ordered convening of 3-judge ct; dissolved temporary restraining order. Pls testified before HUAC. Aug 17: Pls moved for injunction restraining HUAC. Aug 18: 3-judge ct, sua sponte, postponed hearing on Pls' motion for injunction, directing parties to file memo on whether case should be before 3-judge ct or remanded to single DC judge. Pending.

Arthur Kinoy, 511 Fifth Ave, New York; Robert Knowlton, Rutgers University School of Law, Newark; Gerard Moran, Rutgers University School of Law, Newark; Robert Carter, Rutgers University School of Law, Newark; John Pemberton, Jr, American Civil Liberties Union, 156 Fifth Ave, New York; William Kunstler, 12 Tenth St NE, Washington; Jeremiah Gutman, 363 Seventh Ave, New York; Henry di Suvero, c/o New York Civil Liberties Union, New York; Beverly Axelrod, 345 Franklin St, San Francisco.

And see Kinoy, 373.20.

Discussion: HUAC hearings August 1966: Cong Rec—Appendix: Aug 17, 1966, A4353; Aug 18, 1966, A4373; Aug 19, 1966, A4405; Aug 22, 1966, A4416, A4428; Aug 23, 1966, A4449; Aug 24, 1966, A4490; Aug 25, 1966, A4522; Aug 26, 1966, A4543; Cong Rec—House: Aug 16, 1966, 18697; Aug 18, 1966, 19038; Aug 22, 1966, 19296; Aug 24, 1966, 19575; Aug 29, 1966, 20127; Aug 30, 1966, 20403; Aug 31, 1966, 20515; Cong Rec—Sen: Aug 22, 1966, 19336.

272. Before State Committees (see also 204, 213, 332)
273. Before Legal and Administrative Tribunals (see also 333)
- 66 -

274. For Refusal to Produce Records
280. Civil Penalties For Nondisclosure
281. By Teachers (see also 24, 223, 262, 342, 571)
And see ACLU v Texas, 24.68.

Petition: Citizens Comm for Constitutional Liberties, to NY State Constitutional Convention, seeks constitutional ban on loyalty oaths. 22 E 17th St, NY 10003.

281.16. Macks v Calif Bd of Educ (San Francisco Sup Ct) Pets joined, then resigned from, Communist Party. Pets later took Levering Act oath of non-membership in group advocating violent overthrow of gov't during 5 preceding yrs, obtained teaching credentials. 1959: Pets subpoenaed by HUAC; described to reporters former Party membership; never called by HUAC. 1960: h'g on renewal of credentials. Issue: whether Pets perjured themselves in taking oath and thereby committed unprofessional conduct. H'g officer recommended revocation of credentials, found Pets knew Party advocated violent overthrow. Calif Bd of Educ affirmed revocation. Sept 12, 1961: Pls applied for writs of mandate requiring restoration of teaching credentials. At trial, Super Ct denied Pls' proffers of testimony on credibility of their witnesses and unreliability of Def's witness Karl Prussion: Ct denied Pls' petition. Jan 28, 1964: DCA reversed: (1) Bd erred in judicially noticing that Party advocated violent overthrow between 1953 and 1957; this is not "certain and indisputable"; (2) legislature has power to bar advocates of overthrow from public office, but to bar Party members, per se, is unconstitutional; remanded to Super Ct for Defs to attempt to establish that Party advocated overthrow and Pls knew that fact. Calif Sup Ct denied h'g. Aug 14, 1964: Super Ct remanded to Calif Bd of Educ for further consideration in light of DCA opinion. Apr 7, 1966: Pls sued Def, challenging Levering Act loyalty oath: constitutionality, vagueness for failure to define kind of advocacy prohibited. Jan 12, 1967: Super Ct ordered return of credentials to Pls: it was not proved that at time they signed oath they knew Party advocated forceful overthrow of gov't; noted "grave doubts" had been cast on constitutionality of the oath by USSC, but declined to rule specifically on oath, since decision in case did not hang in balance.

Marshall Krause, Esq, 503 Market St, San Francisco, for ACLUNC; Bernard E Harvith, Melvin L Wulf, Esqs, 156 Fifth Ave, NYC, for amici ACLU and AAUP.

281.20a. Keyishian v Bd of Regents, Univ of New York (USSC) (255 FS 981, rev'd 385 US 589) 1962: Pl faculty members at private Univ that merged into Def state Univ required to sign non-Communist oath (Feinberg Law, Educ L §3022); Pls refused, subject to dismissal. 1964: Pls sued to convene 3-judge fedl ct for declaratory judgment that Law unconstitutional. 3-judge ct held Act constitutional. Jan 23, 1967: USSC reversed (5-4), Brennan, J: (1) Adler v Bd of Educ (1952) 342 US 485 did not consider whether Law unconstitutionally vague; (2) pertinent constitutional doctrines have rejected premises underlying Adler; (3) case is not mooted by changes in administering loyalty requirements effective prior to trial because Law remains; (4) §3021 requires removal for "treasonable or seditious" utterances, "criminal anarchy" that are not defined; (5) §105(1)(a) bars employment of one who "wilfully and deliberately advocates, advises or teaches the doctrine" of forceful overthrow of gov't, which is capable of sweeping, improper application; (6) §105(1)(b) provides the same re distribution of written material that so advocates; (7) Educ Law §3021, Civil Service Law §105(1)(a), (1)(b), and (3) are unconstitutional: "The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth `out of a multitude of tongues, [rather] than through any kind of authoritative selection.' US v AP, 52 FSupp 362, 372."

(8) Civil Service Law §105(1)(c) and Educ Law §3022(2) sweep overbroadly in making Communist Party membership prima facie evidence of disqualification, are unconstitutional insofar as they proscribe mere knowing membership without any showing of specific intent to further unlawful aims of Party.

Clark, J (Harlan, Stewart, White, JJ), diss.

Richard Lipsitz, Esq, 1 Niagara Sq, Buffalo; Rosario J DiLorenzo, Esq, 155 South Lake Ave, Albany.

281.21. 160 Professors v Georgia (Atlanta) (ND Ga) Aug 10, 1965: 160 profs at 13 institutions filed for temporary restraining order to prevent state authorities from firing, or refusing to hire profs who refuse to sign 3 oaths required of all teachers: (1) 1935 oath of allegiance, (2) 1940 non-Communist oath, (3) 1953 non-membership in 250 subversive organizations oath, and for 3-judge ct to declare acts unconstitutional. Pending.

Emmet J Bondurant, Esq, for Ga CLU; Prof D Mead Field, U of Ga; Hugh Gibert, Charles Morgan, Esqs, 5 Forsythe St, all of Atlanta.

281.22. Ehrenreich v Kansas (DC Kan) Pl, CLU chairman, invited to be Assoc Prof at Univ of Kansas Medical Center on condition he sign loyalty oath; refused. Sept 20, 1966; Pl, joined by other profs who signed oath "under threat of discharge or loss of employment," filed suit challenging oath: vagueness, ex post facto law, bill of attainder, violates First Amdt. Pending.

Greater Kansas City CLU, Mo; Kansas CLU.

281.23. Whitehill v Elkins (USSC) (258 FS 589, 88 SCt 184) Pl, offered a teaching job by Def Pres, U of Md, refused to take oath: "not engaged in one way or another in the attempt to overthrow" the govts of US and Md "by force or violence," under penalty of perjury. Pl sued for declaratory relief. 3-judge fedl ct appointed; dismissed. Nov 6, 1967: USSC reversed on appeal (6-3), Douglas, J: (1) oath must be rad with Ober Act (Art 85A, Md Ann C 1957); (2) Ober Act §§1, 13 reach those who would "alter" form of gov't by "revolution, force, or violence" and who are members of native or foreign "subversive" organization; (3) "The lines between permissible and impermissible conduct are quite indistinct . . . we find an overbreadth that makes possible oppressive or capricious application as regimes change. That very threat . . . may deter the flowering of academic freedom as much as successive suits for perjury." Harlan, J (Stewart, White, JJ) diss.

Prof Sanford J Rosen, U of Md Law School; Arnold M Weiner, Joseph S Kaufman, Esqs, 10 Light St; Elizabeth Levy Bothe, Esq, 41 W Preston; Lee M Miller, Esq, 1 Charles Center Bldg, all of Baltimore.

281.24. Plaintiff v Nebraska (DC Neb) Pl, former secretary at Univ of Neb, fired for failure to sign state loyalty oath. 1966: Pl sued to have oath for public employees declared unconstitutional. Apr 17, 1967: DC held oath unconstitutional: violated Nebraska and US Constitution, First, Fifth and 14th Amdts.

Richard Bruckner, Esq, Farm Credit Bldg, Omaha.

- 67 -

281.25. Pedlosky v Massachusetts (Mass Sup Ct) Pl, Asst Math Prof, refused to sign positive loyalty oath at MIT; sued challenging requirement for all teachers in all state's colleges and schools, public and private. Mar 2, 1966: Sup Ct held oath invalid as an unreasonable regulation, not required by public interest, too vague; did not touch on constitutionality.
281.26. Plaintiff v Oregon (Ore Sup Ct) Pl, Portland State College physical education asst prof refused to sign positive loyalty oath required of teachers; sued. Lane Co Cir Ct held oath unconstitutional: violated due process, free speech guarantees of First and 14th Amdts, section of State Constitution. State Atty Genl appealed. Pending.

Oregon ACLU, Senator Bldg, Portland.

281.27. Prof Henry Nash Smith v Univ of California Regents (Calif Sup Ct) UC requires all employees to sign oath which states signer is not and for 5 yrs has not been member of organization advocating violent overthrow of govt. Aug 5, 1967: 10 UC Berkeley profs and teaching assts filed suit requesting immediate decision: threat to civil liberties so large, constitutionality of oath so dubious that delay unwarranted. Pending.

Albert Bendich, Esq, 2550 Telegraph Ave, Berkeley.

281.28. Hosack v Smiley (DC Colo, #67-C-310) Colorado loyalty oath required school teachers on nearly every level to swear they would uphold US and Colo constitutions, teach respect for state and US flags, respect for the law and undivided allegiance to the govt. Univ of Colo optics teacher challenged law. Je 28, 1967: 3-judge Ct ruled oath unconstitutionally vague and enjoined all future boards of regents from enforcing it.

William F Reynard, Esq, American Natl Bank Bldg, John D Herron, 530 Majestic Bldg, both of Denver 80202: Colorado ACLU, 1452 Pennsylvania, Denver 80203.

282. By Others (see also 343, 344)

282.12. Hofberg v County Civ Serv Commn (Los Angeles) (Calif Dist Ct of App 1, #1-Civ-24202) 1956: Pl, social worker, invoked Fifth Amdt in HUAC hearing. 1957: Fired by Co for refusal to testify. Aug 1964: Reciting history, Pl applied for position as social worker. Application accepted; passed examination. Oct 1964: Commn notified Pl name withheld from eligible list: had been dismissed for cause, which is cause for dismissal from Co service (Rule 7.04(g)). Pl filed appeal, request for h'g; stated reasons for refusal to testify before HUAC and willingness to answer same questions. Commn denied hearing. Mar 8, 1965: Pl sought mandamus to compel placement on eligible list. Sept: Super Ct reversed; held denial of employment for refusal to testify before HUAC denied Pl due process, was "arbitrary, discriminatory and patently unreasonable." Jan 1, 1967: Def appealed. Pending.

A L Wirin and Fred Okrand, Esqs, for ACLU of S Calif, 257 S Spring St, Los Angeles.

282.14. Minnesota v Forichette (Minn Sup Ct, #40035) 1966: Def municipal employee denied membership in Communist Party; arrested: perjury. Minn Dist Ct, 4th Jud Dist convicted. Appeal pending.

Lynn Castner, Esq, 925 Upper Midwest Bldg, Minneapolis; Joseph Perry, Esq, 516 New York Bldg, St Paul.

282.16. Application of Walter Marvin, Jr (NJ Super Ct, App Div, #A458-66) App applied for gun permit, refused to answer whether he is or has ever been member of organization advocating violent overthrow of govt or seeking to deny others of their rights under Constitution; denied permit (NJS 2A:151-35). Co Ct affirmed denial. May 1, 1967: appeal argued; pending.

Michael D Schottland, Esq, 150 Wall St, W Long Branch, NJ 07764.

282.17. Coxe v Osser (Philadelphia) (ED Pa, #42289) Mar 7, 1967: Bd of Elections refused Pl's nominating petitions to be Democratic candidate for City Commr in primary elections: failure to execute loyalty oath for all public employees, candidates for public office (65 PS §224). Pl sued: oath unconstitutionally vague, violates First, 14th Amdts. 3-judge fedl ct entered preliminary injunction against Bd, enjoined enforcement of oath, compelled receipt of nomination petition without oath.

A Harry Levitan, Esq, 1412 Fox Bldg, 10th and Market Sts, Philadelphia 19103.

285. Bills of Attainder
290. Penalties for False Disclosure
291. Under Taft-Hartley Oath (see also 203, 245)
292. On Government Security Questionnaires

292.3. Re Strasburger (US Civil Service Commn) Rel fired from Post Office; allegedly misrepresented Communist Party membership. Rel denied annuity rights, no hearing. Rel reopened hearing relying on Garrott v US, 251.52, 340 F2d 615. Pending.

Melvin L Wulf, Eleanor H Norton, Esqs, ACLU, 156 5th Ave, NYC.

293. In Miscellaneous Cases
295. Right of Privacy (and 301, 302, 303, 421)
Articles: Carnegie Quarterly, Our not-so-private lives: surveillance and freedom. Cong Rec—App. Aug 14, 1967, A 4103.

Susan A Meyer, Census or snooping? Cong Rec—House. Jy 18, 1967, H 8901.

Alan F Westin, Science, privacy, and freedom. 66 Columbia 1003-1050.

Luis Kutner, Due process of family privacy. 28 Pittsburgh 597-634.

Charles Fried, Privacy. 77 Yale 475-493.

Comments: Right of privacy in California. 7 Santa Clara 242-256.

The Fourth Amendment and housing inspections, 77 Yale 521-40.

Speech: Wayne Morse, Right of privacy as constitutional guarantee. Cong Rec—Sen. Feb 2, 1967, S 1386.

Speech: Cornelius E Gallagher, HR 7659 establishing Census Bureau Data Bank dangerous to right of privacy. Cong Rec—House. Aug 10, 1967, H 10383.

Legislation: 1966 Del and Md statutes forbid lie detector tests by employers.

Proposed Legislation: S 1035 prohibits unwarranted invasion of federal employees' privacy. Monthly staff report, Sen Subcomm on Constitutional Rights, Aug 3, 1967.

- 68 -

Questionnaire discontinued: Jan 1967: Form 89, Report of Medical History (bed-wetting, homosexuality, pregnancies, suicide of relatives, etc) discontinued by US Civil Service Commn for civilian employees.


Connecticut v Griswold and Buxton (formerly at 490.6d) (200 A2d 479, 381 US 479) Facts: X DOCKET 48, 117, 152; XI DOCKET 36.

Article: Ernest Katin, The justices and Connecticut's "uncommonly silly law." 42 N Dame 680-706. Comment: Abortion law reform in New York, 31 Albany 290-309.

Case notes: 54 Kentucky 794-799; 1966 Duke 562-577.

295.5. Time, Inc v Hill (USSC) (240 NYS2d 286, 207 NE2d 604, 385 US 374) 1952: Pl and family held hostages by escaped convicts; after wide news coverage, Pl discouraged publicity. 1953: Hayes published novel about similar event, with major differences from reality. 1955: Hayes play on event written up in Life, mentioning Pl by name, indicating play similar to reality. Pl sued for damages under NY Civil Rights Law §§50-51. Jury awarded Pl &50,000 compensatory and &25,000 punitive damages. Sup Ct, App Div sustained verdict re liability, ordered new trial on damages. New trial, jury waived: &30,000 compensatory damages only. Ct of App aff'd. Jan 9, 1967: USSC (5-4) reversed, Brennan, J: (1) NY Ct of Appeals holds truth is complete defense in actions based on reports of newsworthy events and people (whether newsworthy by choice or involuntarily), Spahn v Messner, 221 NE2d 543 (1966); (2) constitutional protections for speech and press preclude application of NY Act to redress false reports of matters of public interest in absence of proof Def published report with knowledge of its falsity or in reckless disregard of truth; (3) facts re knowing misstatements conflict; (4) trial judge failed to instruct jury that verdict of liability could only be predicated on finding of knowing or reckless falsity in publishing Life article.

Black, J (Douglas, J), conc: First Amdt is broader than this test. Douglas, J, conc: Test of "knowing or reckless falsity" will have chilling effect on free expression.

Case notes: 13 Albany 364-369; 19 S Carolina 249-252; 18 Syracuse 661-666; 45 N Carolina 740-747; 8 Wm & Mary 683-87; 67 Columbia 926-52; 45 Texas 758-65; 44 Chicago-Kent 58-63.

295.8. Telephone Answering Service v Beverly Hills (Los Angeles Co Super Ct) 1966: Pls sued city for declaratory judgment that ordinance requiring all telephone answering service employees to be fingerprinted as condition of employment is unconstitutional. Pending.

A L Wirin, Esq, 257 S Spring St, Los Angeles.

295.9. Julian Messner, Inc v Spahn (USSC, #1154) (221 NE2d 543, 87 S Ct 1706) Pl sued for damages and injunction against publisher for juvenile biography of him as a public figure without his consent, under NY Civil Rights Law §§50-51. Sup Ct sustained Pl's complaint of invasion of privacy. App Div affirmed. NY Ct of App affirmed: First Amdt does not prevent injunction and damages award when invasion of privacy. Mar 16, 1967: Appeal filed. May 22: USSC vacated judgment in light of Time, 295.5, and remanded.

Amicus brief for NYCLU by Osmond K Fraenkel, Isidore Silver, Esqs, 156 5th Ave, NYC.

295.11. Leopold v Levin (Cook Co Cir Ct) 1959: Leopold, of Leopold-Loeb 1924 thrill-slaying case sued author of Compulsion, fictionalized account similar to background, murder of Bobby Franks. Pl argued Def's use of Pl's name, likeness, personality was appropriation, chiefly for commercial purposes even if public figure, entitling Pl to cause of action for &2,970,000 for story of his crime. May 1966: Cir Ct continued case. Pending.

Elmer Gertz, Esq, 120 S LaSalle, Chicago 60603.

295.12. Hamberger v Eastman (NH Sup Ct) (206 A2d 239) Pls, married couple, sued Def, landlord, alleging Def had concealed listening device in Pls' bedroom. Super Ct denied motion to dismiss and transferred to Sup Ct. Dec 30, 1964: Sup Ct held: (1) tort of invasion of privacy not limited to physical invasion of home, but extends to eavesdropping by wiretapping; (2) invasion violated right of privacy. Jan 27, 1965: reh'g denied.
295.13. Pare v Donovan (Sup Ct, Kings Co, NY) Feb, Mar 66: On 2 occasions, teachers gave pupils papers for parents, urging support for pro-education legislation. May 5, 1967: Pl-parents sought injunction against dissemination, claiming right of privacy. Jy: Sup Ct denied motion: privacy from partisan political propaganda not constitutionally protected right.
295.14. Lamont v Commr of Motor Vehicles, R L Polk and Co (ED NY, #67-Civ 1540) (Opinion #33695) Pl sued to enjoin Def Commr from selling list of registered owners of motor vehicles to Def Polk who sells it for advertising purposes. Je 1967: Ct dismissed suit: No fed; question; refused to convene 3-judge ct. Je 6: appeal filed in CA 2. Pending.

Leonard Boudin, Esq, 30 E 42nd St, NYC 10017.

- 69 -


Interview form for clients in criminal cases. CIVIL RIGHTS HANDBOOK pp 46-46f.

Federalism and criminal law: a national standard? 16 Catholic U 401-17.

Pamphlet: Administration of Justice in the South, 20th Century Fund, 41 E 70 St, NYC 10021. 34 pp. 10¢.

300. Searches and Seizures (and see 295)

Practical problems: Suggestions in search and seizure cases by Manuel Nestle. CIVIL RIGHTS HANDBOOK pp 70a-70e.

Articles: Edward G Mascolo, Role of functional observation in law of search and seizure. 71 Dickinson 379-430.

Reader's Digest, Internal Revenue Service tyranny. Cong Rec—Sen. Aug 2, 1967, S 10602.

Statement: Internal Revenue Service, Response to Reader's Digest article charges. Cong Rec—House. Aug 14, 1967, H 10459.

Comments: Search and seizure. 18 Mercer 447-52.

Stop and frisk in California, 18 Hastings 623-33.

Notes: Evidence wrongfully seized by private party without gov't complicity admissible in administrative proceedings: In Matter of Knoll Associates (3 Trade Reg Rep para 17668, FTC 1966). 55 Georgetown 738-42.

Illegally obtained evidence should be excluded in civil case: Williams v Williams (221 NE2d 622, Ohio 1966). 18 Mercer 501-2.

Police surveillance of public toilets: Smayda v US (352 F2d 251, CA 9 1965). 23 Washington & Lee 423-32.

Legislation note: Arizona's new arrest statute. 9 Arizona 101-6.

Report: Subcomm on Constitutional Rights, Comm on Judiciary, Report No 473. Aug 2, 1967.

301. By Electronic Eavesdropping (and see 295)
Articles: Effectiveness of electronic surveillance. Cong Rec—Sen. Aug 8, 1967, S 11133.

Kenneth Greenawalt, Electronic eavesdropping: Balance between privacy and law enforcement. Cong Rec—House. Jy 19, 1967, H 9063.

Comments: Eavesdropping, informers, and right of privacy. 52 Cornell 975-1001.

Applying "mere evidence" rule to gov't eavesdropping. 14 UCLA 1110-29.

Notes: Wiretapping: extension telephones: Pennsylvania v Murray (223 A2d 102, 1966). 5 Duquesne 448-51.

Admissibility of evidence obtained by eavesdropping: State v Cartwright (418 P2d 822, 1966). 46 Oregon 353-59.

Proposed legislation: S 928, 1967 Right of Privacy Act, makes criminal use and manufacture of wiretapping equipment. Cong Rec—Sen. Feb 8, 1967, S 1751; Jy 12, 1967, S 9446.

HR 10037, Electronic Surveillance Control Act of 1967. Cong Rec—House. Aug 10, 1967, H 10335.

Hearings: Calif Public Utilities Commn, telephone monitoring.

Regulations: Justice Dept: Electronic eavesdropping by federal agents. NY Times, Jy 7, 1967.

See Granello v US (USSC) (243 FSupp 325, 365 F2d 990, cd 386 US 1019), diss opinions by Douglas, J; Fortas, J, (Warren, CJ).

301.23. Berger v New York (USSC) (269 NYS2d 368, 272 NYS2d 782, 87 SCt 1873) Def allegedly conspired to give bribes from Playboy Club to chairman of NY Liquor Authority. Oct 29, 1964: during trial, DA played tape made from "bug" in office; Def moved to strike tape as unidentified, inaudible, and in violation of constitutional rights; overruled. Dec 7: Def convicted. NY Ct of App affirmed. Je 12, 1967: USSC reversed (6-2), Clark, J: (1) review of state statutes re eavesdropping; (2) "The law, though jealous of individual privacy, has not kept pace with these advances in scientific knowledge"; (3) NY Crim Proc §813-a is deficient on its face, lays down no requirement for particularity in warrant as to what specific crime has been or is being committed, nor place to searched, nor persons or things to be seized as required by Fourth Amdt, and permits eavesdropping for long periods, with no termination date, no requirement that innocent conversations not be used; (4) "we cannot forgive the requirements of the Fourth Amdt in the name of law enforcement." Douglas, J, conc. Stewart, J, conc in result. Black, J, diss. Harlan, J, diss. White, J, diss.

Joseph E Brill, Esq, 165 Broadway, NYC.

301.24. New York v Scandifia, Grossman (App Div, Ct of App) NY Stat permits police, when authorized by ct, to place eavesdropping device on private premises. Mar 1963: With prior ct approval, police installed device in service station operated by Def-Scandifia, suspected in jewelry swindle. July 1963: Device recorded conversations with Def-Grossman, police officer, re killing of informers. On basis of
- 70 -

recording, police obtained search warrant; found weapons. Defs indicted: conspiracy to kill informers, possession of weapons. Mar 1, 1965: Sup Ct, Sobel, J, dismissed, held statute violates Fourth Amdt: (1) ct orders cannot "specify with particularity in advance conversations or verbal statements to be seized"; (2) statute invariably allows eavesdropping for discovery of mere evidence, rather than fruits, instrumentalities, or contraband. Dec 28, 1966: App Div reversed: "A world of swift communication and transportation" requires use of sophisticated techniques to combat crime; overhearing of conversation cannot be directed precisely towards one particular crime, to have contrary rule would introduce impractical refinements in test of reason.

Leonard Rubin, Esq, 377 Broadway; Abraham Brodsky, Esq, 111 Broadway, NYC; Albert C Aronne, Esq, 186 Jaralemon St, Brooklyn; John McAvoy, Esq, ACLU, 156 Fifth Ave, NYC.

301.25. New York v Robles (NY Sup Ct, 1st Jud Div) Oct 8, 1964: Narcotics addict under questioning by police offered information regarding Aug 28, 1963 double murder (see Whitmore, 353.29), alleged Def, another addict, had appeared on night of murder covered with blood; confessed murder to him. Jan 26, 1965: Def held, questioned; no counsel. Jan 27: Def arraigned; ordered held without bail. Crim Ct granted DA's motion for adjournment until Feb 25. Def alleged violation of Fourth Amdt by installation of eavesdropping devices. Def convicted.

Jack Hoffinger, Esq, 21 E 40th, NYC.

301.26. US v Guglielmo (CA 7) Def indicted for fedl gambling offense. On Def's motion, DC dismissed: evidence unlawfully obtained with "pen register" wiretap device that records telephone numbers called. May 1966: Appeal by US pending in CA 7.

Amicus brief by James Latturner, Esq, for ACLU, 19 S LaSalle St, Chicago.

301.27. New York v Habel (NY Sup Ct) (388 US 451; 219 NE2d 183) 1963: Dispute between Communication Workers of America (CWA) and Teamsters over Local 1101, Telephone Workers. 6 eavesdropping orders obtained between July and Dec under Code of Crim Proc §813c to listen at CWA and Teamsters' offices and Def's room. Dec 30: Local 1101 elected to disaffiliate with CWA and affiliate with Teamsters. Jan 20, 1964: Defs, Telephone Co employees and union officers of Local 1101, arrested: conspiracy. Feb 14: NLRB election between CWA and Teamsters over representation; Teamsters lost. Mar 25, 1965: Defs changed plea to guilty of misdemeanor, conspiracy to commit 3rd degree assault, reserving right to appeal motion to suppress evidence obtained by eavesdropping. Jy 25: Def found guilty. Je 12, 1967: USSC dismissed appeal. NY Sup Ct dismissed action as to 4 of 5 Defs, citing Berger, 301.23.

Victor Rabinowitz, Leonard Boudin, Arthur Schutzer, Esqs, 30 E 42nd St; Samuel Neuberger, Esq, 30 Vesey St, all of NYC.

301.29. New York v Fiedler (Buffalo) (Erie Co Ct) Apr 28, 1967: Prof's home raided by police who found marijuana; charge: (§1533 Penal Law) maintaining place where marijuana used. Def filed motion to suppress evidence which Pl obtained illegally by electronic eavesdropping device. Je 20: Co Ct denied motion, not proved that bugging device carried by teenage girl into Def's home, "She was not there as an intruder, but by invitation, with consent;" "She could have carried a tape-recording instrument or she could have met police after leaving and dictated what she had seen and heard." Pending.

Herald P Fahringer Jr, Esq, 1 Niagara Sq, Buffalo 14202.

301.30. US v Coplon (CA 2) (91 FSupp 87; 185 F2d 629; 191 F2d 749; cd 342 US 926) Mar 4, 1949: Def, Justice Dept employee, arrested: stealing secret Govt files (raw FBI notes), conspiring to turn them over to Soviet Union. Def tried, convicted in SD NY and DC DC. CA 2 reversed NY conviction: evidence used at trial obtained by illegal search, wiretap of atty-client conversations. DC DC case left open pending hearing on admissibility of wiretap evidence. Jan 6, 1967: Gov't dropped charges.

Albert H Socolov, Esq, 165 Broadway, NYC 10006.

301.31. California v Hughes (USSC) Police used electronic device to listen to conversations in Def's room; Def arrested without warrant: bookmaking. Apr 20, 1967: evidence obtained by electronic device used at trial; Def convicted. Calif Sup Ct denied h'g. Petition for cert to USSC pending.

Frank C Wood, Jr, Esq, 8762 Holloway, Los Angeles 90069.

301.32. Uniformed Sanitation Men Assn v Commr of Sanitation (NYC) (CA 2) Def tapped city-owned telephone wires to obtain evidence for inquiry into Pls' performance of their duties; at inquiry Pls pleaded Fifth Amdt; discharged from jobs. Pls sued to enjoin discharge. SD NY dismissed suit: lack of jurisdiction, failure to exhaust state remedies. Appeal argued in CA; decision pending.

Rabinowitz and Boudin, Esqs, 30 E 42nd St, NYC 10017.

301.33. Taglianetti v US (CA 1, #6829) Feb 26, 1963: Def indicted: income tax evasion (26 USC §2201); convicted. Sept 16, 1966: sentenced 7 mths, &3,000 fine. Appealed to CA 1. Dec 22: Gov't moved to remand, stating FBI had bugged office of close business associate of Def from 1962 to 1965. Jan 17, 1967: CA 1 granted remand motion for limited issue of whether bugging tainted conviction. Pending.

Bruce M Selya, Esq, 86 Weybosset St, Providence, RI, 02903.

301.34. New York v Broady (NYC) (NY Co Sup Ct) 1955: NYC DA conducted 27 mth wiretapping inquiry, found many involved in alleged industrial spying, efforts to obtain information for divorce procedings. Dec 15, 1966: Many persons arrested who worked independently in various groups in Calif, NJ, Conn, and NY; charge: illegal wiretapping, illegal electronic eavesdropping. Pending.

Frank S Hogan, Dist Atty, 155 Leonard, NYC.

301.35. Katz v US (USSC, #35) (369 F2d 130, 88 SCt 507) CA 9 affirmed conviction: Fourth Amdt does not require exclusion in fed'l gambling prosecution of recordings made through use of microphones attached to outside of, but not physically penetrating, public telephone booths habitually used by subjects; Crim Code §1084's ban on interstate wire transmission of wagers meets standard of certainty required by Fifth Amdt. Dec 18, 1967: USSC reversed: no constitutional significance could be granted fact
- 71 -

that electronic device did not penetrate wall; magistrate could have authorized limited search and seizure consistent with Fourth Amdt that would have authorized conduct that in fact took place.

Burton Marks, Esq, 212 S Gale Drive, Beverly Hills, Calif.

301.36. Roberts v US (USSC, #330) (383 US 265, 88 SCt 1) DC convicted Def of violating Securities Act of 1933 and mail fraud statute. CA 5 affirmed in part. Feb 28, 1966: USSC reversed and remanded. CA 5 denied Def's motion for new trial or alternative remand for evidentiary h'g. Oct 16, 1967: USSC granted petition for cert, vacated and remanded to DC: Def entitled to evidentiary h'g to determine whether prejudice resulted to him from admitted FBI monitoring of conversations between his co-Def and his co-Def's atty as established in Levine v US, 86 SCt 925 (1966).
301.37. US v Baker (DC DC) Def, former Secy to Democratic Majority of Senate, charged with income tax evasion, larceny, conspiracy. Dec 20, 1966: DC denied motion to quash charges on ground Gov't used bugging devices to record Def's conversations: no causal connection between admitted bugging and criminal charges; monitored conversations could not be introduced into evidence.

Edward Bennett Williams, Esq, 839 17 St NW, Washington, DC.

301.38. Hoffa v US (USSC) (367 F2d 698, vac & rem 387 US 231) Defs convicted of mail and wire fraud (18 USC §§1341, 1343), conspiracy (18 USC §371) re Pension Fund of Teamsters Union. CA 7 affirmed. On Defs' petition for cert, Solicitor Genl, sua sponte, advised USSC that Dec 2, 1963, 6 mths after indictment of Defs, FBI overheard conversation between one Def and Sigelbaum, whose office was bugged, by trespass, 12 mths before, and eavesdropping continued thereafter; contents of recording available to Gov't attys in this prosecution, tho only peripherally relevant and not used in trial. May 22, 1967: USSC, per curiam, held (8-1): not necessary for new trial because no direct intrusion in atty-client discussions; orderly procedure is to remand to DC for h'g, findings, conclusions on nature, relevance to these convictions of recorded conversations; if DC concludes any convictions tainted, Def should get a new trial. (White, J, took no part.) Black, J, diss.

Maurice J Walsh, Esq, 28 S LaSalle, and Charles A Bellows, Esq, 10 S LaSalle, Chicago; Morris A Shenker, Esq, 408 Olive St, St Louis; Joseph A Fanelli, Esq, 1001 Connecticut Ave NW, Washington, DC; Frank Ragano, George F Callaghan, Richard E Corman, Jacques M Schiffer, Esqs.

302. In Other Federal Criminal Cases
Fed'l injunctive relief from illegal search: Lankford v Gelston (364 F2d 197, CA 4 1966). 1967 Washington 104-12.
302.26. US v Blefare, Michel (CA 9) (362 F2d 870) Mar 27, 1964: Defs stopped by customs agents at Mexican border; searched. Taken to physician's office; searched rectally, made to drink saline solution, sodium chloride forced into stomach. Defs vomited condoms containing heroin. Defs convicted of smuggling heroin. Je 8, 1966: CA affirmed: method of search did not violate Def's constitutional rights.

Carl Fabbroni, Esq, U S Grant Hotel; Richard E Adams, Esq, Spreckels Theatre Bldg, San Diego, ACLU, S Calif.

Note: 19 Florida 374-77.

302.27. Kahn v US, Schawartzberg v US, Pacelli v US (USSC, ##593, 594, 557) (251 FSupp 702, 366 F2d 259, 87 SCt 321, 324, 502, 503) 1963: Pacelli tried for narcotics conspiracy. His atty, Kahn, and her assistant Schawartzberg, allegedly tried to bribe and coerce Hedges to keep him from testifying as gov't witness in Pacelli's trial while Hedges was in Co jail and was client of Kahn's. A "bug" was planted in cell in which Kahn and Hedges talked. Hedges testified at trial; Pacelli convicted; 15 yrs. Feb 14, 1966: Defs indicted: obstruction of justice for alleged bribery of Hedges. Feb 15: mistrial granted: prejudicial NY Times story re trial. Feb 21: New trial. DC denied Defs' motion to exclude tapes which contained offer by Kahn to Hedges of &25,000 if Hedges would not testify. DC ruled (1) Kahn-Hedges conversation not confidential when atty asserts privilege; (2) jail cell not an area constitutionally protected from eavesdropping. March 10: Defs convicted by jury. Jy 18: CA 2 affirmed: (1) sufficient evidence to go to jury; (2) Defs not entitled to severance; (3) conspiracy charges proper; (4) even if tapes obtained in jail cell were unconstitutionally obtained, evidence not used at trial except for one improper reference to their possible existence; (5) no atty-client privilege involved as client's privilege and no extension to cover advice in furtherance of crime; (6) marking of Jencks Act material in presence of jury not in itself sufficient grounds for reversal. Nov 14, 1966: USSC denied cert in all 3 cases.

For Def-Kahn: Jerome Lewis, Esq, 66 Court St, Brooklyn; Helen Buttenwieser, Esq, ACLU, 156 Fifth Ave, both of NYC; for Def-Schawartzberg: Israel Schawartzberg, pro se, 157 Field Place, Bronx; for Def-Pacelli: Robert Kasanof, Esq, 52 Bdwy, NYC.

See also Pacelli, Viscardi, at 354.15.

302.28. Brulay v US (USSC) (383 F2d 345; cd 88 SCt 469) Mexican officials searched Def, seized evidence, gave to US officials. Def tried, convicted. Aug 9, 1967: CA 9 held evidence admissible in fedl criminal prosecution; unlike statements which violate Fifth Amdt when admitted at trial, searches violate Fourth Amdt when made, hence Mexican law governs. Dec, 1967: USSC denied cert.
302.29. Harris v US (USSC, #92) (370 F2d 477, 386 US 1003) Pl convicted of car theft on evidence obtained without search warrant. CA DC affirmed: Fourth Amdt does not bar admission of victim's car registration card that police officer saw in automobile when he opened car door to roll up window to protect against rain, although he had no search warrant. Apr 17, 1967: USSC granted cert.

Paul H Weinstein, Esq, 711 14th St NW, Washington, DC.

303. In Other State Criminal Cases
Comments: Search and seizure in Ohio. 27 Ohio St 480-524.

Search and seizure incident to traffic violations. 4 Willamette 247-61.

Police power to stop, question and frisk suspicious persons. 1 Suffolk 105-11.

Arrest warrant in Massachusetts. 47 Boston 244-73.

Notes: Search and seizure: third-party consent: Minnesota v Kinderman (136 NW2d 577, 1965). 51 Cornell 795-804; 41 St John's 82-90; 1967 Washington 12-41.

- 72 -

Search for evidence allowed: California v Thayer (408 P2d 108, 1965). 32 Brooklyn 400-05.

Statutory search without warrant by fire marshal is valid exercise of police power: Iowa v Rees (139 NW2d 406, 1966). 9 S Texas 105-09.

Sufficiency of complaint to support search warrant: Whitely v Wyoming (418 P2d 164, 1966). 2 Land & Water 477-84.

Probationer's protection against search and seizure limited in New York: New York v Chinnici (273 NYS2d 538, Co Ct 1966). 18 Syracuse 647-50.

Stop and frisk: Commonwealth v Hicks (223 A2d 873, 1966). 5 Duquesne 444-448.

303.47. Camara v Municipal Court of San Francisco (USSC) (387 US 523) 1963: Division of Housing Inspection, Dept of Public Health demanded permission to inspect Pl's leased residential premises. Pl refused: no search warrant. Pl refused two more times; complaint filed against him (§503, Housing Code); arrested; released on bail; demurrer denied. Pl filed writ of prohibition; Super Ct denied; Ct of App affirmed; Sup Ct denied h'g. Je 5, 1967: USSC vacated and remanded (6-3), White, J: (1) general rule: search of private property without proper consent is unreasonable unless authorized by a valid search warrant; (2) Frank v Maryland (5-4), 303.9a, 359 US 360, is overruled; (3) when no warrant is required, no way to know lawful limits of inspection; can only test inspector's decision to search by risking criminal prosecution; on the other hand, (4) only way to get universal compliance with minimum housing standards is routine periodic checks of all structures, so this is reasonable, and in public interest; (5) probable cause exists to issue warrant to inspect based on nature of bldg, condition of area; (6) in emergencies, prompt inspections, even without warrant, are not foreclosed. Clark, J, (Harlan, Stewart, JJ), diss.

Marshall W Krause, Esq, ACLU of N Calif, 503 Market St, San Francisco.

Casenotes: 52 Minnesota 761-8; 6 Duquesne 65-70; 32 Missouri 551-60; 77 Yale 521-40; 1967 Utah 589-601; 34 Brooklyn 119-25; 41 Temple 134-41; 70 W Virginia 74-8; 14 Howard 192-6; 29 Montana 81-90; 37 Cincinnatti 243-50; 36 Missouri at Kansas City 111-31; 19 Mercer 259-61; 7 Washburn 385-9; 17 De Paul 207-19.

And see See, 303.70.

303.60. California v Sterling (Calif Sup Ct) (42 Cal Rptr 519) Defs arrested: gambling at private club; convicted. Super Ct, App Dept affirmed. Feb 9, 1965: Dist Ct of App denied h'g. Petition for habeas corpus alleged illegal search and seizure, exhaustion of remedies, habeas may be used for collateral attack in absence of published opinion by trial ct on ground trial ct accepted illegally obtained evidence. Petition for habeas denied.

ACLU, 323 W Fifth St, Los Angeles.

303.66. New York v Straehle (Westchester Co Sup Ct) Def-police officer charged with perjury in denying he warned gambler of raid in 1961. Prosecution introduced evidence through "voiceprint," device which takes "fingerprints" of voices. Def objected to introduction of this evidence: Fourth and Fifth Amdt grounds. Ct dismissed indictment.

McGovern, Vincent & Connelly, Esqs, 249 Huguenot St, New Rochelle, NY.

303.68. New York v Peters (USSC) (254 NY2d 10, 265 NYS2d 612, 273 NYS2d 217, 87 SCt 1291 88 SCt 317) July 1964: Def stopped, questioned and frisked at gunpoint in apt stairway by resident off-duty policeman; burglar tools found on Def. Def indicted: illegal possession of burglar's tools. Def moved for: suppression of evidence seized by policeman during frisk; order permitting inspection of grand jury minutes; dismissal of indictment. Oct 1964: Def's motions denied. Def pleaded guilty reserving right to appeal from denied pre-trial motions. On appeal Def attacks Code of Crim Proc §180-a (stop and frisk) on its face and as applied as unreasonable search and arrest. Ct of App affirmed, upheld constitutionality of statute. Mar 27, 1967: USSC noted probable jurisdiction.

Amicus brief by Alan H Levine, Esq, for NYCLU, 156 Fifth Ave, NYC.

Case notes: 13 Wayne 449-456; 35 Fordham 355-363.

303.69. California v Van Meter and Alexander (San Francisco Super Ct) Mar 4, 1965: Informant told policeman man and woman engaging in sexual intercourse in hotel room with door open. Officer found darkened room, asked Defs if they were married; Defs said "No"; arrested: committing lewd act in public place: Pen C §647a; saw alleged narcotics after arrest. Def claims: (1) did not have necessary mens rea; (2) police had no reasonable cause to arrest. Prosecution dismissed.

Ephraim Margolin, Esq, 683 McAllister St, San Francisco.

303.70. See v City of Seattle (USSC) (408 P2d 262, rev'd 387 US 541) Def refused to permit City Fire Dept to inspect his locked commercial warehouse in routine, city-wide canvass without warrant or probable cause to believe violation of ordinance; arrested (Seattle Ord §8.01.050); convicted: &100. Wash Sup Ct affirmed. Je 5, 1967: USSC reversed (6-3), White, J: (1) warrants are necessary, tolerable limitation on right to enter on, inspect commercial premises; (2) warrants must delimit confines of search, be subject to judicial review of reasonableness; (3) licensing programs may require prior inspections. Clark, J, (Harlan, Stewart, JJ), diss.

Prof Norman Dorsen, Esq, NYU School of Law, NYC.

And see Camara, 303.47.

Case note: 41 Washington 525-529.

303.71. Pennsylvania v Dawson (Philadelphia Crim Ct) Aug 13, 1966: Acting on tip from informant, Police Commr Rizzo ordered police to raid 4 places, including SNCC hqtrs. Police found 2½ sticks of dynamite in private apartment, nothing in SNCC office. Def SNCC worker, 3 others arrested: possession and transportation of explosives, conspiracy. Conspiracy charges because Dawson had allegedly possessed explosives at one time, stored them in SNCC office. During interrogation, Dawson stated dynamite originally obtained by non-SNCC person; because situation might lead to trouble, he, Dawson, offered to take it and throw it into river. Pending.

Cecil B Moore, Esq, Pres, Philadelphia NAACP, 260 So 15th, Philadelphia.

303.73. California v Roberts (San Francisco) (Calif Ct of App) 1967: Def arrested: violation of Penal Code §288a: proscribes `oral copulation' committed in public or private, whether participants are married, or act is heterosexual
- 73 -

or homosexual. Def convicted, appeals. ACLU filed amicus brief: (1) §288a on its face violates `marital right of privacy'; (2) evidence of act obtained by unlawful search and seizure: police drilled peepholes in men's room. Pending.
303.74. California v Quilon (Calif Sup Ct) Def-parolee suspected by fedl agents of having narcotics. Agents contacted Def's parole officer; parole officer gained entry to Def's house; fedl agents then conducted extensive search, finding narcotics. Def arrested: violation of parole; convicted. Dec 1966: Dist Ct of App aff'd: Def cannot complain of illegal search and seizure so long as parole officer is present during search and authorizes it. Def's appeal to Sup Ct pending.

Amicus brief for ACLU by Paul Halvonik, Esq, 503 Market St, San Francisco.

303.75. California v Hensler, Ragan, Sullivan (San Francisco Super Ct) Je 9, 1967: Minutes after motel robbery in Millbrae, policeman stopped car, ordered Def driver to open attaché case lying on front seat, found holster and bullets, ordered driver to open trunk, found 2 guns and other 2 Defs. Ct denied motion for dismissal on grounds of illegal search and seizure; patrolman acted in reasonable manner. Trial pending.

Gerry Ragan, Esq, 625 Market St, Joseph Sullivan, Esq, 111 Sutter, Both of San Francisco.

303.76. New Jersey v Dilley (New Brunswick) (Sup Ct, #5383) Dec 1964: Police observed Def acting in "suspicious manner"; arrested him; discovered gun in jacket. Def convicted. Super Ct, App Div affirmed. Jy 5, 1967: Sup Ct affirmed: police may search person if there is indication a crime may be committed.

C John Stroumtson, Esq, 24 Kirkpatrick St, New Brunswick.

303.77. Warden v Hayden (USSC) (363 F2d 647, rev'd 387 US 294) 1962: armed robber entered Co, took &363, ran; 2 cabbies followed man to house, described him; Co told police; police went to house, asked to search for robber, Def's wife did not object; Def found, arrested; police found gun, pistol in flush tank; found jacket, trousers like fleeing man's in washing machine; found ammunition in Def's room. At trial, all items introduced; Def convicted. CA 4 reversed. May 29, 1967: USSC reversed CA (8-1), Brennan, J: (1) entry and search for armed robber without warrant valid under these circumstances; (2) officer who found clothes was also search for weapons; (3) no valid basis for distinction between "mere evidence" (such as clothing here) and "fruits of crime or contraband," overruling Gouled v US 255 US 298; USSC has "recognized that the principal object of the Fourth Amdt is the protection of privacy rather than property, and [has] . . . increasingly discarded fictional and procedural barriers rested on property concepts." Black, J, conc. Fortas, J, (Warren, CJ), conc.

Douglas, J, diss: After a review of history: "I would . . . leave with the individual the choice of opening his private effects (apart from contraband and the like) to the police or keeping their contents a secret and their integrity inviolate. The existence of that choice is the very essense of the right to privacy. Without it the Fourth Amdt and the Fifth are ready instruments for the police state that the Framers sought to avoid."

Albert R Turnbull, Esq, Norfolk, Va, pro hac vice, by special leave of Ct.

Casenotes: 6 Duquesne 60-5; 36 George Washington 452-7; 42 St John's 425-35; 32 Albany 229-36; 2 Suffolk 122-5; 17 Buffalo 213-22; 44 N Dakota 269-72; 21 Southwestern 867-9; 29 Montana 101-6; 17 American U 119-25; 20 Baylor 122-8; 20 Alabama 149-57; 52 Minnesota 901-10; 34 Brooklyn 309-16.

303.78. Wainwright v New Orleans (USSC, #13) (184 So2d 23, 385 US 1001) Oct 12, 1964: Police stopped, questioned Def because he allegedly fitted description of murder suspect and refused to answer any other questions after he told officers his name, address, identified himself as law student. Def asked permission to call atty, denied. Def refused to remove jacket to show whether arm tattooed, as on murder suspect; police officers at station forcibly stripped Pl to undershirt, while he resisted, found no tattoo. Def's atty came to station, couldn't find Def, objected, arrested: reviling the police, refusing to move on. Charge against Def: disturbing the peace. May 14, 1965: Def tried; convicted. La Sup Ct denied h'g. Je 21, 1966: Petition for cert filed: (1) Must person who is stopped on sidewalk "on suspicion" and questioned by police answer all questions? If he has no identification, can he be compelled to strip to undershirt? (2) Did police have probable cause to arrest Def without warrant? (3) Did police officers use of force to remove Def's clothing after he was refused permission to call counsel constitute unreasonable search which Def had right to resist? (4) Was conviction so lacking in evidentiary support as to violate due process? Jan 9, 1967: USSC granted cert.

Stephen R Wainwright, pro se, 1 Centre St, Brockton, Mass.

Melvin L Wulf, Eleanor Holmes Norton, Paul Chevigny, Esqs, ACLU, 156 Fifth Ave, NYC 10010; Norman Dorsen, Michael D Kaufman, NYU School of Law, Washington Square S, NYC 10014.

303.79. DeForte v Mancusi (CA 2) (379 F2d 897) 1960: Pet was officer of Teamsters local investigated for alleged conspiracy to monopolize juke-box industry. Books and records were seized at the local's office over Pet's protest, were introduced as evidence at his trial over objection. State cts upheld Pet's conviction, holding that Pet lacked standing to raise the issue of illegal search and seizure because the books and records were union property. Pet filed for writ of habeas corpus in fed'l ct. Je 28, 1967: CA reversed conviction: State cts have been too restrictive in interpreting who may challenge an illegal search and seizure.
303.80. Sibron v NY (USSC, #63) (219 NE2d 196, 386 US 954) Sept 22, 1966: NY Ct of App affirmed conviction. Nov 6: Appeal filed: (1) Does "stop and frisk" law authorize unreasonable searches and seizures in violation of Fourth and 14th Amdts? (2) Was it unconstitutional as applied to pre-arrest search and seizure of narcotics when there was no probable cause for arrest or search? Mar 13, 1967: Forma pauperis granted and probable jurisdiction noted.

Kalmen Finkel, Gretchen White Oberman, and Leon B Polsky, Esqs, NYC.

303.81. Terry v Ohio (USSC, #67) (214 NE2d 114, 387 US 929) Ohio Ct of App for Cuyahoga City affirmed Def's conviction: police officer made legal search when, after 10-minute observation of Def "casing" jewelry store, he frisked Def, found loaded weapon which served as reasonable grounds for ensuing arrest. May 29: USSC granted cert.
- 74 -

Jack G Day, Esq, Standard Bldg, Louis Stokes, Esq, 75 Public Square, both of Cleveland.
303.82. Massachusetts v Painten (USSC, #37) (368 F2d 142, 386 US 931) Nov 10, 1966: CA 1 reversed conviction of Def: (1) Mapp v Ohio, 367 US 643, applies to state convict whose time to petition for cert had not expired when Mapp was handed down; (2) Search of Def's apartment merely on strength of knowledge that Def had police record and a hold-up had been committed that day was unreasonable. Jan 3, 1967: Petition for cert filed: (1) Was police entry and search illegal? (2) Did Def have standing to seek suppression of property he had abandoned by throwing it out the window. Jan 15, 1968: USSC dismissed cert as improvidently granted.
303.83. Schmerber v California (USSC) (384 US 757, 1966) Compelled blood tests to determine intoxication do not violate self-incrimination privilege.

Notes: 13 Wayne 425-34; 1967 Duke 366-87; 20 Vanderbilt 655-60; 46 Nebraska 161-75.

303.84. Cooper v California (USSC) (44 CR 483, aff'd 386 US 58) Def arrested: selling heroin; police impounded Def's car (required by Health & Safety C §116.11). One week later, police, without warrant, searched Def's car, found piece of sack, introduced it at trial. Def convicted; appealed. Ct of App affirmed; Calif Sup Ct declined to hear. Feb 20, 1967: USSC affirmed (5-4), Black, J: (1) this search not unreasonable under Fourth Amdt since car held validly for use as evidence in forfeiture proceeding, and police had right, even for own protection, to search it; (2) relevant test is not whether reasonable to obtain search warrant but whether search reasonable; (3) state can fashion higher standards re search and seizure than fed'l Constitution requires; these are unreviewable by USSC. Douglas, J, (Warren, CJ, Brennan, Fortas, JJ), diss: this search not incidental to lawful arrest; this case on all fours with Preston v US, 376 US 364; USSC either is over-ruling Preston sub silentio or watering down Fourth Amdt when applying it to states thru 14th Amdt.

Michael Traynor, Anthony C Gilbert, Esqs, Alcoa Bldg, Donald H Maffly, Esq, 593 Market, Jared G Carter, Esq, all of San Francisco; Prof Preble Stolz, Boalt Hall School of Law, University of Calif, Berkeley.

Casenote: 52 Minnesota 533-40.

304. Suits for False Arrest, Police Practices, Police Review Bd. (and 151, 305, 353, 429, 454, 580, 590)
Form: Complaint for false arrest. CIVIL RIGHTS HANDBOOK pp 252-59. Chart of successful false arrest suits under 42 USC §1983. CIVIL RIGHTS HANDBOOK pp 267.

Practice and forms: Ann Fagan Ginger and Louis H Bell, Police misconduct litigation—Plaintiff's remedies. 15 Am Jur Trials. 150 pp (1968). Bancroft-Whitney—Lawyers Coop. (For reprints, write authors, Box 673, Berkeley 94701.)

Articles: Wayne R Lafave, Penal Code revision: considering problems and practices of police. 45 Texas 434-454.

Benny L Kass, Office and concept of ombudsman. Cong Rec—Sen. Apr 5, 1967, S 4630.

Herman Goldstein, Police policy formulation: Proposal for improving police performance. 65 Michigan 1123-46.

Study: Joseph D Lohman, Gordon E Misner, Police and community. Dept of Criminology, UC Berkeley 1966.

See US v Demko (USSC) (350 F2d 698, rev'd 385 US 149) on right of fed'l prisoners to recover for injuries received in performance of assigned prison task.

Gerald N Ziskind, Esq. Grant Bldg, Pittsburgh, Pa.

And see Callender, 51.NY.14; Dokes, 56.24; Heine v Raus, 61.38.

304.Ala.6. Dew v Lee (Tuscaloosa) (DC Ala) Je 20, 1966: Pl-Negro civil rights worker went to home of Def-white sheriff to discuss bond for arrested man. Def told Pl to get off his property, beat her. Pl sued for &300,000 damages under Civil Rights Act. All-white jury found Def not liable.

Leslie W Finch, Esq, 25 Van Houten Pl, Belleville, NJ.

304.Ala.8. Hadnott v Grant (Autauga) (DC Ala) Pls, Negro minors, attempted to eat at restaurant, under 1964 Civil Rights Act. Officers under Defs, Sheriff and Chief of Police, threatened, assaulted, arrested Pls. Pls sued for &1,000,000 damages for false arrest. Pending.

Donald A Jelinek, Esq, LCDC, 31½ Franklin St, Selma 36701.

304.Ala.9. Houser v Hill (MD Ala #2564-N) Je 11, 1967: Def-police arrested Stokely Carmichael at meeting. That night, Police-Klan-Negro gun battle; Pl-Negroes arrested, beaten. Je 12: Pls released. Je 14: Pls brought class action under 42 USC §1983 to enjoin Defs from denying Pls' right of assembly, failing to provide police protection, inflicting "summary punishment"; also seeking &100,000 damages for beating. Jy 17: Defs answered and counterclaimed, joining SNCC, Rap Brown, Autauga Co Voters Assn, others to dismiss complaint, to enjoin organizing to advocate violence, employing weapons, parading in night or without notifying police. Pending.

Solomon S Seay, Jr, Esq, 34 N Perry St, Montgomery.

And see Prattsville, Ala v Carmichael, 54.17.

304.Ariz.1. Arizona v Guinn (Maricopa Co Super Ct, ##41892-3) Def-prisoner serving felony sentence. 1965: Def had &88; Supt of State Prison took money because prison rules prohibit prisoner's possessing money, deposited in prison recreation fund. Def filed petition for order to show cause why Supt not in contempt for taking Def's money without authorization. Pending.

Sydney Block, Esq, Ford Law Bldg, Phoenix, for ACLU.

304.Ark.2. Brassfield v Pearson (ED Ark) Suit under 28 USC §§1331, 1343, 1983, for injunction, damages, declaratory relief against Chief of Police (Gould, Ark), alleging under color of law he beat and injured 8 Pls on different occasions without cause or provocation. Pending.

John Walker, Esq, 1304 B Wright Ave, Little Rock 72206; NAACP Inc Fund.

304.Ark.3. Townsend v Ross (Helena) (ED Ark, #H66-C-6) Police allegedly beat Negro. Pl-Negro filed suit for damages, attacking discrimination in selection of jury. Aug 24, 1967: DC denied motion for judgment. Appeal taken.

George Howard, Jr, Esq, 329½ Main, Pine Bluff, Arkansas; Norman C Amaker, NAACP Inc Fund.

304.Calif.8. Lucero v Donovan (SD Calif, #776-61-EC) (300 F2d 441, CA 9, 1962; 354 F2d 16, 1965; 258 FSupp 979, 1966)
- 75 -

Oct 4, 1960: Def-police officers entered Pl's home, without warrant, searched furniture for narcotics. Pl objected; Def asked "Why don't you go back to Mexico?" Pl said she was US citizen. Defs handcuffed Pl, bruising and twisting her wrist; took Pl to jail where women police attempted to search her body cavities, completing search with assistance from Def-policemen. Pl released next day, after seized pills proved to be vitamins; no charges filed against Pl. Jy 1961: Pl filed &40,000 damage action, alleging illegal search and police brutality. DC dismissed suit; 1962: CA 9 reversed and remanded for trial. After trial, directed verdict for Defs. Issues on appeal: (1) Is evidence of past arrest record of Civil Rights Act Pl admissible on question of damages? (2) Is legality of search or seizure in Civil Rights Act case a question for Court or for jury? (3) Can police officers claim defense that their acts were permitted by or acquiesced in by municipality or other authority? Nov 23, 1965: CA 9 reversed directed verdict against Pl: held Pl would be entitled to recover against Def-police on one or more grounds alleged; questions should have gone to jury. Aug 22, 1966: DC held entry illegal; awarded Pl &5,000 damages; Los Angeles City to pay award since it elected to defend Defs.

A L Wirin, Esq, 323 W Fifth St; Hillel Chodos, Esq, 9107 Wilshire Blvd, Beverly Hills, for ACLU.

304.Calif.13. White v Bonnanno (ND Calif, #42556 Civ) Pls—Negro family—sitting quietly at home; 13 police rushed in without warrant, purportedly after Pl's 14-yr old nephew came to tell aunt one policeman was taking him to juvenile hall for failure to "move on" when ordered. Police arrested one Pl for resisting arrest and battery; both charges dismissed. July 10, 1964: Action filed against 13 policemen and city for brutality, false arrest, imprisonment and personal injuries under the Civil Rights statutes. Oct, 1964: DC granted Def-city's motion to dismiss under Monroe v Pape, 304.6, 365 US 167. DC denied Pl's motion to appeal in forma pauperis from dismissal of City as Def; Pl did not appeal. Trial pending against Def-policeman.

Fay Stender, Esq, 341 Market St, San Francisco 94105.

304.Calif.15. Garrett v Los Angeles (Los Angeles Super Ct, #853,380) Mar 12, 1964: At 1 am police broke into home of Pl, Negro atty, woke Pl with guns drawn, searched apt and effects, ripped carpets, clothing, fixtures, damaged contents; refused to let Pl get warm clothing, forced to sit before broken window. When Pl asked about warrant, shoved with gun; told "Shut up, Nigger." Jailed, mugged, fingerprinted; later released, told no charges. Jan 29, 1965: damage suit filed; awaiting trial.

Taylor Morton, Esq, 654 Lincoln Ave; William A Bjornsen, Esq, 16 N Morengo, both of Pasadena; Ball, Lloyd & Hart, Esqs, 120 Lincoln Ave, Long Beach; A L Wirin, Esq, Fred Okrand, Esq, 257 S Spring St, Los Angeles 90012, for ACLU.

304.Calif.16. Wright, Stringer v City of Los Angeles (LA Super Ct) Sept 29, 1963: Pls arrested, jailed; no complaint filed, never taken before magistrate. Oct 1: released. Dec 30: Complaint for damages filed with city council; rejected. Aug 11, 1965: Pls filed suit for false arrest: &4000 each. Pending.

A L Wirin, Fred Okrand, Esqs, for ACLU for S Calif, 257 S Spring St, Los Angeles; Thomas Neusom for NAACP.

304.Calif.17. Hinton v Smith, Doherty, Portue, Doane, City of San Francisco (ND Calif, #43801) Dec 14, 1964: Negro postal clerk allegedly dragged into police car, beaten, taken to hospital, again assaulted; arrested: interfering with police investigation, resisting arrest. Je 16, 1965: Muni Ct jury acquitted. Je 30: Pet sued Def police, City for &75,000 damages. Dec 1967: Jury trial (incl one Negro juror); verdict for Defs.

Francis McTernan, Esq, 341 Market St, San Francisco.

304.Calif.18. Morgan v Yuba Co (Yuba Co Super Ct, #15394) (230 CA2d 938, 41 Cal Rptr 508 (1964)) Decedent complained about person; person arrested, convicted, threatened to kill Dec'd on release from prison. Def's sheriff allegedly promised to warn Dec'd on release. Person released; Dec'd not warned; prisoner killed Dec'd. Dec'd's relative sued Co for wrongful death. Nov 30, 1964: Dist Ct of App held failure to warn actionable. Apr 14, 1967: pre-trial; trial pending.

Goldstein, Barceloux & Goldstein, Esqs, 341 Broadway, Chico 95926.

304.Calif.20. Phillips v O'Connell (San Francisco Super Ct, #518420) Pl Negro, former warehouseman, went to police station to arrange bail for friend, didn't answer some questions as police wished; beaten, arrested. Jan 29, 1962: Pl filed suit for damages for assault and battery by police, false imprisonment. Oct 1, 1965: in jury trial, Def policeman testified differently than on pretrial deposition; verdict for Pl, &1000 judgment. City and Co filed lien for &1824 hospital care and services to Pl after beating.

James Herndon, Esq, 341 Market St, San Francisco.

304.Calif.21. Treuhaft v Madigan, Coakley, Meese (Berkeley) (Alameda Co Super Ct) Dec 3, 1964: Defs arrested Pl, attorney, in Free Speech Movement sit-in at Univ of California when he went into administration building to advise his clients. Facts: Savio, 24.37. Pl moved for separate trial, granted. Pl moved for indefinite continuance because potential jurors have ben prejudiced by wide-spread hostile publicity. Oct 8, 1965: Motion granted. Oct 15: Pl sues for &200,000 damages for false arrest. Criminal charges and false arrest suit dismissed.

Benjamin Dreyfus, Esq, 341 Market St, San Francisco.

304.Calif.23. Whitten and Hanna v US Secret Service Agents First-Fifth Does (Santa Clara Co Super Co, #174247) Dec 4, 1965: Pl-student editor, accompanied by Pl-student, sought to use pass to attend press conference and lunch for Vice Pres Humphrey; conference cancelled, Defs forbade Pls attending lunch, First Doe allegedly attacked Pl with his fists until stopped by local policeman. Pls sued for &55,000 general damages and &1,000,000 punitive damages. Suit dismissed by Pl due to inability to effect service of process.

John Thorne, Esq, 510 N Third St, San Jose 95112.

304.Calif.28. Smith v Cahill (ND Calif, #44390) Dec 31, 1964: Pl's attys arrested and charged with blocking police entry to raid New Year's Eve homosexual ball, acquitted of charges. Nov 22, 1965: Pls filed &1 million damage suit under Civil Rights Act, 42 USC §1983. Trial pending.

Lowenthal & Lowenthal, and Ronald D Rattner, Esqs, 405 Montgomery St; Herbert Donaldson, Esq, 333 Franklin; Evander Smith, Esq, 683 McAllister; Elliott Leighton, Esq, 1255 Post, all of San Francisco.

304.Calif.29. Harris v Aufort (San Francisco Super Co, #533195) 1965: Pl by mistake parked car in space reserved for police
- 76 -

outside precinct station; found car tagged; protested in station space not clearly marked. Def policeman started to cite Pl for no car registration; Pl showed registration; Def arrested Pl as drunk. Pl released, sued for false arrest. Trial: hung jury. New trial pending.

Donald L A Kerson, Esq, 341 Market St, San Francisco 94105.

304.Calif.30. California v Gallagher (San Francisco Super Ct) Jan 20, 1966: Def policeman stopped complainant Trepanier about 1 am, asked him questions, beat him; Trepanier hospitalized 7 days for broken jaw. Feb: Def suspended from police force. Aug 30: Def tried for felonious assault; hung jury (7-5 for conviction). Sept 9: Def resigned from force. Retrial pending.
304.Calif.31. Wright v Los Angeles (LA Muni Ct, #106960) Pl alleges he was arrested and incarcerated without being taken before magistrate. Awaiting trial.

Charles Beardsley, Esq, 458 S Spring St, John Sobieski, Jr, Esq, 1111 S Vernon St, ACLU, both of Los Angeles.

304.Calif.32. Trice v Los Angeles (2d Dist Ct of App, #29049) 1964: Suit for damages filed against police for illegal search and seizure. 1966: Super Ct sustained Def's demurrer. Appeal pending.

Hillel Chodos, Esq, 9107 Wilshire Blvd, Sheldon Bardack, Esq, 259 S Beverly Drive, both Beverly Hills, for ACLU.

304.Calif.33. Marlowe v Coakley (CA 9, #21981) 1962: Pl given &10,000; Pl claimed as inducement to run for judgeship; donor claimed for purpose of investment for donor's benefit. Feb 18, 1965: Pl indicted: grand theft; arrested. Jy 20, 1966: jury found Pl not guilty. Oct: Pl filed damage suit against Alameda Dist Atty, claiming false arrest, malicious prosecution, knowingly using perjury to obtain indictment. Apr 11, 1967: DC granted Def's motion to dismiss—DA's absolute immunity. May 11: appeal filed. Pending.

Benjamin F Marlowe, Esq, 508 16th St, Oakland.

304.Calif.34. Figueroa v Mackey (Blythe) (Riverside Super Ct) Apr 29, 1963: Pl seized by Def-policeman, kneed, jailed. Pl sued Def: battery, false imprisonment. Apr 1967: jury verdict for Pl; &750.
304.Calif.35. San Francisco v Kuelz (Muni Ct, #558457) Nov 18, 1964: Doctor alleges San Francisco employees kidnapped him, placed him in city hospital against his will, provided no services or aid to him, no judicial proceedings held within 72 hrs. Sanity h'g held, Pl found sane. Dec 7: Pl released from hospital. Je 23, 1967: Def filed motion to dismiss, alleging not liable to Pl for alleged sum. Pending.

Ephraim Margolin, Esq, 683 McAllister, San Francisco.

304.Calif.36. Bechtler v City of Hawthorne (Los Angeles Super Ct, #874116) Jy 25, 1965: Pl arrested inside courtyard of his apartment house: being drunk in a public place (Pen C §647F). Jury found Pl guilty; motion for new trial granted; Muni Ct dismissed charge: courtyard not public place. Dec 8: Pl alleged he was beaten and abused, sued for damages: false arrest and imprisonment, battery. Aug 23, 1967: pre-trial. Pending.

Hillel Chodos, Esq, Suite 604 Gibralter Tower, 9107 Wilshire Blvd, Beverly Hills.

304.Calif.37. Deadwyler v Los Angeles (Los Angeles City Council) Pl's husband shot to death by policeman while driving Pl to hospital. 1966: Pl filed claim for wrongful death, precondition to suit against City, officers. Pending.
304.Calif.38. Berkeley v Birgit Williams (Berkeley Muni Ct) Jan 5, 1967: Def allegedly found police officer in her house without warrant; officer found tin of pills, Def took it from him, officer called others; Def arrested: possession of dangerous drugs. Def alleges she was manhandled in police station. Pending.

Carleton Inniss, Esq, 2550 Telegraph Ave, Berkeley, Calif 94704.

304.Calif.39. San Francisco v Diggers (San Francisco Muni Ct) Jan 8, 1967: Police investigated Defs' house where films being shown: possible fire hazard; police allegedly found syringe, searched rest of house; Defs arrested: running opium den, fire code violations. Defs charge police systematically harass Defs, charges dismissed in 70% of cases. Pending.

Patrick Hallinan, Esq, 345 Franklin St, San Francisco 94102.

304.Calif.40. Berg v Cahill (San Francisco) (ND Calif) Pl sued to enjoin enforcement of Cal Penal Code §§370, 372, public nuisance sections, alleging they are used to harass citizens deemed undesirable by police. Jy 1967: DC dismissed: matter should be resolved by state cts.

Richard B Weinstein, Esq, 45 Polk St, Paul Halvonik, Esq, 503 Market St, San Francisco, for ACLU.

304.Calif.41. California v John Ross (San Francisco Muni Ct) Aug 6, 1967: San Francisco Draft Resistance Union had benefit party; police stepped in to quiet it. Several police allegedly injured; 10 persons arrested: assault with deadly weapon, resisting arrest, assaulting police. One Def is candidate for supervisor on Progressive Labor Party ticket. Oct 9: preliminary h'g.
304.Calif.42. Paddleford v Biscay (ND Cal) Apr 6, 1967: Def-police arrested Pl-woman at 10 PM on traffic warrant; allegedly threatened to break in, handcuffed, insulted Pl, denied Pl access to counsel, took Pl to jail circuitously. Aug 8: Pl sued Def-officers, Def-Muni Ct judge, alleging ready-stamped warrants kept by latter, violating Pen C §813 (misdemeanor warrants only servable in daytime unless specifically endorsed). Pending.

Marvin E Lewis, Esq, 690 Market St, San Francisco.

304.Calif.43. Moore v Clark (SF Super Ct) May 1, 1965: Def-police entered Pl's hotel, questioned resident. Pl allegedly advised resident not to answer, argument followed, Pl arrested. Pl brought false arrest against officers, City. Aug 23, 1967: jury found for Defs.

Marvin E Lewis, Esq, 690 Market St, San Francisco.

304.Calif.44. Johnson v San Francisco (SF Super Ct) Sept 27, 1966: Def-policeman chased, fatally shot Negro youth, 16; demonstrations, riot followed. Officer suspended. Oct 20: Coroner's jury found excusable homicide. Officer reinstated. Dec 5: Pl-parents filed &505,000 claim against Def-City with Controller; denied. Action filed in Super Ct. Pending.

Melvin Belli, Esq, 722 Montgomery St, San Francisco.

304.Calif.45. Berkeley v Guerro Phil (Berkeley Muni Ct, Calif) Sept 1967: Police stopped car, passenger fled: wanted on
- 77 -

traffic warrant. Police allegedly beat him up, used chemical MACE. Passenger Def, chairman of West Berkeley Advisory Comm, said there was excessive brutality; police ordered him to move off; he remained; beaten in stomach several times. Pending.
304.Calif.46. Hagan v Superior Ct (USSC) (385 US 1025) Def-Ct Commr found Pl in contempt in another litigation for coming into ctroom with concealed tape recorder. Pl filed false imprisonment suit. Super Ct held Pl's failure to file timely claim required by Cal Gov't Code barred maintenance of suit. Dec 2, 1966: Petition for cert filed. (1) Did Cal Gov't Code's requirements for presentation of claims against public entities violate 14th Amdt's equal protection clause and constitute class legislation in excess of that required by state to protect itself? (2) Did issuance of writ of prohibition against maintenance of Pl's suit constitute denial of due process, violation of other civil rights? Jan 16, 1967: USSC denied cert.

Evert Hagan, pro se, 4102 Los Villas, Los Angeles.

304.Calif.47. MacDonald v California (CA 9) Def arrested. Issues on appeal: (1) constitutionality of Calif Penal statute imposing duty not to resist unlawful arrest; (2) prosecution's refusal to dismiss charge on which it admitted it had no case because Def refused to stipulate to probable cause for arrest. USSC denied cert: want of jurisdiction. Def petitioned for habeas; DC denied. Appeal pending in CA 9.

Hillel Chodos, Esq, for ACLU, 9107 Wilshire Blvd, Beverly Hills, Calif.

304.Calif.48. Scruggs v Haynes (1st Dist Ct of App) (252 ACA 271) (Long Beach) Pl filed statutory tort claim; denied; sued 2 officers, City for assault, battery: Pl protested manhandling of friend at scene of collision; officers handcuffed, beat, jailed Pl; released him without arrest or charge. Non-jury trial. Ct found for 1 officer; gave judgment against 2d officer, City: &12,000 compensatory damages; &5,000 punitive against officer only. Ct of App affirmed: use of excessive force by policeman not a "discretionary act" (Gov't C §820.2); City therefore cannot claim derivative immunity (Gov't C §815.2).
304.Calif.49. Moore v San Francisco (San Francisco Super Ct, #558,431) Def-policemen questioned juvenile at Pl's hotel. Pl, 68-yr-old woman, tried to advise juvenile; arrested: interfering with officer; Pl deposited bail according to fixed schedule; was held several hours for booking, fingerprinting, mugging; was held 1½ more hours before release. Pl sued for false arrest, imprisonment. Jury found for Def-City, officers. Oct 23, 1967: Ct granted Pl's motion for judgment against City notwithstanding verdict: although jury could find probable cause for arrest, Pl falsely imprisoned by failure to release her on deposit of bail: Pen C §1295, as applied, denies right of ordinary misdemeanor arrestee to immediate release on posting of bail. Ct ordered new trial to fix damages. Pending.

Marvin E Lewis, Esq, 690 Market St, San Francisco.

304.Calif.50. Osborn, Redmond v Sup't, California Men's Colony (USSC) (cd 387 US 915) State prisoners, appealing from convictions, filed petitions for writs of habeas corpus to end prison officials' censorship of atty-client mail. Je 1, 1966: Cal Sup Ct denied petition. May 22, 1967: USSC denied motion for leave to file petition for habeas writ.

Hillel Chodos, Esq, 9107 Wilshire Blvd, Beverly Hills; A L Wirin and Laurence Sperber, Esqs, ACLU, 257 S Spring St, Los Angeles.

304.Calif.51. Renteria v DiGiorgio (San Diego Super Ct. #301863) Je 29, 1966: Pls proceeded to their homes at Def's labor camp; detained and imprisoned by Def's agents; arrested: trespass. Aug 3: Justice Ct (California v Chavez, Ramona Jud Dist, #3929) acquitted Pls. Je 28, 1967: Pls sued: false imprisonment, malicious prosecution. Pending.

Jerome Cohen, Esq, Box 130, Delano, Calif 93215.

304.Colo.1. Jones v Horvat (DC Colo, #66-C-262) Pl-professor, speaker against Vietnam war, hosted student club meeting in home. Defs-sheriff, deputy entered home to serve commitment order on guest invalidly declared incompetent on petition of parents after seeking CO classification. Defs held Pl several minutes, arrested several guests including Pl in Horvat, 304.Colo.2. May 1966: Pl sued for violation of civil rights, conspiracy (42 USC §§1983, 1985). Case settled after judgment for Pl in Horvat.

Harry K Nier, Jr, Eugene Deikman, Esqs, 1700 Broadway, Denver 80202, for ACLU.

304.Colo.2. Professor v Horvat (DC Colo) Pl, arrested at meeting in Jones, 304.Colo.1, sued sheriff, deputy, for violation of civil rights. Jury found for Pl; ct reduced award to &15,000.
304.DC.1. Gaston v Tobriner (DC DC, Civ, #3994) 1962: Pl-Howard Univ students sued Washington, DC Commissioners and several police officers, alleging Pls detained several hours without probable cause. DC granted Defs' motion to dismiss as to DC Commrs, denied as to other Defs. Pending.

Arthur D Woods, Jeanus B Parks, Jr, Herbert O Reid, Jr, Esqs, 1500 Newton St NE, Washington, DC.

304.DC.2. Carter v Hoover (DC DC) Aug 16, 1965: Pl-FBI clerk fired from his job because he had a girl in his apartment overnight. 3 other FBI clerks who shared apt allegedly harassed by FBI and forced to resign. Apr 21, 1966: Pl sued for reinstatement and for back pay. Pending.
304.DC.3. Garrett v Berrier (DC DC, #931-67) Apr 26, 1966: Def-police officer stopped Pl-cabby for speeding; allegedly falsely asserted taxi smoked, would be impounded, dragged Pl from cab, causing Pl to fall. Oct 18: Hearing. Mechanic testified taxi did not smoke. Pl filed request for reprimand. Complaint review bd recommended officer be disciplined; pending. Apr 1967: Pl sued officer, captain, chief, and Dist of Col: assault and battery, deprivation of civil rights, negligence. DC denied Def-Dist's motion to dismiss negligence count.

Ralph Temple, Esq, 1424 16th St NW, Suite 501, Washington, DC 20036.

304.DC.4. Lewis v Aderholdt (USSC) (382 US 111) Police property clerk refused to return to Pet property which Pet was suspected of stealing although Pet had not been charged with the crime. Oct 11, 1965: USSC denied cert.

Armand Dertner and Monroe H Freedman, 1424 16th St NW, Washington, DC, for NCA-ACLU.

304.Fla.2. Gordon v Florida State Trooper (Tallahassee) (ND Fla) Florida State Univ officials assured Pl, CORE field secretary, that annual fraternity parade would have no floats degrading Negroes. One float carried girl in "black
- 78 -

face" being beaten by white man with whip. When Pl blocked passage of float, state trooper ordered driver of horse-drawn wagon to run over Pl. Nov 8, 1965: Pl sued Trooper, wagon driver; pending.

John Due, Esq, CORE, 540½ W Brevard St, Tallahassee.

304.Fla.4. Chambers v City of Tampa (Hillsborough Co Ct) Je 11, 1967: Policeman slew fleeing burglary suspect. Riot began; 9 stores burned, 15 persons injured, 20 arrested, one deputy died of heart attack. Je 12: Human Relations Commn announced suspension of officer pending hearing. Gov sent 500 Guardsmen, 235 state police. Je 13: rioting spread. Je 14: City Atty ruled slaying justifiable homicide. Sheriff agreed to remove Guard, police on assurances of Negro leaders; Negro youth patrol dispersed mobs. Je 15: City councilmen gave citation to youth patrol members. Pl-parent of slain suspect authorized NAACP to sue Def-city. Pending.

Francisco A Rodriquez, Esq, 2922 N 11th St, Tampa, Florida.

And see cases at 429.

304.Ga.5. McPherson v Boutwell and Tamiami Trail Tours (ND Ga, #8359; CA 5) Pl, Jamaican Negro student, alleged he was beaten on bus. Pl sued city and company for assault and battery damages. DC held for Defs. Appeal pending.

Donald Hollowell, Howard Moore, Esqs, 859½ Hunter St NW, Atlanta, Ga.

304.Ga.6. Georgia v Harris (Ga Sup Ct) Def Negro indicted for burglary. Def alleged police assaulted, shot him, nearly fatally. Convicted. Issue on appeal: use of state police laws to conceal summary imposition of punishment by police. Pending.

Howard Moore, Esq, 859½ Hunter St NW, Atlanta.

And see Harris, 304.Ga.6a.

304.Ga.6a. Harris v Justice (SD Ga, #1282) Facts: Harris, 304.Ga.6. Pl sued police officers for damages for injuries sustained during arrest; lost sight in right eye. Pending.

Howard Moore, Esq, 859½ Hunter St NW, Atlanta.

304.Ill.17. Gause and Avant v Chicago Police Officers (Cook Co Cir Ct, #64 L 9071) 1963: Chicago police officer allegedly assaulted minor Pl-Avant. Apr 15, 1964: Pls sued officer, joined City under respondeat superior. Je: City's motion to dismiss it on grounds of governmental immunity sustained. No appeal. Trial pending in action against individual policemen.

Herbert Fisher, Esq, 69 W Washington St, Chicago 60602.

304.Ill.18. Mack v City of Chicago (Cook Co Cir Ct, #63 S 15147) 1963: Deceased shot by arrestee in Chicago police station. Pl, administratrix, sued City and police officers for wrongful death, alleging negligence in restraining arrestee. City's motion to dismiss it on ground of governmental immunity sustained. Suit settled for &23,000.

Herbert Fisher, Esq, 69 W Washington St, Chicago 60602.

304.Ill.21. Andrews v Porter and Chicago (Ill App Ct, 1st Dist, 2d Div, #50328) (217 NE2d 305) Aug 1, 1960: Def policeman shot, killed Pl's husband; Pl widow sued Def for wrongful death, joining City under indemnity act (Ch 24, Par 1-4-5 (1963)). Decided with 304.Ill.22.
304.Ill.22. Fox v Chicago and Price (Ill Sup Ct) (226 NE2d 597) Jan 24, 1963: Pl arrested for traffic violation, offered bond for release, refused by Def police, held for larceny on capias for man with similar name; Defs refused to verify Pl's allegations til so ordered by ct next day; Pl released, sued for damages and judgment declaring Def city liable. Trial cts sustained Def-City's motions to dismiss in both cases. May 3, 1966: App Ct held: (1) Pl has cause of action against policeman for his tortious conduct while performing gov'tal functions; (2) gov'tal immunity in Ill abolished in part by statute in 1943, reinstated in 1945, but City can be sued for tortious conduct of its police under Molitor v Kaneland Community Unit Dist, 163 NE2d 89 (1959); (3) ch 24, §1-4-5 does not bar such direct actions; (4) causes of action for declaratory judgments premature against City til trial against policeman. May 1967: Sup Ct affirmed. Pending.

Rogers, Strayhorn and Harth, Esqs, 343 S Dearborn, Chicago.

304.Ill.23. Kincy v Wilson and Chicago (ND Ill, #66C1872) Feb 8, 1964: Pl arrested for robbery, allegedly identified by witness. June 1: Pl convicted; imprisoned 30 mths. Je 30, 1966: App Ct of Ill reversed for lack of evidence. Oct 17: Pl sued police chief, officers, City, and complainants for conspiracy to deprive Pl of right to life and liberty without due process in violation of 14th Amdt, 28 USC §1343(3), 42 USC §§1983, 1988, seeking &100,000 compensatory, &150,000 punitive damages. Nov 25, 1966: DC granted City's motion to dismiss: exercise of pendent jurisdiction based on Pl's subrogation to officers' right of indemnification would be prejudicial; denied motions of complainants: private persons conspiring with officers are liable under §1983. Pl settled with some Defs; pending as to police officers and Superintendent of Police.

Elmer Gertz, Esq, 120 S LaSalle, Chicago.

And see 304.Ill.23a.

304.Ill.23a. Kincy v Land (Cir Ct, Cook Co, #66 L 16751) Facts: Same as 304.Ill.23. Oct 1966: Pl sued complaining witnesses only for causing his false arrest and imprisonment, seeking &25,000-&100,000 damages. Pending.

Elmer Gertz, Esq, 120 S LaSalle, Chicago.

304.Ill.24. Kerr v Chicago and Wilson (ND Ill, E Div, #66 C 1731) June 19, 1963: 5:30 am: Def police came to house of Pl, minor, without warrant, told Pl's father they wanted to question Pl in routine investigation tho didn't think he had committed any crime; Defs took Pl to police station, questioned him about fire and burglary; Pl alleges when he said he knew nothing, he was beaten, forced to submit to lie detector test without parents' permission, not allowed to eat, use washroom, or see parents, tho he asked to do so and mother at police station. Pl finally signed confession. Je 20: Pl brought before magistrate. Trial held; Pl's "confession" admitted into evidence; jury unable to reach verdict. Dec 2, 1964: motion of nolle prosequi entered. Sept 1966: Pl sued City and police officers under 42 USC §§1983, 1988 and Ill police indemnification act, for &100,000 general damages, &500,000 punitive damages. Pending.

Elmer Gertz, Esq, 120 So LaSalle St, Chicago 60603.

304.Ill.25. Herschel v Wilson (USSC, #678) (365 F2d 17, 385 US 973) Pl-pamphleteer arrested for violating Chicago's antilitter
- 79 -

handbill ordinance. Charges dropped. 1966: CA 7 held Pl not entitled to order under Civil Rights Act (42 USC §1983) to expunge all records concerning arrest. Oct 14: petition for cert filed: invasion of privacy in violation of First and 14th Amendments. Dec 5, 1966: USSC denied cert.

John M Bowlus, Esq, 105 W Adam St, Chicago, Ill.

304.Ill.26. Illinois v Alcantar (Cook Co Cir Ct, 1st Muni Div) (66MC126773-774) Man charged with resisting arrest, aggravated battery, disorderly conduct. Police allegedly beat him up brutally, broke his arm. Def alleges criminal charges used to mask police's physical abuse. Aug 7, 1967: Cir Ct dismissed case.

Morris Simons, Esq, 33 N Dearborn; David C Long, Esq, 19 S LaSalle, both of Chicago.

304.Ill.28. Illinois v Young (Ill App Ct, 1st Dist, #51797) Police wanted to search Def-woman's home; Def asked to see search warrant; it was only for house next door. Def so stated to officers, then struck one of them; arrested: resisting peace officer, battery; convicted. On appeal, Def questions scope of "resisting" and "battery" stats (Ill Rev Stat ch 38 §§7-2, 7-7, 12-3, 31-1), when citizens react to police interference with their civil liberties. Pending.

Steven L Larson, Esq, 122 S Michigan Ave, Chicago 60603.

304.Ind.1. Brinkman v Indianapolis (Ind App Ct) (36 Law Week 2344) Def-policeman called to take man to hospital; instead jailed him for drunkenness, disorderly conduct. Man died of pneumonia. Ct held City liable: Indiana no longer recognizes sovereign immunity defense.
304.La.2. Tyson v Cazes (CA 5) (238 FSupp 927, 10 RRLR 341) Jy 1964: Pl-Negro physician denied service at club, refused to leave without hearing reason for refusal, arrested: drunk and disorderly, disturbing the peace. Justice Ct dismissed for lack of evidence. Pl sued owner, mgr and 5 arresting officers for damages under 1964 Civil Rights Act, 42 USCA §2000a, for conspiracy to deny civil rights and denial thereof, false arrest and malicious prosecution. Feb 26, 1965: DC dismissed Pl's suit, notwithstanding local ordinance forbidding service of alcohol to Negro and white in same premises, §202 of Civil Rights Act does not require injunctive relief against establishment. Mar, 1966: CA heard appeal. Pending.

Murphy Bell, Esq, 971 S 13th St, Baton Rouge.

304.La.5. Bogalusa v Horton (Bogalusa City Ct) Def-Caucasian, civil rights worker, assaulted in full view of police; assailant and Def arrested: simple battery, disturbing the peace. Series of continuances. City Atty dropped charges against both men, over objections of Def. Sept 10, 1966: Def visited patient in hospital; arrested: drunkenness, resisting arrest; Def beaten by arresting officer. Def moved for contempt citations against officials based on Hicks v Knight, 63.31. Def brought damage suit against arresting officers. Trial on criminal charges pending.

Richard B Sobol, Esq, LCDC, 2209 Dryades St, New Orleans 70113.

304.La.6. Horton v Wascom (Bogalusa) (ED La, #66,390) Sept 1966: Pl-Caucasian civil rights worker arrested without cause; beaten with nightstick. Pl brought damage suit under 42 USC 1983. Pending.

Richard B Sobol, Esq, LCDC, 2209 Dryades St, New Orleans 70113.

304.La.7. Hall v Berry (W Monroe) (WD La, #12,170) Pl-Negro beaten by 5 police; arrested: resisting arrest, disturbing the peace. Pl brought damage suit under 42 USC 1983. Pending. Pl convicted on criminal charges. Sept 30, 1966: Dist Ct affirmed conviction; 6 mths in prison.

Richard B Sobol, Esq, 2209 Dryades St, New Orleans.

304.La.8. Aronson v Giarusso (New Orleans) (ED La, #66,281) Sept 6, 1966: Pl sued to enjoin police department from photographing persons taking part in civil rights and antiwar demonstrations as intimidation and suppression of exercise of First Amdt rights. Pending.

Richard B Sobol, Esq, 2209 Dryades St, New Orleans.

304.Md.1. Winston v Weber (Cambridge) (DC Md) Defs arrested Pl, of Non-Violent Action Comm, for nonexistent offense: "failure to identify himself." Aug 18, 1965: Pl filed &50,000 civil suit against 2 policemen, police chief, sheriff and deputy sheriff for false arrest under 42 USC §§1983, 1985, 1986. Pending.

Marvin Braiterman, Esq, 506 Tower Bldg and Elsbeth Levy Bothe, Esq, 41 W Preston St, both of Baltimore.

304.Md.2. McIver v Russell (Baltimore) (DC Md, #17457) 1966: Pl alleges police severely beat him without cause, then arrested him: disorderly conduct. Grand jury refused to indict; charges dropped. Jy 14, 1966: Pl sued for &300,000 compensatory, punitive damages. Motion to dismiss denied. Pending.

Gerald Smith, Esq, American Bldg, Juanita Mitchell, Esq, 1239 Druid Hill Rd, both of Baltimore; Michael Meltsner, Esq, NAACP Inc Fund.

304.Md.3. Lankford v Gelston (Baltimore) (CA 4) (364 F2d 197) Pls sued to enjoin Baltimore Police Commr from unlawful searches of homes in violation of Fourth Amdt. Trial ct found more than 300 unlawful searches, but denied injunction. Je 23, 1966: CA, en banc, unanimously reversed, ordered entry of injunction forbidding searches of homes solely on basis of anonymous tips hence without probable cause.

Juanita Mitchell, Esq, 1239 Druid Hill Ave, Baltimore.

304.Mich.5. Stanzione v Hubbard (ED Mich, S Div, #25099) Aug 26, 1963: Pl-white homeowner rented upper flat of house to white man and Nisei wife. Sept 2: Moving company employees, Negroes, began moving tenants' furniture in. Neighbors, thinking Negroes moving into neighborhood, pelted house with eggs, etc. Pl, arriving, beaten with bedrail, sugar poured into gas tank, convertible top slashed. During 29 hr period, Pl requested police assistance 6 times; police arrived, observed, made no arrest or attempt to halt attack. Mar 16, 1964: Pl sued Mayor, Dir of Public Safety of Dearborn, Chief of Police, 13 police officials, alleged: (1) as part of pattern of racial discrimination carried on by Def-Mayor and those acting under his direction, responsible officials refused to carry out statutory responsibility to protect Pl (Dearborn City Charter, §§8.3, 8.17; Mich Stat Ann §§28,789 28,792), thus denying Pl rights under 42 USC §1983; (2) Defs conspired to deprive Pl of due process and equal protection, making them liable under 42 USC §1985. June 19: DC denied Defs motion to dismiss. Pending.

- 80 -

Hanlon, Hanlon & Carpenter, Esqs, 1226 S Monroe Blvd, Dearborn; ACLU of Michigan, 401 Washington Blvd Bldg, Detroit 48226.

304.Mich.9. Petition of Bernard, Garrett, Graham (Detroit Common Council) May 16, 1966: Waniolek went to office of Socialist Workers Party and Young Socialist Alliance, killed Leo Bernard, husband of Pet, and wounded other Pets, active members of organizations. Def charged with murder; sanity commn said he suffered from paranoid schizophrenia for past 5 yrs; committed to State Hospital for custody and treatment. Mich has sovereign immunity rule, so Pets asked Common Council to pay burial expenses of Bernard, medical and rehabilitation expenses of other Pets because City had some responsibility for events: (1) Police Dept had Def's history; several citizens reported to Dept receipt of irrational letters from Def; S African Consulate reported to US Secret Service that Def said he had guns to fight common enemy, Dept got report; US and Dept agents told by Def's wife he had potential capacity for violence; (2) Mich law gives police authority to institute commitment proceedings in such cases. Jan 24, 1967: Council refused to compensate; ground: sovereign immunity. No suit filed.

Ernest Goodman, Esq, 3200 Cadillac Tower, Detroit.

304.Mich.10. Low, Brooks, Williams, Syrjale Porter v Detroit, Romney, Cavannagh, Girardian, Natl Guard officials (Detroit) (Wayne Co Cir Ct, #92205) Jy-Aug, 1967: Police, without warrants, made house to house search, seized personal property. Pls sued for injunction. Aug 9: Cir Ct dismissed, Ct of App denied relief.

Ronald Reosti, Esq, Neighborhood Legal Services Inc, 3546 Trumbull, Detroit 48208.

Amicus Norton J Cohen, Esq, 1600 Washington Blvd, Detroit 48226.

And see cases at 429.

304.Miss.1. Pierson v Ray (Jackson) (USSC) (352 F2d 213, 386 US 547) 1961: Pls, among 15 white and Negro Episcopal cleargymen, tried to use segregated facilities at interstate bus terminal; Def policemen arrested Pls: breach of peace, refusal to move on (Miss C §2087.5). Pls waived jury; convicted by Def muni police justice: 4 mths and &200. On appeal, Pl given trial de novo in Co Ct: directed verdict for Pl. Pl sued in DC (a) for damages under 42 USC §1983, (b) for false arrest, imprisonment at common law. Jury trial: for Defs. CA 5 held: justice immune from (a), (b); Def policemen liable under §1983. At 2d trial, ct held Pls could not recover if they went to Miss anticipating arrest. Jan 11, 1967: USSC held (8-1), Warren, CJ: (1) justice immune—no allegation he played any role other than judging Pls guilty, §1983 did not change this common law rule; (2) Defs not liable for acting under statute they reasonably believed to be valid tho later held unconstitutional; (3) defense of good faith and probable cause available to Defs on (a) and (b) counts; (4) contradictory testimony whether Defs arrested Pls just to prevent violence; jury believed Defs but new trial required because jury influenced by irrelevant, prejudicial crossexamination of Pls' on their views of Communist Party, racial equality; (5) at new trial, rule is that Pls not disqualified under §1983 even if they went to terminal for sole purpose of testing rights to unsegregated public accommodations. Douglas, J, diss: Argument that actions of judges must not be subjected to judicial scrutiny "is but a more sophisticated manner of saying `The King can do no worng'"; "Congress, I think, concluded that the evils of allowing intentional, knowing deprivations of civil rights to go unredressed far outweighed the speculative inhibiting effects which might attend an inquiry into a judicial deprivation of civil rights," particularly since Defs can't remove cases, under Peacock, 55.Miss.5a, 384 US 808.

Carl Rachlin, CORE, 38 Park Row, NYC 10038.

Melvin Wolf, Esq, ACLU, 156 Fifth Ave, NYC; Leonard H Rosenthal, Esq, 406 W Capitol, Jackson, Miss; Stephen Nagler, Ssq, 160 W 96th St, NYC; Frederick A O Schwartz, Esq, 276 Fifth Ave, NYC.

Casenote: 1968 Wisconsin 275-9.

304.Miss.5. Intl Bhd of Elec Workers v Jackson, Miss (SD Miss, Jackson Div, #3663) 1964: Organizers of Pl-Union distributed handbills at Zinsco Elec Prod Co; arrested. Pl sued city, city and state officials: damages for violations of constitutional rights and Civil Rights Acts. May 1964: Union attempted to organize Universal Mfg Corp; threats to organizers of injury and death if did not leave town in 12 hrs; attempts to get police protection failed; police stopped Pl's distribution of leaflets. Union filed suit against officials. Pending.

Dixon Pyles, Esq, 507 E Pearl St, Jackson; Sherman, Dunn & Sickles, Esqs, 1200 15th St NW, Washington, DC.

304.Miss.5a. Intl Bhd of Elec Workers v Jackson City Officials, Mississippi State Officials (SD Miss, Jackson Div) Universal Mfg Company built with bond issue floated in Simpson County. 1964: Pl-Union started to organize Company workers, organizers threatened, told to leave County in 12 hrs; Defs halted distribution of Pl's handbills, refused police protection to Pl. 1965: Pl sued for &125,000 damages; pending.

Dixon Pyles, Esq, 507 E Pearl St, Jackson; Sherman, Dunn and Sickles, Esqs, 1200 15th St NW, Washington, DC.

304.Miss.11. Clay v Robinson (Jackson) (SD Miss) May 1965: Pl, Negro civil rights worker, participated in demonstration; assaulted; arrested; jailed 3 weeks while attempting to make bond. Case removed to DC; US Commr reduced bond from &500 to &100; Pl released. Jan 1966: City Prosecutor dismissed: investigation showed no probable cause for arrest. Pl and 5 others filed damage suit under 42 USC §1983 against Chief of Police, various police officers, their surety company charging unlawful assault, false arrest, malicious prosecution, unlawful detention. Trial pending.

Alvin J Bronstein, Malcolm Farmer III, Esqs, LCDC, 603 N Farish St, Jackson, Miss 39202.

And see Muilenberg, 304.Miss.11a.

304.Miss.11a. Muilenberg v US Fidelity and Guaranty Co (DC NH, #2672; SD Miss, Vicksburg) May 1965: Pl, Caucasian civil rights worker, assaulted and arrested (see Clay, 304.-Miss.11). Pl sued in NH, home of Pl, place of business of Def surety co. Def moved for (1) dismissal for lack of jurisdiction, (2) change of venue. Jan 17, 1967: NH DC transferred to SD Miss. Pending.

Alvin J Bronstein, Esq, Lawyers Constitutional Defense Committee, 603 N Farish St, Jackson, Miss 39202.

- 81 -

304.Miss.12. Anderson v Nosser (Natchez) (ND Miss, Greenville Div, #GC 669) Oct 2—4, 1965: Pls in peaceful demonstration; arrested: marching without parade permit; taken 215 miles to state penitentiary without h'g or opportunity to post bail. Pls forced to stand in cold; some beaten, all forced to drink laxative; put in unsanitary and crowded cells, windows left open and deprived of clothing; denied medical treatment. Feb 17, 1966: Pls sued police and other public officials for damages arising from deprivation of civil liberties, cruel and unusual punishment, and physical suffering. DC denied Def's motion to dismiss.

Richard E Tuttle, John H Doyle, III, Denison Ray, Esqs, 233 N Farish St, Jackson; Lawyers' Comm on Civil Rights Under Law.

304.Miss.13. Wright v Wages (Jackson) (ND Miss) Summer 1965: Pl, Negro woman, registered to vote; one hour later, arrested; traffic violation; taken to jail; beaten. 2 local doctors and Sheriff certified Pl as insane; sent her to state mental hospital. 2 mths later, Pl discharged from hospital: diagnosis "without psychosis." When she returned home, arrested on another charge. Pl filed suit under 42 USC 1983 for beatings, unlawful arrest, unlawful commitment in mental hospital against Defs, Sheriff, deputy, doctors, Def's surety co. Trial pending.

Alvin J Bronstein, Malcolm Farmer III, Esqs, LCDC, 603 N Farish St, Jackson, Miss 39202.

304.Miss.14. Miles v Martin (Canton) (DC Miss) Je 1966: Pl, member of MFDP exec comm, beaten by police; arrested: traffic offense. Case removed to DC. Pl brought damage suit under 42 USC 1983 in DC. Pending.

Alvin J Bronstein, Esq, LCDC, 603 N Farish St, Jackson, Miss 39202.

304.Miss.15. Roberts v Williams (SD Miss) Pl, 14-year-old Negro, tried illegally and without counsel in Criminal Ct; convicted: 90 days. While serving sentence, Pl shot in face by guard for not responding to order, blinded for life. Pl sued for &1,000,000 against public officials and employees responsible. Pending.

Robt C Thomass, Esq, Lawyers Comm on Civil Rights Under Law, P O Box 764, Jackson 39205.

304.Miss.16. Lexington v Green (Miss) Jy 29, 1967: Def, SNCC worker, wrecked car he was driving: arrested: reckless driving. Def charges police brutality. Pending.
304.Miss.17. Jackson v Martin (ND Miss) (Ruleville) (261 FSupp 902) Nov 25, 1965: Pl-Negro arrested: disorderly conduct. Def-policeman allegedly shot Pl without justification, left without attempting to render aid. Pl pled guilty to disorderly conduct charge. 1966: Pl sued for deprivation of civil rights (42 USC §1983). Ct denied Def's motion to dismiss: Pl's guilty plea does not bar action for use of excessive force. Pending.

Carsie A Hall, Jack H Young, Esqs, 115½ N Farish St; R Jess Brown, Esq, 125½ N Farish St; Denison Ray, Esq, 233 N Farish St; all of Jackson, Miss.

304.Mo.1. US v DePugh (Kansas City) (ED Mo) Founder of Minutemen did not pay &200 fed'l tax on making or altering of firearm (Federal Firearms Act), arrested. Nov 14, 1966: DC held Def, 2 other Minutemen guilty of conspiracy: 2 yrs, 3 yrs probation. Jan 17, 1967: DC denied motion for new trial. Pending.
304.Nev.1. Fremont Hotel and Levison v Central Telephone Co (Las Vegas Co Ct) 1966: Pls, alleging Def cooperated with FBI in putting 25 wire taps in Pls' and other hotels in violation of Nevada statutes, sued for &4.5 million damages. Aug, 1966: Atty Genl Katzenbach ordered FBI not to reveal what was overheard. Pending.
304.NJ.1. Rodriquez v Free and Jersey City (DC NJ, #1335-65) Dec 20, 1965: Pl filed damage suit against Def-police officer and city under 28 USC §1343 and 42 USC §1983, also count for common law assault and battery alleging he was beaten by Def-officer, resulting in 7 fractures and permanent partial loss of hearing in one ear, and inability to resume employment for over 4 mths. May 6, 1966: pretrial. One issue: responsibility of municipality for actions of police under McAndrew v Mularchuk & Borough of Keansburg, 162 A2d 820. During trial, Pl disappeared. DC dismissed suit subject to being reopened. Pl returned; application for re-opening pending.

Jesse Moskowitz, Esq, 880 Bergen Ave, Jersey City.

304.NJ.2. Bauers v Heisel (USSC, #528) (361 F2d 581; cd 386 US 1021 (1967)) Def county prosecutor prosecuted Pl juvenile as an adult, denied him speedy trial. Pl sued for damages under §1983. CA 3 held judicial immunity protects Def when conduct not clearly outside his authority. Apr 24, 1967: USSC denied cert.

Robert W Maris, Peter Hearn, Esqs, Prof Anthony Amsterdam, all of ACLU, Philadelphia; Melvin Wulf, Esq, ACLU, 156 5th Ave, NYC.

Case notes: 40 Temple 244—54; 13 Wayne 385-92.

304.NJ.3. Adams v Hughes (Plainfiled) (DC NJ, Civ #849-67) Jy 19, 1967: during riots State Troopers, Nat'l Guardsmen, police officers conducted house-to-house search in Negro neighborhood for stolen carbines. Aug 9, 1967: 63 Negro families sued Governor and police for &1,075,000 damages resulting from search, injunction to stop search. Pending.

Frank Askin, Esq, ACLU, 45 Academy St, Newark 07102; Emerson Darnell, Esq, 219 High St, Mt Holly, NJ; Solomon Golat, Esq, 786 Broad St, Newark; George G Mutnick, Esq, 127 Watchung Ave, and William Wright, Jr, Esq, 201 East 5th St, Plainfield; Morton Stavis, Esq, 744 Broad St, Newark; Leonard I Weinglass, Esq, 43 Bleecher St, Newark.

Amicus Robert A Carter, Charles H Cottingham, Henry di Suvero, Alan McPherson, Esqs, ACLU, 45 Academy St, Newark; John deJ Pemberton, Melvin Wulf, Esqs, ACLU, 156 Fifth Ave, NYC; Arthur Kinoy, William Kunstler, Esqs, 511 Fifth Ave, NYC; Robert I Carter, Esq, NAACP, 1790 Broadway, NYC; Robert E Knowlton, Esq, 180 University Ave, Newark; Carl Rachlin, Esq, Scholarship, Education and Defense Fund for Racial Equality, 150 Nassau St, NYC.

And see cases at 429.

304.NJ.4. Kidd v Addonizio (DC NJ, #899-67) Jy 12-16, 1967: Newark riot. Pls-Negroes charge Newark police, in concert with State Police and Nat'l Guard, deprived Negroes of enumerated rights, with brutality, killings, and other indignities. Pls seek an injunction against continued mistreatment and appointment of receiver over police operations. Pretrial depositions being taken. Pending.

Irwin Booker, Irvin L Solondz, Esqs, 790 Broad St; Henry M di Suvero, Frank Askin, Robert A Carter, Esqs, ACLU, 45 Academy St; Morton Stavis, Dickenson R De bevoise, Arnold K Mytelka, Esqs, 744 Broad St; Dennis J Roberts,

- 82 -

Esq, 116 Market St; Annamay T Sheppard, Joseph Barry, Harris David, Oliver Lofton, Elliot Wilk, Esqs, 114 Branford Place, all of Newark; Robert L Carter, Barbara A Morris, Esqs, 20 W 40th St; John de J Pemberton, Melvin Wulf, Esqs, ACLU, 156 Fifth Ave; Barney McHenry, Esq, LCDC, 156 Fifth Ave; Arthur Kinoy and William Kunstler, Esqs, 511 Fifth Ave, Carl Rachlin, Esq, 150 Nassau St, all of NYC.

Complaint printed in full in 26 Guild Practitioner 124-131 (Fall 1967) &1.15; Box 673, Berkeley 94701.

And see cases at 429.

304.NJ.5. Oberkehr v Kauffman, Melleby (Camden, NJ) Apr 15, 1967: Pl, minister, S Jersey peace movement leader, and 8 others photographed by Camden police as they boarded bus for Spring Mobilization in New York. Apr 19: police took photographs of 5 students picketing speech by Army spokesman at Rutgers. Suit filed seeking injunction against such harassment. Pending.

Henry M di Suvero, Esq, ACLU, 156 5th Ave, NYC.

304.NJ.6. Smith v Spina (DC NJ, #853-67) Jy 12, 1967: At beginning of Newark riot, Pl-Negro taxi driver was arrested, allegedly beaten, and charged with assault and battery on police officer. Pl filed damage suit against Defs, police officers, Director of Police Dept, Chief of Police: beating deprived Pl of 14th Amdt rights; Director and Chief wilfully or negligently failed to discipline, train or supervise officers. Pending.

Irvin L Solondz and Morton Stavis, Esqs, 744 Broad St, Newark.

And see cases at 429.

304.NJ.6a. Smith v Newark (Essex Co Super Ct #L-69911-66) Pl in Spina, 304.NJ.6, brought action against city in state ct for same injuries: city liable as employer of police officers and for negligent supervision, training.
304.NY.11. Cruz v New York City; Re Detective John Devlin (ED NY) Sept 9, 1964: Informer told police suspected killers could be found near certain Lower East Side address. Detectives staked out area; Pl, Puerto Rican, appeared; fled. Pl alleges detective failed to identify self, beat Pl, shot him without warning; wound nearly fatal. Sept 10: Same informer told police they had wrong person. Pl filed suit for negligence, assault, malicious prosecution: &2 million. Police Dept hearing cleared Devlin of using "excessive force" against Pl. Je 8, 1966: City filed general denial; DC ordered Def to let Pl see its ballistics reports to determine whether Devlin was policeman who shot Pl. Pending.

Harry H Lipsig, Esq, 100 Church, NYC.

304.NY.14. Theodore Jones' Family v New York City (Brooklyn Sup Ct) Jy 24, 1965: Crichlow, Negro policeman, arrested Jones, 20, Negro, while street dancing with friends at Coney Island; Crichlow hit Jones with night stick; Jones taken to hospital, x-rayed, wound stitched, returned to police station. Jy 26: Jones returned to hospital: fractured skull, after operation, Jones died. Oct 21: grand jury heard conflicting testimony: Crichlow claimed when Jones was arrested, he tried to retrieve his wallet, Crichlow reacted "instinctively" with night stick; others testified Jones made no move, attack unprovoked; returned no true bill. Jones' family suit for &1.5 million damages pending.

NYCLU, 156 Fifth Ave, NYC.

304.NY.15a. Re Police Officers Holly, Fitzpatrick (Rodriguez, Comp) (Bronx Grand Jury) Jy 1965: Rodriguez, apprentice barber, arrived from Puerto Rico. Sept: Officer Holly arrested Rodriguez: carrying a razor; charges dismissed. Oct 16: 2 officers, in civilian clothes, put Rodriguez in car, beat him, threw him out of car; later came to barber shop in uniform, attacked Rodriguez. Oct 16-26: Rodriguez in hospital. Nov 5: 2 officers suspended pending police investigation. Grand jury refused to indict officers, dismissed complaint. Comp alleges 2 policemen approached 2 witnesses to beating of Comp, seeking to coerce them; 1 witness intimidated. Grand jury returned "no bill" against officers a 2d time. NYC Police Rev Bd conducted h'g: officers permanently suspended from force. [Holly later shot patron in bar; arrested: assault with deadly weapon.] New chief asst DA hired. 1966: &1,000,000 damage suit filed; pending.

Richard Marlow, Esq, 50 Broad St, NYC.

304.NY.16. Re Liebowitz (Brooklyn Grand Jury) Jy 15, 1965: White policeman shot Negro, Nelson Erby, 5 times; Erby died. Policeman claimed Erby resisted arrest, attacked him with a knife, took his gun and shot him; other witnesses claimed Erby unarmed, policeman shot himself in scuffle. Grand jury found Def acted in self defense, refused to return indictment. Aug 30, 1965: CORE filed amicus curiae brief with Kings Co Sup Ct: (1) Erby did not commit disorderly conduct, so arrest unjustified; (2) Erby had right to resist unlawful arrest; (3) grand jury's report not supported by weight of evidence. Pending.

George Schiffer, Esq, CORE, 38 Park Row, NYC.

304.NY.19. Sideratos v City of New York (NY Co Sup Ct, #20334/1965) 1965: Bottle of pills found in Pl's possession; arrested. Police, after learning pills contained no narcotics, failed to notify ct, allowed prisoner to remain in prison 21 days in lieu of &25 bail. Oct 11, 1965: Pl sued city for false arrest, malicious prosecution, false imprisonment. Pl moved for trial preference on grounds that Pl is indigent and receiving public assistance. Pending.

Robert Polstein, 10 E 40th St, NYC, 10016.

304.NY.20. Williams v Badge #21349 (Manhattan Sup Ct, #5376-1966) Feb 21, 1966: Pl-Negro woman forced to disrobe in Harlem restaurant by 2 police officers who said they were looking for female inpersonators. Apr 5: Pl sued officers and city for &300,000 in damages. Pl moved to order Police Dept to furnish her with names of officers who examined her and who were transferred out of Harlem. Pending.

Raymon Rubin, Esq, 291 Broadway, NYC.

304.NY.22. Locust Club of Rochester v Police Advisory Board of Rochester (Monroe Co Sup Ct) 1966: Pl-club, representing city police, sued to test Def's authority. Ct granted Pl's motion for summary judgment, held Bd's power limited by state law and city ordinances. Appeal pending.

Benjamin Phelesoff, Esq, Reynolds Arcade Bldg, Rochester, NY.

304.NY.24. New York v La Palmer (Manhattan Crim Ct, #C2713, A2202/1966) Def arrested. May 5, 1966: tried; acquitted. Def filed claim against NYC for brutality, false arrest. Pending.

Paul G Chevigny, Esq, 156 Fifth Ave, NYC, for NYCLU.

- 83 -

304.NY.25. New York v Robert Nichols (NY Co Sup Ct) Nov 7, 1965: Def Negro arrested after altercation with white bar owner; at station, Patrolman Rice struck Def with blackjack; Def hospitalized. Def charged with criminally possessing loaded weapon, assault, aiming and discharging loaded pistol at Patrolman Rivera, and escaping from hospital. Dec 19: Def captured, imprisoned pending trial. May 9, 1966: Before trial, witness told DA story told by 2 patrolmen not true; DA told Def's atty; trial cancelled; Def pleaded guilty to charge of escaping. Je 23: Ct placed Def on probation. Police Dept transferred 2 patrolmen, prepared charges against them.

William Leibovitz, Esq, Legal Aid Society, 100 Center St, NYC.

304.NY.26. Press v Leary (SD NY, #2403) 1965-6: numerous arrests for passing out political and non-commercial literature in NYC; violations: Admin Code §755(2); Art II, §6 Rules & Regs NYC Dept Parks; Health Code §153.17; cases either dismissed or convictions reversed. Apr 19, 1967: Pl distributed consumer leaflet; arrested (Admin §755(2)). Apr 22: Pl distributed consumer leaflet; arrested (Admin §755(2)). May 5: Crim Ct in both cases dismissed charges. Je 27: class suit filed to declare above codes and regs unconstitutional to extent they prohibit Pls from distributing non-commercial literature on NYC streets; to enjoin police interference with such distribution. Pending.

Alan H Levine, Paul Chevigny, Esqs, NYCLU, 156 Fifth Ave, NYC.

304.NY.27. Marinelli v New York City (Kings Co Sup Ct) Pl sued for damages: arrested after trying to help brother, apprehended in street fight; beaten at station house, skull fractured. Je 15, 1967: jury awarded Pl &145,000. Def moved to set aside verdict. Pending.

Harvey Weitz, Esq, 217 Broadway #600, NYC 10007.

304.NY.28. Johnson v New York City (New York Co Sup Ct) Sept 14, 1966: 15-yr-old Negro Pl walked along street with suitcase on errand for mother; police picked up Pl without a warrant, took him to precinct station; arrested, imprisoned, handcuffed. Later transferred him to Bellevue Hospital, Psychiatric Div; released at midnight after 4 hours detention and no charges filed. Nov: suit filed charging false arrest (NY C of Crim Proc §177), assault, failure to notify parents (NY Family Ct Act §724), seeking &250,000 damages for Pl, &5,000 for Pl's father. Pending.

Nathan Dambroff, Esq, 225 Broadway, NYC, 10007.

304.NY.29. Burmeister v New York City Police Dept (SD NY, #67 Civ 2148) Nov 6, 1966: 86 youths arrested at private party; disorderly conduct (§722), gathering for purpose of using narcotics (§1533). Nov 7: Crim Ct dismissed charges. Feb 12, 1967: 25 persons arrested in apt; §1533; 20 released after 12 hrs detention. Mar 7: 15 persons arrested; §1533; dismissed. Numerous similar searches, arrests, dismissals on motion of prosecutor. Je 6: Pls filed class suit to have 3-judge ct enjoin unlawful searches, arrests, and to have Penal Law §1533 declared unconstitutional on its face and as applied to Pls and persons similarly situated. Pending.

Paul G Chevigny, Esq, NYCLU, 156 Fifth Ave, NYC; John Mage, Esq, 225 W 86th St, NYC.

304.NC.1. Evans v Jones, Co of Durham (MD NC, #C-195-D-64) Pl, Negro, allegedly seized, threatened, beaten by deputy sheriffs because he had looked at white woman (wife of deputy); not arrested. Nov 12, 1964: Suit filed against county, sheriff, deputies for damages for deprivation of civil rights under 42 USC §§1983, 1985, 1988: common law tort action under ct's "pendent jurisdiction" against deputies individually. Pl alleges he had committed no crime and no reasonable grounds to suppose he had; Defs conspired to deprive him of civil rights solely because of race. Oct 1965: Trial in MD NC before all-white jury; evidence demonstrated that when Pl got into Def-Sheriff's auto he was in good physical condition; that Sheriff's deputy drove to his own house and accused Def of leering at his wife; on return to Pl's house, Pl's arm was broken. Jury out 5½ hrs; found for Def on all factual issues. Appeal pending.

Michael Burt, Esq, 213½ W Main St, Durham.

304.NC.2. Summers v Horton (Iredell Co) (WD NC, #549) Pl alleges Def sheriff and police officers beat him, without cause. Pl sued (28 USC §1343, 42 USC §1983), under pendent jurisdiction, seeking damages for Defs' violation of state common law duties. Feb 6, 1967: Defs filed motions to strike and to dismiss. Pending.

J Levonne Chambers, Esq, 405½ E Trade St, Charlotte, NC; Gabrielle Kirk, Michael Meltsner, Esqs, NAACP Inc Fund.

304.Pa.2. Johnson v Crumlish (ED Pa, #Civ 33,800) (224 FSupp 23) Oct 5, 1962: Pl subpoenaed to appear in criminal case on Yom Kippur; informed DA and Def he could not appear as he was Orthodox Jew. Warrant issued; Pl arrested; held 8 days before brought before judge who issued warrant. Pl sued for false arrest, not alleging systematic prejudice against Jews, but only denial of due process for delay in being brought before magistrate. DC held: (1) Pl need not allege or prove systematic discrimination (Monroe v Pape, 365 US 167); (2) Pl doesn't need to allege or prove any physical brutality or other action of police to show cause of action; (3) denial of due process sufficiently raised by failure to get hearing; (4) DA and Ct Clerk not immune, even if their acts are within scope of employment (369 US 350), provided they are under color of state law. Pending.

Albert B Soffian, Esq, 1518 Walnut St; Albert Dragon, Esq, 1110 Liberty Trust Bldg, both of Philadelphia.

304.Pa.3. Harrington v Tate (Philadelphia Com Pleas Ct No 9, #6330) 1965: Pl police officers sued to enjoin Philadelphia Police Advisory Bd from functioning in alleged review board capacity with hearings. Issue: whether Mayor was empowered under Home Rule Charter, §§3-917, 5-200, to establish Police Advisory Bd to make recommendations as to discipline of police officers. Earlier case: Conway v Philadelphia, Phila Com Pleas Ct No 8, Dec Term, 1959, #367. Mar 1967: Ct held Bd illegal, "menace to law enforcement." Apr 2: city solicitor announced planned appeal.

Amicus brief for Phila Fellowship Commn, ACLU, Presbyterian Interracial Council, Phila Urban League, and Episcopal Diocese of Pa, by Peter Hearn, Esq, Fidelity-Phila Trust Bldg; Murray H Shusterman, 7th Fl, 1401 Walnut St; Jerome J Shestack, 1719 Packard Bldg; all of Philadelphia.

304.Tex.2. Gomez v Texas (USSC, #327 Misc OT '65) (389 SW2d 308, cd 386 US 937) Def, Mexican-American, convicted: 30 yrs. Def filed petition for writ of habeas corpus: (1) ct-appointed counsel incompetent; known user of narcotics;
- 84 -

cotics; (2) search warrant improperly issued; (3) no hearing on whether confession voluntary; (4) prior conviction read to jury; (5) charge to jury required finding of guilty regardless of evidence; (6) search warrant described Def as "an unknown Latin American"; to describe solely by race is violation of 14th Amdt. Tex Ct of Crim App denied habeas petition. Feb 20, 1967: USSC denied cert.

Maury Maverick, Jr, Esq, Calvert Bldg, 535 S Main St, San Antonio, Texas 78204.

304.Tex.3. Texas Council of Churches v Allee (SD Tex, Brownsville Div) May 26, 1967: Pls, minister observer for Council and wife, took pictures of Def Rangers after arrests of farm union pickets; arrested: unlawful assembly, later changed to secondary picketing. Je: class suit brought to enjoin Rangers from interfering with Pls' rights of free speech, assembly and travel in area of union organizing. Pending.

Neal King, Esq, Box 32, Mission, Texas 78572.

304.Tex.4. Franklin v Policemen (SD Tex) Pl Negroes arrested in connection with police attack on Negro dormitory at Texas Southern University and death of policeman. Pls sued for damages for illegal arrest and detention. Aug 27, 1967: Depositions taken.

And see 304.Tex.4a

304.Tex.4a. Texas v Franklin, Nichols (Houston Dist Ct, ##126330, 126331, 126332) May 17, 1967: disturbance on Texas Southern campus; policeman killed; police assaulted student dormitory; Defs arrested: murder, assault to murder. Jy: 2 Defs under indictment fired from OEO jobs. Pending.

William Wood, Jr, Esq, South Coast Bldg, Houston, Texas; Matthew J Perry, Esq, 1107½ Washington, Columbia, SC; Weldon Berry, Esq, 618 Prairie Ave, Ned Wade, Esq, 201 Main St, 841 Bettes Bldg, both of Houston; Raymond A. Brown, 26 Journal Sq, Jersey City, NJ; Robert L Carter, Barbara A Morris, Esqs, NAACP, 1790 Broadway, NYC 10019.

304.Va.1. Thomas v McCain (WD Va, #591) June 24, 1963: Pl-Negro demonstrator testified in Corporation Ct that Def-Danville police chief and policeman beat her in parking lot between jail and municipal bldg, broke her nose. Jy 5, 1963: Pl sued for damages. Pending.

Ruth L Harvey, Esq, 453 S Main St, Danville, Va.

304.Wisc.1. Thornton v Bookman (ED Wisc, #64-C-53) Jan 6, 1964: Gas station attendant murdered. Pl taken into custody of Defs-city detectives while at his place of work, questioned, not allowed to use telephone, not brought before magistrate, not advised of right to counsel or to remain silent, given 2 lie detector tests, transported from Kenosha to Madison and back, placed in cold cell without a bed overnight. After 25 hrs, Defs released Pl. Feb 20: Pl sued under 28 USC §§1331, 1333, 42 USC §§1983, 1988. Pending.

Sidney Podell, Esq, 606 W Wisconsin Ave, Milwaukee.

305. Police Line-up Procedures
Notes: May a state compel unbailed defendants to appear in lineups? Rigney v Hendrick (355 F2d 710, CA 3 1966). 19 Florida 197-204; 32 Misouri 295-99.
305.1. US v Wade (USSC) (358 F2d 557, vac 388 US 218) 1964: man robbed bank. Apr 2, 1965: Def arrested. Apr 26: counsel appointed to represent Def. May: FBI, without notice to Def's lawyer, arranged to have bank employees observe lineup of Def and 5 other prisoners, each wearing something and speaking words allegedly worn and said by robber. Employees identified Def. At trial, Def's atty moved for acquittal: conduct of lineup violated Fifth, Sixth Amdts. CA 5 reversed and ordered new trial. Je 12, 1967: USSC vacated and remanded (?-2-1-1-1-3-3), Brennan, J: (1) Def's privilege against self-incrimination not violated, because compulsion only to exhibit his physical characteristics; (2) Sixth Amdt right to counsel includes assistance on both facts and law at "critical" stages of criminal proceedings; (3) USSC must scrutinize "any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the Def's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself"; (4) lineup is a "critical" stage; (5) there are special dangers in eliciting identification evidence—e.g., eyewitnesses saw FBI agent near Def only before lineup, not near others in lineup; (6) Def's right of cross-examination denied by ctroom identification based on unfair pretrail identification; because USSC cannot make determination whether in-ct identification had independent origin, vacated for DC to make such determination.

Clark, J, conc. White, J, (Harlan, Stewart, JJ), conc re (1), diss re (2)-(6) and judgment. Fortas, J, (Warren, CJ), conc re (1); diss re compelling Def to speak certain words—this denies privilege; conc re (3), (4). Black, J, diss re (1), conc re (2)-(6), but would reverse CA's reversal and affirm conviction. Douglas, J, diss re (1), joins re (2)-(6) and judgment.

Weldon Holcomb, Esq, 111-B N Spring, Tyler, Tex.

Case notes: 13 S Dakota 210-21; 9 William and Mary 528-33; 32 Albany 198-207; 2 Suffolk 112-6; 28 Louisiana 259-64; 34 Brooklyn 301-9; 14 Loyola 222-39.

305.2. Gilbert v California (USSC) (408 P2d 365, vac & rem 388 US 263) Def arrested re robberies, murder. FBI agent asked him to write some words the robber had used; Def did so. 16 days after indictment and appointment of counsel, Def put in lineup. 12 witnesses at guilt and penalty trial identified him in lineup and later in ctroom. At trial, exemplars admitted in evidence, over objection. Convicted; Cal Sup Ct affirmed. Je 12, 1967: USSC vacated (?-1-1-1-3-2), Brennan, J: (1) taking exemplars did not violate Def's privilege because physical evidence, not at "critical" stage in proceedings entitling Def to assistance of counsel; (2) admission of co-Def's statements here harmless error; (3) cert vacated as improvidently granted because facts do not appear clearly to enable decision on search and seizure claim; (4) line-up illegal, Wade, 305.1, 388 US 218; judgment vacated for Cal Sup Ct to afford state opportunity to establish that in-court identifications had independent source, or their introduction was harmless error, but some identifications clearly result of lineup and must be excluded.

Warren, CJ, joins except for (3), on which he diss with Douglas, J. Douglas, J, conc except for (1) but would remand for new trial; Black conc & diss. White, J, (Harlan,

- 85 -

Stewart, JJ), conc re (1)-(3), diss re (4). Fortas, J, (Warren, CJ), conc in result, but would remand for new trial.

Luke McKissack, Esq, 1725 Ivar, Los Angeles.

Casenotes: 1 Creighton 120-31; 13 S Dakota 210-221.

305.3. Stovall v Denno (USSC) (355 F2d 731, aff'd 388 US 293) 1961: Husband and wife stabbed; husband died. Def, Negro, handcuffed, brought to wife's hospital bed for identification; Def only Negro present. At trial, wife's identification admitted; convicted: death. Ct of App affirmed without opinion. DC dismissed habeas petition. CA 2 reversed; CA 2 en banc then affirmed. Je 12, 1967: USSC affirmed (6-3): (1) Wade-Gilbert rule, 305.1-2, 388 US 218, 263, requiring exclusion of identification evidence tainted by exhibiting accused to identifying witnesses before trial in absence of counsel to apply after this date, not retroactively; (2) next question: whether Def entitled to relief, regardless of Wade-Gilbert rule, because confrontation so unnecessarily suggestive and conductive to irreparable mistaken identification as to deny due process; (3) on these facts, not improper. Douglas, J, for retroactivity of rule. Fortas, J, would reverse for (2), (3). White, J, (Harlan, Stewart, JJ), conc in result, but see his opinion in Wade. Black, J, diss on (1).

Leon B Polsky, Esq, NYC.

310. Indictments

310.1. Washington v Kanistanaux (Wash Sup Ct) Super Ct granted Def's motion to dismiss charge for failure to have preliminary h'g or grand jury indictment as opposed to direct filing of information by DA. Pl's appeal to Sup Ct pending.

Richard Young, Esq, Wash CLU, Smith Tower, Seattle.

Case note: 42 Washington 903-11.

311. Challenge to Grand Jury Composition
(see also 510s)

Note: Grand jury—strangers: Massachusetts v Favulli (224 NE2d 422, 1967). 1 Suffolk 134-36.

312. Attacks on Character of Evidence
See Wright, 356.55.
312.37. California v King (Los Angeles) (2nd Ct of App, Cn 13588) Aug 1965: Watts rioter interviewed on TV. Dec: Def arrested on another charge; on basis of "voice prints" identifying him as rioter, charged with arson. Dec, 1966: all-white jury convicted: 1-10 yrs. Appeal pending.

Kenneth Thomas, Esq, 4840 W Washington Blvd, Los Angeles.

Amicus brief for ACLU by A L Wirin, Fred Okrand, Esqs, 257 S Spring St, Los Angeles.

312.38. New Jersey v Taylor, Sullivan (NJ Sup Ct) 1962: 4 men arrested: robbery, murder: life. Prosecutor allegedly made agreement with accomplice but would not disclose what it was. Jy 5, 1967: NJ Sup Ct reversed murder conviction: jury was not told that alleged accomplice was offered lighter sentence to testify against accused.
312.39. New York v Keitt (Clinton Co) (NY Ct of App) NY procedure permits DA to introduce evidence to jury of Def's prior felony convictions as part of case. Def filed for writ of habeas corpus challenging constitutionality of procedure. Pending.

Nanette Dembitz, Esq, 55 E End Ave, NYC 10028.

312.40. US v Margeson (ED Pa) (259 FSupp 256) Def arrested: being disorderly person (NJSA 2A:170-1); police incidentally seized evidence of Pa bank robbery. In prosecution for robbery Defs moved to suppress evidence: seized incident to unlawful arrest. Ct held statute unconstitutional: requirement person give good account of himself void for vagueness; no rational connection between failure to give good account and presence in state for unlawful purpose (citing Tot v US. 319 US 463, 467-68).
313. Charge of Entrapment
Note: Evidence of Gov't initiation requires submission of entrapment defense to jury: US v Riley (363 F2d 955, CA 2 1966). 36 Cincinnati 362-67.

Comment: Entrapment: instigation not investigation. 26 Louisiana 848-59.

313.6. Hoffa, Park, Campbell, King v US (USSC) (349 F2d 20, 385 US 293) 1962: Def Hoffa, pres, Teamsters Union, tried for violating Taft-Hartley Act. 1964: Def and other Def union officers tried for endeavoring to bribe members of 1962 jury. At trial, Partin testified about statements by 2 Defs re bribes. 1962: Partin released on bail from state prison, awaiting trial in fedl ct, contacted Def Hoffa and Gov't agents, agreed to inform latter re former. After hung jury, US paid Partin's wife &1200, state and fedl charges again Partin dropped. 1964: Def and other Def union officers tried for endeavoring to bribe members of 1962 jury. At trial, Partin testified; 4 convicted. Affirmed on appeal. Dec 12, 1966: USSC affirmed, (4-1-2), Stewart, J: (1) No violation of Fourth Amdt rights because Def Hoffa was not relying on the security of the hotel room; he was relying upon his misplaced confidence that Partin would not reveal his wrongdoing"; (2) No violation of Fifth Amdt privilege because Def's "incriminating statements were [not] the product of any sort of coercion, legal or factual"; (3) if Hoffa had been convicted, USSC would have had to reverse because Partin insinuated himself into defense counsel, passed information to US Atty, but since hung jury, this doesn't require reversal here, and Partin only testified here to incriminating statements made out of hearing of Def's counsel; (4) Gov't's use of informer does not require reversal. (White, Fortas, JJ, took no part).

Warren, CJ, diss: (1) in Lewis, 318.8, no intrusion on privacy of household, straight business transaction with narcotics agent; (2) in Osborn, Gov't verified truthfulness of informer thru use of recording device; (3) but in Hoffa, "the Gov't reaches into the jailhouse to employ a man who was himself facing indictments far more serious ... than the one confronting the man against whom he offered to inform. It employed him not for the purpose of testifying to something that had already happened, but ... for the purpose of infiltration to see if crimes would in the future be committed ... And, for the dubious evidence thus obtained, the Gov't paid an enormous price. Certainly if a criminal Def insinuated his informer into the prosecuetion's camp in this manner he would be guilty of obstructing justice." Clark, J, (Douglas, J), would dismiss cert as improvidently granted.

- 86 -

Joseph A Fanelli and Daniel B Maher, Esqs, 1001 Connecticut, NW, Washington, DC; Morris A Shenker, Esq, 408 Olive Street, St Louis.

Amicus briefs by Melvin L Wulf and Osmond K Fraenkel, Esqs, for ACLU, 156 Fifth Ave, NYC; Morris Lavine, Esq, for Criminal Cts Bar Assn of Los Angeles Co.


313.7. Osborn v US (USSC) (350 F2d 497, 385 US 323) 1962: Def, atty for Hoffa, hired policeman Vick to investigate jury panel for Hoffa trial. 1963: Vick met several times with fed'l agents, agreed to report to them any "illegal activities" he observed. Late 1963: Def hired Vick for same purpose for second trial. Def arrested: endeavoring to obstruct justice by influencing a juror. At trial, tape recording of conversation between Def and Vick, and transcript, introduced over objection; convicted, affirmed. Dec 12, 1966: USSC affirmed (7-1), Stewart, J: (1) Def admitted recording correct; (2) it had probative relevance; (3) in 2d conversation Vick used concealed device provided by FBI on order of DC based on Vick's affidavit after first conversation, to test acuracy of affidavit; held use of device permissible, tape admissible, no entrapment because Vick at most afforded Pet "opportunities or facilities" for commission of crime. White, J, did not sit. Douglas, J, diss.

Jacob Kossman, Esq, 1325 Spruce St, Philadelphia, Pa; Jack Norman, Esq, 213 3rd Ave N, Nashville.

Amicus brief by Herman Schwartz, Melvin L Wulf, and Prof Anthony G Amsterdam, Esqs, for ACLU, 156 Fifth Ave, NYC.


313.8. Lewis v US (USSC) (352 F2d 799, aff'd 385 US 206) 1964: Fed'l narcotics agent misrepresented his identity, phoned Def to buy marijuana, was invited to Def's home, bought narcotics; Def arrested. At trial, narcotics introduced; Def objected; convicted. CA 1 affirmed. Dec 12, 1966: USSC (8-1) affirmed, Warren, CJ: (1) Agent did nothing in Def's home Def didn't expect him to; (2) "Were we to hold the deceptions of the agent in this case constitutionally prohibited, we would come near to a rule that the use of undercover agents in any manner is virtually unconstitutional per se." Brennan, J, (Fortas, J), conc. Douglas, J, diss in one opinion on Lewis; Osborn, 313.7; Hoffa, 313.6.

S Myron Klarfeld, Esq, and Maynard G Evans, Harold I Klarfeld, Esqs, 15 Court Square, Boston 02108.


Douglas, J, conc and diss: "We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times; where there are no secrets from gov't," with examples in gov't offices, private employ, plus dossiers of unverified information put on computers; (1) "The Constitution has provided a way whereby the home can lawfully be invaded, and that is with a search warrant"; (2) In Hoffa, 313.6, the "Gov't has actively encouraged and participated in a breach of privacy by sending in an undercover agent" but 2 lower cts said Partin wasn't planted; [I] can't say those findings clearly erroneous, so cert should have been dismissed; (3) In Osborn, 313.7, "allowing the transcript [of a conversation with a concealed "bug"] to be used as evidence against the accused is using the force and power of the law to make a man talk against his will"; (4) "A free society is based on the premise that there are large zones of privacy into which the Gov't may not intrude except in unusual circumstances. . . . If a man's privacy can be invaded at will, who can say he is free?"

314. Charge of Conspiracy (and see 54)

314.10. Pennsylvania v Thomas (189 A2d 255) Def arrested in Pa: 1st degree murder; evidence showed Def entered into conspiracy outside Pa for robbery of victim in Pa; he was not physically present in Pa when fellow conspirators committed robbery, during which killing occurred. Trial Ct convicted. Pa Sup Ct: affirmed; held in spite of physical absence, Def constructively present and criminally responsible for acts of fellow conspirators including homicide; Pa had jurisdiction.

See 5 ALR3d 887.

315. Inspection of Pretrial Statements of Government Witnesses
List: State discovery statues and decisions. CIVIL RIGHTS HANDBOOK pp 69-69r.
315.5. US v Weldon (Hartford) (DC Conn) Sept 19, 1967: US Atty directed that, if both sides consented, evidence for prosecution, defense should be made available to both attys. Def arrested, charged: interstate transportation of stolen car. Prosecution and defense made full mutual disclosure of evidence before case began. DC convicted.

Jon O Newman, US Attorney Hartford.

315.6. New Jersey v Tate (NJ Sup Ct) 1965: Def arrested: murder. Def's ct-appointed atty tried to take pretrial depositions from witnesses; they refused to give them. Co Ct declined to order witnesses to answer. Def appealed. Je 27, 1966: Sup Ct affirmed lower ct but ordered public h'g to determine whether all prosecution evidence should be turned over to Def before trial.
316. Inspection of Grand Jury Minutes
320. Double Jeopardy
Comment: Double prosecution by state and fed'l governments: another exercise in federalism. 80 Harvard 1538-65.
321. In Federal Cases
Article: Lester B Orfield, Double jeopardy in fed'l criminal cases. 3 California Western 76-122.
321.13. Gills v US (USSC) (cd 384 US 933) Def arrested: commercial hauling of liquor without paying tax; acquitted. Def prosecuted for possessing and transporting same liquor; convicted. Mar 2, 1966: CA 4 affirmed. Issue: does second arrest and prosecution constitute double jeopardy? May 2: USSC denied petition for cert.

Joseph S Bambacus, Esq, Mutual Bldg, Richmond, Va.

322. In State Cases
Notes: Retrial for greater degree of offense charged after reversal of conviction for lesser degree constitutes double jeopardy: New York v Ressler (216 NE2d 582, 269 NYS 2d 414, 1966). 16 Buffalo 435-39.

Due process limits power of states to reprosecute individual for same crime: US ex rel Hetenyi v Wilkins (348 F2d 844, CA 2 1965). 12 Wayne 685-693; 51 Cornell 804-14; 32 Brooklyn 414-19.

- 87 -

322.13. Cichos v Indiana (Parke Co) (USSC) (208 NE2d 685, 210 NE2d 363, 383 US 966, 385 US 76, 1020) Def arrested after automobile accident: involuntary manslaughter and reckless homicide. Jury convicted on reckless homicide, silent on manslaughter. Ind Sup Ct reversed. Retrial on both counts; convicted on reckless homicide. Jy 6, 1965: appeal to state Sup Ct claiming violation of 5th Amdt double jeopardy standard; conviction affirmed using state double jeopardy standard. Oct 1: reh'g denied. Apr 4, 1966: USSC granted cert on whether Fifth Amdt standard of double jeopardy applicable to states under 14th Amdt. Nov 14: USSC dismissed cert as improvidently granted: under Indiana law, Def never convicted of reckless homicide so no reason to reach question of double jeopardy. Fortas, J, diss: (1) irrelevant whether Def had been convicted on second charge for he had been "exposed to jeopardy" by indictment; (2) such "heads-you-lose, tails-you-lose" trial and appellate process violates 14th Amdt. Jan 9, 1967: Petition for reh'g denied.

John P Price, Esq, Circle Tower Bldg, Indianapolis; Warren Buchanan, Esq, 308 W High, and James B McFaddin, Esq, S Side Sq, both of Rockeville, Ind.

Case note: 44 Texas 1377-81.

322.15. New York v Goldstein (NY Ct of App) 1964: Def cited for contempt for failure to answer questions in grand jury investigation of Harlem riots. (See Epton, 54.7; Barnett, 333.20.) 1965: Def cited second time. Appeal pending: double jeopardy, fed'l pre-emption, appropriateness of procedure in granting witnesses immunity.

Richard Green, Esq, NYCLU, 156 Fifth Ave, NYC.

322.16. California v Escobedo (San Mateo) (Muni Ct, N Jud Dist, #31915) 1961: Illegitimate child born to woman; she told man of birth, he denied paternity. Woman filed suit under Penal Code §270; citation h'g. Aug 31, 1964: woman filed 2nd complaint. Jan 12, 1966: Trial, DA moved to dismiss; Muni Ct dismissed. Def denied paternity. Nov 29: Pl filed another complaint alleging Def failed to support child. Def contends this is double jeopardy. Muni Ct dismissed suit; Pl's appeal pending.

Charles R Garry, Esq, 341 Market St, San Francisco.

330. Self-incrimination: Criminal Sanctions for Exercising Privilege (see also 270)
Article: Ronald L Carlson, Cross-examination of accused. 52 Cornell 705-22.

Comments: Discovery in fed'l criminal cases: Rule 16 and privilege against self-incrimination. 35 Fordham 315-36.

Real evidence and privilege against self-incrimination. 4 Willamette 218-46.

Self-incrimination and federal excise tax on wagering. 76 Yale 839-47.

331. Before Congressional Committees
Comment: Congressional investigations: imbroglio in court. 8 Williams & Mary 400-20.
332. Before State Committees
333. Before Grand Juries, Courts and Tribunals
Comment: Grand jury witness' privilege against self-incrimination. 62 Northwestern 207-32.
333.20. McAdoo v New York (formerly Barnett v) (USSC, #1061) (257 NYS2d 763, 272 NYS2d 412, cd 386 US 1031) Sept, 1964: During grand jury investigation of Progressive Labor Movement and Harlem Defense Council, Defs, witnesses, refused to answer questions put by DA, citing self-incrimination clauses, or saying they did not remember. Defs charged with civil contempt, criminal contempt, or perjury: Ct of App affirmed. Petition for writ of certiorari filed: (1) denial of due process in that DA failed to warn Defs of purpose of investigation, materiality of questions; (2) no complete immunity from prosecution; (3) area of investigation preempted by fed'l gov't; (4) Defs not fully warned of rights before grand jury; (5) deprivation of right of trial by jury as DA initiated proceedings by informations; (6) denial of due process as DA multiplied contempts by repeatedly questioning witnesses on same subjects of enquiry. May 8, 1967: Petition for certiorari denied. Sentences served.

Sanford M Katz, Esq, 36 W 44th St, Stanley Faulkner, Esq, 9 E 40th St, both of NYC.


333.25. O'Connor v Ohio (USSC) (vac and rem 382 US 286; aff'd 217 NE2d 685; rev'd 385 US 92) During trial, Def did not testify; DA commented on this to jury; Def did not object. Def convicted. Def appealed, did not raise issue re comment. USSC decided Griffin, 333.22, 380 US 609. Def sought cert. USSC granted cert, vacated and remanded. Ohio Sup Ct affirmed for failure to object at trial or appeal. Nov 14, 1966: USSC, per curiam, reversed: failure to object in state cts when conviction not final on date of Griffin judgment cannot bar Def from asserting this fed'l right.

James W Cowell, Esq, Spitzer Bldg, and Raymond S Metzger, Jr, Esq, Edison Bldg, Toledo, Ohio.

333.26. Chapman v California (USSC) (404 P2d 209, rev'd 386 US 18) Defs tried for robbery, kidnapping, murder. At trial, Defs did not testify; DA commented on this refusal, under Calif Const Art I, §13; Defs convicted. After trial, before state appeal, USSC decided Griffin v California, 333.22, 380 US 609: comment under state Const invalid—places penalty on exercise of constitutional privilege. Calif Sup Ct affirmed: tho Griffin rule violated, no miscarriage of justice. Feb 20, 1967: USSC reversed (8-1), Black, J: (1) right of Defs not to be punished for exercising Fifth and 14th Amdts right to be silent is fed'l right which USSC must protect by fashioning the necessary rule; (2) some constitutional errors are harmless; (3) rule stated: before a fed'l constitutional error can be held harmless, the ct must be able to declare a belief that it was harmless beyond a reasonable doubt"; (4) Def's comment here was not harmless; remanded for new trial. Stewart, J, conc. Harlan, J, diss.

Morris Lavine, Esq, 215 W 7th, Los Angeles.

Casenotes: 19 Case Western Reserve 157-67; 16 American U 416-20; 20 Vanderbilt 1157-61.

334. Grants of Immunity: Federal
335. Grants of Immunity: State

335.12. New York v Woodruff (NY Ct of App) Apr 17, 1966: Def one of 29 persons in home of Timothy Leary during
- 88 -

police raid for narcotics. Def refused to testify before Dutchess Co grand jury after granted immunity: claimed adherence to Hindu doctrines and confidential relationship between teacher and co-religionists as bases for privilege. Co Ct held Def in criminal contempt despite sincere religious beliefs. Jy 7: App Div affirmed: state's interest outweighed Def's interest in adhering to religious principles. Ct of App granted leave to appeal but treated issue as one of civil contempt. Pending.

Samuel R Rosen, Richard T Rosen, Noel Tepper, Esqs, 31 Newmarket St, Poughkeepsie, NY 12601.

See cases at 152.

336. Criminal Registration Laws (see also 211)
Legislation note: Alabama felon registration act. 19 Alabama 578-82.
336.7. Costello v US (USSC) (352 F2d 848 (1965) 383 US 942) Oct 8, 1965: Defs arrested in raid by IRS and state police: violating federal wagering tax laws requiring gamblers to register even if it means admitting violating state law. Convicted. CA 2 affirmed. Mar 21, 1966: USSC granted cert: (1) whether fed'l registration violates gambler's Fifth Amdt rights as reevaluated in Albertson, 211.1d-1m; (2) should US v Kahriger, 341 US 229, and Lewis v US, 348 US 419, be reconsidered? Nov 6, 1967: USSC dismissed cert as improvidently granted.

Ira B Grudberg and Howard Jacobs, Esqs, 207 Orange St, New Haven, Conn.

Case note: 14 UCLA 947-59.

And see 1950 Internal Security Act cases at 211.

336.8. Markis v US, Moretti v US (DC Conn) (352 F2d 860, 353 F2d 672, 387 US 425) Defs were convicted in separate prosecutions for failure to register and pay special gambling occupation tax as required by fed'l law. Oct 29, 1965: CA 2 affirmed in Markis: (1) No Fifth Amdt violation although possible incrimination under state gambling laws; (2) no hearsay rule violation when agent testified to telephone call to Def made in agent's presence; (3) arrest warrant not invalidated by statement that offense had been committed 3 days in the future; (4) rent receipts, telephone bills seizable under FRCrP 41(b)(2) and Marron v US, 275 US 192; (5) no error in refusing to give instruction on lesser-included offense. Nov 26: CA 2 affirmed in Moretti: (1) no violation of privilege against self-incrimination; (2) entry of nolo contendere plea waived Def's right to object on appeal to illegal search and seizure. May 29, 1967: USSC granted cert, vacated judgments, remanded to DC for new trial if new prosecution of Defs sought under Nardone v US, 302 US 379, 308 US 546.

In Markis: Charles Hanken, Philip Baroff, and Albert Belinkle, Esqs, 855 Main St, Bridgeport, Conn.

In Moretti: W Paul Flynn, Esq, 132 Temple St, New Haven, Conn.

336.9. Marchetti v US (USSC, #2) (352 F2d 848, 385 US 1000) Def-gambler convicted for failing to register as required under fed'l wagering tax law. CA 2 affirmed: No conflict with Fifth Amdt although registration would have incriminated Def under state gambling laws. Dec 15, 1965: Petition for cert filed. Je 12, 1967: USSC restored to calendar. Jan 9: USSC granted cert limited to following question: Did registration requirement violate privilege against self-incrimination in light of Albertson v SACB, 211.1d, 382 US 70; should US v Kahriger, 345 US 22, and Lewis v US, 348 US 419, be reversed? Pending.

Francis J King, Esq, 1115 Main St, David Goldstein, Jacob D Zeldes, Esqs, 955 Main St, all of Bridgeport; Joseph S Catalano, Esq, 31 Hillston, Trumbull, Conn.

336.10. Standefer v Colorado (Co Ct of Pitkin Co, #370) Def disclaimed prior arrests on registration form required by Aspen ordinance of employees in tourist-oriented businesses. Def had 3 prior arrests but had always been referred to a mental institution instead of being convicted. Police Magistrate convicted. Je 21, 1967: On appeal, Co Ct overruled motions raising constitutional questions: (1) infringement of right of privacy; (2) restriction of right of movement as a national citizen; (3) violation of due process as no due notice of requirements and penalties; (4) violation of equal protection. Ct acquitted Def.

William F Reynard, 507 American National Bank Bldg, 818 Seventeenth St, Denver, Colo 80202.

337. Miscellaneous

337.1. California v Joan Abrams (Muni Ct, Stockton Judicial Dist, San Joaquin Co, #27014) 1966: Def arrested while standing in line at farm labor office: failing to identify self and account for presence when requested by peace officer when surrounding circumstances indicate public safety demands such identification (Pen C §647e). Def contends §647e requires person to incriminate himself, therefore unconstitutional. Pending.

Marshall W Krause, Esq, ACLU, 503 Market St, San Francisco; Neil F Horton, Esq, First Western Bldg, Oakland.

340. Self-incrimination: Civil Sanctions for Exercising Privilege (see also 280)
341. Effect on Army Discharges (see also 253)

341.4. Cheung v Ailes (DC DC, #2781-64) 1962: Pl, alien, enlisted in US Army for 2 yrs. 1964: 9 days before discharge, Army discovered Pl had failed to disclose non-citizen status at enlistment, issued "General discharge." Pl appealed administratively; denied. Pl sued for "honorable discharge" under Harmon v Brucker, 355 US 579. Action dismissed on stipulation Pl be given honorable discharge. Apr 23, 1965: Pl honorably discharged.

Mark A Weiss, Lawrence A Speiser, Esqs, 1101 Vermont Ave NW, Washington, DC.

342. Effect on Employment—Public School Teachers (see also 24, 262, 267, 281, 571)

342.14. Matter of John Allen Johnson (Calif State Bd of Educ) 1960: Pet invoked self-incrimination privilege at HUAC sub-committee h'g. 1967: Bd of Educ h'g officer recommended against granting a permanent teaching credential. Matter pending before State Bd of Educ.

ACLUNC, 503 Market, San Francisco.

343. Effect on Employment—Other Public Officers
(see also 261)
343.6. Madden v Bd of Supervisors (San Joaquin Super Ct) Jy 26, 1966: Pl, County Veterans Service Officer, fired: Pl refused to testify in prosecution against his son: Fifth
- 89 -

Amdt. Pl sued for reinstatement: fired without procedural formalities, no Gov't employee may be penalized for exercise of constitutional rights unless there is showing that employee's conduct disrupts service as public official. Pending.

Ruth F Rathke, Donald F Rector, Marshall W Krause, Esqs, ACLU, 503 Market, San Francisco.

343.7. Garrity v New Jersey (USSC) (207 A2d 689, rev'd 385 US 493) NJ Sup Ct ordered Atty Gen'l to investigate alleged irregularities in muni ct handling of traffic tickets. Def police officers called, warned: anything they said might be used against them in any state criminal proceeding, they had privilege against self-incrimination, but refusal to answer would subject them to removal; no immunity statute. Defs answered questions. Defs arrested: conspiracy to obstruct administration of traffic laws; Def's testimony in investigation used over protest; convicted. NJ Sup Ct affirmed. Jan 16, 1967: USSC reversed (5-4), Douglas, J: (1) question of constitutionality of forfeiture statute (NJSA §2A:81-17.1) too tangential so appeal dismissed, cert granted; (2) "choice imposed on Pets was one between self-incrimination or job forfeiture"; (3) "question is whether the accused was deprived of his `free choice to admit, to deny, or to refuse to answer' "; here there was economic coercion; (4) no voluntary waiver here; (5) "We conclude that policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights"; (6) We now hold the protection of the individual under the 14th Amdt against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic." Harlan, J, (Clark, Stewart, JJ), diss. White, J, diss.

Daniel L O'Connor, Esq, 1815 H St NW, Washington, DC.

Casenote: 34 Brooklyn 91-101.

344. Effect on Employment—Private
(see also 30, 268, 269)
345. Effect on Attorneys (see also 265, 373)
Article: Robert C Underwood, The Fifth Amdt and the lawyer. 62 Northwestern 129-36.
345.2. Spevack v Klein (USSC) (213 NE2d 457, 214 NE2d 373, rev'd 385 US 511) NY App Div Rule 5 (later Spec Rule IV(6)) required attys to keep certain records in contingent fee cases. Atty-Pet refused to honor subpoena duces tecum seeking Pet's day book, cash receipts/disbursements books. etc., records of loans made, work-sheets and state, fed'l tax returns disbarred. NY Ct of App affirmed. Jan 16, 1967: USSC reversed (5-4), Douglas, J: (1) Cohen v Hurley, 345.1, 366 US 117 (1961) (5-4) is overruled; (2) self-incrimination privilege of Fifth Amdt has been absorbed in 14th Amdt; (3) it extends its protection to lawyers, as well as others; (4) privilege "should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for asserting it." Fortas, J, conc in judgment. Harlan, J, (Clark, Stewart, JJ), diss. White, J, diss.

Lawrence J Latto, William H Dempsey, Jr, Martin J Flynn, Shea S Gardner, Esqs, 734 15th St NW, Washington, DC; Bernard Shatzkin, Esq, 235 E 42nd St, NYC.

Casenotes: 21 Arkansas 561-64; 70 W Virginia 214-6; Montana 235-43; 27 Louisiana 838-43; 44 Chicago-Kent 63-67; 16 American U 420-6; 19 S Carolina 459-61.

345.3. Kaye v Co-Ordinating Comm on Discipline (USSC) (266 NYS2d 69, 386 US 17) NY Sup Ct, App Div, 1st Dept held: failure of accused atty to testify in disciplinary proceedings and explain alleged improper conduct raises legal presumption of guilt, since proceedings are not criminal; disbarment order affirmed. Je 29, 1966: petition for cert filed; does Fifth Amdt permit such legal presumption? Were Fourth, Fifth and 14th Amdt rights violated by use in evidence of stolen private papers and self-incriminating testimony obtained under compulsion of subpoena and threat of disbarment? Feb 13, 1967: USSC, per curiam, granted cert, vacated and remanded for reconsideration in light of Spevack v Klein, 345.2, 385 US 511.

Morton Liftin, Esq, 818 18th St, Washington, DC.

346. Effect on Social Security, Unemployment Insurance (see also 263, 422)
And see Re G, 421.NY.1.
350. Due Process

Practice tips: Habeas corpus petitions, by Morton Stavis. CIVIL RIGHTS HANDBOOK pp 113-119.

Article: Florence Robin, Know Your Rights. Georgia CLU, 5 Forsyth St NW, Atlanta.

Comments: Admissability of co-Defs' admissions in joint criminal trials. 36 Cincinnati 306-25.

Joinder of Defs in criminal prosecutions. 42 New York U 513-36.

351. In Arraignment (Delay) (and 353)
Article: Harvey Brower, Pretrial procedures in criminal cases. 2 Portia 1-18.

Notes: Evidence admitted at pretrial hearing in Def's absence invalid basis for conviction: New York v Anderson (266 NYS2d 110, 1965). 41 St John's 109-14.

Unreasonable prearrest delay: Ross v US (349 F2d 210, DC Cir 1965). 50 Minnesota 984-88; 41 New York U 638-44.

352. In Grand Jury Procedures (see also 311, 316, 512)
Article: Richard Calkins, Fading myth of grand jury secrecy. 1 John Marshall 18-36.
352.4. Re Terachter (SD NY Grand Jury) Apr 10, 1967: Rel subpoenaed as witness in fraud conspiracy investigation, invoked privilege not to answer. Rel subpoenaed, refused to testify 4 more times. Je 2: Rel moved to quash 6th subpoena alleging harassment, unauthorized revelation to others of proceedings, abuse of process. Je 12: argument. Pending.

Joel Stern, Esq, 120 E 56th St, NYC.

353. In Obtaining Confessions (and see 304, 371, 372)
Articles: Robert W Miller and Mark Kessel, The confession confusion. 49 Marquette 715-35.

Raymond L Spring, Nebulous nexus: Escobedo, Miranda and new Fifth Amdt. 6 Washburn 428-47.

- 90 -

Courtney Arthur, Questioning by police since Miranda. 4 Willamette 105-51.

Sheldon H Elsen and Arthur Rosett, Protections for suspect under Miranda. 67 Columbia 645-70.

Kenneth W Graham, Jr, What is "custodial interrogation"? Calif's anticipatory application of Miranda, 14 UCLA 59.

H'gs on Sup Ct decisions re crime. Cong Rec—Sen. Jy 18, 1967, S 9842.

Paul G Chevigny, Police power and courts, Key List Mailing, SNCC, 449 14th St, San Francisco, 94103. Apr 2, 1967.

Faculty note: Interrogation of draft protesters after Miranda, 77 Yale 300.

Comments: Custodial interrogation as tool of law enforcement: Miranda and Texas Code of Crim Procedure. 21 Southwestern 253-63.

Custodial statements of criminal suspects. 4 Willamette 189-204.

Notes: Taxation: application of Miranda: US v Kingry (19 Am Fed Tax R2d 762, Fla 1967). 21 Southwestern 399-400.

Wyoming procedure on admissibility of confessions: Kirk v Wyoming (421 P2d 487, 1966). 2 Land & Water 463-8.

Use of illegally obtained confession to impeach credibility of Def who testified in his own behalf: New York v Kulis (221 NE2d 541, 1966), Oregon v Brewton (422 P2d 581, 1967). 19 S Carolina 281-5.

Confessions obtained through interrogations by private persons, investigators and security agents: California v Crabtree (49 Cal Rptr 285, 1966), New York v Frank (275 NYS2d 570, 1966). 4 Willamette 262-8.

Confessions: admissibility in Missouri under Escobedo: Missouri v Beasley (404 SW2d 689, 1966). 32 Missouri 310-13.

Fruits of illegally obtained confession: Nebraska v Silvacarvalho (145 NW2d 447, 1966). 4 Willamette 269-77.

Pamphlet: Mass Atty Genl, Rights in arrests (for police and public). NY Times, Jy 17, 1967.

Proposed Legislation: S 1333 establishes flexible rules for admissibility of Def's statements, and illegally obtained evidence. Cong Rec—Sen. Mar 20, 1967, S 4021.

S 1194 curtails fedl ct review of voluntary criminal confession admissibility. Cong Rec—Sen. Mar 7, 1967, S 3199.

HR 7384, 7829, Federal interrogation act of 1967. Cong Rec—House. Apr 27, 1967, H 4779.

HR 8790, 8789, provide rules for interrogation of accused by fedl and DC officers. Cong Rec—House. Apr 19, 1967, H 4365.

353.29. New York v Whitmore (NY Sup Ct) (257 NYS2d 787, 10 RRLR 886) Apr 23, 1964: Negro Def, age 19, IQ 60, apprehended, held 24 hrs, questioned re Apr 23 attempted rape. Def made: (1) confession to Apr 23 attempted rape; (2) confession to Apr 14, 1964, murder; (3) 60-page confession to Aug 28, 1963, double murder. Apr 24: Arraignment: Def repudiated all 3 confessions: alleged physical coercion, denial of counsel.

(3) Double murder of Aug 28, 1963: indictment dismissed: confession coerced, evidence discredited; other Def, Robles, 301.25, subsequently convicted for murders.

(2) Murder of Apr 14, 1964: 1966: indictment dismissed on basis of Miranda, 353.41, 384 US 436, only evidence being Def's discredited confession, Def not having been advised of rights.

(1) Attempted rape: Mar 19, 1965: Nov 18, 1964 conviction set aside on motion of Def and DA: racial prejudice and misconduct of jury. May 1966: Def convicted 2d time. Apr, 1967: App Div reversed, ordered new trial: error to exclude evidence of discredited confessions of (2), (3). May 17, 1967: Def convicted: 5-10 yrs. To be appealed.

Arthur H Miller, Esq, 74 Trinity Place, Samuel A Neuberger, Esq, 30 Vesey St, both of NYC; formerly: Osmond K Fraenkel, Esq, 120 Broadway; Stanley J Reiben, Esq, 160 Broadway; Jerome Leftow, Esq; Charles T McKinney, Esq, 165 Broadway; Alvin H Levine, Esq, 551 5th Ave; all of NYC; Norman Johnson, Ray H Williams, Esqs, for NAACP, Brooklyn.

353.41. Miranda v Arizona (401 P2d 721, rev'd 384 US 436) Facts: XI DOCKET 85, XII DOCKET 39. Article: Karl P Warden, Miranda—Some history, some observations, and some questions. 20 Vanderbilt 39-60. Comments: Miranda and waiver; 4 Willamette 205-17. The Miranda case: where did it come from? Where is it going?; 1 Suffolk 112-24. Case notes: 19 Baylor 308-12; 16 Buffalo 439-48; 69 W Virginia 68-73.
353.47. Sims v Georgia (USSC) (144 SE2d 103, rev & rem 385 US 538) 1963: white woman raped, allegedly by Def. Police took Def to Dr's office, where they allegedly physically attacked Def. That night, Def signed confession in presence of several police officers. 2 days later, Def arraigned. At trial, Def moved to suppress confession; denied. Ct instructed jury to decide whether confession actually made and to disregard it if not made freely. Def convicted. Ga Sup Ct affirmed. Jan 23, 1967: USSC reversed (8-1), Clark, J: (1) Jackson v Denno, rule 353.26, 378 US 368 (1964), applicable here because genuine issue re voluntariness of confession, police treatment of Def; and Jackson decided at time of trial; trial ct should have decided whether confession voluntary; (2) remanded for h'g on voluntariness of confession. Black, J, diss.

On remand, trial ct held Def's confession voluntary, denied new trial, refused to pass on other questions. Ga Sup Ct affirmed. Dec 18, 1967: USSC reversed (9-0), per curiam: (1) in remanding case for h'g on voluntariness, State had opportunity to offer evidence that Def not attacked by police in Dr's office; State failed to do so; this lends support to conclusion their testimony would not have rebutted Def's; (2) if police warned Def of right not to speak before he made confession, this is of little significance since Def illiterate, without food for 8 hrs, without access to family, friends, atty, with limited mental capacity; (3) grand and petit juries selected as in Whitus v Georgia, 512.Ga.5, 385 US 545, by unconstitutional method of using Co tax digests which list taxpayers by race.

Jack Greenberg, NAACP, 10 Columbus Circle, Suite 2030, NYC 10019.

353.48. New York v Walker (USSC) (265 NYS2d 609, cd 385 US 864) 1966: Challenge to determination confession not coerced; to police practice of not advising suspect of his right to counsel and to remain silent. NY Ct of App affirmed conviction. Oct 10, 1966: USSC denied cert.

Melvin Wulf, Steven Antler, Henry M di Suvero, Esqs, ACLU, 156 Fifth Ave, NYC.

- 91 -

353.49. Alabama v Mathis (USSC) (189 So2d 564, 386 US 935) Police interrogated Def-Negro while Def stripped, bound and chained, without advising Def of rights. Def confessed murdering two; convicted. Execution stayed pending appeal to USSC. Feb 20, 1967: USSC denied cert.

ACLU Southern Regional Office, 5 Forsyth, Atlanta.

353.50. Minniefield v Hale (SD Ala) Negro Pet arrested, convicted. Pet filed writ of habeas corpus in DC alleging coerced confession. DC issued order to show cause. Aug 27, 1965: Resp filed motion to dismiss. Oct 26: Ct denied motion. Dec 1: State filed motion for summary judgment. DC instructed Pet to file collateral remedy in state ct with leave to return to DC if no relief in 60 days. March 1966: Pet filed for writ of coram nobis in state ct. State ct denied motion to dismiss. Oct 1966: Trial. Dec 6: State ct denied writ. Pending.

Peter Hall, Esq, 1630 4th Ave, Birmingham; Charles S Ralston, Esq, NAACP Legal Defense Fund, Inc.

353.51. California v Cameron (Cal Sup Ct) Dec 1958: Def arrested while drunk for murder of woman, administered 300 mg thorazine (sedative used to reduce DT symptoms, normal dose 25 mg.) Def confessed thrice within 3 hrs, last time after ct-appointed counsel informed deputies his client should make no statement. 1959: Two hung jury trials, third trial: Def convicted: life. Jy 23, 1967: Sup Ct appointed Spec H'g Officer to investigate facts, possible suppressed evidence, etc. Pending.

John Halprin, Esq, 1648 Riverside Dr, Redding, California.

353.52. California v Jackson (Riverside) (Sup Ct, Crim #8910) (67 AC 91) 1962: Def convicted: murder. Oct 1964: penalty trial: Def sentenced to death. Je 25, 1967: Sup Ct ordered new penalty trial: statements made to police officers should have been excluded at penalty trial under Escobedo. Pending.

Gladys Towle Root, Esq, 212 S Hill, Los Angeles.

353.53. California v Ellis (Cal Sup Ct) (55 Cal Rptr 385) 1964: Def arrested: rape. Def refused to take voice identification test, refusal used in evidence: convicted. Dec 23, 1966: Sup Ct reversed: although no right to refuse voice test, if police fail to warn that it is not within self-incrimination clause, it cannot be used in evidence.

Note: 18 Syracuse 882-5.

353.54. California v Doherty (Cal Sup Ct, Crim #10097) 1964: Def convicted: possession of marijuana. June 1966: Miranda decision. Def appealed, had not been informed of right to silence and to counsel. Jy 1967: Sup Ct reversed, held persons granted retrial for pre-Miranda convictions should have benefit of Miranda holding.

Michael E Schwartz, Esq, 6380 Wilshire Blvd, Suite 1102, Los Angeles.

353.58. California v Sanchez (Sup Ct) (423 P2d 800) Apr, 1965: Def-prisoner allegedly killed civilian employee; correctional officers took him to "adjustment center," physically abused him, extracted confession. Convicted; death. Feb 17, 1967: Sup Ct upheld conviction, affirmed death penalty: confession properly admitted at trial: no connection between beating and confession; criticized "reprenhensible conduct" of officers.
353.60. California v Rollins (Sup Ct) (423 P2d 221) Def convicted of robbery. Feb 8, 1967: Sup Ct reversed: Def not told of right to remain silent and consult counsel (Escobedo and Dorado); held constitutional protections of Miranda apply only to trials which began after Je 13, 1966 ruling.
353.62. Johnson v Massachusetts (USSC, #702) (88 S Ct 158) Trial Ct found Def's confession voluntary. Mass Sup Jud Ct affirmed conviction: no error in failing to consider factors not raised by Def at pre-Miranda trial, including physical condition and mentality at time of confession and police failure to give warning. Nov 9, 1967: USSC granted petition for cert and in forma pauperis.

John M Harrington, Esq, 185 Franklin St, Boston.

353.63. New Jersey v Broxton, Ogburn (NJ Sup Ct) (230 A2d 489) Defs convicted: robbery and rape, assault and battery. May 29, 1967: Sup Ct affirmed conviction; ruled trial judge could determine in presence of jury whether confession voluntary.

Edward D'Alassandro, Esq, 1180 Raymond Blvd, and Charles E Villanueva, Esq, 744 Broad St, both of Newark.

353.64. New Jersey v Yough (NJ Sup Ct) (231 A2d 598) Def arrested, confessed, indicted: murder. Def alleged confession not good as evidence. Jy 5, 1967: NJ Sup Ct ruled alleged confession admissible if judge feels "preponderance of evidence" supports prosecution's contention accused man knowingly, intelligently waived his right to remain silent.

Leonard I Garth, Esq, 45 Church St, Patterson.

353.65. New York v Ruppert (Sup Ct, App Div, 2nd Dept, Brooklyn) Dec 20, 1965: Def allegedly set fire to Jewish Community Center killing 12 persons. Jan 24, 1966: without notice of right to counsel, Def confessed to director of center and police; arrested. May: indicted: 1st degree arson, 24 counts of 1st degree murder. Family Ct ordered psychiatric exam; declared sane. Oct 24: Ct barred use of confession to police; ordered h'g to determine if confession to 3rd party could be admitted; burden on prosecutor to prove confession not derivative evidence. Jan 10, 1967: Westchester Co Ct ruled confession admissible. Je 13: appeal filed.

Eleanor Jackson Piel, Esq, 36 W 44th St, NYC 10036.

353.66. New York v Skorge (Mineola) (Nassau Co Ct) Feb 23, 1966: Def allegedly set fire to hotel killing one person. Without advising Def of right to counsel police questioned him 15 hours; Def signed written confession. Oct 7: Ct ruled confession inadmissable; charges dropped.

Ray M Brand, Esq, 350 County Rd, Garden City, NY; Marjorie O'Connell, Esq, 89-10 Sutphan Blvd, Jamaica, citing Sheppard, 384 US 333. Sept 18: New trial date.

353.67. New York v Suarez (Brooklyn Sup Ct) Apr 1966: Def allegedly killed wife and 5 children; arrested; not advised of rights to counsel; confessed. Feb 20, 1967: Ct granted DA's motion to dismiss indictment: confession only evidence.

Frank Ortiz, Esq, 760 Flushing Ave, Brooklyn.

353.68. New York v Stern (NYC) (Bronx Sup Ct) Man arrested, confessed: rape. Police did not inform him of right to remain silent when questioned about crime. Feb 27, 1967:
- 92 -

DA asked Bronx Sup Ct to dismiss case: Police had not informed Def of his rights, citing Miranda decision.
353.69. Clewis v Texas (USSC) (415 SW2d 654, rev'd 386 US 707) Jy 8, 1962, 6 am: Def Negro, with 5th grade education, no criminal record, taken into custody. During 38 hrs after arrest, Def had very little food, little sleep, appeared to police to be sick; Def was visited briefly, but had no contact with atty. Def consistently denied all knowledge of wife's death. Jy 9, pm: Def gave 1st statement to police, confessing killing in a way inconsistent with the facts; taken before magistrate. Jy 9-12: Def formally charged; interrogated frequently; driven 600 miles; given several polygraph tests; detained at 3 police bldgs; given little to eat; little contact except with police; denied guilt. Jy 12: Def gave 2d confession. Jy 13-17: in custody; not advised of right to a lawyer. Jy 17: no warning given; 3rd oral confession; formal warning before Def signed written confession. Convicted; affirmed. Apr 24, 1967: USSC reversed (9-0), Fortas, J: (1) 3d confession was part of stream of events from Jy 8-17, was not voluntary: tho prior to Miranda, 353.41, 384 US 436, Def never given necessary warnings on right to counsel before or after arraignment; (2) Def repudiated all 3 confessions. Black, Clark, Harlan, JJ, conc.

Reagan H Legg, Esq, Midland Savings Bldg, Midland, Tex.

353.70. Beecher v Alabama (USSC) (193 So2d 505, rev'd 88 SCt 189) Je 15, 1964: Negro convict in state prison escaped from road gang in Scotsboro, Ala. Je 16: white woman's lifeless body found 1 mile from camp. Je 17: Tenn Police shot Def in right leg; Def fell. Chief pressed loaded gun to Def's face while another officer pointed rifle against side of Def's head; Chief asked Def whether he had raped and killed woman. Def denied it. Chief said, "If you don't tell the truth I am going to kill you." Officer fired rifle next to Def's ear. Def confessed. Je 17-22: Def's leg swollen, later amputated; Def given morphine; Def signed confession, extradition papers; no evidence of warning re right to counsel. Def returned to Ala; tried; convicted. Ala Sup Ct affirmed. Oct 23, 1967: USSC reversed (9-0), per curiam: confessions are tainted because compelled, in violation of due process clause. Black, J, conc: self-incrimination clause violated. Brennan, J, (Warren, CJ, Douglas, J), conc: confession inadmissible because involuntary, citing Malloy, 332.1, 378 US 1.
354. In Press Releases and Newspaper Coverage
Book: Alfred Friendly and Ronald L Goldfarb, Crime and publicity, Twentieth Century Fund, 1967. 335 pp, &5.00.

Articles: Samuel S Wilson, Adequate press facilities for highly publicized trials. 36 Cincinnati 210-22.

Elmer Gertz and Wayne B Giampietro, Trial of "state cases"—postscript on Jack Ruby trial. 16 DePaul 285-308.

Robert G Weclew, Fair trial—equal in value to free press. 16 DePaul 353-73.

Grant B Cooper, rationale for ABA recommendations. 42 Notre Dame 857-64.

Thomas L Shaffer, Direct restraint on press. 42 Notre Dame 865-80.

John Pemberton, Jr, Constitutional problems in restraint on media. 42 Notre Dame 881-87.

Sam Ragan, ABA recommendations: newspaperman's critique. 42 Notre Dame 888-95.

Elmer W Lower, First Amdt under attack: defense of people's right to know. 42 Notre Dame 896-906.

William H T Smith, Implications of ABA recommendations for police administration. 42 Notre Dame 907-14.

William G Raichle, Should abridgment of pretrial communication be coupled with expansion of trial coverage? 42 Notre Dame 915-19.

William B Monroe, Jr, Case for television in courtroom. 42 Notre Dame 920-24.

Francis C Sullivan, Prejudicial publicity: a look at remedies. 1 Suffolk 77-104.

Edward R Brown, Fair trial and free press. 18 Western Reserve 1156-76.

Comments: Efficacy of change of venue in protecting Def's right to impartial jury. 42 Notre Dame 925-42.

Prejudicial publicity: search for civil remedy. 42 Notre Dame 943-56.

Controlling prejudicial publicity by contempt power. 42 Notre Dame 957-68.

Note: Fair trial and free press: Wisconsin v Woodington (142 NW2d 810, 1966). 42 Notre Dame 976-83.

Speeches: Earl F Morris, Justice and the news media. Cong Rec—Senate. Jan 30, 1967, S 1107.

Carlton Sickles, Civil liberties, law enforcement and crime. Cong Rec—House. Mar 20, 1967, H 3031.

354.5. Sheppard v Maxwell, Warden (384 US 333) Facts: X DOCKET 42—XII DOCKET 40. Comment: Sheppard v Maxwell and ABA proposals. 1966 Illinois 1063-80.
354.13. Phoenix Newspapers Inc v Superior Court (Ariz Sup Ct) (418 P2d 594) Dec 22, 1965: Def-newspapers printed details of habeas corpus hearing of accused killer. Super Ct cited Def for contempt. Oct 5, 1966: Sup Ct issued: permanent writ against Super Ct. Ct could not properly limit right of newspapers in advance of publication to print what transpired in open ct.

Case notes: 8 Wm & Mary 630-60; 42 Notre Dame 969-76; 18 W Reserve 1376-84.

354.14. County of Los Angeles v Super Ct (formerly Monroe v Los Angeles) (Ct of App) (62 Cal Rptr 435) 1966: Monroe, real party in interest, arrested during demonstrations on Sunset Strip. Aug: Monroe commenced taxpayer's suit under Cal Code Civ Proc §526(a) to permanently enjoin pre-arraignment publicity by police and prosecutor as illegal expenditure of public funds. At h'g on order to show cause why preliminary injunction should not issue, various news media joined as amicus in opposing injunction on free speech grounds. Feb, 1967: Super Ct overruled demurrers and motion to strike, ordered that unless otherwise commanded by ct of superior jurisdiction, it would issue order permanently restraining pre-arraignment publicity in Los Angeles County on: (1) prior criminal record if any, or character or reputation of Def; (2) existence of confession, admission, statement of Def; (3) performance on examinations or tests; (4) identity, testimony, credibility of prospective witnesses; (5) possibility of guilty plea to any charges; and (6) Def's guilt or innocence, or other matters relating to merits of case or evidence. County appealed. Aug 18: Ct of App issued writ of prohibition, reversed: (1) taxpayer's action to enforce unconstitutional police activity had statutory basis, but (2) "it cannot be laid down as a general rule that pre-trial publicity of a
- 93 -

prejudicial nature invariably deprives all Defs of their constitutional rights to a fair trial before an impartial jury"; Sheppard, 384 US 333, distinguished. Oct 11: Cal Sup Ct denied hearing.

David Binder, Esq, 3810 Wilshire Blvd, Lawrence Sperber, Esq, P O Box 3426, Olympic Sta, Fred Okrand and A L Wirin, Esqs, 257 S Spring St, all of Los Angeles; Alan I Rothenberg, Esq, 801 Commercial Bldg, Dayton, Ohio.

See Monroe, 59.78; Weger, 51.Calif.12.

354.15. Viscardi v US, Pacelli v US (USSC) (363 F2d 385, cd 385 US 957) Jy 8, 1966: CA 2 affirmed Defs' convictions in case entitled US v Armone. Sept 3: Petition for cert filed in Viscardi: (1) Was Def prejudiced by trial ct's failure to warn him of hazards of sharing an atty with co-Defs? (2) Did conviction based on overt act other than that charged in indictment abridge Fifth Amdt right to be prosecuted only on grand jury indictment? Sept 6: Petition for cert filed in Pacelli: (1) Did trial ct comment adversely on Def's failure to testify in violation of Fifth and Sixth Amdts, §3481 of Crim Code? (2) Did trial ct convert statutory inference of guilt arising from unexplained possession of narcotics into conclusive presumption? (3) Was Def deprived of fair trial by prejudicial publicity generated by gov't sources—publication 16 weeks before trial of 2 newspaper articles referring to him as narcotic trafficker and of magazine article published midway through trial with respect to which trial judge questioned and cautioned jury? (4) Was Def denied fair trial by instruction that overt acts alleged in indictments could be proved by evidence of partially different acts never presented to grand jury? Nov 21: USSC denied cert in both cases.

For Viscardi: Theodore Gilbert and Edmund Rosener, Esqs, 267 Fifth Ave, NYC.

For Pacelli: E Barrett Prettyman, Esq, 815 Connecticut Ave NW, Washington, DC; Robert Kasanof, Esq, 52 Broadway, Albert J Krieger, 401 Broadway, both of NYC.

See also Kahn, Schawartzberg, Pacelli v US, at 302.27.

354.16. Whitney v Florida (USSC) (184 So2d 207, 386 US 970) 3rd Dist Ct of App affirmed Def's conviction: Def cannot move for post-conviction relief because of pretrial publicity when issue was not raised at trial and no motion for change of venue or exhaustion of peremptory challenges. Mar 20, 1967: USSC granted cert. Nov 6: USSC dismissed cert as improvidently granted without prejudice to any application for federal habeas corpus.

Richard Kanner, Esq, 1150 NW 15th St, Miami.

354.17. Chicago Tribune v Paschen (Illinois Sup Ct) Def-Cir Ct Judge presiding in Illinois v Speck (murder case) ordered limits on press accreditation, use of transcripts, photos of jurors. Feb 22, 1967: Pl-newspaper sought mandamus, declaration that guidelines unconstitutional. Pending.
354.18. US v Ricca (ND Ill) 1957: US revoked Def's citizenship. 1965: Deportation h'gs. Def freed on bond. 1966: Fed'l grand jury indicted Def: perjury at deportation h'g. May 24, 1967: Trial; Def submitted newspaper articles calling Def "Frank Costello of Chicago," "top blazer in Al Capone's empire," moved for mistrial. Ct granted motion, citing Sheppard, 384 US 333. Sept 18: New trial date.

Maurice J Walsh, Esq, 29 S LaSalle, Chicago.

354.19. Superior Ct v Worcester Telegram (Mass Super Ct) May 8, 1967: Def-reporter wrote, Def-newspaper printed article containing nonevidentiary fact about Defs in robbery case. Ct declared mistrial, initiated contempt proceedings. Jy 7: Ct convicted Defs, fined reporter &100, newspaper &1000, suspended payment pending appeal.
355. In Admitting Perjured Testimony
(see also 312)
355.4. Sobell v US (USSC) (142 FSupp 515, 355 US 87, 920, 374 US 857, 264 FSupp 579, 378 F2d 674, cd 88 SCt 780) 1951: Def convicted of conspiracy to commit espionage with Rosenbergs. 1953: After appeal and cert denied, Rosenbergs executed; Def-Sobell: 30 years. Motion for new trial denied. 1963: CA 2 affirmed denial of new trial; USSC denied cert. May 9, 1966: Def filed petition requesting h'g, vacating sentence and conviction or new trial; Def alleged Gov't "knowingly created, contributed and used false, perjurious testimony and evidence and induced and allowed Gov't witnesses to give false testimony." May 13: DC refused to allow Def's attys to take deposition of Harry Gold, whom Def contends gave perjurious testimony at Def's trial. Apr 1966: sketch of cross section of bomb which Def-Rosenberg allegedly delived to USSR released to Def's attys. Aug 22: motion for retrial based on: (1) affidavits by 2 eminent scientists, intimately involved in developing bomb, who swore sketch worthless, crucial Gov't witness who authenticated sketch unknowledgeable; (2) Gov't used forged hotel registration card to establish whereabouts of important witness. Sept 12: oral argument on motion for new trial. Feb 14, 1967: DC denied motion: (1) Sobell had never been charged with any connection with "atom bomb project" and, in any case, sketch had some value; (2) No reason to believe Gov't was responsible for forgery. Je: Argument before CA 2; affirmed. Jan 15, 1968: USSC denied cert. Sobell's release date: Apr 3, 1970.

Marshall Perlin, Esq, 30 Vesey St, Wm Kunstler, Esq, 511 Fifth Ave, Prof Arthur Kinoy, 4705 Henry Hudson Parkway, all of NYC; Benjamin Dreyfus, Esq, 41 Market St, San Francisco; Prof Malcolm Sharp, U of New Mexico Law School, Albuquerque; Prof Vern Countryman, Harvard Law School, Cambridge.

355.11. Miller v Pate (USSC) (habeas den 300 F2d 414; 226 FSupp 541, 342 F2d 646, rev'd 386 US 1) Nov 26, 1955: Def charged with murder of 8-yr-old girl. Def moved for order permitting scientific inspection of physical evidence DA intended to introduce; denied. At trial, DA introduced in evidence man's shorts, called chemist from State Bureau of Crime Identification to testify: blood on shorts of dec'd blood type; DA alleged Def wore shorts during murder. Jury convicted: death. Ill Sup Ct affirmed. Clemency h'g led to new facts. Def filed habeas petition; DC denied; CA affirmed. Def filed 2d habeas. At h'g, Def permitted to have shorts examined by chemical microanalyst: stains not blood, but paint. DA admitted he knew it was paint at time of trial, alleged "everybody" at trial knew it. DC granted writ, ordered Def's release or prompt retrial. CA 7 reversed.

Feb 13, 1967: USSC reversed CA (9-0), Stewart, J: "The prosecution's whole theory with respect to the exhibit depended upon that misrepresentation. . . . The prosecution deliberately misrepresented the truth. . . . More than 30 years ago this Ct held that the 14th Amdt cannot tolerate a state criminal conviction obtained by the knowing use of

- 94 -

false evidence. . . . There has been no deviation from that established principle. . . . There can be no retreat from that principle here."

Willard Lassers, for ACLU, George Pontikes, Harry Golter, Robert Grossman, Esqs, 11 S La Salle; George N Leighton, Esq, 123 W Madison St; Seymor Bucholz, Esq, 19 S La Salle St; Edwin H Conger, Esq, 120 S La Salle St, all of Chicago; Arthur Greenberg, Esq, 1241 Jefferson Bldg, Suite 1135-38, Peoria, Ill.

355.12. Shuler and Chatman v Florida (DC Fla) (379 US 892) Negro-Pets charged with rape of white woman; convicted: death. 2 Dep Sheriffs, who had assisted, charged fabrication by Sheriff and others. Fla Sup Ct dismissed petition for habeas, finding insufficient proof of Pets' allegations or that prosecutor suppressed evidence. Oct 26, 1964: USSC denied cert without prejudice to filing of habeas petition in DC. Feb 5, 1965: Motion to reduce sentence on basis of unequal application of death penalty filed; pending.

NAACP Inc Fund.

512.Md.1. Giles v Maryland (USSC) (183 A2d 359, app dism'd 372 US 767; 190 A2d 627; 212 A2d 101, vac & rem 386 US 66) Jy 20, 1961: Negro brothers charged with rape of 16-yr-old white girl. Trial ct prohibited voir dire question re racial prejudice. At trial, DA did not mention (1) case-worker's recommendation that girl "beyond parental control," (2) her statements to policemen re sexual relations with numerous boys, men in 1959-1961; (3) her parents' complaint of 2d rape by other men later in 1961, or (4) her commitment to detention home. One Def denied having had relations with girl; other Def alleged girl consented. Defs convicted: death. 1963: Md Gov received clemency petition signed by 8,000 with evidence prosecutrix invited intercourse, stayed execution. 1964: In post-conviction proceeding, Def's ct-appointed atty testified ignorance of (1)-(4); Def's new attys moved DA to produce (5) reports of police interviews with girl and escort taken Jy 21; denied as "work product." Ct ordered new trial. 1965: Md Ct of App reversed. Mar 1966: USSC granted cert; requested Md to supply material considered by trial ct in imposing sentence; obtained (5), which showed girl's and escort's testimony in trial conflicted with Jy 21 interviews, affecting their credibility. White, J, conc in judgment. Fortas, J, conc in judgment. Harlan, J, (Black, Clark, Stewart, JJ), diss.

Feb 20, 1967: USSC vacated & remanded (5-4), Brennan, J (Warren, CJ, Douglas, J) gave opinion: "The States are bound by the Constitution's relevant commands but they are not limited by them. We therefore should not operate upon the assumption . . . that state cts would not be concerned to reconsider a case in light of evidence such as we have here, particularly where the result may avoid unnecessary constitutional adjudication and minimize fed'l-state tensions."

Md Sup Ct remanded to Ct of App. Ct of App remanded to Cir Ct for reopening post-conviction proceedings. Cir Ct set aside convictions, ordered new trial. Oct 30, 1967: State nol prossed indictment over Defs' objections; Defs freed. Feb 10, 1968: Gov of Md issued full pardon to co-Def Johnson, who was freed.

Hal Witt, Esq, 3225 33d Pl, NW, Richard Scupi, Esq, 1845 Summit Pl, NW, Joseph Forer, Esq, 711 14th St, NW, all of Washington, DC.

Amicus appearance by ACLU by Edward L Glenn and Charles A Horsky, Esqs, both of Silver Spring, Md; Richard S Arnold, Esq, 701 Union Trust Bldg, and Lawrence Speiser, Esq, 1424 16th St, NW, both of Washington, DC.

356. In Courts Martial (see also 124, 390)
Forms and procedures: Conscientious objection and civil disobedience in armed service. CIVIL RIGHTS HANDBOOK pp 235:107-235:130.

Article: Paul E Wilson, Right of accused to effective counsel: military view. 14 Kansas 593-611.

Comment: Right to counsel in special court-martial. 34 Missouri 367-81.

Notes: Accused before military court is not entitled under Sixth Amdt to be represented by legally trained counsel: Kennedy v Commandant (258 FSupp 967, D Kan 1966). 5 Duquesne 431-36.

Judicial review of court-martial conviction: Ashe v McNamara (355 F2d 277, CA 1 1965). 41 St John's 114-20.

Right to counsel in special court-martial: Application of Stapley (246 FSupp 316, D Utah 1965). 12 Wayne 693-98.

Proposed Legislation: S 2009 Military Justice Act of 1967, omnibus USMJ reform. Cong Rec—Sen. Je 26, 1967, S 8838; Staff report to Sen Subcomm on Constitutional Rights. Jy 6, 1967.

HR 226, omnibus UCMJ revision. Cong Rec—Appendix. Jy 18, 1967, A 3597.

356.52. US v Blalock (CM 415596) CID agent advised Def of Miranda rights (353.41, 384 US 436); secured confession on DA Form 19-24 without any statement by Def whether he wished to exercise rights or not. Def charged with desertion terminated by apprehension (Art 85); pleaded guilty to absence without leave (Art 86). Law officer admitted confession into evidence: Miranda did not apply in military law as of Jan 12, 1967. Def convicted; sentenced: dishonorable discharge, total forfeitures, 1 yr hard labor. Jy 21, 1967: Bd of Review held admission of confession erroneous: Miranda did apply on that date; no prejudicial effect as to findings; reduced confinement.
356.53. Conn v US (US Ct of Claims) Marine involved in Haiti auto accident where pedestrian killed. Marine corp recalled him, took sworn statements of witnesses, held ex parte investigation, gave him dishonorable discharge without his participation in investigation or ever being accorded rights of party in violations of 0101d(1) of Navy Supplement to Manual for Court-Martial, 32 CFR 719.101(d)(1). Def filed suit alleging administrative reduction in grade, undesirable discharge illegal. May 12, 1967: Ct of Claims ruled Def entitled to recover full pay to date enlistment would have expired: Marine corps failed to accord him procedural protections required by its own Regs.
356.54. US v Lord (CM 415020) Def pleaded guilty; convicted: unpremeditated murder, assault with intent to commit murder (Arts 118, 134). Ct deliberated, returned to ask law officer if life sentence could be reduced by confinement authorities for good behavior and rehabilitation; law officer replied in affirmative; Ct sentenced Def: dishonorable discharge, total forfeitures, 30 yrs hard labor. Convening authority approved. Aug 1, 1967: Bd of Review found instructions prejudicial: obvious Ct members did not adequately understand their function to exercise their own discretion independently (Manual 76a(4) ), US v Ellis,
- 95 -

15 USCMA 8, 34 CMR 454; set aside sentence; ordered reh'g on sentence.
356.55. US v Wright (USCMA, #19880) Jan 22, 1967: Female Red Cross volunteer began receiving obscene threatening phone calls. Feb 3: base police traced call, found Def-patient in vicinity of phone booth, asked 3rd person to telephone Def, listened in; gave Def full Art 31 warning, asked him to telephone victim for identification of voice; Def willingly did so. At general ct martial conversation admitted in evidence over defense counsel's objections; Def convicted: 4 specifications of communicating obscene language by telephone to female, 4 specifications of communicating threat to same female; sentenced: bad-conduct discharge, 6 mths hard labor, accessory penalties. Aug 11: USCMA affirmed: question not one of sufficiency of warning but admissibility of recording and under Osborne v US, 301.28, 385 US 323 (1966), undisclosed recording of conversation with consenting party does not abridge any substantial right, so failure to inform accused conversation would be recorded did not detract from legal sufficiency of warning; no hint victim might have been influenced by officer's description of voice as that of a suspect, distinguishing Palmer v Peyton, 359 F2d 199 (1966); held voiceprints admissible, inventor of voiceprint Kersta qualified as expert witness (Manual 138e); refusal to allow Def's "expert witness" to testify not prejudicial. Ferguson, J, diss: test for ct admissibility is not that a scientific device has experimentally and in practical application demonstrated high degree of accuracy but that it has been shown to be generally accepted as reliable in scientific community.
356.56. US v Westmore (CM 415595) Def convicted: presenting false claim (Art 132), 3 related offenses involving use of false or unauthorized document (Art 134); sentenced: badconduct discharge, total forfeitures, 2 yrs hard labor. Convening authority heard testimony as to Def's prior conviction set aside by USCMA on unlawful search grounds; disapproved Art 132 guilty finding; affirmed entire sentence. Jy 28, 1967: Bd of Rev held under Armpriester v US, 256 F2d 294, 297 (1958): unlawfully obtained evidence may not be used even for limited purpose of determining sentence; information did not prejudice convening authority's action, but Bd reduced confinement to 1 yr.
356.57. US v Vogel (USCMA, #20050) Def pleaded guilty: wrongful and unlawful transfer, and wrongful possession of marijuana (Art 134); law officer refused to permit Def's squadron commander to testify he desired Def to return to his organization for completion of training; defense and prosecution showed as presentencing evidence accused had been marijuana user for number of years; law officer instructed this was factor to be considered in sentencing. Def convicted; sentenced: bad conduct discharge, total forfeitures, 2 yrs hard labor. Convening authority approved; Bd of Review reduced labor to one year. USCMA reversed: (1) while law officer might properly reject portion of written statement declaring a desire that accused return to duty, clearly erroneous to exclude in-court testimony of a witness to that effect (US v Robbins, 16 USCMA 474, 37 CMR 94 (1996) ); (2) ct-martial cannot lawfully consider uncharged misconduct evidence upon sentence; returned record; ordered reh'g on sentence.
356.58. US v Tempia (Dover AF Base) (16 USCMA 629, 37 CMR 249 #19,815) May 1, 1966: Def arrested: taking indecent liberties with female under 16. Je 14: convicted; sentenced: 6 mths hard labor, bad conduct discharge. Apr 26, 1967: US Ct of Military App reversed: Miranda decision requiring suspects be advised of right to counsel and right to remain silent applicable in military cases.

Maj Frank W Lane, Jr; Col Joseph Buchta.

Amicus: Col J E Hanthorn; Com Walter F Brown; John J Flynn, Esq; Roger W Kaufman, Esq.

Proposed legislation: HR 6555 Military Personnel Legal Counsel Act provides counsel, notification of right to counsel, before interrogation, to conform to Tempia. Cong Rec—House, Mar 2, 1967, H 2111; Je 6, 1967, H 6766.

356.59. US v Ferguson (USCMA, #20159) Jan 5, 1951: General Ct Martial convicted 15-year-old Def: housebreaking and larceny (Art 93): dishonorable discharge, 2 yrs hard labor, accessory penalties. Convening authority approved, reduced confinement period; Army Bd of Review #5 affirmed. Dishonorable discharge executed approximately 2 mths before effective date of UCMJ. 1967: Def applied to Army Bd for Correction of Military Records for relief from dishonorable discharge. Bd requested JAG review case; JAG referred record to Army Bd of Rev #1. Bd held original ct martial lacked jurisdiction: Def underage (citing US v Blanton, 7 USCMA 664, 23 CMR 128 (1957); AW 50 could not bar jurisdictional attack on original decision; because no jurisdiction original appeal never perfected; assumed initial and primary jurisdiction of case; withdrew original affirming decision; set aside findings and sentence; ordered charges dismissed; certified decision to USCMA. Aug 11: USCMA held case within Ct's article 67(b) (2), UCMJ, appellate jurisdiction; final review took place in 1967 when Blanton applied.
356.60. US v Dickinson (CM 415170) CID agent gave Def warning not meeting Miranda requirements; Def indicated he understood his rights, pointed out his possessions in barracks; Def pulled out bloody shoes from under Def's foot-locker. Law officer held warning met requirements of Art 31 under US v Wimberly, 16 USCMA 3, 36 CMR 159; Miranda not yet having been applied to military by USCMA. Def convicted: assault inflicting grievous bodily harm (Art 128); sentenced: bad conduct discharge, total forfeitures, 2 yrs hard labor. Convening authority approved. Jy 24, 1967: Bd of Rev affirmed: Def's identification outside Art 31: did not acknowledge ownership of anything found in area, would probably be apparent to any other resident of barracks, could have been compelled forcibly without politely requesting Def's assistance (US v Harman, 12 USCMA 180, 30 CMR 180 (1961) ); distinguished those cases where accused at investigator's request goes farther and acknowledges ownership of specific item which was object of search which are within Art 31 (US v Williams, 10 USCMA 578, 28 CMR 144 (1959) ).
356.61. US v Neal (CM 415182) MP's forcibly removed Def, when he refused to identify himself, from tavern to MP substation; searched him while he was being written up, discovered marijuana. Jy 14, 1967: Def pleaded not guilty; convicted: wrongful possession of marijuana (Art 134); sentenced: dishonorable discharge, total forfeitures, 5 yrs hard labor. Convening authority approved. Bd of Rev affirmed: law officer's trial determination search incident
- 96 -

to valid apprehension supported by evidence; law officer's failure to suggest out-of-ct h'g on search and seizure issue not abuse of discretionary power; law officer's failure to rule on requested instructions prior to argument not prejudicial error; reduced confinement to 1 yr: fact Def subjected to reprisals and harassments in his unit while awaiting trial should have been taken into account in mitigating sentence.
356.62. US v Manos (US Ct of Mil App) Special ct martial did not permit convicted serviceman to call character witnesses prior to sentencing. Def appealed. May 5, 1967: US Ct of Mil App held such failure violated Def's Sixth Amdt right to compulsory process, "accused is also entitled to present witnesses who may testify in mitigation and extenuation."
356.63. Re Maj Gen T H Lipscomb (Ft Wood) (Ct of Military App) Je 30, 1967: Resp, base commander, charged with improper command influence: influencing officers to impose heavy sentences in court-martial trials. Jy 21: Ct of Mil App ordered h'gs. Pending.

Capt Anthony F Cilluffo, NY; Col Daniel T Ghent.

356.64. US v Shippman (Army, JAG, Bd of Rev #2, #CM 418020) Sept 4, 1967: Melee at club: sgt major shot. Nov 10: At ct martial, Def Negro staff sgt convicted of assault with intent to inflict grievous bodily harm: 4 yrs, bad conduct discharge, forfeiture of pay and allowances, rank reduction. On appeal, Def argued: deprivation of due process due to rank and race, denial of transcript of Art 32 h'g, delay of trial, erroneous admission of adverse testimony and evidence, refusal to admit evidence offered on behalf of Def, prejudicial statements of trial counsel, lack of substantial evidence to sustain verdict. Pending.

Francis Heisler, Esq, PO Drawer 3996, Carmel, Calif 93921; Capt James E Higgins, JAG, Fort Ord, Calif 93941.

See US v Davenport (Army JAG Bd of Rev #2, #CM 417048) for appeal from sentence for rape because of prejudicial remarks by asst trial counsel.


See US v McGuire (Army JAG Bd of Rev #3, #CM 416511) for appeal from conviction for possession of marijuana.

Francis Heisler, Esq, PO Drawer 3996, Carmel, California 93921.

357. In Naturalization Proceedings (see also 259)

357.6. Boutilier v Immigration and Naturalization Service (USSC) (363 F2d 488, aff'd 387 US 118) 1955: Pet entered US at age 21. 1959: Pet re-entered for last time. 1963: Pet applied for citizenship, admitted 1959 arrest for sodomy (later dismissed), admitted homosexual relations since 1959. 1964: Public Health Service issued certificate: Pet afflicted with class A condition—psychopathic personality at time of admission. INS started deportation proceedings. BIA, CA 2 affirmed deportation order. May 22, 1967: USSC affirmed (6-3): Clark, J: (1) Legislative history of Immigration Act, 8 USC §1251(a)(1) clearly indicates Congressional intent to include homosexuals such as Pet under "psychopathic personality"; (2) Pet being deported for characteristics he possessed at time of entry, so Act does not impose regulation or sanction for conduct and is not covered by "void for vagueness" rule. Brennan, J, diss.

Douglas, J, (Fortas, J), diss: "The term `psychopathic personality' is a treacherous one like `communist' or in an earlier day `Bolshevik.' A label of this kind when freely used may mean only an unpopular person. It is much too vague by constitutional standards for the imposition of penalties or punishment . . . the informed judgment of experts is needed to make the required finding. We cruelly mutilate the Act when we hold otherwise. For we make the word of the bureaucrat supreme, when it was the expertise of the doctors and psychiatrists on which Congress wanted the administrative action to be dependent."

Blanch Freedman, Esq, NYC (dec'd).

See also 358.

358. In Expatriation, Denaturalization, Deportation, Relocation Proceedings (see also 258, 259)
See INS v Errico (USSC) (350 F2d 279, 385 US 214).
358.22. Woo Tai King v Holton, Dist Dir (ND Calif, S Div, #40827) 1948: Pet received Certificate of US citizenship showing he had proved US citizenship as of 1934. Mar 1962: Commr cancelled certificate, ordered it surrendered to Imm Service—failure to surrender could subject Pet to prosecution. June 1962: Pet sued for return of certificate, asserting right to see evidence against him, confront accusers under due process clause, 8 USC §§1452, 1453. Def agreed to return certificate of citizenship, cancel order rescinding it. Case dismissed as moot. New Regulations provide for cross-examination. Fed Reg 1-9-63, pp 209-10. Imm Serv started proceedings to cancel certificate of citizenship under new regulation on basis of fraud. Pending.

George Duke, Esq, Marshall Krause, Esq, ACLUNC, 503 Market St, San Francisco.

358.61. Matter of Joseph Douglas Johnson (Immigration Service, St Paul, #A13001882) 1953: Resp, native-born US citizen, then 22, left Minn home for Canada where he engaged in socialist political activity. 1959: Canadian police said FBI sought him for draft evasion; Resp voluntarily returned to US; pleaded guilty to draft evasion: 2 yrs, then paroled. May 1, 1964: INS began deportation proceedings against Resp: residence in Canada was expatriatory Act under 8 USC §1481(a)(2). Nov 24: At h'g, Resp moved for production of documents in Gov't's possession; granted. Mar 1965: After 80-day delay in production of Gov't documents, Resp moved to dismiss proceedings; denied. H'g officer reopened h'g on own motion. Jan 11, 1966: INS ordered Resp deported. Appeal pending.

Leonard B Boudin, Esq, 30 E 42d St, NYC; Joseph Perry, 516 New York Bldg, St Paul; Douglas Hall, Esq, 311 Produce Bank, Minneapolis.

358.62. Liadakis v Immigration and Naturalization Service (DC MD) Pet sued to defeat deportation: would be subject to religious persecution upon his return to Greece. Pending.

David E Birenbaum, NCA-CLU, 1424 16th St NW, Washington, DC.

358.63. Afroyim v Rusk (USSC) (250 FSupp 686, 361 F2d 102, rev'd 387 US 253) 1893: Pet born in Poland. 1912: Pet came to US. 1926: Pet naturalized. 1950: Pet went to Israel. 1951: Pet voted in Israeli election. 1960: Pet applied for renewal of US passport; Dept of State refused: lost US citizenship (8 USC §1481(a)(5)). Pet brought declaratory judgment action. DC dismissed. CA 2 affirmed.
- 97 -

May 29, 1967: USSC reversed (5-4), Black, J: (1) Congress has no general power, express or implied, aside from 14th Amdt, to take away a citizen's citizenship without his assent; (2) 14th Amdt defines a citizenship which a citizen keeps unless he voluntarily relinquishes it; Perez v Brownell (5-4) 358.7, 356 US 44, is overruled. Harlan, J, (Clark, Stewart, White, JJ), diss.

Casenotes: 34 Brooklyn 83-91; 20 Florida 115-9; 14 Howard 180-6; 53 Cornell 325-36; 17 American U 86-91; 14 Loyola 166-73.

358.65. De Lucia v Immigration Serv (USSC, #901) (370 F2d 305, 386 US 912) Nov 17, 1966: CA 7 held Def subject to deportation. Dec 23: Petition for cert filed: (1) Did deportation of physically ill alien after 46 yrs residence in US constitute denial of due process or cruel and unusual punishment? (2) Could INS use false representation of Italian citizenship to secure English refusal to accept alien? (3) Did published statements of Atty Gen and Commr of INS referring to Def as "racketeer," "tzar of Chicago underworld," and "kingpin of vice" entitle Def to administrative hearing on claim of prejudgment. Feb 13, 1967: USSC denied cert.

Jack Wasserman, David Carliner, Esqs, Warner Bldg, Washington, DC.

358.66. Wright v Immigration Serv (USSC, #495) (88 SCt 287) Je 22, 1967: CA 6 held Def-Japanese in US on temporary visitor's visa is deportable when her American husband withdrew his visa petition to grant her non-quota immigrant status. Aug 15: Petition for cert filed: Did husband under First and 13th Amdts have unrestricted power to automatically terminate his alien wife's privilege of residence in US? Nov 6: USSC denied cert.

Philip M Carden and Thomas C Brinkley, Esqs, 408 Rosebank, Nashville.

358.67. Honda v Clark (USSC) (356 F2d 351, rev'd 386 US 484) Dec 7, 1941: On outbreak of war with Japan, US seized Am assets of business owned by Japanese nationals, incl Yokohama Specie Bank (under Trading with Enemy Act, 50 USC App §1). 1946: 50 USC App §34 passed: 7,500 depositors in Bank submitted timely claims. 1958-1959: Chief of Claim Section wrote 7,500 depositors they could follow 1 of 2 fairly complicated procedures to get less than 2% of 1941 value of deposits back. 1,600 followed one procedure; 1,817 followed another; 4,100 did nothing; US dismissed 4,100 claims after 45 days (8 CFR §502.25(g)). Abe v Kennedy filed class suit for 1,817, challenging percent of repayment; received prewar rate without interest. Class suit filed for 4,100. DC dismissed as barred by statute of limitations in CFR. CA affirmed. Apr 10, 1967: USSC reversed (9-0), Harlan, J: (1) limitation period tolled during Abe litigation so Pets can sue; (2) US is mere stakeholder; (3) Congressional intent suggests this decision. (Clark, J, did not sit.)
359. In Loyalty Hearings (see also 251, 268)
361. In Bar Proceedings re Lawyers (and 265, 345, 373)

361.1. Felber v Assn of Bar of City of New York (USSC) (218 NE2d 305, 221 NE2d 915, cd 386 US 1005) 1941: Lawyer-Pet convicted of larceny, forgery. Pet automatically disbarred. App Ct set aside conviction. Pet moved for reinstatement. Referee, on same evidence before App Ct, denied petition, held burden on Pet. App Div affirmed; Ct of App affirmed: judgment not final. 1941-1966: 3 times Pet moved for reinstatement; App Div denied. Apr 17, 1967: USSC (7-2) denied petition for cert. Black, J, (Douglas, J), diss: (1) clear deprivation of due process to continue disbarment after conviction reversed; (2) denial of equal protection to say Ct of App without jurisdiction to hear appeal because no final judgment for 25 yrs.

Philip J Ryan, Esq, 660 Madison Ave, NYC 10021.

361.2. Powell v Comm on Admission and Grievances (USSC, #1258) (86 US 10 5) DC atty filed complaint with US Atty Genl seeking criminal prosecution of fed'l judges who decided case in which atty had personal interest. Jan 12, 1967: CA DC held charges false, atty's conduct warranted disbarment. Apr 11: petition for cert filed: does First Amdt (free speech) and Fifth Amdt (due process) prevent disbarment. May 8: cert denied.

Diana K Powell, Esq, pro se, 1500 Massachusetts Ave NW, Washington, DC.

361.3. Swanson v Florida Bar (USSC, #592) Pl atty sued to enjoin Fla disciplinary proceedings against him for violation of its "Integration Rule." DC dismissed. Je 13, 1967: CA 5 affirmed. Sept 8: Petition for cert filed: Was Def afforded due process in discipline proceedings under committee of lawyers who acted as investigator, judge, and jury? Pending.

Will O Murrell, Esq, 846 N Highland, Orlando, Fla.

361.4. In re Grimes (USSC, #833) (364 F2d 654, cd 385 US 1035) Atty accused several judges of dishonesty; some were afterwards exonerated of receiving bribes, others were in fact corrupt. State disbarred Atty. CA 10 disbarred Atty. Dec 5, 1966: Petition for cert filed. Jan 23, 1967: USSC denied cert.

Harvey L Davis, Esq, 3605 Rosedale, Harlan Grimes, both of Dallas.

362. In Selective Service Proceedings (and 120s)
Article: Ann Fagan Ginger, Minimum standards of due process in selective service cases, 19 Hastings 1313-48.

Comment: Fairness and due process under Selective Service System. 114 Pennsylvania 1014-49.

362.2. Wood v US (USSC, #27 Misc) Def-CO charged with refusing to report for civilian work; filed pauper's affidavit seeking assigned counsel under 18 USC §3006A; DC questioned Pet; denied; Pet convicted. CA 5 granted in forma pauperis appeal, assigned counsel, affirmed. In USSC, Sol Genl conceded DC should have queried whether Def needed part-pd counsel (18 USC §3006(A)(c), (f)), said Def not prejudiced by no counsel. Oct 16, 1967: USSC granted pauperis and cert petitions, vacated and remanded to CA for reconsideration. Black, J, diss; Marshall, J, took no part.
362.3. US v Matuzek (ND Ill, #66-CR-9) Def refused to submit to induction; arrested. Parties stipulated SSS file correct, Def showed irregularities (no address on form SSS 100, rubber stamped signature on order to report for physical, notice to report for induction unsigned). DC found Def guilty; 6 mths probation; DC suggested Def unsuitable for military, should consider psychotherapy.

Leonard Karlin, Esq, 173 W Madison St, Chicago 60602.

- 98 -

365. Speedy and Public Trial (and 390s)
Article: Paul M Schindler, Interjurisdictional conflict and right to speedy trial. 35 Cincinnati 179-93.

Notes: Exclusion of public violates Def's right to public trial: Minnesota v Schmit (139 NW2d 800, 1966). 8 Arizona 160-63.

19-month delay between arrest and narcotics indictment with intervening faulty indictment for related nonincluded offense does not deny speedy trial or subject Defs to double jeopardy: US v Ewell (86 Sup Ct 773, 1966). 54 Georgetown 1428-33.

Speech: Joseph D Tydings, S 1033 Natl Court Assistance Act. Cong Rec—Sen. Aug 17, 1967, S 11781.

Testimony: G Joseph Tauro, before Sen Subcomm on Improvement in Judicial Machinery, supporting Natl Court Assistance Act. Cong Rec—House, Aug 7, 1967, H 10032.

365.12. Klopfer v North Carolina (USSC) (145 SE2d 909, rev'd 386 US 213) Jan 3, 1964: Def-Prof sought to integrate restaurant, asked to leave, refused. Feb 24: Def indicted: criminal trespass. Mar: trial; hung jury. Apr 1965: DA planned to move for nolle prosequi with leave. Def opposed motion: charge abated by 1964 Civil Rights Act (Hamm v Rock Hill, at 58.SC.4, 379 US 306). DA instead moved for one term continuance, granted. Aug 9, 1965: On Def's motion, Ct considered status of case, granted DA's motion for nolle prosequi with leave. NC Sup Ct affirmed. Mar 13, 1967: USSC reversed (9-0), Warren, CJ: right to speedy trial is one of most basic rights preserved by fed'l Constitution; this Sixth Amdt right is incorporated in 14th Amdt as to states. Stewart, J, Harlan, J, conc in result.

Wade H Penny, Jr, Esq, 111 Corcoran, Durham, NC.

Casenotes: 19 Syracuse 138-40; 46 N Carolina 387-92; 77 Yale 767-88; 34 Brooklyn 316-23; 19 S Carolina 470-4.

365.13. Palmer v Boies (USSC, #11356) (407 P2d 64) Pet incarcerated in fedl prison (Leavenworth), then in Arizona state prison. Oct 1965: Pet sought trial in Arizona pending robbery charges. Ariz Sup Ct denied habeas petition. Mar 3, 1966: Pet filed for cert. Issues: (1) is Sixth Amdt right to speedy trial applicable to states via 14th Amdt? (2) is Def entitled to counsel in collateral proceeding, eg, writ of habeas corpus and prosequendum? Oct 10: USSC denied cert. Out on bond, Def went to Washington where arrested and convicted on charge of robbery. Arizona has not attempted to extradite.

Robert J Corcoran, Jay Dushoff, Esqs, 1518 Arizona Title Building, Phoenix, Ariz 85003.

365.15. Re Petition of Green (Lake Charles) (WD La) 1964: Pet-Negro arrested: rape of Caucasian woman. No trial. 1966: Pet filed habeas petition: any trial at this date would deprive accused of right to speedy trial. Pending.

Richard B Sobol, Esq, LCDC, 2209 Dryades St, New Orleans, La 70113.

365.16. Arizona v Foulk (DC Ariz) While Pet serving 14-20 yr sentence, new felony charges filed against Pet. DA said Pet to be tried on expiration of current sentence. May 16, 1966: Pet sues to restrain prosecution because denied right to speedy trial. Jy-Aug: DC granted permanent injunction restraining prosecution, citing Ariz Sup Ct case holding that right to speedy trial begins with arraignment.

Thomas A McGuire, Jr, Esq, 1000 Central Tower, Phoenix, Ariz.

365.17. Johnson v Gillis (Mich Ct of App) Sept 26, 1966: Pets, clergymen, occupied and repaired house owned by Detroit Housing Commn slated for Urban Renewal demolition, installed Pet Johnson and her 6 children. Police Commr asked Housing Commn if they wished to complain; Housing Commn declined. Sept 30: Housing Commn asked police to remove Pets. Pets arrested: illegal entry, refusal to leave. Jury trial: 1st charge dropped. Pets moved to dismiss and directed verdict claiming civil eviction, not criminal trespass, appropriate remedy where Pets in peaceable possession with acquiesence of owner. Denied; jury verdict guilty. Jan 26, 1967: Judge adjourned sentencing for 11 mths (MSA 28.1131). Jan 31: Pets sought writ of superintending control: Sentence adjournment (1) denial of speedy trial, (2) denial of due process because vague, has chilling effect on First Amdt rights, (3) denial of equal protection by postponing right to appeal, (4) improperly used as punishment. Pending.

Ernest Goodman, Esq, 3200 Cadillac Tower, and Feliciano Colista, Esq, 1763 Guardian Bldg, Detroit 48226.

370. Right to Counsel/Access to Courts
Form: Prayer for admission of non-resident attorneys. CIVIL RIGHTS HANDBOOK pp 30a-30b.

Article: Ruth Roemer, Right to Counsel. CIVIL RIGHTS HANDBOOK pp 57-67.

Brief: Cook v Cheese Co (DC Vermont, Civ 421)—argues for reasonable attorney's fees in suit brought under Fair Labor Standards Act, §166. In Meiklejohn Civil Liberties Library.

Comment: Amicus curiae participation. 55 Kentucky 864-73.

371. In Federal Cases (and 353)
Articles: Ben C Duniway, The poor man in fed'l courts. 18 Stanford 1270-87.

Tom C Clark, Counsel for indigent defendant. 41 St John's 1-5.

Comments: Fifth Amdt right to counsel in fed'l income tax investigations. 19 Stanford 1014-35.

Note: Right to counsel in preliminary hearings: Sigler v Bird (354 F2d 694, CA 8 1966). 32 Missouri 305-9.

Debate: HR 5037 Law Enforcement and criminal justice assistance act of 1967. Cong Rec—House. Aug 2, H 9785; Aug 3, 1967, H 9888.

371.7. Pate v Wilson (CA 9; Nev Sup Ct) (348 F2d 900) Oct 15, 1964: Def broke out of Nevada Mental Hospital; allegedly kidnapped and robbed man; arrested in Calif by Calif police; spent 3 wks in Calif jail where he had series of psychiatric breakdowns; returned to Nevada; charge: first degree kidnapping. Def's sister tried to retain counsel, but none appeared for preliminary examination. Trial judge denied request for continuance, refused to appoint counsel. Prior to trial, Def subjected to shock treatments, sleep-inducing drugs, strapped in bed by ankles and wrists. Night before trial, ct-appointed attorney convinced Def to change plea to guilty. Judge who held Def mentally incompetent 13 days before did not inquire into Def's mental condition; convicted: life. Petition for habeas corpus denied. Issues on appeal: (1) whether state prisoner in custodial care of
- 99 -

another state must exhaust remedies in cts of sending state before seeking fed'l habeas corpus; (2) right to counsel at preliminary h'g in state prosecutions. CA 9 affirmed denial for failure to exhaust state remedies. Dec 21, 1966: Nevada Sup Ct granted habeas petition: acceptance of guilty plea by judge who had previously committed Def to mental hospital clear violation of due process; did not decide whether Def entitled to counsel at preliminary examination or whether ct-appointed counsel at time he pleaded guilty incompetent for allowing him to do so.

Marshall Krause, Esq, ACLU, 503 Market St, and Arthur Brunwasser, Esq, 1255 Post St, both of San Francisco.

371.11. Re Frankel (NJ Sup Ct, Crim Div) Mar 23, 1965: Defatty summoned to represent indigent Def without fee; wrote ct expressing unwillingness to serve on rotating basis without pay: served with contempt show cause order. Apr 21: Def removed to DC, answer alleges: denial of indigent's right to counsel by compelling indigent to accept counsel not of own choosing, deprives atty of property without due process of law, violates fed'l civil rights acts, abridges Fourth, Fifth, Sixth, 13th, 14th Amdts. DC granted motion to remand. Jy 20, 1966: CA 3 affirmed DC order granting motion to remand. Mar 7: NJ Sup Ct decided Rush, Couch, 372.58: counsel assigned to defend indigents entitled to compensation from county or state. Contempt citation dismissed.

Solomon Golat, Esq, 786 Broad St, Newark.

371.14. Nowakowski v Maroney (USSC) (386 US 542) Convicted Def sought habeas from DC, alleging denial of counsel through ineffectiveness of appointed counsel. DC appointed counsel; after h'g, denied petition; issued certificate of probable cause (28 USC §2253). Counsel withdrew. Def petitioned CA to appeal in forma pauperis, on written briefs, for appointment of counsel. CA 3 denied. Apr 10, 1967: USSC per curiam, vac & rem, held CA must grant appeal in forma pauperis "and proceed to a disposition of the appeal in accord with its ordinary procedure" when DC granted certificate of probable cause.

Daniel J O'Hern, Esq, 195 Broad St, Red Bank, NJ.

371.15. US v Arellanes (CA 9) (238 FSupp 546, 353 F2d 270, 385 US 870) Def arrested: narcotics. Prior to trial, Def's lawyer allegedly attempted to bribe narcotics agent; Def refused to name narcotics supplier. Def dismissed attorney; sought delayed trial date to get new lawyer. DC refused continuance, tried without counsel, convicted. Def argued sufficient criminal laws and procedures exist to protect ct from deception without denying Def right to counsel. CA affirmed: "clean hands" doctrine justified denial of right to counsel, since Def had attempted to deceive ct. USSC denied cert.

Anthony G Amsterdam, Esq, U of Pa Law School, 3400 Chestnut St, Philadelphia; Marshall Krause, Esq, ACLU, 503 Market St, San Francisco, as amici curie.

And see Viscardi, 354.15.

372. In State Cases (and 353)
Proposed Legislation: Amdt 956 to HR 14644 grants to law schools for training in conduct of indigent criminal cases. Cong Rec—Sen. Oct 10, 1966, S 24882.

And see Smith v Nelson, 452.13.

Articles: Abraham S Blumberg, Covert contingencies in right to assistance of counsel. 20 Vanderbilt 581-605.

Ronald I Meshbesher, Right to counsel before grand jury. 1 Suffolk 23-42.

Comments: Right to counsel for misdemeanants in state courts. 20 Arkansas 156-64.

Representation of indigents in criminal cases: guidelines for Louisiana. 27 Louisiana 592-606.

Pennsylvania Public Defender Act of 1967. 28 Pittsburgh 686-97.

Right to counsel during police identification procedures. 45 Texas 504-25.

Waiver of right to counsel: Meeks v Arkansas (396 SW2d 306, 1965). 20 Arkansas 182.

Right to effective assistance of counsel: Wedding v Kentucky (394 SW2d 105, Ky 1965). 54 Kentucky 802-5.

Appointment of counsel for indigents: Atty to serve or be held in contempt: Weiner v Fulton Co (148 SE2d 143, Ga 1966). 18 Mercer 477-80.

Critical stage test in non-confession cases: Tacoma v Heater (409 P2d 867, Wash 1966). 41 Washington 607-15.

372.33. New York v Baker (NY Ct of App) 1964: Defs—6 Negro youths—arrested: murder of white Harlem shopkeeper and attempted murder of her husband. In NY indigent Def is entitled to counsel, who is paid designated fee and given daily free copy of the transcript. Four Defs requested particular counsel be appointed; Sup Ct denied to appoint counsel of Defs' choice, appointed others instead; dismissed petition for writ raising this issue. Jan 1965: Sup Ct granted DA's motion for blue ribbon jury. Hearing held on voluntariness of confession: decision awaited. Appeal pending in App Div of denial of habeas based on right of indigent to choose counsel. Jury trial: Defs convicted of first degree murder: awaiting sentence. Life sentences given. Appeal argues: (1) prejudice by inflammatory newspaper coverage; (2) Defs denied counsel of choice at trial, forced to take ct appointed counsel; (3) insufficient evidence. Je 23, 1967: Sup Ct App Div reversed re Baker: statement by Def, though voluntary, was made in ignorance of rights and against wishes of Def's atty; convictions of other five affirmed. Pending.

Mary M Kaufman, Esq, 30 E 42d St; Conrad Lynn, Esq, 401 Broadway; William Kunstler, Esq, 511 Fifth Ave, Jean Ann Condon, Esq, 233 Broadway, all of NYC.

372.46. Bowie v Wilson (ND Calif, S Div, #43441) Def arrested: assault with deadly weapon, intent to kill; police elicited incriminating statements. Def appeared pro se at trial; not advised of right to counsel or to remain silent, no waiver; incriminating statements of Def admitted in evidence. Trial ct did not inquire into Def's understanding of charge, elements of offense, pleas, defenses, or punishment. Case submitted on transcript of preliminary h'g, read into trial record without stipulation of Def, without attempting to obtain witnesses at trial, or allowing Def to confront or cross-examine. Mar 25, 1965: habeas filed, DC issued show cause order. Jan 18, 1966: denied. Feb 15, 1967: CA 9 vacated DC denial; held petition in abeyance pending state ct determination re (1) Sixth Amdt right to cross-examine witnesses, (2) whether incriminating statements voluntary, (3) whether Def informed of right not to testify and right to counsel, (4) whether Def intelligently waived counsel. Mar 17: habeas filed with Cal Sup
- 100 -

Ct. Je 21: Denied. Motion to restore to calendar of CA 9 granted; case returned to DC. Nov 16: DC granted petition; Def denied right to cross-examine, was not warned of right not to testify, did not intelligently waive counsel.

Doris Brin Walker, Esq, 1440 Broadway, Ralph Johansen, Esq, 1815 Telegraph, both of Oakland.

372.54. Ex rel Rogers v Stanley (formerly v Parkland State Hospital) (Rockland Co Sup Ct) (270 NYS2d 573) 1954: Rel allegedly struck mother; adjudged insane and committed on certification of hospital psychiatrists. 1962: At habeas h'g, staff doctors testified Rel dangerous to self and others; Sup Ct denied habeas. 1965: Rel appealed: lack of counsel at commitment and habeas h'gs seriously prejudiced him; indigent's right to counsel extends to confined mentally ill; state should provide independent psychiatric evaluation. Ct of App appointed counsel for appeal. May 5, 1966: Ct of App reversed: "an indigent mental patient, who is committed to an institution, is entitled, in a habeas corpus proceeding (brought to establish his sanity), to the assignment of counsel as a matter of constitutional right"; remanded to Sup Ct. Case moot as Rel has been advised he can leave hospital at any time.

Herbert Monte Levy, Esq, 18 E 41st St, NYC.

372.59. New Jersey v Loray (NJ Sup Ct) (215 A2d 539) 1962: 16-yr-old Def appeared before Juvenile Ct without counsel; Ct determined Def should be tried as adult for murder. 1963: convicted; life sentence. NJ Sup Ct affirmed. 1964: Super Ct vacated: failure of Juv Ct to advise Def of right to counsel, availability of free counsel if indigent. Dec 20, 1965: NJ Sup Ct modified remand order, eliminated portion vacating conviction: (1) even if some denial of due process by failure at referral hearing to advise of right to counsel, setting aside conviction, as distinct from limited remand, is not required for due process; (2) failure to inform juvenile at referral hearing of right to advance relevant facts apart from issue of guilt and to give him opportunity to do so renders hearing defective; remanded for h'g with conviction held in abeyance pending determination of preliminary constitutional issue. Juv Ct refused testimony as to boy's character as evidenced by contact with boy subsequent to conviction although 5 yrs had passed since date of arrest. Super Ct denied petition for trial as juvenile despite uncontradicted testimony Def had asked to see parents but was told he could not until he had signed statement. NJ Sup Ct denied h'g.

Arthur R Schmauder, Esq, 570 Broad St, Newark.

372.69. Gilmore v California (ND Cal, #45878, CA 9, #22052, #22052A-G) Sept 19, 1966: Def issued new regulations limiting number of lawbooks in each prison to 11 books, penal codes, court rules, and subscription to Calif Weekly (Law) Digest. Oct 27: Pls-prisoners sought injunction against implementation of regulations: removing lawbooks previously available deprives them of due process under Fifth and 14th Amdts, and of First Amdt rights. DC granted temporary restraining order, denied motion for 3-judge ct. Interlocutory appeal from denial pending.

John Wahl, Esq, 1255 Post St, San Francisco.

Amicus: Marshall Krause, Esq, ACLU, 503 Market St, San Francisco.

372.69a. Van Geldern v Lynch (ND Cal, ##45878, 46297-9, 47015, 45749, 46495, 47111) Same facts as Gilmore, 372.69. Temporary restraining order granted. Case removed from calendar pending interlocutory appeal in Gilmore.

John E Wahl, Esq, 1255 Post St, San Francisco.

372.71. Arizona v Martin (Flagstaff) (Ariz Sup Ct) (426 P2d 639) Def arrested: first degree murder. May 29, 1964: convicted: death penalty. On appeal, Sup Ct requested ACLU to submit amicus brief: number of constitutional issues not raised by Def's ct-appointed atty. Apr 14, 1967: Ariz Sup Ct reversed: (1) while Def has right to counsel, he also has right to defend himself; (2) there was an intelligent waiver of right to counsel; (3) Ct has to recognize Def's right to testify even though Def's ct appointed counsel does not want Def to take the stand; however, but no error in having Def bound and gagged during trial to preserve order and dignity.

Daniel J Stoops, Esq, P O Box 550, Flagstaff 86001; Robert J Corcoran, 1518 Ariz Title Bldg, Phoenix 85003.

Amicus brief by Ariz CLU.

372.72. Du Puis v Maxwell (Washington Sup Ct) Def-Indian arrested: carnal knowledge of 8-yr old daughter; convicted without counsel; life imprisonment. Petition for writ of habeas corpus: Def never told nature of charge against him, made equivocal pleas of guilty, made unintelligent waiver of counsel. Pending.

Michael H Rosen, Esq, ACLU, 2101 Smith Tower, Seattle, Wash.

372.74. Holman v Washington (Lipscomb) (CA 5) Jy 12, 1967: Def allegedly shot, killed policeman. Def confessed to police without being advised of right to counsel. Jy 6, 1965: MD Ala granted writ of habeas corpus; warden appealed. Aug 8, 1966: CA affirmed: while Escobedo and Miranda not directly applicable, since Def's case much preceded the decisions, Def may employ decisions as guidelines to indicate involuntariness of confession.

Erskine Smith, Orzell Billingsley, Jr, Esqs, 1630 Masonic Temple Bldg, 1630 4th Ave N, Birmingham.

372.75. Arkansas v Rhodes, Drenan (Ark Sup Ct) State prosecuted Negro man, white woman for immorality. Ark convicted Defs without aid of counsel under state practice of not granting assistance in misdemeanor cases.

John Walker, Esq, 1304 B Wright Ave, Little Rock; Michael Meltsner, NAACP Inc Fund.

372.76. Webb v Arkansas (Ark Sup Ct) Def arrested, charged with misdemeanor. Def-indigent alleges he has right to counsel even though misdemeanor since conviction subjects him to parole revocation. Pending.

John Walker, Esq, 1304 B Wright Ave, Little Rock; Michael Meltsner, NAACP Inc Fund.

372.77. Sawyer v District of Columbia (Muni Ct App DC, #4230 Jan Term 1967) Def-indigent arrested: jaywalking (maximum sentence 10 days). Not informed of right to counsel or assigned counsel; convicted: 60 days because unable to pay &150 fine (DC Traffic and Motor Vehicle Reg 51, 158, DC Code 16-706). Appeal pending: statute imposing supplemental punishment on him because of inability to pay fine denies equal protection; any alternative fine or jail imposed on indigent is of questionable constitutional validity; denial of right to counsel.

- 101 -

James F Fitzpatrick, Esq, 1229 19th St NW, 20036; Glenn A Mitchell, Esq, 1200 18th St NW, 20036; Robert H Knapp, all of Washington, DC.

Ralph J Temple, Esq, for amicus, Nat'l Capital Area CLU, 1424 16th St NW, Suite 501, Washington, DC 20036.

372.78. Manor v Georgia (Ga Sup Ct) Negro arrested, convicted: murder; death. Indigent Def alleges denial of state paid investigator to prepare his defense. Pending.

E H Gadsden, Esq, 458½ W Broad St, Savannah, Ga 31401; Michael Meltsner, NAACP Inc Fund.

372.79. Kinnett v Kentucky (KY Ct of App) Def convicted of robbery. Def appealed: trial judge allegedly deaf, ct-appointed atty allegedly prejudiced against Def. Pending.

Wallis H Manske, Esq, ACLU, 520 Marion E Taylor Bldg, 312 S 4th St, Louisville, Ky.

372.80. Dawson, Martin v Hester (WD La) Pets, indigent Defs, convicted; unable to pay fines, jailed. Pets sought habeas corpus: denial of equal protection to jail those too poor to pay fine. Pending.

Lawyers Constitutional Defense Comm, 2209 Dryades St, New Orleans 70113.

372.81. New York v Wright (NYC Crim Ct) Def arrested, confessed to rape; charged with murdering 2 women after raping them. Police did not inform Def of right to have lawyer. Jan 20, 1967: Crim Ct dismissed 2 murder charges under USSC decisions on right to counsel.
372.82. New York v Bunche (NYC Sup Ct) Jan 1966: 2 men arrested, confessed to holdup of store but not murder of owner. Convicted; served 1 yr. Jan 1967: Sup Ct held police did not tell Defs of right to counsel; under recent USSC decisions confessions not admissible as evidence unless right to counsel mentioned beforehand; dismissed indictments.
372.83. New York ex rel Williams v LaVallee (NY Ct of App) (19 NY2d 238, 267 NYS2d 325, 225 NE2d 735) Petindigent requested counsel be appointed to represent him in habeas corpus proceeding. With no appointed counsel, Co Ct dismissed writ; Sup Ct, App Div affirmed. Mar 2, 1967: Ct of App reversed: criminal Def seeking habeas corpus relief should not have been deprived of counsel on formalistic distinction that proceeding was civil in nature rather than criminal.
372.84. Mayberry v Weinrott (ED Pa, #40362) (255 FSupp 80) Pl, Def in state ct criminal action, alleges Def-state ct judge was forcing lawyer on Pl when he did not want one, Def had previously sentenced Pl on other charges, and sarcastic remarks had passed between Pl and Def. Je 2, 1966: DC held it had jurisdiction to enjoin state proceedings but no violation of fundamental constitutional rights or such denial of due process as to make fair trial impossible so no need to authorize issuance of process against Def; complaint dismissed.

Richard J Mayberry, in pro per.

372.85. Hackin v Arizona (USSC) (427 P2d 910, app dism'd 88 SCt 325) Pet graduated from unaccredited law school, refused admission to Ariz bar. Pet tried to secure ct-appointed counsel for indigent prisoner held for extradition; Ariz law provides no right to counsel in habeas proceedings that are part of extradition process. Pet represented prisoner, charged: practicing law without license; convicted. Nov 13, 1967: USSC dismissed appeal. Douglas, J, diss: (1) Ariz reads Gideon, 372.19, 372 US 335, narrowly to apply to "judicial," not "ministerial" proceedings; this may prevent developing rule fully; (2) substantial question USSC should answer is whether state "under guise of protecting its citizens from legal quacks and charlatans, can make criminals of those who, in good faith and for no personal profit, assist the indigent to assert their constitutional rights"; (3) First and 14th Amdt rights are meaningless to indigent and ignorant citizens without unpaid attys to represent them; (4) line between work of lawyer and layman not clear, especially re helping the poor: broadly drawn statutes prohibiting unauthorized practice could be applied to social workers; (5) "for the majority of indigents, who are not so fortunate to be served by neighborhood legal offices, lay assistance may be the only hope for achieving equal justice at this time"; (6) "Since the very nature of the inequity suffered by the poor precludes them from asserting their rights to legal assistance in ct, why should the layman who steps up to speak for them not be held to be asserting their constitutional rights."

H Samuel Hackin, pro se, Laveen, Ariz.

Book: Thomas I Emerson, David Haber, Norman Dorsen, Discrimination in the judicial process, "Political and Civil Rights in the United States," (3d ed) pp 1819-1824. Little, Brown (1967).

372.86. DeJoseph v Connecticut (USSC) (VI App Div 22 (1966); XXVIII #1 Conn L.J. 8 (Jy 5, 1965)) May 28, 1965: Def arraigned under Conn Stats §53-304 (non-support). Def asked Ct to appoint counsel; denied: "I can't . . . this is a misdemeanor." Je 10: Trial. Def again asked appointment of counsel; denied; convicted: 6 mths. Je 23: Def, with Legal Aid, appealed. App Div, Cir Ct affirmed. Je 27, 1966: Conn Sup Ct denied petition to review. Oct 1966: Petition for cert filed. Pending.

William D Graham, Howard H Orenstein, Esqs, 550 Main St, Hartford.

373. Restrictions on Attorneys (see 265, 345)
Comment: Retaining out-of-state counsel: Evolution of fed'l right. 67 Columbia 731-751.

Notes: Practice of law by out-of-state attorneys, 20 Vanderbilt 1276 (1957); 19 Stanford 856-69.

Statement: Philadelphia Natl Lawyers Guild opposing rule change requiring inclusion of name of referring person in contingent fee contracts. 1412 Fox Building, Philadelphia. Mar, 1967.

373.20. District of Columbia v Kinoy (Ct of Genl Sessions DC) Aug 17, 1966: Def, attorney for witness Krebs, 271.52, subpoenaed by HUAC, vigorously argued his right to cross-examine HUAC witness testifying about his client. HUAC chairman ordered Def to "sit down." Diminutive Def seized by 3 US marshals; forcibly ejected from h'g room, arrested: disorderly conduct (DC Code §22-1107). Issues: failure of proofs to include essential element of offense (congregation and assembly in public building, loud, boisterous talking or disorderly conduct); right of atty to represent his client, under Sixth Amdt; use of disorderly conduct statute to regulate atty's conduct before Congressional committee beyond ct's jurisdiction since it interferes with power of HUAC to regulate its own proceedings; prosecution
- 102 -

void for failure to comply with HUAC's rules. Appeal pending.

A G Amsterdam, Esq, 3400 Chestnut St, Philadelphia, 19104; George Cooper, 435 W 116th St, New York; Robert Drinan, SJ, Boston College Law School, Brighton, Mass; Walter Gellhorn, 435 W 116th St, NYC; Willard Heckel, 180 Plane St, Newark, 07102; Robert Knowlton, 180 Plane St, Newark, 07102; Louis Lusky, 435 W 116th St, New York; Philip Hirschkop, 1025 Vermont Ave NW, Washington; Beverly Axelrod, 345 Franklin St, San Francisco; Frank Donner, 36 W 44th St, Ira Gollobin, 1441 Broadway, Jeremiah Gutman, 363 7th Ave, William Kunstler, 511 Fifth Ave, John Pemberton, Jr, 156 Fifth Ave, all of NYC; Morton Stavis, 744 Broad St, Newark, 07192; Albert Rosenthal, 435 W 116th St, New York; Thomas Sullivan, Esqs, 135 S La Salle St, Chicago, 60603.

And see Krebs, 271.52.

And see Lenske, 30.20.

373.21. Cowen v Calabrese (Calif Dist Ct of App) (41 Cal Rptr 441) Pl-atty licensed to practice law in several states but not Calif rendered legal services in state but was given no compensation. Pl sued to recover compensation. Trial ct held for Pl. Defs appealed. Dist Ct of App affirmed, held Pl, tho not licensed in Calif, was not improperly practicing law there by giving legal advice as to 1 case pending in fed'l bankruptcy ct; not precluded from recovering compensation for such services.
373.22. Lawyers Constitutional Defense Committee v Alabama (Mobile) (SD Ala) Ala law requires that only state licensed lawyers practice in cts. LCDC filed suit contending Negroes, civil rights workers cannot get fair legal representation from members of Ala bar. Mar 1967: Parties settled suit by filing agreements in DC.
373.23. Sobel v Perez (ED La) Def-State prosecuted Pl out-of-state lawyer (staff counsel, LCDC) for "unauthorized practice of law." Pl sought injunction against prosecution, declaratory judgment of unconstitutionality before 3-judge ct. US intervened as Pl, Louisiana intervened as Def. Jy 1968: H'g pending.

Lawyers Constitutional Defense Comm, 2209 Dryades St, New Orleans 70113.

Amici: Arnold & Porter, for 30 firms; NAACP Legal Defense & Educational Fund, Lawyers' Comm for Civil Rights Under Law.

373.24. Price v Bronstein, WJDX (Jackson) (Co Ct) June 21, 1967: Chief staff counsel of LCDC spoke on radio program accusing Neshoba Co deputy Sheriff Price of participating in murders of 3 civil rights workers. Aug 23: Pl filed suit for slander asking for &200,000, alleging that before speech he enjoyed a "priceless, untarnished, unblemished and unassailable reputation." Pending.
373.25. Reavis v Hall (CA 5) Pet's LCDC atty arrested in Alabama; unauthorized practice of law. Pet convicted. Pet sought habeas. Pending.

Lawyers Constitutional Defense Comm, 1015 Griffin St, Selma 36701.

373.26. Alabama v Jelinek (Selma) (SD Ala) Nov 16, 1966: Def-LCDC atty called to witness stand to testify in obstructing-justice case against white civil rights worker. Afterward, arrested, jailed: practicing law without license. Motion to remove to DC filed. Def sued in DC for injunction to stop prosecution: Def's clients so unpopular that without Def's aid their Sixth Amdt right to counsel would be denied.

Jan 1967: LCDC announced Def no longer in charge of office; charges dismissed.

Alvin Bronstein, LCDC, 60 N Farish St, Jackson, 39202.

373.27. Re Rowe (Oxford) (ND Miss) Jan, 1967: Resp-white civil rights atty, member Mississippi bar, charged with contempt of state ct: Resp inquired into arrest of SCLC member in courthouse corridor. Resp appealed to DC to halt contempt trial: impossible to get fair trial in state ct. Pending.

William Keady, Esq, Keady Bldg, Greenville, Miss.

373.28. Dacey v Grievance Comm of Bar of Fairfield Co (USSC) (222 A2d 339, 386 US 683, 387 US 938) Def enjoined from arranging and supervising execution of wills, trusts, and similar documents and "advising and counselling any person concerning said documents, the effects thereof, and the laws applicable thereto." Conn Sup Ct affirmed. Feb 9, 1967: Appeal filed: (1) Is Conn statute prohibiting unauthorized practice of law void for vagueness? (2) Was injunction so broad and void as to violate free speech? Apr 17: USSC dismissed appeal for want of a substantial federal question.

George A Saden, Esq, 955 Main St, Bridgeport, Conn.

See also Dacey v NY Co Lawyers Assn, 42.28.

374. Opportunity for Appellate Review
Comments: Adequate appellate review for indigents: adequate transcript and effective counsel. 52 Iowa 902-29.

Absolute right to counsel on appeal and retroactivity in Missouri. 32 Missouri 230-42.

Notes: Indigent appeals: standards for assigned counsel: Tate v US (359 F2d 245, 1966). 16 American U 321-27.

Right to counsel on appeal: Cruz v Patterson (253 FSupp 805, D Colo 1966). 38 Colorado 630-33.

And see Munkelwitz, 426.11.

374.38. Kitchens v Alderman and Lee (MD Ga, #CA774) (376 F2d 262) Def convicted: failure to leave property (26 GCA §3005). Ga Sup Ct affirmed. Jy 7, 1966: Def sued for habeas corpus: jury discrimination; applied for leave to proceed in forma pauperis with supporting affidavit (28 USC §1915). DC denied leave. 1967: CA 5 reversed: (1) denial of leave to file in forma pauperis is appealable order; (2) error to deny leave in face of uncontradicted affidavit of poverty; remanded to DC for h'g on merits. Pending.

C B King, Esq, PO 1024, Albany, Ga; Charles S Ralston, Esq, NAACP Inc Fund, Suite 2030, 10 Columbus Circle, NYC 10019.

374.39. Bryant v Lee (Ill Sup Ct, #40300) Def indigent woman arrested: battery, assault, criminal damage to property; convicted: &1100, 5 mths, Def moved for order for free transcript of trial proceedings. Cir Ct denied motion without h'g: Def not sentenced to penitentiary, therefore not entitled to transcript under Sup Ct Rule #27(9)(b). Def appealed. Dec 1, 1966: Ill Sup Ct granted Def's motion for leave to file for mandamus. Def argues §121-13(a), Ill Code of Crim Procedure gives right to free appellate transcript to anyone following imposition of any sentence in a criminal case, that due process requires an indigent Def be furnished with transcript of trial for purposes of appeal. Pending.

- 103 -

Robert E Neiman, and Stephen M Slavin, Esqs, 231 S LaSalle St, and Dick Hamilton, Esq, 208 S LaSalle, all of Chicago 60604.

374.40. Detroit v Mallory, Copeland (Detroit) (Mich Sup Ct) 1964: 2 Defs arrested for misdemeanors, while on parole from previous felony convictions. Convicted in Recorders Ct, automatically guilty of parole violation. Defs appealed. Jan 4, 1967: Mich Sup Ct (5-2) reversed lower ct, ruled 2 indigent misdemeanants entitled to appointment of counsel to appeal convictions under equal protection clause of 14th Amdt and Mich Genl Ct Rule 785.4.

Sheldon Meizlish, Esq, 100 Washington Blvd Bldg, Detroit 48226.

374.41. Anders v California (USSC) (386 US 264; §33 P2d 854, 386 US 738) Def convicted of felony possession of marijuana. Def appealed, moved for appointment of counsel; granted. After study of record, counsel concluded no merit to appeal; so informed Ct. Ct denied request for 2d atty; Def filed brief pro se. 1959: Ct of App affirmed conviction. 1965: Def filed habeas petitions in state cts, alleging DA commented on Def's failure to testify, outlawed in Griffin, 333.22, 380 US 609 (1965); denied without opinion. May 8, 1967: USSC reversed (6-3), Clark, J: (1) Ct-appointed counsel's "no merit letter" was not enough; he acted merely as amicus; (2) procedure needed to "assure penniless Defs the same rights and opportunities on appeal—as nearly as is practicable—as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel"; (3) "constitutional requirement of substantial equality and fair process" require: ct-appointed atty to play "role as advocate," supporting client's appeal to best of his ability; if atty finds case "wholly frivolous," he should advise ct, request permission to withdraw, submit brief referring to anything in record that might support appeal, give copy to Def; Def must have time to raise any issues he chooses; "Ct—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous"; if so, ct grants atty's motion to withdraw and dismisses; if not, Ct "must, prior to decision, afford the indigent the assistance of counsel to argue the appeal." Stewart, J, (Black, Harlan, JJ), diss.

Prof Ira Michael Heyman, U of California, Boalt Hall School of Law, Berkeley.

Casenote: 35 Tennessee 103-7.

374.42. Entsminger v Iowa (USSC) (137 NW2d 381, rev'd 386 US 748) Def represented at trial by ct-appointed counsel; convicted. Def asked for different ct-appointed atty for help on motion for new trial; Ct granted; denied motion. 2d atty filed notice of appeal, sought plenary review but failed to filed plenary record, believing appeal without merit. Def specifically requested use of full transcript. Sup Ct considered Def's case on modified, not plenary, transcript; affirmed. May 8, 1967: USSC (9-0) reversed, Clark, J: (1) Atty Genl concedes Def did not receive adequate appellate review; (2) when states permit appellate review, they may not foreclose indigents from access to any phase of that procedure because of poverty, including use of full printed abstract of record, briefs, oral argument. Stewart, J, (Black, Harlan, JJ), conc.

David W Belin, Esq, 300 Home Fed'l Bldg, Des Moines.

374.43. Long v District Court of Iowa, Lee County (130 NW2d 663, 1964; rev'd 385 US 192) 1963: Pet convicted of larceny: 5 yrs. Sup Ct affirmed. 1965: Pet sought habeas writ in Resp Ct; evidentiary h'd, but Pet did not have appointed counsel; writ denied. Pet asked Resp Ct for counsel, free transcript in state appeal; denied: habeas is civil proceeding. Ia Sup Ct refused to hear. Dec 5, 1967: USSC reversed (9-0), per curiam: (1) Resp concedes state cannot deny due process by interposing "any financial consideration between ... indigent prisoner ... and his exercise of ... state right to sue for his liberty," including appeal in post conviction proceeding, citing Smith (1961) 365 US 708, Lane, 374.17, (1963) 372 US 477; (2) transcript available, could easily have been furnished.

Ronald L Carlson, Esq, 713 7th Ave, Iowa City, Ia.

375. Group Legal Services/OEO Offices (and see 420s)
Book: Robert Perlman and David Jones, Neighborhood Service Centers. Gov't Printing Office. 1967.

Articles: William M Barvick, Legal services and rural poor. 15 Kansas 537-51.

William M Gibson, Rural poverty in Northeast. 15 Kansas 469-86.

Robert Haveman, Ronald Kurtz, Ruth Edelen and Paul Stephan, Midwestern rural poverty, human rights and need for legal services. 15 Kansas 513-36.

Frank G Mittelbach and James Short, Rural poverty in the West. 15 Kansas 453-67.

Sargent Shriver, Rural poverty. 15 Kansas 401-8.

Louis H Masotti and Jerome R Corsi, Legal assistance for the poor. 44 Urban Law 483-502.

Peter L Zimroth, Group legal services and the Constitution. 76 Yale 966-92.

Legal services and legal ethics. Law in Action, Sept 1967 (OEO, Washington, DC 20506).

Business Week, ABA support for OEO legal services program. Cong Rec—App. Feb 16, 1967, A 685.

Sidney E Zion, Lawyers begin drive against poverty. Cong Rec—App. Feb 7, 1967, A 514.

Wade Green, Helping the poor find justice. Cong Rec—App. Jy 12, 1967, A 3485.

Evening Star, Taxpayer's OEO funds defend rioters. Cong Rec—App. Je 22, 1967, A 3189.

Indianapolis News, Poor get help from legal group. Cong Rec—App. Jy 24, 1967, A 3705.

NY Times, Wealthy Negroes form new group for legal rights. Cong Rec—Sen. Mar 20, 1967, S 4041.

Christian Science Monitor, Defs without funds and their right to counsel. Cong Rec—Sen. Je 19, 1967, S 8433.

James C Millstone, Legal Aid for poor. Cong Rec—House. Apr 11, 1967, H 3945.

Al J Cone, Independence of legal profession. Cong Rec—Appendix. Je 12, 1967, A 2950.

Oakland Tribune, Legal Aid Society helps the poor and ignorant. Cong Rec—Appendix. Je 8, 1967, A 2896.

Dallas Legal Services Project. Cong Rec—Appendix. Aug 4, 1967, A 3967.

Comments: Implementing justice: Nat'l defender project. 1 Valparaiso 320-38.

- 104 -

Legal services for prison inmates. 1967 Wisconsin 514-31.

Proposed Legislation: S 1805 amends Higher Education Act of 1967 authorizing assistance to law school training programs in conduct of criminal defense of the indigent. Cong Rec—Sen. May 17, 1967, S 6984.

S 2322 establishes Natl Civil Justice Commn to examine legal representation of poor. Cong Rec—Sen. Aug 21, 1967, S 11919.

Speeches: James C Corman, San Fernando Valley Neighborhood Legal Services, Inc. Cong Rec—House. Mar 15, 1967, H 2779.

James C Gardner, OEO political involvement in Durham, NC, municipal elections. Cong Rec—House. Je 22, 1967, H 7856; Je 27, 1967, H 8104.

Earl Johnson, James B Parsons, Challenge: shouldn't you consider spending some of your legal career in Legal Aid? Jan 1967 Student Lawyer 7.

Edward M Kennedy, OEO legal services program. Cong Rec—Sen. May 10, 1967, S 6641.

Annual Report: Lawyer's Comm for Civil Rights under Law, Suite 1035, Universal Building North, 1875 Connecticut Ave NW, Washington DC 20009. 1966.

Statement: Lawyers Comm for Support of OEO Legal Services, opposing proposed amdts prohibiting OEO participation in suits against gov't agencies, giving local bar assns veto power over legal services funding. 333 Montgomery St, San Francisco. Oct 30, 1967.

Reports: Availability of Legal Services, ABA Special Comm, CEB Legal Services Gazette Vol I, No 10. August 1967.

Dwight M Rush, Hawaii legal aid society. Cong Rec—House. Feb 27, 1967, H 1811.

375.1. United Mine Workers, District 12 v Illinois State Bar Assn (USSC) (219 NE2d 503, vac & rem 88 SCt 353) Def-Union employed atty, on salary, to represent any of Def's members who wanted him to represent them re workmen's compensation claim before Ill Industrial Commn. Pl Bar Assn sued for injunction to prevent unauthorized practice of law. Trial Ct held for Pl. Ill Sup Ct affirmed. Dec 5, 1967: USSC vacated (8-1), Black, J: (1) In many yrs of operation, "not one single instance of abuse, of harm to clients, of any actual disadvantage to the public or to the profession, resulting from the mere fact of the financial connection between the Union and the atty who represents its members"; (2) "We hold that the freedom of speech, assembly, and petition guaranteed by the First and 14th Amdts gives Pet the right to hire attorneys on a salary basis to assist its members in the assertion of their legal rights," see Button, 204.4a, 371 US 415, Trainmen, 377 US 1; (3) "The decree at issue here . . . substantially impairs the associational rights of the mine workers and is not needed to protect the State's interest in high standards of legal ethics." Stewart, J, conc. Harlan, J, diss.

Harrison Combs, Esq, 900 15th St NW, Washington, DC; Edmund Burke, 217 S 7th, Springfield, Ill; M E Boiarsky, Kanawha Valley Bldg, Charleston, W Va; Willard P Owens, Esq.

Casenote: 32 Albany 438-43.

375.2. In re Cornell Legal Aid Clinic (NY Sup Ct, App Div, 3rd Dept) (26 App Div Rep 790) Pet applied for approval of (1) organization of clinic, (2) program permitting 3rd-yr law students, members of clinic, to engage in representation of indigent persons, contrary to NY Pen Law §§270-271. Sept 16, 1966: Ct approved (1), approved (2) subject to conditions: members of clinic may make ct appearances on written authorization of indigent persons under personal supervision of atty in charge of clinic in (a) proceedings in Family Ct, except law students shall not appear as Law Guardians, (b) matters instituted in City Ct of Ithaca, (c) default matrimonial cases, contested pretrial motions, ex parte motions in Tompkins Co Sup Ct, (d) appeals in Tompkins Co Ct where ct approves; may not represent indigent persons at h'gs in post-conviction proceedings, on appeals in criminal actions and habeas proceedings or indigent mental patients at commitment and sanity h'gs.
375.3. In re Legal Aid Society of Albany (27 App Div Rep 2d 687) Pet applied for approval of program permitting 3rd-yr law students to engage in representation of indigent persons, pursuant to Pen Law §§270-271. 1966: Ct approved application subject to conditions: members of clinic may make ct appearances on written authorization of indigent persons under personal supervision of atty in charge of clinic in (a) actions instituted in City Ct of Albany, (b) actions instituted in Small Claims Ct of Albany, (c) civil actions instituted in Co Ct of Albany.
375.4. In re Community Action for Legal Services, Inc, NY Legal Assistance Corp, Harlem Assertion of Rights (NY App Div, 1st Dept) (26 AD2d 354) Pets sought approval of organization and incorporation (Pen Law §280). Nov 15, 1966: Ct rejected application, invited resubmission promptly, in final form, in succinct integrated documents: exceptions to §280 (crime for corp to practice law) for charitable corps or others obtaining approval of App Div permissible only in carefully circumscribed conditions consonant with policy of limiting practice of law to licensed professionals, for benefit of public, not for economic preservation or professional enhancement of bar; Ct should not license more than one legal assistance corp, using fed'l funds, in any one area: impossible to supervise many sets of law offices; corps must be under lawyer control, responsible to Ct for maintenance of professional standards; applications should present `guidelines' defining eligibility of potential clients, kinds of cases. Oct, 1967: App Div approved resubmitted applications: organizational levels had been cut away so that the program would be easier to supervise.
375.5. In re Community Legal Services, Inc (Philadelphia) (Ct of Comm Pleas) Resp, legal assistance organization under OEO grant, applied for charter under Non-Profit Corps Law, PL 289. H'g held to determine whether grant of charter in public interest. Opponents argued: (a) program would be controlled by fed'l govt, (b) income of substantial number of lawyers would be impaired, (c) poor would be deprived of right to choose independent counsel. Je 30, 1966: Ct of Comm Pleas, Alexander, J, in 71-page opinion, granted charter, held: (1) there is need for legal services for the poor, (2) need not presently being filled, (3) in public interest to fill need promptly, (4) speculation that OEO guidelines recognizing independence of lawyers may be changed is speculative and without substance, (5) Resp has amended articles to provide Resp will not handle cases of contingent nature which might yield recovery sufficient to interest private atty, (6) right to choose counsel meaningless to those who can't afford lawyer anyway.
- 105 -

376. Small Claimants' Problems (and see 424, 425)

376.1. County of Sutter v Superior Court (Calif Ct of App) (53 Cal Rptr 424) Indigent sued Co for personal injury. Co demanded posting of cost bond (Gov C §947); denied. Co sought mandate to compel Super Ct to require bond. Ct of App denied writ: (1) Despite mandatory language of §947, Ct has power under forma pauperis doctrine not to require bond of indigent; (2) §947 gives Gov't entities discretion to demand cost bonds when sued, but demanding bond to defeat indigent's meritorious claim would be abuse of discretion.
377. Compensation for Assigned Counsel
Notes: Compensation of assigned counsel: Illinois v Randolph (219 NE2d 337, 1966). 39 Colorado 437-40, 16 DePaul 499-504; 45 Texas 571-78.

Attorney's fees for indigent criminal Defs: Warner v Kentucky (400 SW2d 209, 1966). 55 Kentucky 707-12.

377.2. California v Giolitto (Dist Ct of App) Ct-appointed atty represented Def at trial, petitioned DCA for writ of prohibition, denied; petitioned for h'g, denied. Super Ct awarded fees for trial, denied fees for appellate work. DCA affirmed. Atty brought suit in Super Ct asserting appointed counsel entitled to fees at all stages in proceedings. Pending.

Louis Katz, Esq, 1540 6th Ave, San Diego 92101.

377.3. Weiner v Fulton County (USSC, #582) (148 SE2d 143, 385 US 958) Ct of App held: Georgia's conscription of ct-appointed atty's services for indigent criminal Def, without payment of any fee, does not constitute compensable taking. Sept 21, 1966: petition for cert filed: does atty have 14th Amdt right to reasonable compensation for ct-ordered services and expenses? Nov 21: USSC denied cert.

Beryl H Weiner, Esq, pro se, Roy J Leite, Jr, Esq, both of Standard Federal Savings Bldg, Atlanta, Ga.

380. Confrontation
381. In Criminal Cases
Note: Joint trials: confrontation issue: US v Bozza (365 F2d 206, CA 2 1966). 28 Ohio St 356-68.

Comment: Right of criminal Def to compelled testimony of witnesses. 67 Columbia 953-77.

381.12. Cameron v Texas (Ct of Crim App, #39056; DC Tex) Def indicted for theft, prosecuted under theory of theft by false pretext, having made allegedly false representations to insurance company and thereby obtained money. Ct instructed jury under state's theory; convicted. Ct of Crim App affirmed. Def filed habeas in DC. Issue: right to know specific nature and cause of charge for which one is to stand trial.
381.13. Barber v Page (USSC, #703) (238 FSupp 265, 355 F2d 171, 88 SCt 115, 245) Dec 30, 1966: CA 10 held that Def, who, with co-Def, was represented by same atty at preliminary hearing where co-Def incriminated Def but was not cross-examined by atty who was granted leave to withdraw as co-Def's atty, was not denied rights under the Sixth Amdt when at his subsequent trial a transcript of co-Def's testimony was introduced but the co-Def, being incarcerated, did not testify. Oct 9, 1967: USSC granted cert. Oct 23: USSC appointed counsel for Def.

Ira C Rothgerber, Esq, Security Life Bldg, Denver.

381.14. Jackie Washington v Texas (USSC) (400 SW2d 756, rev'd 388 US 14) 1964: Def and Fuller among group which went to house, threw bricks, someone fired gun, killed dec'd. Fuller tried for murder: convicted: 50 yrs. At Def's trial, Def sought Fuller as witness that Fuller, not Def, fired gun. Tex statutes prohibited persons charged or convicted as co-participants in same crime could not testify for one another, tho could for State. Je 12, 1967: USSC reversed (9-0) Warren, CJ: (1) Sixth Amdt applicable to states; (2) "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the Def's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law"; (3) rule against testifying "rested on the unstated premises that the right to present witnesses was subordinate to the ct's interest in preventing perjury, and that erroneous decisions were best avoided by preventing the jury from hearing any testimony that might be perjured, even if it were the only testimony available on a crucial issue"; (4) "To think that criminals will lie to save their fellows but to obtain favors from the prosecution for themselves" is erroneous. Harlan, J, conc.

Emmett Colvin, Jr, Esq, Texas Bank Bldg, Charles W Tessmer, Esq, 706 Main St, both of Dallas.

Casenotes: 34 Brooklyn 297-301; 13 New York 426-30; 46 Texas 795-800.

381.15. US v Reardon (SD NY) Def allegedly operated multimillion dollar bookmaking combine employing women on welfare. US filed suit alleging Def failed to purchase &50 fed'l gambling tax stamp. Def requested Gov't to supply informer's home address; Gov't declined. DC directed jury to bring in verdict of not guilty.
381.16. McCray v Illinois (USSC) (210 NE2d 161, aff'd 386 US 300) 1964: Informant who had been reliable many times in past allegedly told police that Def selling narcotics; police arrested Def without warrant, searched, found narcotics. At trial, Def asked for name, address of informant; DA's objections sustained; Def moved to suppress seized evidence, denied; Def convicted. Ill Sup Ct affirmed. May 8, 1967: USSC affirmed (5-4), Stewart, J: (1) probable cause existed for arrest and search; (2) Ill law permits refusal to disclose informant's name when issue is probable cause for arrest and search, not guilt or innocence; (3) fed'l ct rule does not require disclosure under these facts, so USSC won't require disclosure in state case. Douglas, J, (Warren, CJ, Brennan, Fortas, JJ), diss: Ct should follow Roviaro, 381.1, 353 US 53; "What we do today is to encourage arrests and searches without warrants. The whole momentus of criminal law administration should be in precisely the opposite direction, if the Fourth Amdt is to remain a vital force."

R Eugene Pincham, Esq, 840 E 87th St, Chicago.

Casenotes: 32 Albany 218-24; 34 Brooklyn 101-10; 1967 Duke 888-93; 42 St John 270-82.

382. In Civil Cases
- 106 -

383. In Administrative Hearings
390. Jury Trials (see also 41, 42, 356, 360, 510)
391. Nature of Jury Trial
Articles: Philip A Hart, Sam J Ervin, Jr, Selection of fed'l jurors. Cong Rec—Sen. Mar 13, 1967, S 3634.

Howard James, Crisis in Courts: Time for jury system reform? Cong Rec—Sen. Jy 11, 1967, S 9341.

Proposed legislation: S 383-387 improve judicial machinery for selection of fed'l juries. Cong Rec—Sen. Jan 17, 1967, S 340; Jy 10, 1967, S 9301.

S 989, S 1318 improve fed'l jury selection machinery. Cong Rec—Sen. Mar 16, 1967, S 3959; Feb 16, 1967, S 2028; Jy 10, 1967, S 9301.

391.10. Illinois v Capoldi (Ill Sup Ct, #38403) (225 NE2d 634) Jury in civil commitment proceeding returned directed verdict finding Def "sexually dangerous person." Sup Ct granted cert. Jan 17, 1966: Sup Ct granted ACLU leave to file amicus brief, which contends: (1) proceeding analogous to criminal trial, (2) directed verdict for state deprived Def of due process and jury trial (Ill Const, Art 2, §§2, 9; Sexually Dangerous Persons Act, Ch 38, Ill SHA Stats §105-5). Mar 29, 1967: Sup Ct held Def entitled to new h'g with ct-appointed counsel and jury trial but did not reach constitutional issues.

Amicus by Perry L Weed, Esq, for ACLU, 19 LaSalle St, Chicago.

391.11. Michigan v Jones (Mich Sup Ct) Def arrested: attempted rape, attempted murder. At trial, court charged jury with 4 possible verdicts. Jury arrived at `guilty as charged' without specification of charge. Def received maximum sentence for most serious crime—attempted murder. Def appealed: multiple charges to jury was denial of due process. Pending.

Cornelius Pitts, Esq, ACLU, 2382 First National Bldg, Detroit.

391.12. Seattle v Jackson (Wash Sup Ct) Def-Negro arrested: disturbing peace; found guilty by jury. Def appealed: Juror gave ACLU affidavit stating jury never considered guilt or innocence of Def but convicted him solely on ground he is Negro. Pending.

ACLU, 2101 Smith Tower, Seattle, Wash.

391.13. US v Jackson (Milford, Conn) (USSC) (262 FSupp 716) Sept 2, 1965: 3 men hijacked tractor trailer truck, took truck, driver to NJ; driver suffered only rope burns. 3 men arrested, violating fed'l kidnapping law; since driver hurt, death penalty possible. Jan 12, 1967: DC held law unconstitutional: restricts Def's right to trial by jury violating Sixth Amdt because only jury can recommend death penalty; Def must waive jury to protect against possible death penalty. Apr 7: Gov't filed appeal to USSC. May 29: Probable jurisdiction noted.

Prof Steven B Duke, Yale Law School, New Haven.

Notes: 12 NY Law Forum 688-96, 1 Suffolk 130-34.

391.14. Duncan v Louisiana (USSC) Pet denied jury trial for common-law crime of battery. Oct 9, 1967: USSC noted probable jurisdiction.

Lawyers Constitutional Defense Comm, 2209 Dryades St, New Orleans 70113.

391.15. Burgett v Texas (USSC) (397 SW2d 79, rev'd 389 US 109) Def charged with 5 counts: assault, 4 previous felony convictions (Tex, Tenn). At trial, 5 counts read to jury. Ct sustained objection to Tex conviction because void under Tex law; denied objections to 3 Tenn convictions; convicted. Tex Ct of Crim App affirmed. Nov 13, 1967: USSC reversed (6-3), Douglas, J: (1) certified records of Tenn convictions on their face raise presumption Pet denied right to counsel, therefore void; (2) "The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon, [372.19, 372 US 335,] is inherenty prejudicial and we are unable to say that the instructions to disregard it made the constitutional error `harmless beyond a reasonable doubt' within the meaning of Chapman, [333.26] 386 US 18. Warren, CJ, conc: Spencer v Texas, 385 US 554, must be reversed. Harlan, J, (Black, White, JJ), diss.
512.Mich.1. Michigan v Simpson (Detroit Recorder's Ct) Aug 1967: During robbery trial, author Louis Lomax wrote newspaper article charging defense counsel Henry was "a former Black Muslim . . . he exercises leadership among Black Power and Black Nationalist elements in Detroit . . . one of 6 persons in community at whom reasonable Negroes are casting a jaundiced eye." Def moved for mistrial; judge questioned jurors; granted mistrial.

Milton R Henry and Len W Holt, Esqs, 518 Orchard Lane, Pontiac, Michigan.

See further developments in this case at p 149.

392. Waiver of Jury
393. Improper Comment (and see 512)
Notes: Erroneous jury summation by prosecutor: Corley v US (365 F2d 884, 1966). 16 American U 314-20.

Prosecutor's closing argument: improper comment versus prejudicial infringement: Ohio v Woodards (215 NE2d 568, 1966). 16 DePaul 504-10.

Prosecutor's reading and emphasizing of court's charge regarding failure of accused to testify not improper comment: Bannon v Texas (406 SW2d 908, 1965). 4 Houston 707-13; Ohio v McRae (211 NE2d 875, 1965). 68 W Virginia 319-23; Mims v Florida (192 So2d 62, 1966). 69 W Virginia 385-87.

And see Sutton, 411.42.

Comment on refusal to submit to blood test: Hovious v Riley (403 SW2d 17, Ky 1966). 55 Kentucky 891-96.

393.2. Parker v Gladden (USSC) (384 P2d 986, 407 P2d 246, rev'd 385 US 363) Def charged with 2d degree murder; jury sequestered during 8-day trial; deliberated 26 hours; convicted. Def sought postconviction relief (Ore Rev Stats §138.550). At h'g, trial ct found bailiff, shepherding sequestered jury, said: "Oh that wicked fellow, he is guilty"; at least 1 juror heard him, reversed. Ore Sup Ct reversed: bailiff's misconduct did not result in unfair trial. Dec 12, 1966: USSC reversed (8-1), per curiam: (1) under 6th Amdt, evidence against Def must come from witness stand in public ctroom; (2) bailiff is officer of ct, carries weight with jury; (3) Def entitled to be tried by 12 impartial jurors, tho state permits guilty verdict by 10; 3 may have been affected by bailiff here. Harlan, J, diss.

- 107 -

John H Schafer, Esq, 1500 H St NW, Armand Derfer, Esq, 1330 NW Hampshire Ave, Md; Covington and Broling, Esqs, Union Trust Bldg, all of Washington, DC.

400. Excessive Bail; Parole Conditions
Forms: Application for release on own recognizance or bail. CIVIL RIGHTS HANDBOOK pp 46d-46f, and see discussion, pp 46g-55.

Petition for writ of habeas corpus cum causa and for bail, points and authorities, by Arthur Kinoy. CIVIL RIGHTS HANDBOOK pp 72p-72r.

Comment: Alternative to bail system: Pen C §853.6. 18 Hastings 643-58.

Legislation Note: Bail reform in state and fed'l systems. 20 Vanderbilt 948-62.

Speech: Sam J Ervin, Bail reform and "preventive detention." Cong Rec—Sen. Feb 2, 1967, S 1336.

401. Amount of Bail Set
Speech: Walter F Mondale, VISTA bail bond projects. Cong Rec—Sen. Je 29, 1967, S 9169.
401.27. Muller v Johnson (Chicago Muni Ct, #HC 45187) Aug 1, 1967: 57 arrested following shooting incident. Magistrate set bail at &5-10,000 each. Aug 8: Community Legal Counsel completed interviews of Defs, obtained signatures on petitions for leave to file in forma pauperis, for habeas corpus for reduction of bail for 19 Defs (others bailed out, tried, convicted, fined and released or "in jail somewhere and could not be found"). Muni Ct sustained petition to file in forma pauperis over State's Atty's objection. Aug 10: Muni Ct reduced bail (OR-&5000) for all Pets except 2 who had failed to register for draft. All but 10 Defs' cases resolved by plea bargaining; no major charge (basis for high bail) sustained.

A L Lincoln, III, Esq, Community Legal Counsel, 116 S Michigan Ave, Chicago 60603.

402. Conditions Imposed

402.11. California v Sparks (Sacramento Co Super Ct) Feb 8, 1967: Def-Social Workers Union pickets arrested: violation of ct order. Muni Ct offered bail if Defs agreed not to picket. 22 Defs refused, jailed. Feb 12: Super Ct ruled Muni Ct without power to use release powers to restrain possible law violations, ordered Defs released on own recognizance. Contempt trial pending.

Coleman Blease, Lawrence Karlton, Esqs, Suite 620, 1107 9th St, Sacramento 95814.

403. Denial of Bail
And see Smith v McCravy, 430.21.
403.17. Brown v Fogel (ED Va) Governor of Md requested extradition of Pl; Governor of Va complied and had Pl arrested. Pl filed habeas petition to test legality of Gov's determination; Pl denied bail during these proceedings. DC directed state ct to offer bail. Issue in state ct still pending, at 54.21.

Law Center for Constitutional Rights, 116 Market St, Newark 07102.

404. Miscellaneous Bail Problems
And see Bonds, 580.18.
404.4. Alabama v Collins (Mobile Recorders Ct) 1965: Def-Negro 17-yr old arrested: assault with intent to murder. Released on &500 bail. Def forfeited bail, went to Norristown, Pa, home of mother. Dec 19, 1966: Def seized by 2 armed Ala bail bondsmen impersonating Ala police officers; Def handcuffed, taken to Mobile, jailed. Def's NAACP-hired atty signed &8700 bond for Def's release. Dec 27: Def returned to Norristown to await trial in Mobile. Def fined &100 and Ct costs.

Harry Seale, Esq, First Nat'l Bank Bldg, Mobile.

405. Fines
Note: Imprisonment of indigent for nonpayment of fine unconstitutional if extended beyond maximum statutory sentence: People v Saffore (218 NE2d 686, 271 NYS2d 972, 1966). 16 Buffalo 428-34.

Memorandum: Imprisonment of indigent criminal defendant for inability to pay his fine. OEO (Don B Kates, Jr, CRLA, Los Angeles. Dec 1966, 11 pp).

405.1. New York v Landerway, McMillan (NY Sup Ct, App Div) (279 NYS2d 941) Defs convicted in Co Ct: petit larceny; fined &150 each; sentenced in default of payment: 1 day for each dollar unpaid. Defs appealed. May 5, 1967: Ct remitted sentences to time served; held sentences excessive (citing NYC Crim Proc §484), denial of equal protection: necessary result is to consign indigent Def to jail for 5 mths while Def with adequate funds convicted of same offense would be freed upon payment.

Norman Shapiro, Esq, Orange Co Legal Aid Society, 257 Main St, Goshen, NY.

410. Cruel and Unusual Punishment
(and see 461)


411. In Criminal Cases (and see 461)
And see cases at 304; Adderly, 414.5; Nelson, 452.13.

Comments: Criminal penalties for vagrancy—cruel and unusual punishment under Eighth Amdt? 18 Western Reserve 1309-29.

Drug addiction: illness or crime. 13 Loyola 99-118.

Note: Imprisonment of indigent for non-payment of fine violates Eighth Amdt prohibition against cruel and unusual punishments and 14th Amdt equal protection clause: Nemeth v Thomas (35 USLW 2320, NY 1966). 4 Houston 695-702.

Proposed legislation: HR 9167 permits civil commitment of narcotic addicts. Cong Rec—House. Oct 19, 1966, H 26608.

411.19. Fleishour v US Fedl Bureau of Prisons, Assoc Warden, Stringfellow (USSC) (385 US 987) Dec 15-16, 1962: Def prisoner Stringfellow assaulted Pl-prisoner with fire extinguisher. Pl suing under 28 USC §1346(b), 18 USC §§4081, 4082 for damages: blindness in right eye, paralysis, scars, bruises, etc. Issue: failure of Defs to place Def-prisoner in medical facility, failure to have any guard in vicinity at time of attack. DC denied Pet recovery under Fedl Tort Claims Act: prison officials acted reasonably, consistent with accepted prison practice of taking `calculated risks' so that prisoners may learn to get along with other persons as part of rehabilitation. Pet failed to establish by preponderance of evidence that officials were negligent. Jy 7, 1966: CA affirmed: decision of DC not `clearly erroneous.' Pet filed petition for cert: Pet denied equal protection
- 108 -

by allowing prison officials to draw their own standard of care based on doctrine of `calculated risk' to be applied only to fedl prisons. Dec 12: USSC denied cert.

Elmer Gertz, Esq, 120 South LaSalle St, Chicago 60603.

411.21. Virginia v Wansley (Lynchburg) (Va Sup Ct of App, ##5769, 5770) (12 RRLR 359) Def-Negro charged with raping Japanese-American, alleged he had intercourse with her twice before, pleaded not guilty. Feb 1963: convicted, death sentence. Feb 7: Same Def convicted of rape of 59 yr old white woman who could not positively identify him: death sentence. Death sentence also for stealing 12¢ and 2 bus tokens from 1 white woman. Nov 1965: at retrial on this charge, jury deadlocked; Muni Ct declared mistrial. Def moved for dismissal of charge of rape of Japanese woman. Muni Ct granted DA's motion for continuance. Mar 14, 1967: Muni Ct retried Def on rape charges, convicted, sentenced to 2 consecutive life sentences. Appeal pending noting (1) massive newspaper campaign against Def's atty, (2) prejudiced judge and jury, (3) perjury of chief prosecution witness.

Len W Holt, Esq, William Kunstler, Esq, 511 Fifth Ave, NYC.

411.26. Driver v Hinnant (CA 4) (356 F2d 761) Facts: X DOCKET 116, XI DOCKET 30, XII DOCKET 47. Case notes: 20 Arkansas 365-70; 1966 Duke 545-61; 54 Georgetown 1422-27; 23 Washington & Lee 402-11.
411.27. Easter v District of Columbia (CA DC) (361 F2d 50) Facts: X DOCKET 116—XI DOCKET 90. Case notes: 16 American U 295-301. 16 DePaul 493-99.

Articles: Peter Barton Hutt, Recent forensic developments in field of alcoholism, 8 William & Mary 343.

Institute on modern trends in handling chronic alcoholic offender, 19 S Carolina 3.

Proposed Legislation: S 1508, Alcoholism care and control act grants funds to establish centers for alcoholic state offenders. Cong Rec—House. May 3, 1967, H 5012.

HR 781, 6069, 7307, 7594, 11193: Establish Fed'l Commn on Alcoholism. H'gs before Comm on Interstate and Foreign Commerce, House.

HR 6143 provides control, prevention and treatment of alcoholism in Dist of Columbia. H'gs before Subcomm #3, Comm on Dist of Columbia, House.

411.28. California v Thomas Budd (ND Calif) (385 US 909) Def arrested: violation of Calif Pen Code §647f: unlawful to be drunk in public; convicted. Def appealed: Def is chronic alcoholic with no control over urge to drink. Ct of App affirmed. Sup Ct denied habeas. Oct 17, 1966: USSC denied cert (Fortas, Douglas, JJ, diss). Dec 29, 1966: Def filed petition for habeas corpus in DC. H'g held. DC ordered Co sheriff to show cause why he should not be prohibited from executing sentence. Pending.

Marshall W Krause, George F Duke, Esqs, ACLU, 503 Market, San Francisco.

411.28a. District of Columbia v Phillips (DC Ct of Gen Sess Cr ## DC 854, 855-67) Apr 26, 1967: Ct held that although chronic alcoholism is not absolute defense to charge of disorderly conduct, it may form part of defense of involuntariness or insanity.
411.28b. Michigan v Hoy (Mich Sup Ct, #51563) Jy 31, 1964: Def-chronic alcoholic arrested; public drunkenness (Mich Ann Stats 28.364). Aug 7: Def stood mute, not guilty plea entered. Aug 9: Def changed plea to guilty. Oct 23: Ct sentenced Def to 18 mths—2 yrs. Jy 1965: Def petitioned to vacate, withdraw plea, new trial. Feb 16: denied. Jy 12, 1966: Mich Ct of Apps affirmed. Apr 15, 1967: Def appealed to Mich Sup Ct. Pending.

Amicus brief for ACLU, N Am Assoc of Alcoholism Programs, et al: Peter Barton Hutt, Richard A Merrill, Esqs, 701 Union Trust Bldg, Washington, DC 20005.

Note: Cruel and unusual punishment: imprisonment of chronic alcoholic: Michigan v Hoy (143 NW2d 577, 1966). 43 N Dakota 551-554.

411.28c. Dist of Columbia v Strother (DC Ct of Genl Sess, Crim Div #DC 25861 et al) Sept 7, 1966: Def, 66 other previously adjudicated alcoholics tried, public drunkenness; committed to Dept of Public Health, 90 days in-patient treatment. Counsel alleged Dist has no in-patient facility, only workhouse dorms converted to diagnostic facility; Defs already diagnosed. Motion to amend order forbidding commitment to said facility denied. Defs sent to said facility. Sept 14: Motion to reopen, vacate, and commit to outpatient facility filed: (1) Diagnostic facility provides no treatment, only custody, (2) Diagnostic facility unlawfully used for in-patients because uncertified per Dist Code and located outside District, (3) Ct should order only outpatient treatment until reasonable facilities built. Pending.

Peter Barton Hutt, Esq, 701 Union Trust Bldg, Washington, DC 20005.

411.28d. Dunlap v Atlanta (Fulton Super Ct #B-29126) 1964-7: Def incarcerated about 25 times for drunkenness. Mar 30, 1967: arrested: public drunkenness (§20-15(a) Atlanta Code). May 12: Muni Ct convicted. Jy 17: Super Ct reversed, held: disease of chronic alcoholism is defense to charge of public intoxication; directed Muni Ct to acquit Def.

Albert M Horn, Esq, 1431 Candler Bldg, Atlanta, Ga 30303.

411.28e. Georgia v Burger (Fulton Co Crim Ct, #65537) Pet arrested; Muni Ct convicted: drunk on public street (Georgia Code §58-508); imprisoned. Aug 18, 1967: Super Ct vacated sentence; held Pet is chronic alcoholic (§§88-401, 88-402); should have been placed in care of Dept of Public Health; ordered Pet released to care of Dept of Public Health, or in alternative to Co Probation Dept.

Albert M Horn and Glenn Zell, Esqs, 127 Peachtree St NE, Atlanta 30303.

411.28f. Powell v Texas (USSC, #405) (Travis Co Ct, Corp Ct, Austin) Dec 19, 1966: Def-chronic alcoholic arrested; drunk in public (Vernon's Pen C §477). Dec 20: Corp Ct convicted, &20 fine. Apr 5, 1967: On appeal, trial de novo, Co Ct convicted, &50 fine. Je 15: appeal filed in USSC: conviction of chronic alcoholic for drunkenness in public violates Eighth, 14th Amdts. Oct 9: USSC noted probable jurisdiction. Nov 24: ACLU, AMA, others moved to file amici brief. Pending.

Don L Davis, Tom H Davis, Esqs, 214 Austin Nat'l Bank Bldg, Austin 78701.

411.28g. Seattle v Hill (Sup Ct Washington #39050) (King City Super Ct) May 4, 1966: Def-chronic alcoholic arrested; drunkenness (Seattle ord #16046). Convicted, 180 days. Def appealed to Washington Sup Ct: (1) conduct involuntary,
- 109 -

(2) punishment for exhibiting disease symptom violates Eighth Amdt. Pending.

James A Molman, Esq, 1540 Washington Bldg, Seattle 98101; Peter Barton Hutt, Richard A Merrill, Esqs, 701 Union Trust Bldg, Washington, DC 20005: for Amici.

411.38. Jordan v California (ND Calif) Feb 1966: Pl-prisoner complained Soledad State Prison authorities forced him into cell stripped of all furnishings except commode embedded in concrete, no water to wash, no heat, ventilation, cell caked with human excrement, no light most of time, filed habeas corpus petition. Sept 7, 1966: DC ordered cells refitted so inmates will be supplied at least "the basic requirements which are essential to life," denied writ of habeas corpus.
411.42. Texas v Sutton (Tex Ct of Crim Apps, #40,544) Def convicted of possession of marijuana: 25 yrs. On appeal, amicus argues (1) sentence unconstitutionally excessive, (2) marijuana incorrectly classed as narcotic, is "relatively harmless" compared to alcohol, (3) DA's references to sales to students not alleged, unsupported, prejudicial. Pending.

Amicus: brief by Maury Maverick, Jr, Esq, 302 Calvert Bldg, 535 S Main Ave, San Antonio, 78204; Frank Wright, Esq, Lawyers Bldg, 706 Main St, Dallas.

411.44. Brooks v Florida (USSC) (196 So2d 920, rev'd 88 SCt 541) May 27, 1965: prison riot; 13 prisoners charged with participation. May 27: Def, stripped naked, fed diet of soup only, confined in punishment cell for 35 days with 2 other prisoners in rioting: cell 7 or 13 ft long, 6½ ft wide, no external window, no bed, hole in floor. On 15th day, Def taken from cell, confessed. Def convicted: 9 yrs 8 mths to run consecutively with sentence being served. Fla Dist Ct of App affirmed without opinion; Fla Sup Ct dismissed without opinion. Dec 18, 1967: USSC reversed (9-0), per curiam: "The record in this case documents a shocking display of barbarism which should not escape the remedial action of this Ct"; "these stark facts belie any contention that the confession extracted . . . within minutes after he was brought from the cell was not tainted by the 14 days he spent in such an oppressive hole."
411.45. Bitter v US (USSC) (374 F2d 744, rev'd 88 SCt 6) During trial for mail fraud, Def on time 3 days, 4th day Gov't unexpectedly finished case, Def asked extra time to conclude preparation for defense, returned 37 minutes late after luncheon recess. Ct ordered Def into custody for balance of trial in jail 40 miles from ct; prohibited explanations for tardiness. Def convicted: 1 yr, &3,500. CA 7 affirmed. Oct 16, 1967: USSC reversed (8-0), per curiam: under these circumstances, "trial judge's order of commitment, made without hearing or statement of reasons, had the appearance and effect of punishment rather than of an order designed solely to facilitate the trial. Punishment may not be so inflicted"; effect was unwarranted burden on Def and counsel.
512.Ala.5. Alabama v Swain (Talladega Co) (Ala Sup Ct) (380 US 202) Cir Ct convicted Negro of rape: death. 1965: USSC denied petition for certiorari. Pls filed coram nobis petition: discriminatory sentencing of Negroes for rape; unfettered jury discretion in sentencing; cruel, unusual punishment. Jy 31, 1966: Petition denied, execution date reset. Appeal to Ala Sup Ct pending.

Orzell Billingsley, Peter Hall, Esqs, 1630 Fourth Ave N. Birmingham, Ala.

412. In Extradition Cases

412.15. Ex rel Hogan v Ogilvie (Ill Sup Ct, #39552) Pet-Negro serving term for robbery in Ala, escaped to Ill. Ala demanded extradition. Je 14, 1965: Ill Governor issued warrant of rendition. Jy 27, 1965: Rel petitioned for habeas. Cir Ct Cook Co issued writ. Sept 9, 1965: Cir Ct refused Rel's offer of evidence that as Negro fugitive he would be subject to brutal and unconstitutional treatment by Ala prison and law enforcement officials and would have no opportunity to remedy such abuse in Ala state or Fedl cts; quashed writ; remanded Rel to sheriff for extradition. Rel appealed: exclusion of evidence effected conclusive but false presumption Rel could get due process in Ala, and subordinated individual rights to fed'l system; apparent conflict between 14th Amdt and extradition clause (US Const, Art 4, §2, par 2) should be resolved by establishing rebuttable presumption that demanding state will protect fugitive's rights. May 23, 1966: Sup Ct affirmed: no authorization for Illinois cts to hear such issues.

Ronald Silverman and Joan C Miller, Esqs, 19 S LaSalle St, Chicago.

413. In Civil Cases

413.9. New York v James (NYC) (Sup Ct, App Div) May 2, 1967: Pl arrested under NY law providing for up to 3 yrs involuntary commitment for narcotics addicts, taken to doctor to be certified as addict, then taken to ct. Jy: In different action, Sup Ct upheld procedures: proceeding was civil, not criminal. Aug 17: Sup Ct held procedures unconstitutional: Def forced to incriminate himself, deprived of counsel (citing Miranda, 353.41, 384 US 436) and due process. Ct did not rule against idea of compulsory treatment. On appeal.

Shirley W Kram, Esq, 140 E 81st, NYC.

413.10. NY Narcotics Control Commn v Spadafora (Bronx Co Sup Ct, App Div, #538-1967) Apr 17, 1967: Def's mother sought civil commitment of Def: drug addiction (Mental Hygiene Law §201). Def arrested, examined by physician, certified as addict. Def alleged: (1) error in refusal to permit mother to withdraw petition; (2) arrest warrant issued without probable cause; (3) failure to advise Def of right to silence before medical interrogation; (4) addict definition unconstitutionally vague; (5) compulsory commitment of addicts not otherwise criminals violates due process; (6) medically valueless "treatment" constitutes cruel and unusual punishment. Jy 15: Ct held Def an addict, statute constitutional. Appeal pending.

Neil Fabricant, Esq, NYCLU, 156 Fifth Ave, NYC 10010.

414. Capital Punishment
Comment: In defense of capital punishment. 54 Kentucky 742-56.

- 110 -

Proposed Legislation: S 1760 abolishes death penalty for fed'l crimes. Cong Rec—Sen. May 11, 1967, S 6686.

Paper: Capital punishment, Gerald H Gottlieb. Center for Study of Democratic Institutions, Box 4068, Santa Barbara, 93103. 1967. 16 pp. 25¢.

414.4. Georgia ex rel Abrams v Smith, Warden (Tattnall Super Ct, #5151) Pl convicted: rape: death. Je, 1966: Ga Sup Ct sustained conviction. Je, 1967: Pet filed habeas corpus petition raising questions of: (1) exclusion of Negroes from jury, (2) exclusion of women, (3) under-representation of poor people, (4) exclusion of persons opposed to capital punishment, (5) capital punishment, (6) unequal punishment by race for rape, (7) illegal search and seizure, (8) failure to determine insanity separately. Sept 1, 1967: h'g.

Howard Moore, Jr, Esq, 859½ Hunter St NW, Atlanta 30314; NAACP Inc Fund.

414.5. Adderly v Wainwright (MD Fla) (272 FSupp 530) Apr 13, 1967: Pls, all sentenced to be executed, brought class suit for (1) release of Pls or (2) new trials in manner consistent with requirements of Constitution: death sentence in Fla determined by juries required to be death-oriented: persons opposed to capital punishment disqualified from jury service; Def must waive Fifth and 14th Amdt rights to attempt to secure mercy recommendation from jury; pressure on Def to plead guilty in order to waive jury trial; Pls not accorded full counsel rights. DC stayed all executions pending decision. Jy 27: preliminary h'g. Aug 9: Ct held: (1) Resp motion to dismiss denied, class action habeas might be entertained; (2) Pet's counsel may interview members of class re status of legal proceedings, must check answers with prior counsel; (3) parties may then submit memo re propriety of class action habeas proceedings; (4) stay of execution extended. Pending.

Tobias Simon, Alfred Feinberg, Alfred Hopkins, Maurice Rosen, Esqs, ACLU, 502 Olympia Bldg, Miami; NAACP Inc Fund.

414.6. Hill v Nelson (ND Calif, #47318) June 27, 1967: Class suit filed seeking habeas corpus, stay of execution, declaratory judgment for 58 men on death row. Pets claim: (1) death sentences imposed without due process or equal protection because: (1) Penal Code §§190, 190.1 provide no rational standards for imposing sentences; (2) no standards for judge in reducing sentence or declining to reduce; (3) sentences under Calif law constitute cruel and unusual punishment; (4) Penal Code §1074(8) excludes persons opposed to death penalty from jury leaving a biased jury; (5) denial of effective assistance of counsel in appellate processes. Jy 5: DC ordered stay of execution pending hearing. Jy 10: CA denied motion to vacate DC stay. Aug 25: DC revoked stay, rejected arguments condemned men should be treated as class, denied placing pleas for death row inmates before 3-judge ct. Pending.

Jerome B Falk, Jr, Esq, Hartford Bldg, 650 California St; Roy Eisenhart, Esq, 333 Pine St; Gary D Berger, Esq, 1 Kearny St; Richard Bancroft, Esq, 311 California St; Garfield Steward, Esq, Center City Branch NAACP, 2006 Sutter St; Harry J Kreamer, Esq, 1035 Russ Bldg, all of San Francisco; Clinton White, Esq, 3300 Telegraph Ave, Oakland; NAACP Inc Fund; Prof Anthony G Amsterdam, 3400 Chestnut St, Philadelphia; Nathaniel Colley, Esq, NAACP, 1617 10th St, Sacramento.

414.7. Bell v Pennsylvania (ED Pa) 1960: Pl convicted: murder; death penalty, Pl sues for injunction and declaratory judgment against capital punishment: violation of Eighth Amdt: cruel and unusual punishment: evolving society redefines meaning of cruelty in terms of contemporary standards; denial of due process. Pending.

ACLU, 260 S 15th St, Philadelphia.

414.8. Tennessee v Harris (Shelby Co Cir Ct) 6 Negro youths arrested, convicted: rape. Defs filed motion for new trial alleging discriminatory application of death penalty. State dismissed one case.

Russell Thompson, Esq, Commercial Title Bldg, Memphis; Norman C Amaker, Esq, NAACP Inc Fund.

420. Due Process/Equal Protection for the Poor
And see: Rights of American Indians, 600.-605.

Right to Bail, 401.-404.

Rights of Citizens—Jury, Voting, 512.-513., 501.-505.

Rights of NonCitizens, 258.-259., 358.

Right to Counsel, Appeal, 371.-372., 374.-375.

Rights of Criminal Defendants, 300.-490.

Right to Education, 24., 281., 520s., 571.

Rights of Incompetents, 440.

Rights of Juveniles, 56., 430.

Right of Privacy, 295.

Criminal Charges—Vagrancy 57., Misc. 59.

Cruel and Unusual Punishment, 410.-413.

Employment Discrimination: political, 280s., racial, sex, age, 570s.

Federal Benefit Programs—Political discrimination in, 254., 255., 263., 346.

OEO Legal Service Offices, 375.

Small Claimants' Problems, 376.

Suits for False Arrest, Police Practices, 304.

Analysis: George Olshausen, Rich and poor in civil procedure. CIVIL RIGHTS HANDBOOK pp 8a-8u.

Analysis: The poor and angry. CIVIL RIGHTS HANDBOOK pp 287-292e.

Bibliography: Due process/equal protection for the poor. CIVIL RIGHTS HANDBOOK p 287b.

Book: Peter Marris and Martin Rein, Dilemmas of social reform: Poverty and community action in US. Atherton, 1967.

Articles: Natl Welfare Rights Movement, membership, dues plan. Newsletter, Vol 1, No 13; Poverty line: What is it? Newsletter, Vol 1, No 11. Poverty/Rights Action Center, 1713 R St NW, Washington, DC 20009.

Todd Gitlin, On organizing the poor in America. Key List Mailing, Mar 5, 1967, SNCC, 449 14th St, San Francisco 94103.

Reports: Southern Regional Council, Community organization attempts in Vine City, Ga. Key List Mailing, No 27, 1966, SNCC, 449 14th St, San Francisco 94103.

A time to listen . . . a time to act. US Commission on Civil Rights, Washington, DC. Nov 1967.

Periodical: The Braille Monitor, Nat'l Fed of Blind, 2652 Shasta Rd, Berkeley, California 94708.

Handbook: A Philip Randolph Institute, The freedom budget. 217 W 125 St, NYC 10027. 84 pp. &1.

Pamphlets: Food and health programs; Farm programs. Southern Rural Research Project, 1015 Griffin St, Selma, Alabama.

Publications: NOW, Nat'l Welfare Rights Organization, Headquarters: Poverty/Rights Action Center, 1713 R St NW, Washington, DC 20009.

- 111 -

Source materials on poverty law. Mrs Kitty Chayes, Legal Services Program, OEO, 1200 19th St NW, Washington, DC 20506.

Symposia: Antipoverty programs. 31 Law & Contemporary Problems 1-249.

Seminar: War on Poverty. Summary of proceedings available from Arnett Hartsfield, Director, LANLSS, 1819 W 6th St, Suite 304, Los Angeles, Calif 90057.

Organizer's Library Series: Southern Conference Educational Fund, 3210 W Broadway, Louisville, Ky 40211:

Alan McSurely, Getting and keeping people together, 25c;

Alan McSurely, Hangups—Common problems of people who organize other people into communities, 50c;

Jack Minnis, The care and feeding of power structures, 50c;

Alan McSurely, How to put out community newspapers, 25c;

Alan McSurely, Common group problems, 50c;

Jack Minnis, Lowndes County freedom organization, 50c;

Alan McSurely, How to negotiate, 25c.

421. Social Welfare Programs—Local (and see 251, 254, 255, 261, 263, 346, 426)
Form: OEO lawyer letter to county welfare dept. CIVIL RIGHTS HANDBOOK p 288.

Brief: Unconstitutionality of "substitute father" rules. CIVIL RIGHTS HANDBOOK 288a-288c.

Brief: Fed'l, state regulations on eligibility for AFDC. CIVIL RIGHTS HANDBOOK 288d-288g.

Articles: Joel F Handler and Margaret K Rosenheim, Privacy in welfare: Public assistance and juvenile justice, 31 Law & Contemp Prob 377.

Carol Ruth Silver, How to handle a welfare case. 4 Law in Transition Q 87-119.

Rights of public assistance recipients. Nat'l Conference of Lawyers and Social Workers, Publication No 3 (Jan 1967).

Guidelines for preparation of welfare rights handbooks. Natl Welfare Leaders Newsletter, Vol 1, No 11. Poverty/Rights Action Center, 1713 R St NW, Washington, DC 20009.

Comments: Withdrawal of public welfare: Right to prior hearing. 76 Yale 1234-46.

Eligibility determinations in public assistance: Selected problems and proposals for reform in Pennsylvania. 115 Pennsylvania 1307-45.

Legislation: Incentive earnings for welfare recipients (Conn Amended SB 235), State Welfare Commr can disregard, if permitted by fed'l law, certain income of public welfare recipients.

Cost of living commission (Conn Substitute SB 386) requires Commn to report annually to Welfare Commr on cost of living in Conn.

Regulations: Miss State Welfare Regs Vol III, J, p 8501, prohibits inclusion in administrative h'g record or use in making decision of confidential information unavailable to claimant. Oct 1, 1966.

Miss State Welfare Regs, §D, p 4512, requires for exclusion from AFDC under "substitute father" rule that relationship with man not living in home include assumption of "father-role" toward children. Oct 1, 1966.

Handbook: Welfare to dependent children. California Rural Legal Assistance, Inc, 257 S Spring St, Los Angeles. Dec 1966—24 pp. Looseleaf.

Report: Public assistance: To what end? Southern Regional Council, 5 Forsyth St NW, Atlanta, Georgia.

Summary: Introduction to Fed'l handbook of public assistance administration. Center on Social Welfare Policy and Law, Columbia University School of Social Work, 401 W 117th St, NYC 10027.

Memorandum: Marty Glick, Man-in-the-house rule in California; includes sample complaint for declaratory relief, interrogatories, memorandum of points and authorities. Calif Rural Legal Assistance, 257 S Spring St, Los Angeles. 20 pp. Jan 1967.

Paper: Paul Bullock, Fighting poverty: The view from Watts. Key List Mailing, SNCC, 449 14th St, San Francisco 94103.

And see Parrish, 58.Calif.28.

421.Ala.1. Smith v King (MD Ala, #2495N) State Welfare Dept discontinued Pl's AFDC payments: frequent visits by man disqualified Pl's children under Ala "substitute father" rule. Pl brought class suit for declaratory judgment, injunction: rule discriminatorily applied against Negroes, denies equal protection, violates due process (right of privacy). 3-judge ct held rule unconstitutional: ". . . the regulation singles out from the Alabama needy dependent children a particular class who are illegitimate, or whose mothers engage in an illicit sexual relationship, or who have illegitimate children born in their family . . . (and) is an arbitrary and discriminatory classification which results in the denial of benefits to needy children who are clearly eligible under both the fed'l and state statutes and constitutional regulations. . . ."

Charles S Conley, Esq, 530 S Union St, Montgomery; Donald A Jelinek, Esq, Southern Rural Research Project, 802 First Ave, Selma; Alvin J Bronstein, Esq, LCDC, 603 N Farish St, Jackson, Miss; Edward Sparer, Martin Garbus, Brian Glick, Howard Thorkelson, Jonathan Weiss, Stephen Wizner, Esqs, Center on Social Welfare Policy & Law, 409 W 117th St, NYC.

421.Ariz.2. Dews v Henry (DC Ariz, #6417) Pl, welfare recipient, brought class suit for injunctive and declaratory relief invalidating Ariz statutes establishing maximum assistance grant per family, providing for deduction of other income from assistance grants: statutes deny equal protection to large families by putting absolute limit on assistance regardless of need; Pl's family forced to receive less than state-established minimum subsistence income. Pending.

Gerald A Pollock, Esq, 45 W Jefferson St, Phoenix; Edward Sparer, Stephen Wizner, Jonathan Weiss, Esqs, Center on Social Welfare Policy & Law, 401 W 117th St, NYC; Robert M Cover, Columbia Law School '68.

421.Calif.a. Parrish v Civil Service Commn (Alameda Co) (Calif Sup Ct, #SF 22429) (51 Cal Rptr 589) Nov 21, 1962: Pl, partially blind social worker, refused to participate in early morning raids to discover fraud by welfare recipients: such participation would involve him in multiple violations of rights secured by fed'l and state constitutions; discharged: insubordination. Pl sued for reinstatement: superiors could not properly direct Pl to participate in illegal activity, so Pl could not be dismissed for failure to obey such order. Super Ct affirmed Pl's dismissal. Ct of App affirmed. Mar 27, 1967: Sup Ct (6-1) reversed: "insubordination" rightfully predicated only on refusal to obey order which superior officer entitled to give and to have obeyed: raids, without warrants and admittedly without probable cause, violated Fourth Amdt stricture against unreasonable searches and penumbral right of privacy. Pl received nearly &23,000 for lost earnings.

Albert Bendich, Esq, 2550 Telegraph, Berkeley; Coleman Blease, Esq, 1107 Ninth St, Sacramento; Robert H Laws,

- 112 -

B V Yturbide, Marshall W Krause, Esqs, for amicus ACLU, 503 Market St, San Francisco.

And see cases at 303.

421.Calif.14. Stallworth v California (ND Calif, #48393) Pl AFDC recipient in good faith received, spent overpayment. Welfare Dept reduced later payments to recover overage. Pl brought class action to enjoin reduction in welfare benefits to recover overpayments when funds no longer held by recipients: violation of US Dept of HEW regulation, denial of due process. Ct issued temporary restraining order, granted application for 3-judge ct. Pending.

Cherie A Gaines, Esq, Alameda Co Legal Aid Society, 1815 Telegraph Ave, Oakland 94607.

421.Calif.15. Bonner v Montgomery (Alameda Co Super Ct, #368655) Je 20, 1963: Pet convicted, jailed: fraud, withholding information re whereabouts of her child's natural father. Oct 21, 1966: At h'g before Dept of Social Welfare referee on unlawful denial of AFDC benefits, Pet maintained: blood test evidence re natural father's identity obtained from Pet without her informed consent, by coercion; evidence, inferences from test, subsequent refusal by Pet of psychiatric examination inadmissable under Fourth Amdt. Feb 5, 1967: Statutory 105-day period within which Resp Dept Director must decide claim elapsed without action. Feb 20, 1967: Pet demanded Resp decide. Apr 10, 1967: Super Ct granted alternative writ of mandamus, ordered Resp to decide on Pet's claim. Pending.

Thomas L Fike, Thomas Schneider, Cherie Gaines, Mark Peery, Esqs, Alameda Co Legal Aid Society, 1815 Telegraph Ave, Oakland.

421.Calif.16. Brown v Hannon (Alameda Super Ct, #370021) Pets' Aid to Families with Dependent Children (AFDC) payments were adjusted to zero for 2 mths because of alleged prior overpayment. Mar 31, 1967: Pets applied to Resp for General Assistance (Calif Welf C §17000) claiming indigence and eligibility under published standards of Manual of Policies and Procedures. May 2: Resp denied applications; ground: Pets eligible for and in constructive receipt of AFDC benefits despite no actual support; Resp ruling based on Regs of Dir State Dept Social Welfare rather than upon Regs adopted by Resp Supervisors of Alameda Co. May 16: Resp Supervisors affirmed denial. May 29: class suit filed: (1) Writ of mandate commanding Resps to consider Pets' eligibility for Genl Assistance solely on state statutes and Manual; (2) declaratory judgment determining eligibility as in (1). Je 20: Super ct discharged writ of mandate. Jy 20: Super Ct denied Resps' demurrer to declaratory relief. Trial pending.

Cherie A Gaines, Esq, Mark C Peery, Esq, Alameda Co Legal Aid Society, 1815 Telegraph Ave, Oakland; Burton Danziger, Esq, 1470 Fruitvale Ave, Oakland.

421.Calif.17. McPherson v Montgomery (ND Cal Civ #46759) Def denied Pl AFDC benefits: stepfather with income sufficient to support Pl's children (Calif Welf and Inst C §11351), although he was in Vietnam in armed forces, refused to support children, and could not be compelled to do so. Mar 25, 1967: Pls initiated class action requesting 3-judge ct, declaratory judgment that §11351 unconstitutional, damages (under 42 USC §1983) and injunctive relief. Cal Dept of Social Welfare promulgated Reg 44-101: income must "in fact" be available to be considered in determining AFDC aid payment. Ct vacated order convening 3-judge ct: case moot. Pl contends 2 other state regulations involved.

Alameda Co Legal Aid Society, 1815 Telegraph Ave, Oakland; Center on Social Welfare Policy and Law, 401 W 117th St, NYC.

421.Calif.18. Wheeler v Montgomery (ND Calif) Pl widow, 75, lived on &44.60/mo Social Security (OASDI), &113.95/mo Old Age Security (OAS, state-operated, fed'lly-supported welfare program). Sept 1, 1967: Pl's OAS payments stopped without notice. Sept 14: Pl notified OAS being withheld pending investigation of alleged transfer of dead son's life insurance proceeds to his nephew. Sept-Oct: Pl and Housing Auth social worker unsuccessfully tried to get OAS restored. Nov 7: Pl notified of permanent OAS termination: transfer with intent to reduce assets below eligibility limit. Nov 16: Pl filed administrative appeal, request for continuance of benefits pending h'g: Pl authorized insurance payment to satisfy pre-existing debt per son's deathbed request; no intent to reduce assets below OAS limit. Dec 1: Pl sought 3-judge ct, declaratory and injunctive relief for self and OAS recipients as a class: Calif Welf & Inst C §§12200, 12201, 10950 and implementing Regs by permitting ex parte cutoff of benefits before h'g, deny due process, violate fair h'g provisions of Social Security Act, deprive OAS recipients of fed'lly secured rights under color of law in violation of 42 USC §1983; Pl seriously ill, OAS termination made her ineligible for treatment under Medi-Cal aid program, prolonged cutoff of benefits, pending h'g would endanger her life. Dec 20: DC approved application for 3-judge ct; denied class restraining order; denied motion of Legal Assistance Foundation to intervene: Pl would sufficiently represent her class even if she won administrative appeal. Dec 22: administrative h'g. Jan 6, 1968: DC issued temporary order restraining Def-state, Co welfare directors from withholding Pl's benefits. Jan 18: State Welfare Dept ruled for Pl, ordered retroactive OAS payments. Dept proposes new termination procedures: recipients to have notice before cutoff, opportunity for interview with Co welfare officials, but termination still permissible before h'g of appeal. Class action pending.

Steven Antler, Peter E Sitkin, Stafford Smith, Isidor Bornstein, Gilbert Graham, Esqs, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103; Brian Glick, Henry Freedman, Esqs, Center on Social Welfare Policy and Law, 401 W 117th St, NYC 10027.

And see Williams, 421.Miss.2.

421.Calif.19. Marshall v California (San Francisco) (CA 9) Dec 1966: Pl moved to Calif, applied for AFDC, refused: Pl didn't comply with 1-yr residency requirement. Jy 1967: DC rejected Pl's suit: fails to raise substantial fed'l question. Aug 18: CA directed DC to hear case. Pending.

Kenneth Hecht, Esq, 721 Webster, San Francisco.

And see Thompson, 421.Conn.4.

421.Calif.20. Alexander v California Dept of Social Welfare (ND Calif, Civ #47041) May 10, 1967: Pl filed complaint challenging 1-yr welfare residency requirement. Pending.

San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francissco 94103.

- 113 -

421.Calif.21. Diaz v Quitoriano (Sutter Co) (3rd Dist Ct of App, #3 Civ 11654) Pls filed class suit to compel Defs-State and Co Welfare Depts to advise people of their rights (1) to make written applications for aid, (2) to administrative appeal. Super Ct dismissed: Pls had adequate appeal to Def-Dept of Welfare. Pls sought writ of mandate from Dist Ct of App: irreparable harm would result to persons not informed of rights during time necessary to appeal Super Ct's ruling. Dist Ct denied writ. Je 7, 1967: Sup Ct denied h'g. Pls appealed Super Ct's dismissal. Pending.

Myron Moskovitz, Esq, CRLA, 116 Seventh St, Marysville, Calif 95901.

And see Howell, 421.Calif.23.

421.Calif.22. Damico v California (USSC) (88 SCt 526) Calif Aid to Families with Dependent Children program (under 42 USC §601 and Calif Welf & Inst C §§11250, 11254, Reg C-161-20) provides welfare to mothers, children when father deserted or separated at least 3 mths or divorce filed. Social worker told Pl-mothers they could not receive AFDC for 3 mths because no divorce filed. Indigent Pls, including Catholic mother unwilling to sue for divorce, filed suit for damages, declaration that statute unconstitutional because discriminatory against indigents unable to file for divorce, and injunction under 42 USC §1983, 28 USC §1343. 3-judge fed'l ct dismissed: failure to exhaust adequate administrative remedies. Dec 18, 1967: USSC reversed (8-1), per curiam: one of purposes of §1983 was to provide remedy in fed'l cts supplementary to any state remedy; relief may not be defeated because no prior effort through state administrative remedy, citing McNeese v Bd of Educ, 522.Ill.3, 373 US 668, Monroe v Pape, 304,Ill.5, 365 US 167. Harlan, J, diss.

Don B Kates, Jr, George F Duke, Robert Y Bell, and James A Kealey, Esqs, Calif Rural Legal Assistance, 257 S Spring St, Los Angeles.

Article: Carol Ruth Silver, How to handle a welfare case. 4 Law in Transition Q 87 (1967), available from Social Workers Union, 1313 W 8th St, Los Angeles 90017, 50¢.

421.Calif.23. Howell v Dept of Social Welfare (ND Calif, #46853) Def denied Pl, unmarried mother, AFDC benefits: not separated from children's father for requisite 3 mths (Welf & Inst C §§11250(b), 11254; Dept Manual of Policies & Procedures, §C-161.20). 1967: Pl brought class action to enjoin withholding or benefits, declare statutes, Reg unconstitutional: discrimination based on marital status (Pl, being unmarried, cannot qualify for immediate benefits by filing for divorce) denies equal protection. Pending.

Robert L Gnaizda, Esq, Calif Rural Legal Assistance Foundation, 711 S Main St, Salinas.

And see Damico, 421.Calif.22.

421.Calif.24. In re Hernandez (Calif Dept of Social Welfare Appeals Bd, #35-35) 1967: State Dept of Social Welfare ruled fathers employed "part-time" (AFDC-U Reg C-161.41) are entitled to receive difference between net earnings and what Welfare Dept would have provided were they totally unemployed. Effect of ruling is to qualify seasonal farm workers for welfare benefits.

Robert Gnaizda, Esq, 711 S Main St, Salinas, Calif 93901.

421.Calif.25. Morris v Williams (Cal Sup Ct) (66 AC 755) Defstate health, welfare officials estimated costs of existing "Medi-Cal" benefits (Welf & Inst C §§14000 et seq) would exceed 1967-8 appropriations by &210 million. Defs announced Regs eliminating many services, reducing others. Pl, welfare recipient, scheduled for non-emergency surgery excluded under regulations, brought class suit for declaration Regs invalid, injunction against enforcement. Aug 30: Super Ct issued temporary restraining order. Sept 6: Ct issued permanent injunction. Defs appealed. Nov 20: Sup Ct affirmed: Regs violated priorities established by Legislature: (1) physicians' services to public assistance recipients cannot be reduced without first eliminating "medically indigent" persons not on welfare from program (Welf & Inst C §§14006.5, 14105); (2) certain services cannot be eliminated entirely without showing that other economies, including proportionate reductions in all services, are unfeasible (§14103.7).

Sheldon Green, Esq, Calif Rural Legal Assistance Foundation, 2700 MacDougal, Modesto.

421.Calif.26. Navarro v Reagan (Sutter Co Super Ct, #15859) 1967: Pls, welfare recipients, requested employment of ct reporter for criminal trials in Justice Ct for Welf & Inst C violations; denied: ct lacked power to authorize payment. Pls sued to compel employment of reporter: unavailability of transcript for appellate record denies due process; lack of reporter in Justice Ct discriminates against criminal Defs tried there and not in Muni Ct, where reporter is provided at public expense. Pending.

Calif Rural Legal Assistance Foundation, 711 S Main St, Salinas.

And see Munkelwitz, 426.11.

421.Calif.27. California v Lopez (Fresno Muni Ct, #F18763) Def charged with grand theft (Calif Pen C §487): receiving overpayments of welfare by failing to report presence of man assuming role of spouse. Def moved to set aside information: state should proceed under Welf & Inst C §11482, misdemeanor welfare fraud. Ct granted motion, held evidence insufficient to hold Def for felony: ". . . a specific statute controls over a general statute dealing with the same subject matter," citing California v Smith, 248 ACA 158 (1967).

Rudy Savala, Esq, 1310 Security Bank Bldg, Fresno 93721.

And see Samuel, 421.Calif.28.

421.Calif.28. California v Samuel (Calif Ct of App) (245 ACA 211) Def convicted of theft, welfare fraud: false representations, concealment of husband's presence in home. 1966: Ct of App reversed: (1) Evidence Def and husband misrepresented selves as living together to deceive landlord, obtain credit cannot support conviction of false representation in welfare application, without proof of husband's physical presence; (2) Def's failure to report efforts to obtain credit cannot support conviction on concealment theory when Def made no promises to make such reports; (3) Welfare Dept criteria for when man is "assuming role of spouse" irrelevant when parties are married; (4) concealment of husband's occasional visits, one act of intercourse away from home cannot support finding of intent to defraud: events concealed would not negate absence of father from home, critical element in AFDC eligibility.

And see Lopez, 421.Calif.27.

421.Colo.2. Fleming v Colorado State Bd of Educ (DC Colo) Sept, 1962: Pl, physically handicapped 15 yr old girl, enrolled
- 114 -

in school applying for special aid under Colo Rev State 123-22 guaranty of education for handicapped. Nov, 1962: Application denied: Pl's handicap certified by Chiropractor, not MD as required by Def's regulations. July, 1963: Pl filed suit to have Def approve application. April, 1965: Colo Sup Ct ordered Def to grant application, held regulation null and void. Feb 16, 1966: Pl sued for &60,000 damages alleging wrongful denial of special aid for 3 yrs. DC granted Def's motion to dismiss: no allegation of violation of any fed'lly protected right. Pl appealed: right to education is fed'lly protected right, denial of this right by Def, because Pl's application not in conformity with invalid regulation, is compensable violation of 42 USC 1983. CA 10 affirmed. Petition for cert pending.

Maley & Schiff, Esqs, 104 Broadway, Denver, Colo 80203.

And see cases at 304, 580, 590.

421.Conn.3. In re B v Shapiro (New Haven) (6th Cir Ct, #CV6-655-24841) Sept 1965: Pet with 9 children arrived in Conn to seek employment; found temporary work; stopped work to have baby; sought new employment, but advised by social worker to go to welfare for aid. Jan 1966: Pet applied for AFDC; denied. After h'g, denial affirmed: Pet ineligible because (1) had no specific job on arrival in Conn, (2) without money to support her family for 3 mths, (3) applied for AFDC within 1 yr of arrival. Pet sued: (1) Conn statute, as interpreted by Resp, violates 14th Amdt equal protection and privileges and immunities clause; (2) Ct may avoid constitutional issues by interpreting statute to disqualify only those who come to Conn to obtain AFDC or General Assistance benefits; (3) Pet arrived before effective date of statute. Pending.

Roger E Koontz, Esq, New Haven Neighborhood Legal Assistance Program, 573 Congress Ave, New Haven, Conn 06519.

421.Conn.4. Thompson v Shapiro (USSC, #813) (35 LW 2763) 1966: Pl lost Mass welfare benefits on moving to Conn, applied for welfare in Conn; denied: statute requires 1-yr residence, substantial employment prospects, or fixed cash "stake" on arrival. Pl sought relief from 3-judge fedl ct: (1) residence requirement abridges welfare recipients' right to travel; (2) exceptions to residence requirement deny equal protection to indigents by classification not rationally related to statutory purpose of protecting state financial resources. Je 17, 1967: Ct held for Pl on both grounds. State appealed. Jan 14, 1968: USSC noted probable jurisdiction.

Brian Hollander, Esq, Neighborhood Legal Services, 99-105 Main St, Hartford.

421.Del.1. Green v Dept of Public Welfare (DC Del, Civ #3349) Je 28, 1967: DC held residence requirement violates equal protection: protection of the public purse "not a permissible basis for differentiating between persons who otherwise possess the same status in their relationship to the state of Delaware."

Community Law Service, 630 W 4th, Wilmington.

And see Thompson, 421.Conn.4.

421.DC.3. Smith and Crowder v Dist of Col Bd of Commrs (Dept of Pub Welf) (380 F2d 632) Pls allege: Def investigators, under authority of other Defs, entered Pls' homes, searched, interrogated Pls re possible welfare fraud, guests, sexual activity, eavesdropped, threatened to terminate AFDC if Pls resisted. Je 3, 1966: Pls filed class suit for permanent injunction against investigative searches without warrant based on probable cause or consent, against terminating or diminishing AFDC for refusal to admit investigators, under First, Third, Fourth, Ninth Amdts. Pls also challenge DC "substitute father" rule. DC denied relief. Je 23, 1967: CA affirmed: administrative remedies not exhausted. Pending before Welfare Dept h'g officer.

Peter Smith, Laurens Silver, Esqs, Neighborhood Legal Services Project, 3308 14th St NW, Washington, DC.

And see Parrish, 421.Calif.a.

421.DC.4. Matter of W (DC Dept of Public Welfare) Applicant is mother of 3 children, each having different father. Social Security Admr granted one child a death benefit award (OASDI); Dept of Public Welfare suspended welfare payments: Welfare Regs construed to treat SS benefits as available for support of entire family. Jan 1967: h'g: Recipient challenged Reg: Mother forced to violate fed'l law making it criminal offense to apply such benefits other than for benefit of named beneficiary; ruling required one son to support half-brothers despite no legal obligation. Mar 21, 1967: Dept Director approved H'g Officer's final report and recommendations: (1) suspension of benefits not upheld; (2) recipient and family permitted to deposit OASDI benefits in educational reserve fund and AFDC payments continued for all 3 children or OASDI benefit to be utilized for support of beneficiary and AFDC payments continued for other children; (3) recipient to receive back payments for mths of suspension.

Neighborhood Legal Services Project, 416 5th St NW, Washington, DC; Center on Social Welfare Policy and Law, 401 117th St, NYC.

421.DC.5. Robinson v DC Bd of Commrs (DC DC, #3399-66) Feb-Aug, 1966: Pls, mother and 5 children, received AFDC. Aug: Payments suspended pending eligibility determination: reported continuing relationship between mother, father of 2 of children would exclude family under "substitute father" rule. H'gs: father produced rent receipts to show residence elsewhere. Dec: suspension sustained, Pls found ineligible. Pls brought class suit for injunction, declaratory relief: (1) Substitute father policy violates Congressional intent in enacting AFDC provisions of Social Security Act, 42 USC §601, DC Code §3-302 (b)(1); policy denies due process in depriving needy children of assistance regardless of "substitute parent's" provision of or liability for support; (2) arbitrarily discriminates against a class of needy children; (3) termination procedure violated due process by ex parte suspension of benefits, consideration in decision of report not in record or available to Pls, gathering of further evidence at request of h'g officer without notice to Pls. Pretrial examiner denied motion to inspect documents. DC reversed, ordered Def to produce all written decisions in "substitute parent" cases since policy established. Pending.

Neighborhod Legal Services Project, 416 Fifth St NW, Washington, DC.

421.DC.6. Harrell v Bd of Commrs of District (DC DC) (36 LW 2283) Pl, denied welfare because of residency requirement, filed complaint contesting requirement. Je 19, 1967: DC refused to convene 3-judge ct. Pl instituted mandamus
- 115 -

demanding 3-judge ct. CA granted writ. Nov 8, 1967: Ct held (2-1) requirement denies equal protection.

Neighborhod Legal Services Project, 416 Fifth St NW, Washington, DC.

And see Thompson, 421.Conn.4.

421.DC.7. Barley v Bd of Commrs of District of Columbia (DC DC, Civ #1579-67) Pet has been in DC mental institution 26 yrs. Sept 15, 1965: Pet declared competent (DC Code 21-564); due to lack of funds unable to leave unless she receives public assistance. Je 20, 1967: Pet sued for public assistance: arguments similar to Thompson, 421.Conn.4; DC Pub Welf Regs EL 9.1,III,B, 2a and 3 which state time spent in an institution as a public charge does not count toward establishing residence unconstitutional. Pending.

Neighborhood Legal Services Project, 416 5th St NW, Washington, DC.

421.Ga.3. Anderson v Schaefer (Atlanta) (ND Ga, #10443) May-July, 1966: Pls-mothers notified benefits under AFDC terminated: seasonal, full-time employment available; and, under Ga statute 99.128, Co Welfare Depts prohibited from supplementing wages of mothers with full-time employment, directed to close all AFDC cases of mothers `available' for work during `full-time employment' periods (Ga Act 99.128). Pls seek injunction, declaratory judgment (42 USC §1983): Defs cannot arbitrarily exclude needy children from AFDC through restrictive policies; "employable mother regulation" denies equal protection: (1) children in fatherless families where mother works part-time receive aid if mother's income is less than Def's minimum standards; but children in fatherless families where mother works full-time do not receive aid if mother's income is less than Def's established minimum; (2) actual purpose is to cut Negro (not white) mothers off welfare rolls to provide cheap source of Negro woman and child labor for domestic and agricultural work: vague standards of regulation allow Defs to rule domestic and field work `unsuitable' and `unavailable' for whites; violation of due process by arbitrary, across-the-board denials of applications and closing of cases whenever co welfare bds determine `seasonal' full-time employment is available; conflict between Social Security Act and Ga AFDC statute: Social Security Act intended to prevent disruption of families on ground of poverty alone and to enable mother to stay home and care for children. Pending before 3-judge ct.

C B King, Esq, P O Box 1024, Albany, Ga; James T Graham, Martin Garbus, Edward V Sparer, Esqs, Columbia Center on Social Welfare Policy and Law, 409 W 117th St, NYC; Jack Greenberg, Stephen Ralston, Charles Jones, Jr, Esqs, 10 Columbus Circle, NYC.

421.Miss.2. Williams v Miss Dept of Social Welfare (ND Miss, #GC 6728) Apr 1967: Pl, welfare recipient, received notice of termination of Aid to Permanently & Totally Disabled: insufficient disability to qualify. May 2: Pl appealed, requested h'g and restoration of ATPD pending outcome: unable to do manual work because of amputation of right hand, sickle cell disease, biliary obstruction. No h'g set. Je 9: Pl brought class suit for declaratory, injunctive relief against Miss procedures for terminating welfare benefits, as violating 14th Amdt, Social Security Act, 42 USC §1983: due process requires termination be preceded by notice; fair h'g; report of findings of fact, policy and law reviewable by recipient before decision; opportunity for impartial review. Je 16: Def stated in ct it would reinstate Pl's benefits retroactively pending outcome; confer with US Dept of HEW on new termination procedures; terminate no welfare recipients without h'g until HEW negotiations completed. Application for 3-judge ct granted. Pending.

NAACP Inc Fund, 10 Columbus Circle, NYC 10017; Center on Social Welfare Policy & Law, 409 W 117th St, NYC.

And see Wheeler, 421.Calif.18.

421.NJ.2. Re C (NJ Dept of Inst & Agencies, #HD-5853) Applicant sought Disability Assistance: heart disease. Aug 18, 1967: H'g bd rejected applicant's medical evidence of heart disease, but granted assistance: "cardiac neurosis" and inadequate personality" made her "socially unemployable."
421.NJ.3. Matter of D (NJ Dept of Inst and Agencies, #VC-1210) Co Welf Bd ruled Pet ineligible for ADC assistance: failure to report income of husband's half-brother with whom she was allegedly living in non-marital relationship (Categorical Assistance Budget Manual §706.2 AOC). Apr 20, 1967: NJ Dept of Institutions and Agencies overruled decision: evidence not conclusive nor does it establish beyond reasonable doubt that he should be considered member of family for budgetary purposes.
421.NJ.4. Re J (NJ Dept of Inst and Agencies, #UC-1858) Pet convicted of welfare fraud: failure to report unemployment compensation income. Welfare Bd denied ADC benefits to family (NJ Rev Stat Title 44 §7-32). May 2, 1967: Dept overruled decision: "fact technically ineligible member of household might derive tangential benefit from grant calculated to meet needs of eligible members of household cannot be held to result in total disqualification of those who are otherwise eligible."
421.NJ.5. Re W (NJ Dept of Inst and Agencies, #UC-808) Pet failed to report income from work; convicted: welfare fraud. Welfare Bd denied AFDC benefits to family (NJ Rev Stats Title 44 §7-32). May 25, 1967: Dept overruled decision, followed Re J, 421.NJ.4.
421.NY.1. Re G (Onondaga Co) (NY State Welfare Dept) Local welfare investigator requested Comp-AFDC mother appear for interrogation re suspected fraud (violation of NY Soc Welf L §145). Comp refused: Fifth Amdt. Grand jury refused to indict. Comp's benefits changed to voucher-for-goods payment of reduced cash value. Comp appealed: self-incrimination privilege extends to welfare fraud investigations, cannot be used as basis for change in benefits. H'g. Nov 9, 1966: State welfare commr affirmed change: Co agency "technically erred" in providing voucher payments without proof of inability to handle cash, but because "it was (Comp) who thwarted" investigation, her complaint lacked merit. Decision makes no reference to Fifth Amdt privilege.

Gerald Stern, 4758 Kenmore Ave, Alexandria, Va; Center on Social Welfare Policy & Law, 409 W 117th St, NYC.

421.NY.4. Matter of C (NY Dept of Welfare) 1967: Welfare Dept suspended recipient's Old Age Assistance: man residing at recipient's address. Commr of Welfare overruled suspension: mere presence of another person in house not grounds for discontinuing grant; need proof 3rd person is
- 116 -

contributing to income, or special relationship between him and recipient, or both.

Mobilization for Youth, Legal Services Unit, 214 E 2d St; Center on Social Welfare Policy, 409 W 117th St, both of NYC.

421.NY.5. Bradley v Ginsberg (SD NY, #67 Civ 3047) Aug 10, 1967: Pl-AFDC mother brought action for &10,000 damages, class suit for injunction, declaratory relief against NYC Welfare Dept's alleged practice of searching recipients' homes without warrants, threatening to suspend payments if searches not permitted, questioning recipients about personal lives, other matters irrelevant to eligibility: practice violates First, Third, Fourth, Fifth, Sixth, Ninth, 14th Amdts, Titles IV, XVI of Social Security Act. Pending.

David Gilman, Stephen Nagler, Esqs, 160 W 96th St, NYC.

421.NY.6. Matter of Hernandez (Bronx Family Ct, #2351-57) Resp, subject to support order for 3 children in institutions, lost his job, placed in Manpower Development Training Program. Bureau of Child Welfare continued to insist on support payments. Jan 10, 1967: Resp sued for cancellation of support arrears which accumulated while he was unemployed, on welfare and in training. Re-h'g pending.

Nancy E LeBlanc, Mobilization for Youth, 320 E 3rd St, NYC 10009.

421.NY.7. Re G (NYC Welfare Dept) Dept pays welfare recipients' rents half on 1st of month, half on 16th. 1967: Comp sought h'g on request for payment on date rent due under recipients' leases: present procedure often results in dispossess proceedings. Pending.

Mobilization for Youth, 214 E 2d St, NYC 10009.

421.NY.8. Martinez v Catherwood (NY Unemployment Ins Appeal Bd) Applicant served 3 mths sentence for non-payment of parking fines. On release, employer refused him work. Applicant sought unemployment insurance; denied: serving jail sentence constituted provocation of discharge (construed by cts as disqualifying "voluntary separation"). Applicant appealed: (1) discharge was for lack of work, not absence; (2) unreasonable to find applicant acquired 17 parking tickets beginning 2 yrs before last employment in order to provoke discharge and collect benefits. Pending.

Barry Satlow, Esq, Mobilization for Youth, 214 E 2d St, NYC 10009.

421.NY.9. Feliciano v Catherwood (NY Unemployment Ins Appeal Bd) Spanish-speaking applicant asked second applicant to translate request for unemployment insurance. Volunteer translator related applicant's story inaccurately. Application denied; applicant penalized 20 days' benefits for "willful misrepresentation." Applicant appealed: (1) rule that applicants are bound by what their translators say is erroneous; (2) agency has duty to provide translator. Pending.

Robert Sugerman, Esq, Mobilization for Youth, 214 E 2d St, NYC 10009.

421.NY.10. Re P (NYC Welfare Dept) Dept authorized recipient to buy wringer washing machine. At h'g, recipient sought authorization for automatic washer: wringer machine dangerous to small children. Dept authorized automatic machine.

Raymond F Narral, Esq, Mobilization for Youth, 214 E 2d St, NYC 10009.

421.NY.11. Re T (NYC Welfare Dept) Dept customarily pays accumulated debts of recipients wrongfully suspended, not back benefits in full. 1967: Comp sought h'g to determine right to retroactive benefits on reinstatement. Pending.

Mobilization for Youth, 214 E 2d St, NYC 10009.

421.NY.12. Re T (NYC Welfare Dept) Pet, father of AFDC family, received workmen's compensation award, attempted to establish irrevocable educational trust for children with proceeds, remain on welfare. Welfare Dept refused request to establish trust, ordered benefits terminated unless award turned over to Dept. Pet requested h'g: Social Security Act (42 USC §602(7)), fedl and state Regs permit resources to be set aside for children's future education; allowing trust would further rehabilitative purpose of AFDC program; city policy unreasonable, contradicts other NYC Welfare Dept regulations. Je 14, 1967: h'g. Pending.

Mobilization for Youth, 214 E 2d St, NYC 10009.

421.NY.13. New York v Pickett (Niagara Falls) (NY Ct of App) Welfare recipient trained by state refused to accept available employment stating pay was too low. Man arrested: §145 Social Welfare Law makes it misdemeanor to commit "any wilful act designed to interfere with proper administration of public assistance and care." City Ct found Def guilty; 30 days. Def appealed. Co Ct affirmed. Feb 23, 1967: NY Ct of App ruled §145 provides penal sanctions only for acts motivated by fraudulent intent, held since Def not charged with fraud, nor was fraud proved, reversed conviction.

Earl W Brydges, Jr, Esq, 426 Third St, Niagara Falls, NY.

421.NY.14. Snell v Wyman (SD NY, # Civ 67-2676) Recovery statutes (NY Soc Welf L §§104, 104A, 360) and "protective action policy" (NY Dept of Welfare Regulations, Title 18, §§368.2, 369.2) obligate welfare recipients to repay state from present, future resources, and assign realty interests, personal injury and other claims to local welfare Depts. 1967: Pls (including mother required to assign interest in co-op apartment, man required to assign tort claim for amputation of legs by subway) sued for 3-judge ct, declaration statutes, Regs invalid as: (1) violating purpose of Social Security Act, NY Welfare Law to help recipients become self-supporting; (2) permitting recovery even if effect would be to put recipient back on welfare or take away homestead; (3) arbitrarily singling out welfare recipients from other needy persons, eg, public housing tenants, medicaid recipients; (4) one Pl denied counsel in processing of application. Denial-of-counsel count dismissed on stipulation city, state welfare depts would let attys represent applicants, recipients thereafter. Aug 2: DC granted application for 3-judge ct: "The subject lies in a desperately important area where judicial, no less than political, doctrines are undergoing profound and urgent reexamination. . . . (The) case does not appear to be one in which a single judge can confidently find so little merit as to order dismissal at this juncture." Pending.

Martin Garbus, Esq, ACLU; James J Graham, Esq, NYU Law School.

421.Pa.1. Jordan v Rosenn (Pa Sup Ct, #242 Misc 15) Pl, child of Social Security beneficiary, received lump-sum payment
- 117 -

on death of father, mthly survivor benefit. Pa Dept of Pub Welfare ruled: (1) state must be reimbursed from death benefit for past welfare payments to child; (2) survivor benefit to be treated as income available to Pl's mother, half-brothers, half-sisters, hence deductible from their welfare payments. Administrative appeals denied. Apr 28, 1967: Pls appealed in class action to Sup Ct. Jy 24: review denied. Welfare Dept has eliminated treatment of child's survivor benefit as family income.

Community Legal Services, 313 S Juniper St, Philadelphia 19107.

421.Pa.2. Smith v Reynolds (Philadelphia) (ED Pa, Civ #42419) 1967: 3-judge ct held (2-1) Pa 1-yr residence requirement unconstitutional: denial of equal protection.

Thomas K Gilhool, Esq, Community Legal Services, 313 S Juniper St, Philadelphia 19107.

Amici: Ragan A Henry, Esq, Greater Phila Council of Churches, 1315 Walnut St and Matthew Strickler, Esq, Health and Welfare Council, Inc, 1035 Land Title Bldg, Philadelphia.

And see Thompson, 421.Conn.4.

421.Pa.3. Waggoner v Gunlerman (WD Pa, Civ #67-40) Jan 1967: Pl-welfare applicant sued to invalidate Pa 1-yr residency requirement. 3-judge ct convened. Pending.

Neighborhod Legal Services Assn, Plaza Bldg, Pittsburgh.

And see Thompson, 421.Conn.4; Smith, 421.Pa.2.

422. Social Welfare Programs—Federal
(and see 251, 254, 255, 261, 263, 346)

Book: Medicare and social security explained. Commerce Clearing House. NYC. 256 pp.

Articles: Harvith, Federal equal protection and welfare assistance. 31 Albany 210.

Bernie R Burrus and Daniel Fessler, Constitutional due process h'g requirements in administration of public assistance: District of Columbia experience. 16 American U 199-235.

Benjamin D Waechter, New outlook of social security. 35 Detroit Lawyer 159-63.

Daniel Jay Baum, Federal Trade Commission and war on poverty. 14 UCLA 1071-88.

Kennedy leads Senate attack against anti-welfare bill. NOW, Vol 1, No 21 Nov 3, 1967.

Richard W Boone, et al, The future of OEO. Cong Rec—Sen. Aug 2, 1967, S 10624.

Richard D Huttner, Representing Social Security claimants. 53 ABAJ 1140 (1967).

Comment: Federal tax policy and economic position of Aged. 114 Pennsylvania 1221.

Comments: New HEW Regs on welfare budgeting, investigatory practices and procedural fairness. Welfare L Bull (Jy 1967).

Social security disability benefits: Three current problems. 52 Minnesota 165-97.

Notes: Definition of children under fed'l welfare legislation: Metropolitan Life Insurance Co v Thompson (368 F2d 791, CA 3 1966). 67 Columbia 985-92.

Welfare's "Condition X," 76 Yale 1222.

Debate: HR 12080 Social Security amendments. Cong Rec—House. Aug 17, 1967, H 10663.

Proposed Legislation: S 1681 provides disability insurance for blind. Natl Federation of Blind, 2652 Shasta Rd, Berkeley 94708.

HR 12257 funds programs for handicapped agriculture workers and deaf-blind. Cong Rec—House. Aug 21, 1967, H 10819.

S 2274, Domestic Marshall Plan Act of 1967. Cong Rec—Sen. Aug 10, 1967, S 11362.

S 2088 provides incentive to private industry to hire unemployed urban poor. Cong Rec—Sen. Jy 12, 1967, S 9419.

S 2138 permits emergency food and medical aid by Agriculture Secy and Surgeon Genl. Cong Rec—Sen. Aug 2, 1967, S 10545.

HR 12280, 12281 provide &4 billion to employ 1 million unemployed in state, local, and nonprofit organization jobs. Cong Rec—House. Aug 10, 1967, H 10358.

S 2258 creates Presidential emergency neighborhood assistance fund. Cong Rec—Sen. Aug 8, 1967, S 11156.

S 2134, Rural job development act. Cong Rec—Sen. Jy 21, 1967, S 9915.

S 2203, Business Development Assistance Act, amends Title IV of OEO Act. Cong Rec—Sen. Aug 2, 1967, S 10558.

S 1545, Economic opportunity act of 1967. Cong Rec—Sen. Apr 14, 1967, S 5138.

HR 10196, Labor and HEW appropriations. Cong Rec—Sen. Aug 2, 1967, S 10651.

HR 11000 and S 2219, Rat Extermination Act of 1967. Cong Rec. Jy 20, 1967, H 9113; Aug 3, 1967, H 9967; Aug 7, 1967, S 10992.

Message to Congress: Lyndon B Johnson, War on poverty. Cong Rec—Sen. Mar 14, 1967, S 3769; Mar 15, 1967, H 2705.

Speech: Benjamin F Peery, Inter-organization conflicts in administration of Watts poverty funds. Cong Rec—Appendix. Jy 18, 1967, A 3602.

Mrs Fred Harris, OEO program in Oklahoma. Cong Rec—House. Jy 13, 1967, H 8721.

Regulation: HEW Transmittal 77, revising Handbook of Public Assistance Adm, Part IV, §§2220-30, prohibits state eligibility termination, investigation procedures involving harassment, invasion of privacy, unlawful searches; requires continuing payments under categorical assistance until ineligibility determined.

Handbook: Social Security. US Dept of HEW, 3d ed, US Gov't Printing Office, 1966. 461 pp, &1.50.

Analysis: Nat'l Welfare Leaders Newsletter, Fight HR 12080, Anti-welfare bill. Poverty/Rights Action Center, 1713 R St NW, Washington, DC. Aug 15, 1967.

Resolution: San Francisco Human Rights Commn charges Congressional neglect of poor while appropriating for military and space. 1254 Market St, suite 305, San Francisco 94102. Aug 14, 1967.

Letter: Lurleen Wallace to Sargent Shriver, protesting OEO override of her veto of OEO grant to Southwest Alabama Farmers Cooperative Assn. Cong Rec—House. Aug 10, 1967, H 10378.

Editorial. Staunton (Va) Leader. Convicts eligible for unemployment and Social Security benefits. Cong Rec—Appendix. Apr 27, 1967, A 2065.

422.5. Johnson v Arkansas Dept of Public Welfare, Georgia Dept of Family and Children's Services (Dept of HEW) Defs practice policy of cutting off ADC when man lives with recipient even though he has no legal obligation to support her children. Jan 1966: Class action filed with HEW to
- 118 -

hold hearing under §404, Social Security Act, attacking validity of this "substitute parent" doctrine as arbitrary, violates right to privacy, forces women to report relations with men or be denied aid for deception. Hearing pending.

John Walker, Esq, 1304B Wright Ave, Little Rock, Ark; C B King, Esq, P O Box 1024, Albany, Ga; NAACP Inc Fund, 10 Columbus Circle, and Edward V Sparer, Esq, NYC.

422.7. Alabama v Gardner (USSC) Ala refused to file desegregation compliance form meeting HEW requirements for fed'l welfare funds. Apr 5, 1966: HEW h'g examiner recommended cutoff of funds for Ala for failure to comply with 1964 Civil Rights Act. Je 16: Ala notified HEW it would go to court to avoid cutoff, charging Title VI of Act does not require third parties such as doctors' offices and nursing homes to be desegregated; HEW had no authority to cut off funds for programs such as old-age assistance and care for dependent children because of noncompliance in health-care programs. Jan 12, 1967: HEW Secy ordered fed'l funds terminated Feb 28. Ala sued to enjoin cutoff; DC granted preliminary injunction over HEW contention DC lacked jurisdiction. HEW appealed; Ala petitioned CA 5 for review of HEW order if DC lacked jurisdiction. CA consolidated appeal, petition for review. Aug 29: CA: (1) held DC lacked power to grant injunction, CA having express or implied exclusive jurisdiction to review funding under all Civil Rights Act titles litigated (42 USC §1316 (a)(3); (2) affirmed HEW order: compliance would merely require Ala to use best efforts to end discrimination; would not force Ala to stop payments to segregated private institutions, or give fed'l gov't rights in restitution against state. CA stayed judgment 30 days for negotiations. Oct 21: Ala filed for cert in USSC. Pending.
422.8. Re Disability Benefits (US Dept of HEW Bureau of H'gs & Appeals) Applicant sought Social Security disability benefits: psychological disorder prevented him from working. H'g. Application denied: applicant able to work. Reh'g. Denial affirmed. Appeal. H'g examiner found applicant had been disabled but had recovered. Appeal to HEW Bureau of H'gs & Appeals withdrawn when HEW decided on own motion to review examiner's decision. 3 HEW psychiatrists examined applicant. Bureau found applicant disabled for indefinite period. Applicant received lump sum payment, &87.50/mth disability benefit, has left welfare.

Raymond F Narral, Esq, Mobilization for Youth, 214 E 2d St, NYC 10009.

423. Housing (and see 256, 530s)
Form: Contract between tenants' organization and slumlord. CIVIL RIGHTS HANDBOOK pp 290a-290d.

Form: Complaint for injunction against slumlord. CIVIL RIGHTS HANDBOOK pp 290f-290k.

Analysis: State housing acts to protect tenants: NY, Calif, Pa. CIVIL RIGHTS HANDBOOK pp 290s-290u.

Bibliography: Landlord-tenant problems of the poor. CIVIL RIGHTS HANDBOOK p 290e.

Brief: Tenants' constitutional right to complain to gov't about landlord without being evicted. CIVIL RIGHTS HANDBOOK pp 2901-290r.

Articles: Ronald Glotta, The radical lawyer and the dynamics of a rent strike, 26 Nat'l Lawyers Guild Practitioner 132.

Jan S Moskowitz, Landlord's retention of power to control premises. 15 Cleveland-Marshall 579-86.

FHA moves to aid slum poor. NY Times, Aug 14, 1967.

Richard J Barnet, Landlord-tenant laws and slums. Key List Mailing, No 27, 1966, SNCC, 449 14th St, San Francisco, 94103.

Ruth Moore, Home buying and improvement in Chicago slums. Cong Rec—House. Aug 8, 1967, H 10150.

Richard F Janssen, Census Bureau reappraisal shows no slum housing improvement. Cong Rec—Sen. Aug 10, 1967, S 11311.

Comments: Substandard housing and new Pennsylvania withholding act. 5 Duquesne 413-30.

Duty of maintenance of multiple dwellings in California. 18 Stanford 1397-1405.

Rent abatement legislation: answer to landlords. 12 Villanova 631-42.

Legislation: New NY Housing Code signed by mayor. NY Times, Jy 15, 1967.

Tenant income in low rent housing projects (Amended HB 2108), allows Conn Public Works Commr to exclude from definition of family income any income that "is not generally available to meet the cost of basic living needs of the family."

Tenant admission standards in public housing projects (Conn HB 3593) forbids local authorities from excluding otherwise qualified applicants on basis of illegitimate children.

Revised rent receivorship act (Conn HB 5331) permits courts to appoint private person or agency as receiver, and order that receiver be paid reasonable fee for his services.

Community development act (Conn Substitute SB 1115) provides for creation of Dept of Community Affairs to administer variety of housing, social improvement and anti-poverty programs.

Proposed Legislation: S 2114 assists minority group home financing. Cong Rec—Sen. Jy 13, 1967, S 9547.

S 2100, Urban Housing Development Act, provides incentives to private builders who rehabilitate urban slum housing. Cong Rec—Sen. Jy 13, 1967, S 9593.

HR 11683 requires FHA-insured multi-family landlords inform tenants of FHA-approved rent schedules. Cong Rec—House. Jy 24, 1967, H 9184.

HR 12142, Low and Moderate Income Housing Act of 1968. Cong Rec—House. Aug 7, 1967, H 9995.

Regulations: Guideline for administration of systematic housing code compliance program. US Dept of Housing and Urban Development. 1967.

Handbook: Landlord-tenant procedures and law, with forms. Mobilization for Youth, Inc, 214 E Second St, NYC 10009.

Book: Project on Social Welfare Law, Housing for the poor: rights and remedies, NYU School of Law, NYC 10003. 261 pp.

Publication: Michael B Rosen, Tenants' rights in public housing 1967. Copy in Meikeljohn Civil Liberties Library.

Analysis: John M Dickerman, Housing and urban development, 1967. Cong Rec—Sen. Aug 7, 1967, S 11004.

Statements: No eviction without cause. Irvin Dagen, Exec Dir, St Louis Housing Authority, informed all tenants all evictions would be for cause only; tenant to be granted h'g, with representation by counsel.

- 119 -

Clay Cochran, before Sen Subcomm on Rural Development, Self-help co-op low-income housing. Cong Rec—Sen. Aug 16, 1967, S 11632.

And see Reyna, 427.5, Garcia, 427.5a.

And see Green, 51.NY.32; Gray, 51.NY.32a.

423.Ala.2. Lewis v Public Housing Authority of Talladega (Talladega) (ND Ala, #CA-67-106) Pl-tenant pregnant with illegitimate child received eviction notice. 2nd Pl had daughter, not residing in project, also pregnant with illegitimate child; received eviction notice. 1967: Pls brought class action seeking declaratory judgment and injunction: such policy of eviction irrational and inconsistent with purpose of low-rent public housing, deprives them of equal protection and due process of law; because fed'l legislation establishes income as only criterion for eligibility, other factors may not be used to justify exclusion; procedural due process requires Def to give notice of reason for eviction and hold h'g at which tenant may defend. Feb 10: DC issued temporary restraining order, ordered Pls to pay rent pending outcome. Def withdrew eviction notices. Je 2, 1967: Ct granted Def's motion to dismiss: case moot. Pl's atty moved to vacate order: Def failed to give required 5-day notice (CCP 6d); case not moot. regulation still in effect. Pending.

Orzell Billingsley, Jr, and Peter Hall, Esqs, 1630 4th Ave N, Birmingham; NAACP Inc Fund.

423.Ala.3. Richardson v Housing Authority of Bessemer (ND Ala, #67-148) 1967: Pl evicted from public housing: Def gave no reason, no h'g. Pl sued under 42 USC §2000e to enjoin eviction: public housing auth must give notice and h'g before eviction. Feb 28, 1968: DC granted temporary restraining order. Apr 28, 1967: trial. Pending.

Oscar W Adams, Esq, 1630 4th Ave N, Birmingham; NAACP Inc Fund.

423.Ark.1. Housing Authority of Little Rock v Thompson (Pulaski Co Cir Ct, #60219) Def evicted without h'g. Dec 30, 1966: Ct found against Def, but recognized that since Pl was gov't agency, constitutional, contractual, and statutory arguments should be considered in addition to terms of lease; advised Def to file new application. Pl accepted application.

John W Walker, Esq, 1304 B Wright Ave, Little Rock; NAACP Inc Fund.

423.Ark.2.. Thomas v Housing Authority of Little Rock (ED Ark, #LR 66 C-230) Def refused to admit Pls to tenancy: Pls have illegitimate children. Pls sue under 42 USC §2000e for injunction to enjoin Defs from (1) refusing admittance on ground of illegitimate children, (2) maintaining segregated projects. Defs moved for summary judgment. May 26, 1967: DC held unconstitutional policy of denying tenancy to families with illegitimate children, dismissed claim based on segregation: Pls not barred because of race; they had epressed preference for alleged Negro facility rather than Caucasian one.

John W Walker, Esq, 1304 B Wright Ave, Little Rock; NAACP Inc Fund.

423.Calif.1. Fields and Ortiz v Sacramento Housing Authority (Sacramento Co Super Ct, ##163393, 163394) Def threatened to evict Pls, active in tenants' assn criticizing Def. Pls sued for injunction; Def claims right to evict without cause. Ct issued restraining order pending trial.

Lawrence Kartlon, Esq, 926 J Bldg, Sacramento; Marshall Krause, Esq, ACLU-NC, 503 Market, San Francisco.

423.Calif.2. Tyree v Housing Authority (Pleasanton) (Alameda Co Super Ct, #370792) 1954: Def-Auth bought "temporary" project from fed'l govt under Title VI Lanham Act. Jy 1, 1967: 10% rent raise effective. Jy 12: Pl sought injunction against raise, declaration that Def may not operate project at profit: project has been profitable since acquisition; Def has raised rents 4 times; rent increase unnecessary for Auth revenue; profits since 1954 total &347,000, of which &120,000 has gone to city general fund; non-profit operation required under Calif Health & Safety C §35489, 42 USC §§1401, 1412. Jan 1968: Pre-trial. Pending.

Daniel Prince, Esq, Alameda Co Legal Aid Society, 2023 Third St, Livermore, Calif 94550.

423.Calif.3. Johnson v Cotton (Oakland-Piedmont Muni Ct, #208717) 1967: Pl-landlord brought unlawful detainer action for non-payment of rent. Def answered: (1) Pl not entitled to rent, (2) unclean hands doctrine applicable: ct should not assist Pl in eviction because premises violate city housing code. Ct withheld eviction order pending evidence of code compliance, continued case for study of applicability of unclean hands defense. Pending.

Cherie A Gaines, Clifford Sweet, Esqs, Alameda Co Legal Aid Society, 1815 Telegraph Ave, Oakland 94612.

423.Calif.4. Western Addition Community Organization v Weaver, Brownstein (DC DC) Oct 13, 1964: San Francisco Bd of Supervisors approved Redevelopment Agency application for fed'l financing of Western Addition Project in area with large low-income Negro, Japanese and elderly populations, over opposition of many area residents. Adoption of Prop 14 (struck down in Mulkey, 533.Calif.26), repealing state fair housing laws, delayed approval by HUD. Je 30, 1966: HUD approved application; contracted with city for fed'l grants, loans, required Redevelopment Agency to reappraise plans for relocating residents to be displaced. Je 1967: interim relocation plan submitted; HUD disapproved, suspended fed'l financing. Aug 9: Pls, area residents and federation of area organizations, filed complaint against Redevelopment Agency with HUD: relocation plan inadequate, unworkable. No h'g or formal action by HUD on complaint. Aug 15: Redevelopment Agency submitted new relocation report; fed'l funding immediately resumed. Oct 16, 23: Bd of Supervisors held h'gs on sufficiency of relocation plan; resolved (6-2) to instruct Redevelopment Agency to cease further acquisitions, demolitions, dislocation in project area except for purchase of single-family houses from voluntary sellers. Mayor vetoed resolution. Project continued with fed'l funds. Dec 15: Pls brought class action for injunctive and declaratory relief against Sec of HUD and FHA Commr to halt fed'l funding, use of funds already granted, and commitment of FHA urban renewal mortgage insurance funds in San Francisco: (1) adequate relocation housing unavailable because of shortages, high rents, race discrimination, Fifth Amdt due process clause, hence project violates 42 USC §§1441 et seq, 1455(c) (1-2), HUD regulations; (2) FHA mortgage programs under 12 USC §§1715K-L require "Workable Program for Community
- 120 -

Improvement" approved by Supervisors and certified by Sec of HUD on sufficient evidence to include adequate relocation plan; (3) project would deny area residents free speech and association by disrupting 2 major ethnic communities and their political, business and communications organizations; (4) dislocation of residents without requisite h'gs and approvals is arbitrary, capricious, denial of due process. Pending.

Stafford L Smith, Gilbert T Graham, Peter Sitkin, Isadoor Bornstein, Esqs, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103; Jack Greenberg, Leroy Clark, Michael Davidson, Esqs, Natl Organization for Rights of Indigents, 10 Columbus Circle, NYC 10019.

423.Calif.5. Earl v San Francisco Housing Authority; Housing Authority v Kennedy (Super Ct, #573773; Muni Ct ##574807-11, 574813-16, 574818-19, 576388) Def's tenants withheld 1 mth's rent, applied money to token painting project. City forced painters to stop. Dec 20, 1966: tenants sued for injunction against interference, obtained ct-supervised agreement allowing continued painting. Feb 21, 1967: Housing Auth sought evictions: non-payment of rent. Bd of Supervisors appropriated &500,000 for repairs, gave tenants voice in determining expenditures; eviction suits dismissed.

Jarvis, Miller & Stender, Esqs, 123 Second St, San Francisco.

And see Potrero Hill, 423.Calif.7.

423.Calif.6. Hunter's Point Tenants Union v San Francisco Housing Authority (San Francisco Super Ct) Nov 2, 1966: SF Tenant Issue Council (STIC) announced 1st SF public-housing rent strike, alleging inadequate maintenance, illegal evictions, no tenant representation on Def-Housing Auth. Nov 24: Auth issued Notices to Quit to 10 non-paying tenants. Pl sought painting bids; awarded &700 painting contract with withheld rent funds. Auth halted painters halfway through. Dec 20: Pl sought injunction: Cal Civ C §§1941-1942 authorizes tenant to repair dilapidation, deduct up to month's rent. Dec 29: Ct denied injunction: law permits only 1 month rent withholding; tenants of one building may not withhold rent to paint another. Def agreed to permit painters to resume.
423.Calif.7. Potrero Hill Community Action Comm v San Francisco Housing Authority (CA 9, #22012) Pl-tenants asked Def to repair allegedly filthy, vermin-ridden, dilapidated, unsafe projects; Def refused; Pls began rent strike; Def brought unlawful detainer actions. Pls brought fed'l class action for: (1) declaratory judgment Def obligated to repair and maintain premises in decent, safe, sanitary state as condition precedent to collection of rent; (2) injunction halting evictions, requiring repairs. Def moved to dismiss on grounds including, inter alia: (1) case governed wholly by Calif law, hence no fed'l question jurisdiction; (2) pending and decided detainer actions in state ct oust fed'l ct of subject matter jurisdiction; (3) failure to state fed'l claim; (4) jurisdictional amount requirement not satisfied; (5) signature of one Pl falsified on complaint, another Pl had vacated and suffered judgment for rent. Apr 14, 1967: Pls filed memo in opposition: (1) Fed'l Housing Act of 1937, 42 USC §1401, Def's contract with US, and Calif Health & Safety C §34212 obligate Def to maintain projects in decent condition; (2) fedl statutory obligation implies fed'l right of enforcement; (3) FRCP 23, as amended in 1966, permits aggregation of claims in any class action to meet jurisdictional amount; (4) issues litigated in unlawful detainer (Calif C Civ Proc §1161 et seq) so limited as not to bar other actions arising from landlord-tenant relation; (5) fed'l ct can consider state-law bases of Pls' claims as intertwined with fed'l claims or by exercising pendent jurisdiction. Je 1: DC granted motion to dismiss: Pls failed to state claim: implied right of action will ordinarily be found only in statutes carrying criminal sanctions; Pls adequately protected by administrative and state-ct remedies. Pls appealed. Pending.

Marvin Kayne, Terry Hatter, Stafford L Smith, Esqs, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103.

And see Earl, 423.Calif.5.

423.Calif.8. Whitfield v San Francisco Housing Authority (ND Calif, #47921) Pls brought class action for declaratory, injunctive relief against rent discrimination: Def charges welfare recipients more than other tenants, denying equal protection. (Def states it charges amounts allocated for rent by Welfare Dept.) Pending.

Stafford Smith, Esq, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103.

423.Calif.9. Martinez v Benjamin (San Francisco Super Ct) Pltenant, hospitalized, fell 4 days arrears in rent. Deflandlord allegedly expressed dislike of "Beatniks," refused to let Pl return to apartment. Pl filed action for unlawful eviction, forcible entry, conversion, intentional infliction of mental distress; seeks general, punitive, statutory treble damages. Pending.

Norman Nayfach, Esq, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103.

423.Calif.10. Murrey v Tinkler (San Francisco Super Ct) 1967: Pl-tenant notified Def-landlord he would withhold Sept rent to pay for repairs (Civ C §§1941-2). Def served eviction notices. Pl brought action to enjoin eviction, compel Def to make repairs, abate nuisance, obtain declaratory judgment of Pl's rights, recover damages for interference with possession. Ct granted preliminary injunction against eviction. Pending.

Joan Salisbury, Peter Sitkin, Esqs, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103.

423.Calif.11. Lopez v Giunti (San Francisco Super Ct, #582047) 1967: Pl-tenant defaulted in rent; Def-landlord served 3-day statutory eviction notice, removed and withheld Pl's belongings, rented to new tenant. Pl brought action for unlawful entry during her absence, forcible detainer, recovery of property. Pl seeks restitution of apartment; treble damages for loss of occupancy, mental suffering caused by entry; damages for loss of use of personal property, mental suffering caused by detainer; punitive damages. Pl relies on Jordan v Talbot, 12 C Rptr 488 (1961), for forcible entry and detainer action; claims baggage lien on personalty obtainable only by judicial process, and much of seized property exempt; denies Pl's right to counterclaim in summary proceeding. Pending.

- 121 -

Arthur Berggren, San Francisco Neighborhood Legal Assistance Foundation, 755 Commercial St, San Francisco 94108.

423.Calif.12. Rosales v Genovea (San Francisco Muni Ct) Pl's toilet stopped up, Health Dept ordered Def-landlord to fix it. Def did so, evicted Pl. Aug 1967: Pl filed suit against eviction: Def interfered with her constitutional right to petition gov't for redress of grievances. Aug 26: Muni Ct upheld eviction.

James Herndon, Esq, 341 Market St, San Francisco 94105.

And see Marino, 423.NY.13.

423.Calif.13. Buckner v Azulai (App Dept, Los Angeles Co Super Ct) (251 ACA 857 (1967)) Pl-tenant sued landlord for damages: vermin infestation. Muni Ct awarded return of final month's rental deposit under lease. Def appealed: Pl had waived rights under Calif Civ C §§1941-2 (requiring landlord to maintain housing in tenantable condition, permitting tenant to vacate or withhold one month's rent for repairs). May 16, 1967: Super Ct affirmed: lease provisions waiving constructive eviction statutes to be construed narrowly; because vermin entered Pl's apartment from parts of infested building not under her control, waiver inapplicable; 8 Calif Adm C §17906 requires landlord to keep premises free of vermin.
423.Calif.14. Richmond v Guillebeaus (Richmond Muni Ct) Defs led rent strike. Aug 11, 1966, 6:45 am: Defs evicted from their apt; arrested: resisting writ of real property, resisting arrest. Pending.
423.Calif.15. Stenger v Anderson (Calif Sup Ct) (66 AC 1024 (1967)) Aged decedent put house in joint tenancy under written contract with sister-in-law for life care. Pl-Admr sued to rescind contract, cancel deed, quiet title: contract illegal under Calif Welf & Inst C §16300, permitting transfers of property for life care of aged persons only when care to be provided by organization or person licensed to do so; undue influence. Trial ct held for Pl. Jy 1967: Sup Ct affirmed: life care statute applies to individuals as well as organizations; evidence supported finding of undue influence; change to joint tenancy a "transfer" within meaning of statute.
423.Calif.16. Phillips v Davenport (Monterey Co Super Ct, #64125) Jy 28, 1967: Calif C Civ Proc §1174 amended to provide for eviction by sheriff in detainer actions without charge to landlord, seizure of tenant's personalty, sale if unredeemed within 30 days. Pls, tenants and taxpayers, sued for injunction, damages, declaratory judgment that amdt unconstitutional: permits counties, agents to spend money for benefit of private persons, violating Calif Const, Art XIII, §25. Dec 1: Ct held amendment unconstitutional, issued preliminary injunction. Pending.

Robert Gnaizda, Calif Rural Legal Assistance Foundation, 711 S Main St, Salinas 93901.

423.Calif.17. Perales v Housing Authority (Tulare Co) (USSC) (cd 88 SCt 794) Pl announced rent increase. Defs, tenants, protested by paying rent into fund pending outcome of controversy. Pl brought unlawful detainer actions. Muni Ct ordered evictions; Super Ct affirmed. Jy 26, 1967: Defs petitioned USSC for cert. Jan 15, 1968: cert denied.

William M Lewers, Gary Bellow, Esqs, Calif Rural Legal Assistance Foundation, 335 Perkins Ave, McFarland 93250.

423.DC.1. Edwards v Habib (DC Ct of App) (366 F2d 628) 1965: Def-tenant complained to DC inspection dept of code violations; 44 found; Pl-landlord ordered to repair. Pl sued to evict, took default judgment. Landlord-tenant Ct set aside judgment: excusable neglect by Def in non-appearance; Def had right to complain of code violations. Trial. Ct excluded evidence of Pl's retaliatory purpose, gave judgment for Pl. CA DC stayed judgment pending appeal. 1967: DC Ct of App affirmed judgment for Pl: ct enforcement of retaliatory eviction not state action abridging free speech, right of petition; distinguished Def's cases as involving statutes specifically protecting right of petition; noted pendency of HR 257, §201 (90th Cong, 1st Sess), establishing such protection in DC landlord-tenant cases.

Brian M Olmstead, Neighborhood Legal Services Project, 3308 14th St NW, Washington, DC.

423.DC.2. Adams v Lancaster (DC Ct of Genl Sessions, Small Claims #c-12912-67) Pl orally leased housing from Def, paid &80 deposit, sued to void lease, recover deposit: premises below standards set by DC Housing Regs; Def's occupancy certificate did not permit rental to family as large as Pl's. Def claimed offset for cost of moving furniture for Pl's use. 1967: Ct held for Pl, denied offset: Lease an illegal contract, vesting rights in neither party: "No . . . distinction should be made between contracts entered into in violation of the Housing Regs as opposed to contracts rendered illegal for any of numerous reasons. . . . (I)gnorance of this law is no excuse, particularly as to a landlord."

Paul Cohen, Florence Roisman, Esqs, Neighborhood Legal Service Project, 416 5th St NW, Washington, DC.

423.Ga.1. Williams v Housing Authority of Atlanta (ND Ga, Atlanta Div, #10796) Pl, indigent resident of public housing, evicted by Def: no notice or h'g: Ga statute requires that tenant post bond with security as condition precedent to making defense to summary ejectment. Pl sued in state ct, moved to proceed in forma pauperis. Ct denied motion. Pl appealed to Ga Sup Ct. Pl moved for stay pending appeal: case would become moot if Pl evicted: Williams v Shaffer, 423.Ga.2. State cts and USSC denied stay. Pl sued under 42 USC §2000e in 3-judge fedl ct for injunction against enforcement of Ga statute and eviction: requirement denies indigent Pl due process and equal protection; eviction without h'g or notice denies due process. 3-judge ct issued temporary restraining order. Pending.
423.Ga.2. Williams v Shaffer (Fulton Co) (USSC) (222 Ga 334, 149 SE2d 688; cd 385 US 1037) Defs started eviction proceedings against Pls, indigent tenants. Pls unable to post security bond requiring collateral of nearly a year's rent (Ga C §61-304 requires tenant to tender bond before he is permitted to contest an ex parte dispossessory warrant). Pls sought leave from Super Ct: (1) to proceed without tendering bond; (2) to pay rents into Registry of Ct as they became due; commenced separate Super Ct action to vacate and enjoin execution of warrants: statute unconstitutional denial of equal protection and due process. Ct denied relief and stay pending appeal: such order would have same effect as injunction; suspended eviction proceedings
- 122 -

2 days to permit appeal of decision on stay order. Sup Ct ruled it could not determine appropriateness of stay until entire appeal docketed. Pls sought injunction and declaratory judgment that statute unconstitutional in 3-judge ct. Pls evicted. Six weeks later DC (Williams v Grimes, ND Ga, #10025) denied relief: (1) comity prevented interference in pending state proceedings; (2) constitutional claims could be adequately tested in state proceedings even tho substantial fed'l questions raised; (3) questionable whether suit arose under fed'l Constitution or laws since main litigation between private parties-landlord and tenant. 1966: Sup Ct dismissed full appeal: case moot. DC declined to reconsider decision, adopted earlier opinion. Jan 24, 1967: USSC denied cert. Douglas, J (Warren, CJ, Brennan, J) diss: Mootness is fed'l question; . . . Tho state may not constitutionally be required to afford h'g before its process is used to evict tenant, having provided h'g it cannot discriminate between rich and poor under equal protection clause.

Howard Moore, Esq, 859½ Hunter St NW, Atlanta 30314; NAACP Inc Fund.

423.Ill.3. Alexander v Chicago Housing Authority (CA 7, #16623) Pl-tenant sued for declaratory, injunctive relief against eviction without compliance with HUD memo notice of reasons, opportunity to rebut. DC denied relief, refused to consider applicability of HUD directive to Def. Pl appealed. Def sued for eviction in state ct. Pl moved for continuance pending decision of CA 7. Pending.

Marshall Patner, Robert Bennett, Jeffery Haas, Esqs, Legal Aid Bureau, United Charities of Chicago, 123 W Madison, Chicago.

And see Thorpe, 423.NC.1.

423.Ill.4. Gautreaux v Chicago Housing Authority (ND Ill, #66-C-1459) Pls filed class action charging Def with maintaining concentrations of Negroes in certain areas resulting in housing, education segregation. Mar 2, 1967: DC dismissed 2 counts: showing of affirmative discriminatory state action is required; 2 counts attacking site selection alleging deliberate discrimination by Def pending.

Alexander Polikoff, Esq, 231 S LaSalle; Charles Markels, Esq, 105 S LaSalle; Bernard Wiesberg, Esq, 111 W Jackson; Merrill Freed, Esq, 33 N LaSalle, all of Chicago 60604.

423.Ill.5. Sampson v Davis (Cook Co Cir Ct, Chanc Div, #66CH 4827) Jy 18, 1966: Pl owner and Defs tenants, members of JOIN Community Union, signed contract re repair of apartments. Aug 5: Arbitration h'g held pursuant to contract; majority of arbitrators adopted resolution; terms: arbitration comm to take possession of property; collect rents; apply rents to repairs; account to Pl. Aug 16: Pl filed suit to enjoin Defs' control and rent collection; conversion and accounting, damages. Sept 9: Cir Ct held contract unenforceable; enjoined Defs from interfering with property. Defs' motion to vacate pending.

Irving Birnbaum, Esq, 11 S LaSalle St, Chicago 60603.

423.Ky.1. Louisville Housing Commn v Murphy (Jefferson Co Cir Ct) Housing Common sought to evict tenant without notice of reasons or opportunity to rebut. Aug 11, 1967: Ct denied summary judgment for Pl: discrimination, denial of due process, equal protection. Pending.

And see Thorpe, 423.NC.1.

423.Md.1. Christian v Baltimore Urban Renewal and Housing Authority Pls requested HUD for h'g and withholding of fed'l funds: Def failed to provide relocation assistance to Negro residents (42 USCA §1415(7)). Dec 1966: HUD Sec informed Pl HUD satisfied Def providing sufficient relocation assistance. Pl submitted 5 detailed affidavits: no regular listing of private properties for relocation purposes; Def told tenants to look on their own; told one family to sign option on their property to Def before they would furnish relocation assistance. Jan 1967: Def commenced condemnation proceedings against Pls. Pls filed motion to stay proceedings pending resolution of complaint by HUD. Mar 6: HUD secy advised 42 USCA §1415(7) (b) (iii) inapplicable: preliminary loan application approved by Baltimore City Council prior to inclusion of section in Housing Act. Condemnation action pending.

Juanita J Mitchell, Esq, 1239 Druid Hill Ave; Gerald A Smith, Esq, American Bldg, both of Baltimore.

423.Mich.3. Greenwood v Detroit (Wayne Co Cir Ct, #94622) Pl-taxpayers brought class action seeking mandamus compelling def-city officials to inspect multiple dwellings annually, prepare ownership registry, per Mich housing code: "Conditions . . . in part responsible for recent rioting." Sept 8, 1967: H'g set for Sept 22. Pending.

John Houston, Esq, Detroit Neighborhood Legal Service Centers, 3546 Trumbull Ave, Detroit, 48208.

423.Mo.1. St Louis v Golden Gate Corp (Mo Sup Ct) (36 LW 2296) Pl-city sought receivership over Def for collection of rents, borrowing of money to finance repair of conditions violating housing code; city acted under ordinance preferring receiver over owners, lienholders. Nov 13, 1967: Sup Ct held equity ct cannot give relief sought unless power conferred by statute gives constitutional protections to landlords, lienholders.
423.NY.2. Manigo v NYC Housing Authority (NYC Sup Ct, #2197 66) Feb 10, 1966: Suit filed to test standards for admission to public housing, use of arrest and youthful offender records to bar admission. Aug 8, 1966: Ct dismissed petition: Def's standards for rejecting Pl from tenancy reasonable, based on adjudication as juvenile delinquent, youthful offender, conviction of minor offense, 7 arrests. Issue on appeal: inconsistent with prohibition against forfeiture of any right or privilege for youthful offender status or juvenile delinquent (NY Code of Crim Proc §913-n, NY Family Ct Act §782).

Nancy Le Blanc, Harold J Rothwax, Esqs, Legal Services Unit, Mobilization for Youth, 320 E 3d St, NYC 10009.

423.NY.4. NYC Tenants v NYC (Manhattan Sup Ct) 1963: Def planned eviction of 400 private tenants from downtown area to build &200,000,000 project of civic bldgs and sky-scraper. 1966: 50 owners and tenants sued: Def not able to solve financial and parking problems; unfair to evict now if project will founder and only a parking lot will result, as in similar project. Sept 23, 1966: Loreto, J, granted injunction against eviction notices.
423.NY.5. Strawder v New York City Housing Authority (NY Co Sup Ct, #02212/67) NY Welfare Dept threatened to take her out-of-wedlock children away from Pl, welfare recipient: neglect: Pl and children living in grossly over-crowded circumstances. Pl applied to Def for admission
- 123 -

to public housing; denied: Pl's daughter not doing well in school. Feb 28, 1967: Pl sued for review and annulment of Def's determination, order that Def admit Pl to tenancy in public housing: Pl eligible to best of her knowledge; Def's standards for denial of tenancy arbitrary, capricious, unreasonable. Pending.

Harold J Rothwax, Esq, Mobilization for Youth, 320 E Third St, NYC 10009.

423.NY.6. Holmes v Housing Authority (NYC) (SD NY, #2897-66) Sept 9, 1966: Pls brought class action under 42 USC §1983 alleging filing of applications for public housing over periods up to 8 yrs; no response other than form letters stating Def "unable to be of help at this time." Pls seek injunction requiring Def to inform applicants of status, notify applicants of eligibility determinations and grounds therefore, publish eligibility criteria: present procedures deny due process, equal protection by providing no basis for appeal, assigning no priority based on order of application. May 1967: argument of Def's motion to dismiss. Pending.

Nancy E LeBlanc, Harold Rothwax, Esqs, Mobilization for Youth, 320 E 3d St, NYC 10009.

423.NY.7. Gregoriades v 55 Walker Corp (NYC Landlord-Tenant Ct) 1967: Tenants sued under Art 7A, NY Real Prop Actions & Procedures Law (RPAPL), 1965 statute providing for appointment of administrator to receive rents, make repairs on petition of ⅓ or more of tenants, proof of conditions dangerous to life, health or safety. Ct appointed administrator, ordered substantial repairs.

Nancy E LeBlanc, Esq, Mobilization for Youth, 320 E 3d St, NYC 10009.

And see MRC Realty, 423.NY.10.

423.NY.8. Nijen Realty v Smereczynska (NYC Landlord-Tenant Ct) 1967: Pl-landlord brought dispossess proceeding. Defense: partial constructive eviction: Pl failed after notice to repair broken window, making part of living room unusable. Ct held for landlord.

Robert Myles, Esq, Mobilization for Youth, 214 E 2d St, NYC 10009.

423.NY.9. Re 114 Stanton St (NYC Landlord-Tenant Ct) 1967: Pls, 4 tenants, withheld rent, sought orders permitting payment into ct, application of rental moneys to repairs, heat, hot water (NY RPAPL §755). Ct granted orders. Def-landlord counterclaimed for ½ rent for 5 mths: failure of consideration; pending.

Nancy E LeBlanc, Esq, Mobilization for Youth, 320 E 3d St, NYC 10009.

423.NY.10. Tenants v MRC Realty (NYC Landlord-Tenant Ct) 1967: Tenants sought appointment of administrator to receive rents, make repairs under Art 7A, NY RPAPL: apartment house infested with rats, vermin; statute makes this sufficient ground for appointment of administrator. June: temporary administrator appointed, resigned. Trial: ct denied petition; enjoined Pls from bringing another Art 7A action within 3 mths; ordered landlord to make some repairs. Tenants' appeal pending.

Michael Keiser, Esq, Mobilization for Youth, 214 E 2d St, NYC 10009.

And see Gregoriades, 423.NY.7.

423.NY.11. Hicks v Commission for Human Rights. Commn has allegedly systematically failed to obtain housing for persons discriminated against. Jan 21, 1967: Pl filed complaint, petition requesting review of policies, practices. Complaint based on analysis of over 200 cases filed between 1962-67. Pending.

Sheila R Jones, Esq, 81 Bedford, NYC.

423.NY.12. Escalera v Housing Aurhority (NYC) (SD NY, #67-4307 Civ) Def served notices to Pls to vacate: non-desirability, breach of regulations (possession of dogs). Pls had no h'g. Nov 2, 1967: Pls brought class action to enjoin evictions under Def's ex parte termination procedures: denial of due process; equal protection denied in selective granting of h'gs. Pending.
423.NY.13. Marino v Fuller (NY Sup Ct App Div, 2d Dept, #799) Tenant complained to city about lack of heat in apartment; landlord brought eviction proceeding. Tenant challenges eviction: violation of First, 14th Amdts. Pending.

Nassau Co Legal Services Comm, Inc, 166 N Main, Freeport, NY 11520.

And see Rosales, 423.Calif.12.

423.NC.1. Thorpe v Housing Authority of Durham (USSC) (148 SE2d 290, vac & rem 386 US 670) Nov 1964: Def became tenant in fed'ly assisted, low-rent public housing project owned and managed by Pl, with month to month tenancy, 15 days notice. Aug 10, 1965: Def elected pres of tenants' assn. Aug 11: Pl gave Def notice of termination of tenancy Aug 31, with no reason. Def refused to vacate; Pl brought summary ejectment action. J/P Ct gave judgment of eviction; Co Super Ct affirmed; NC Sup Ct affirmed. Def obtained stay of eviction. Apr 17, 1967: USSC vacated (8-1), per curiam: After cert granted, on Feb 7, 1967, HUD issued directive to local housing authorities: "Since this is . . . fed'lly assisted program . . . essential that no tenant be given notice to vacate without being told by the Local Auth, in a private conference or other appropriate manner, the reasons . . ., and given an opportunity to make . . . reply . . ."; requires local authorities to keep future records of evictions, reasons therefor, summaries of conferences with tenants re evictions; remanded for further proceedings appropriate in light of HUD directive.

Douglas, J, conc: This case presents 2 issues not revolved by directive: (1) whether tenant in publicly assisted housing project operated by state agency can be evicted for any reason or no reason at all; (2) whether such tenant can be evicted for exercise of First Amdt right; also (3) is there constitutional requirement for administrative h'g where tenant can have full judicial h'g in eviction proceeding? White, J, diss.

McBurt, Jr, Esq, 213½ W Main St, Durham; Charles H Jones, Sheila R Jones, Charles S Ralston, Esqs, NAACP Inc Fund.

Casenote: 43 Notre Dame 454-61.

423.NC.2. Richardson, Dixon v Housing Authority of New Bern (ED NC, Civ #678) Pls, Negro women, denied admittance to or evicted from public housing by Def for having had illegitimate children. Pls bring class suit under 28 USC §§1983, 1343(3), 1343(4), 2201, 42 USC §1401 et seq, 1964 Civil Rights Act §601, for declaratory judgment
- 124 -

and to enjoin Defs from: (1) continuing to enforce provisions of lease entered into between certain of Pls and Defs; (2) failing to negotiate with tenants a new lease complying with constitutional and statutory requirements; (3) continuing to evict or threatening to evict tenants without fair h'g on charges; (4) continuing to segregate public housing projects on basis of race or color; (5) failing to comply with fed'l regulations re operation of public housing constructed with fed'l funds; (6) continuing to evict or threatening to evict tenants on grounds they have had illegitimate children; (7) continuing to assess Negro tenants rent at rate greater than required of Caucasian tenants; (8) continuing to deny admission to housing to applicants on ground they have illegitimate children or children under 2 yrs of age. Pending.

Conrad O Pearson, Esq, 203½ E Chapel Hill St, Durham; J LeVonne Chambers, Esq, 405½ E Trade St, Charlotte; both NC; NAACP Inc Fund.

423.Pa.1. Barbee v Crane (Philadelphia) (Pa Sup Ct #425) City inspectors found apartment house violated housing code. Pl-tenants brought class action for receivership, payment of rents into escrow for repairs. Ct appointed temporary receiver. Pls challenged urban renewal plan before Redevelopment Auth, city council: plan would destroy apartment house without providing low-income housing. City council disapproved challenged plan, approved new one providing for renovation of Pls' apartments. Sup Ct denied permanent receivership, forcing tenants to vacate. Counsel assisted in relocation of tenants. Tenants, others formed corporation proposing to develop low-rent housing in renewal area; pending.

Thomas K Gilhool, Esq, Community Legal Services, Inc, 313 S Juniper, Philadelphia.

And see Western Addition, 423.Calif.4.

423.Va.1. Holt v Redevelopment & Housing Authority (Richmond) (ED Va, Civ #4746) Pls active in organizing tenants' council. Def tried to terminate leases without customary h'g: failure to report income. 1966: Pls sued to restrain allegedly retaliatory eviction. Sept 6: Ct ordered Def not to evict: (1) tenant must have opportunity to contest eviction; (2) eviction attempt based on First Amdt rights "too valuable to be frittered away under the guise of breach of contract based upon an ex parte computation of income."

Tucker, Marsh and Douglas, Esqs, 214 E Clay St, Richmond.

424. Credit Problems (and see 376)
Bibliography: Consumer credit, credit regulation, computation of interest, credit unions, credit cards, loan industry, abuses and usury, collection agencies, attachment and garnishment, wage earner plan. CIVIL RIGHTS HANDBOOK pp 291h-291m.

Articles: Philip J Murphy, Proposed consumer credit legislation. 48 Chicago Bar Record 157-66 (1967).

Allyn M Schiffer, "Truth-in-Lending." 72 Commercial Law Journal 320-21 (1967).

Robert W Johnson, Regulation of finance charges on consumer installment credit. 66 Michigan 81-114 (1967).

Frank Cain, Texas adopts comprehensive consumer credit code. 21 Personal Finance Law Quarterly Report 84-7 (1967).

Boe W Martin, A creditor's liability for unreasonable collection efforts: Evolution of a tort in Texas. 9 South Texas 127-46 (1967).

William Proxmire, Consumer credit and the law. 13 Student Lawyer Jour 5-8 (1967).

Warren H Resh, Collection agencies: Case against assignment for purpose of suit. 22 Unauthorized Practice News 1-12 (1966).

George F Bason, Remedy for consumer abuses: Proposed DC installment sales act. 34 DC Bar Jour 47-51 (1967).

Comments: Imprisonment for debt in sales of agricultural products. 18 Mercer 440-46.

An analysis of usury legislation and Mississippi corporate exception statute. 38 Mississippi 347-61.

Usury as applied to credit transactions. 45 North Carolina 1151-57 (1967).

Bargaining power and unconscionability: suggested approach to UCC §2-302. 114 Pennsylvania 998-1105.

California's model approach to usury. 18 Stanford 1381-96.

Note: Add-on contracts: Williams v Walker-Thomas Furniture Co (350 F2d 445, DC Cir 1965). 51 Cornell 768-79; 41 Washington 621-28.

Legislation: Calif AB 1676, ch 1294 (1967) amends Civ C §1804.2 to provide assignment of retail installment contract does not cut off buyer's defenses arising from sale, notwithstanding agreement to contrary.

Report: Modernization of statutory exemptions. Comm on relations of debtor and creditor. 42 California State Bar Journal 869-909 (1967).

Testimony: Paul H Douglas, before House Subcomm on Consumer Affairs; Credit disclosure in Sen truth-in-lending bill. Cong Rec—Appendix. Aug 8, 1967, A 4018.

424.5. Debtor v Collection Agency (Salinas Super Ct) 1967: Def attached Pl's earnings without 8-day written notice (Cal C Civ Proc §690.11). Pl sued for damages to credit reputation; failure to give required notice created cause of action. Def demurred; overruled. Case settled prior to trial for approximately half alleged damages.

Robert Gnaizda, Esq, Calif Rural Legal Assistance, 711 S Main St, Salinas 93901.

424.6. Gibraltar Collection Agency v DeWitt (Santa Maria Muni Ct, #3092) 1967: Pl took default judgment, entered by clerk, in action on installment contract. Def moved to set aside: (1) illiteracy, ignorance are grounds for "excusable neglect" (Calif C Civ Proc §473); (2) clerk-entered default a nullity unless installment contract attached to complaint so that liquidated sum due is ascertainable or readily computable; (3) excessive interest included in judgment. Ct granted motion.

Gertrude Chern, Calif Rural Legal Assistance Foundation, 109 E Cook St, Santa Maria 93454.

424.7. Loaiza v Justice Court (Kern Co Super Ct, #99788) Pet (Def in small claims action) tried to appeal adverse judgment; Justice Ct refused to file appeal: failure to post appeal bond required by Calif C Civ Proc §117(1). Pet sought mandamus: appeal bond requirement denies equal protection to indigents: only by trial de novo on appeal can counsel and jury trial be had in small claims cases. Pet's husband paid judgment; dismissed.

Petition, points and authorities available from: Gary Bellow,

- 125 -

Kenny C Hegland, Esqs, Calif Rural Legal Assistance Foundation, 335 Perkins Ave, McFarland, Calif 93250.

And see cases at 376.

424.8. Public Finance Corp v Grecian (San Diego Muni Ct, #138749) Def-spouses signed chattel mortgage for furniture in Arizona; separated; divorce pending. Pl brought claim and delivery to recover goods: non-payment. Ct set aside default judgment. Wife answered: (1) Pl waived lien by failing to reclaim goods at her invitation after demands for payment; (2) enforcement of lien in California oppressive, against public policy: interest rates under Ariz agreement higher than Calif statutes permit. Wife amended answer: (3) she had filed bankruptcy, debt dischargeable. 1967: Action against wife dismissed.

Elmer Enstrom, Jr, Esq, Legal Aid Society, 964 Fifth Ave #400, San Diego 92501.

424.9. Moon v Morgan (DC DC, #2030-64) Pl obtained loans from Def-credit Co, secured by trust deeds on house. Pl later contracted with Def-construction Co to repair house, consolidate debts. Pl ordered work stopped, tried to cancel contract: undisclosed relationship between credit and construction Cos. Aug 2, 1967: Pl filed suit against both Cos, officers for &20,000 damages, accounting, cancellation of all obligations incurred by Pl, injunction against foreclosure sale: (1) usury; (2) breach of trustee's fiduciary duty in nondisclosure of interrelation of Defs; (3) repair and debt consolidation contract unconscionable, violates DC regulatory and licensure requirements. Pending.

Neighborhood Legal Services Program, 416 5th St NW, Washington, DC.

424.10. Minneapolis Collection Bureau v Lockwood (Hennepin Co Muni Ct, #513616) Feb 24, 1967: Ct ruled AFDC funds in checking account not subject to garnishment: funds are held by mother in trust for her children.

Bernard P Becker, Esq, Legal Aid Society, 501 Park Ave, Minneapolis.

424.11. Frostifresh Corp v Reynoso (NY Sup Ct, App Div) (54 Misc 2d 119, reversing 274 NYS2d 757) Spanish-speaking Defs bought freezer (costing Pl &348) for &900 plus &246 credit charges, under installment contract in English, not translated. Salesman promised commissions, bonuses for freezers bought by Defs' friends, neighbors. 1966: Defs defaulted, Pl sued on contract. Dist Ct denied enforcement: contract "unconscionable" (UCC §2-302); allowed recovery of Pls' cost: Defs retained freezer. 1967: App Div reversed: contract unenforceable, but Pl entitled to "reasonable profit," trucking and service charges "necessarily induced," "reasonable finance charges."
424.12. Patient v Zovluck (NY Sup Ct) 1967: Def-chiropractor allegedly solicits by phone in Spanish for free consultations; when patient appears, allegedly signs "intake form" (actually, contract for future services at fixed price). Upon failure to pay, letters labelled "Notice for Garnishment" resembling marshal's garnishment forms sent to patient, employer. Pl-patient sought injunction against communication with employer, damages for libel, intentional infliction of severe mental distress, abuse of process (NY Pen C §555(a) may forbid simulating of legal documents). Pending.

Cesar Perales, Esq, Mobilization for Youth, 214 E 2d St, NYC 10009.


Form: Bankruptcy information. CIVIL RIGHTS HANDBOOK pp 291-291g.

Articles: Vern Countryman, Proposed new amendments for Chapter XIII. 22 Business Lawyer 1151-58 (1967).

Leonard M Groupe and Charles J Pollyea, Unnecessary bankruptcy: How can it be avoided? Is compulsory Chap XIII the only answer? 72 Commercial Law Jour 231-33 (1967).

Max Schwartz, Representing voluntary bankrupts. 72 Commercial Law Jour 234-41.

Lawrence P King, Constitutional Rights and Bankruptcy Act. 72 Commercial Law Jour 315-17.

James S Mahon, Preparing your client for voluntary bankruptcy. 41 Jour of Nat'l Conf of Referees in Bankruptcy 83-86 (1967).

William S Naughton and Vern Countryman, Bankruptcy referees hear debate on proposed amendment to Bankruptcy Act (referes authority to exclude wage earners from straight bankruptcy), 21 Personal Finance Law Q Rep 123-28 (1967).

Allan M Shine, Current developments in bankruptcy law. 4 Rhode Island Bar Annual 65-75 (1967).

Curtis L Mann, Some suggestions to general practitioner handling simple bankruptcy. 14 St Louis Bar Jour 19-29 (1967).

Comment: Bankruptcy: Equitable subordination of unconscionable claims. 40 S Calif 165-75 (1967).

Handbook: Assignment and garnishment of wages. Rules in all states; policies and procedures; statutory provisions explained; quick reference charts. CCH, 1966. 312 pp.

Statement: Vern Countryman before House Subcomm on Consumer Affairs; HR 11601 anti-garnishment provision and personal bankruptcies. Cong Rec— Appendix. Aug 18, 1967, A 4209.

Symposium: Bankruptcy. 27 Federal Bar Jour 89-187 (1967).

424.101. Bankruptcy of Alaniz (ED Calif, #F1826) 1967: Pet filed for bankruptcy in pro per; received, spent fed'l income tax refund; Ct then issued turnover order for amount of refund. Pet moved to vacate: (1) turnover order unlawful as to assets not in bankrupt`s possession or control; (2) notice requirement for due process not met. DC vacated order, granted discharge.

William H Clendenen, Jr, Esq, Fresno Legal Services Inc, 1225 Broadway, Fresno 93721.

424.102. Werner v Orr (Mendocino Co Super Ct, #28841) Pluninsured motorist involved in auto accident. Dep't of Motor Vehicles threatened to enforce Vehicle C §§16080, 16100 allowing suspension, regardless of fault, of driver's license and auto registration of uninsured driver who has been involved in accident unless he posts security for damages. Pet brought class action against enforcement: Pet not at fault, too poor to meet security requirements; statutes unconstitutional on face and as applied: denial of equal protection (discrimination against poor), due process (denial of counsel, confrontation); abridgement of privileges and immunities of US citizens; unlawful delegation of judicial power to administrative agency; void for vagueness.
- 126 -

July 17, 1967: Ct granted alternative writ pending h'g on merits. H'g. Writ denied.

Robert Bell, Directing Atty, CRLA, 2940 Santa Rosa Ave, Santa Rosa, Calif 95401.

And see Alvarado, 424.103.

424.103. Alvarado v Orr (SF Super Ct, #581899) Pls, uninsured indigent motorists involved in separate accidents, forced to surrender licenses in lieu of security bond (Cal Veh C §§16080, 16100). Pls sought writs of mandate, prohibition against enforcement: denial of equal protection, due process, violation of legislative intent absent assessment of Pl's culpability or full Dept hearing on culpability. Pending.

Norman Nayfach, Gilbert Graham, Esqs, San Francisco Neighborhood Legal Assistance Foundation, 2701 Folsom St, San Francisco 94110.

And see Werner v Orr, 424.102.

424.104. Northwestern Mutual Ins Co v Ferris (San Francisco Muni Ct, #588453) Pl-insurer paid claim of insured for personal injury by Def-uninsured motorist; sued on subrogation claim. Def demurred, moved to strike: Calif Ins C §11580.2(f), 3-yr statute of limitations for insurers' actions against uninsured motorists, unconstitutional when statute for other personal injury actions is 1 yr: denial of equal protection, creation of irrational legislative preference prohibited by Calif constitution. Ct overruled demurrer, denied motion. Pending.

Hector Ortiz, Esq, San Francisco Neighborhood Legal Assistance Foundation, 2701 Folsom St, San Francisco 94110.

424.105. Sniadach v Family Finance Corp (Wis Sup Ct) Pl-finance corp sued Def as co-signer on note, simultaneously garnished her wages under statute permitting garnishment of ½ wages without h'g until resolution of principal action. Def brought show-cause proceeding attacking constitutionality of statute. Jan 6, 1967: Co Ct ruled against Pl. Apr 18: Cir Ct affirmed. Apr 20: principal action stayed. Def appealed to Sup Ct. Je 8: brief filed: statute violates US, Wis constitutions: (1) ex parte garnishment deprives Def of property without due process; (2) statute denies equal protection by interfering with Def's right to gainful employment, discriminating against low-income wageearners unable to post bond as alternative to summary garnishment. Pending.

Barbee & Jacobson, Esqs, 110 E Wisconsin Ave, Milwaukee 53203; National Office for Rights of Indigent, 10 Columbus Circle, NYC 10017.

And see Bouton, 424.106.

424.106. Washington ex rel Bouton v Starr (King Co Super Ct, #683019) Justice Ct issued writ of garnishment of Rel's wages before service of process, without notice or full h'g. Rel petitioned for cert: procedure denied him due process under fed'l, state constitutions, exceeded ct's powers. Pending.

Charles E Ehlert, Vernon J Guinn, Esqs, Legal Services Center, 104½ Cherry, Seattle.

And see Sniadach, 424.105.

425. Warranties, Service (and see 376)
Bibliography: Misrepresentation and warranty, rights of vendor and purchaser. CIVIL RIGHTS HANDBOOK pp 291n-291o.

Articles: William W Goodrich, Issues we face in carrying out fair packaging and labeling act. 1 FDA Papers no 2, p 12-16 (1967).

Allison Dunham, Second draft of proposed uniform consumer credit code now being considered. 21 Personal Finance Law Q Report 75-77 (1967).

Note: Consumer legislation and the poor. 76 Yale 745 (1967).

Legislation: Truth in Packaging (Conn HB 3598) requires that contents, weight, and cost per unit of weight appear conspicuously on all packages prepared in Conn.

Sales Price (Conn Amended Substitute HB 5095) requires merchants to clearly mark normal selling price on each item sold at allegedly special "sale price."

425.3. Laing v Occidental Life Ins Co (Calif Ct of App) (53 Cal Rptr 681) Pl bought policy on salesman's representation it would cover injuries in course of employment excluded from workmen's compensation. Pl injured; then found clause on p 2 of contract excluding employment injuries. Pl sued for reformation of contract, award of cash benefits. Trial ct held for Pl. 1966: Ct of App affirmed: (1) Pl's failure to read contract not an absolute bar to reformation, merely one factor for trial ct to consider; (2) exclusionary clause not "obvious or patent"; (3) 3-yr statute of limitations on reformation runs from discovery of mistake, not date of policy.
425.4. Re Southern Calif Water Co (Calif Public Utilities Comm #699, #IC-45691-W) Jy 2, 1966: Comps, 80% of residents of Wasco, Calif, allegedly were receiving sour, oily, turgid, bacterially contaminated water. Nov 11: Comps demanded public h'g to show Def violated Pub Util C §451 by providing service inadequate to promote patrons' safety and health and charging unjust rates, and billed equal amounts to consumers of different amounts of water. May 17, 1967: Def settled, agreeing to refund &4658 from past charges and establish consumer grievance procedure.

Carol Ruth Silver, Esq, Calif Rural Legal Assistance Foundation, 257 S Spring St, Los Angeles; Gary Bellow, Kenny F Hegland, Esqs, CRLA, 335 Perkins Ave, McFarland, Calif 93250.

425.5. Nunemaker v Pacific Telephone & Telegraph Co (Calif Public Utilities Commn) Jy 14, 1967: Def applied for authorization to require &25 security deposit of new telephone customers not meeting specified credit requirements. Aug 8: application granted. Dec 15: Comps, for class of persons required to post deposit or unable to do so, sought rescission of authorizing resolution, declaration that such requirement is unlawful: (1) telephone service is necessity of life, and conditioning it on a security deposit many persons cannot pay is deprivation of property without substantive due process; (2) requirement denies equal protection by arbitrarily discriminating against financially responsible poor persons; (3) adoption of requirement without h'g or notice violates procedural due process and Commn Rules 23, 24; (4) requirement discriminates against poor subscribers in violation of Calif Pub Util C §§453-4; (5) Def's bad-debt losses minor, insufficient to justify hardship of deposit requirement. Pending.

Gilbert T Graham, Stafford Smith, Peter Sitkin, Isidoor Bornstein, Esqs, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103.

- 127 -

426. Family Problems (and see 421, 560s)
Analysis: Jacobus ten Broek, Dual system of family law. CIVIL RIGHTS HANDBOOK pp 292-292e.

Articles: Walter Wadlington, Divorced parent and consent for adoption. 36 Cincinnati 196-209 (1967).

Joseph Peter Meyers, Allocation of financial responsibility for mental illness or defect. 39 So California 574 (1966).

Welfare mothers and children NOW, Vol I, No 24 Dec 29, 1967.

Note: Interstate placement of juveniles. 3 Columbia Journal of Law and Social Problems 171-95 (1967).

Legislation: Day Care Centers (Conn HB 5431 and Substitute SB 1368), provide for the creation and licensing of day care centers for pre-school children of poor families, thus enabling parents to work.

Practice aid: Divorce complaints. Arnett Hartsfield, Dir, Los Angeles Neighborhood Legal Services, 1819 W 6th St, Suite 304, Los Angeles, Calif 90057.

Report: Cal Dept of Social Welfare, Condition of unwed mothers and their children, State Social Welfare Dept, 2415 First Ave, PO Box 8074, Sacramento, 95818. &1.

426.4. Anguis v Superior Court (Ariz Sup Ct, #1 CA-CIV 598) 1964: Pl's illegitimate child made ward of juvenile ct. 1966: Co Welfare Dept brought proceeding to terminate Pl's parental rights. No adoption sought. Oct 1966: Pl sued for writ of prohibition. Sup Ct granted writ: parental rights of natural parent can be severed only by final order of adoption.

Maricopa Co Legal Aid Society, 234 N Central, Phoenix 85004.

And see Munkelwitz, 426.11.

426.5. Brasher v Brasher (Calif Ct of App) (253 ACA 966) Divorced mother conceived illegitimate child. Super Ct transferred custody of prior children to father, denied mother visitation rights until she remarried or placed illegitimate child for adoption. Ct of App reversed denial of visitation rights: "Draconian" abuse of discretion; affirmed custody award: father, new wife could give full-time care, better home.

And see Raya, 426.6.

426.6. Re Raya (3d Dist Ct of App, #3 Civ 11734) Husband, wife separated, 2 children staying with wife. Wife lived with another man, had 3 more children. Husband sued for divorce. Juvenile ct took jurisdiction of children of marriage (Calif Welf & Inst C §600(a)), committed them to custody of Welfare, Probation Depts; extramarital relationship made mother unfit. Appeal: children in stable home, doing well in school; mother too poor to afford divorce; "meretricious relationship" insufficient reason to remove children from home of natural parent. Ct of App reversed with direction to dismiss wardship petitions: ". . . the present facts fall far short of that level of improper and ineffective control which might justify an adjudication of public wardship. . . . Adequately financed couples can afford divorce. . . . The children of quicky marriages and quicky divorces need never find themselves in homes characterized by a permanent liaison such as Mrs. Raya's. . . . There is a danger here of imposing standards adapted to the well-to-do, who can usually pay for the forms of legitimacy, and ill-adapted for the poor, who frequently cannot. . . . Attempts to apply `across the board' standards to rich and poor alike may avoid a theoretical discrimination and create a practical one."

Clarence S Brown, Esq, Sacramento Co Legal Aid Society, 901 F St, #150, Sacramento 95814.

And see Brasher, 426.5.

426.7. Re Mendoza (Tax Ct, #2220-67) Divorced father contributed to support of children in Arizona. IRS disallowed dependency deductions: failure to show provision of more than half children's support. Taxpayer contested deficiency determination: taxpayer unable to verify except at prohibitive cost, but IRS could easily learn from records whether mother claimed children as dependents. IRS chief counsel conceded case before trial.

Robert L Gnaizda, Esq, Calif Rural Legal Assistance Foundation, 711 S Main St, Salinas 93901.

And see Palma, 426.8.

426.8 Palma v Commissioner (Tax Ct, #3975-67) IRS denied Mexican-American farm worker's deductions for 2 school-age sisters in Mexico: inadequate proof of dependency; assessed &109 income tax deficiency. Taxpayer appealed: (1) IRS makes almost no attempts to communicate technical rules to Spanish-speaking persons outside Puerto Rico; (2) return selected for audit by computer programmed to select disproportionate number of Mexican-Americans; (3) IRS applied middle-class US standards to determine whether full support given dependents in rural Mexico; (4) documentation demanded would cost more than deficiency assessed; (5) IRS practices in combination denied taxpayer due process, equal protection. Pending.

Robert Gnaizda, Calif Rural Legal Assistance Foundation, 711 S Main St, Salinas 93901.

And see Mendoza, 426.7.

426.9. Levy v Louisiana (USSC, #508) (192 So2d 193) Mar 29, 1964: Mother of 5 illegitimate children died. Dec 16: Administratrix-guardian brought wrongful death action (La Civ C Art 2315): negligent diagnosis, treatment at state-operated charity hospital. Jan 31, 1966: Dist Ct granted def's motion to dismiss. Nov 7: Ct of App affirmed: judicial construction of Art 2315 to prohibit death recovery by illegitimate children does not deny due process or equal protection, "discourages bringing children into the world out of wedlock." Dec 5: Reh'g denied. Jan 20, 1967: Sup Ct refused review. Aug 16: Pl filed appeal in USSC: exclusion of illegitimates bears no rational relation to statutory purpose of reimbursing those injured by another's death; La rule penalizes one class to control conduct of another; affects more Negroes than whites; policy justification for rule is "fanciful assertion" belied by evidence. Nov 6: USSC noted probable jurisdiction. Pending.

Norman Dorsen, Lois P Sheinfeld, Esqs, NYU Law School; Adolph J Levy, Lawrence J Smith, 1407 Pere Marquette Bldg, New Orleans 70112; Melvin L Wulf, Esq, ACLU, 156 Fifth Ave, NYC 10010.

And see Glona, 426.10.

426.10. Glona v American Guarantee & Liability Ins Co (USSC) (36 LW 3226) Mother sued for wrongful death of illegitimate son under La statute; dismissed. Appeal. CA 5 held La rule construing "child" to require legitimacy abridges no fed'l right. Nov 15, 1967: USSC granted cert.

And see Levy, 426.9.

- 128 -

426.11. Munkelwitz v Hennepin Co Welfare Dept (USSC) At instance of Pl-Welfare Dept, trial ct permanently severed Def-indigent mother's parental rights over 7 children. On appeal, Minn Sup Ct refused to furnish transcript of trial ct proceedings. 1967: Def petitioned USSC for cert: refusal to furnish transcript for appeal denies equal protection to indigent, citing Griffin v Illinois, 351 US 12 (1956). Pending.

Harlan E Smith, Bernard P Becker, James J Kreiger, Esqs, Legal Aid Assn, Minneapolis.

And see Anguis, 426.4; Navarro, 421.Calif.26; cases at 374.

426.12. Re Support Orders (App Div, NY Sup Ct) 3 Defs jailed for willful failure to obey Family Ct support orders; such failure carrying 6 mths maximum sentence, classified as neither crime nor contempt; Defs not offered counsel. Habeas corpus granted. 1967: 1 Def won on other grounds; appeals pending in 2 cases: Defs accused of failure to support have right to counsel.

Mobilization for Youth, 214 E 2d St, NYC 10009.

And see cases at 372.

426.13. Re S (NYC Family Ct) SPCC petitioned for neglect finding, removal of child from mother's custody: drug addiction. Defenses, objections: hearsay evidence that mother said doctor told her child was born in withdrawal; privileged conversation between mother and investigating SPCC social worker; failure of SPCC officers to warn mother of right to remain silent; right of addicts to have and raise children. Ct found neglect, but permitted mother to retain custody.

Sue Ann Shay, Cesar Perales, Esqs, Mobilization for Youth, 214 E 2d St, NYC 10009.

And see Re H, 426.14.

426.14. Re H (NYC Family Ct) SPCC petitioned for neglect finding, removal of children from mother's custody: unusual preoccupation with sex, refusal of psychotherapy, refusal to institutionalize children. Mother asserted privilege re conversations with social workers, doctor from SPCC and Bd of Educ, Child Guidance Bureau, consulted by mother without knowledge she was under investigation. Objection sustained, but evidence admitted when guardian ad litem (Legal Aid) declined to assert or waive privilege on behalf of children. Petition dismissed on merits.

Sue Ann Shay, Esq, Mobilization for Youth, 214 E 2d St, NYC 10019.

And see Re S, 426.13.

426.15. Re Cager (Prince George's Co Cir Ct, #JA-7389) May 24, 1967: 2 mothers charged with criminal neglect: each reported more than one illegitimate child on welfare application (Ann C Md, Art 26 §52, making illegitimate pregnancy criterion for neglect). State dropped charges, agreed to procedure for precluding arrests in similar cases: referral to birth control clinic; unwed welfare applicants to file statements they have sought contraceptive advice. Sept 26: State brought civil neglect proceedings re same families, naming children only as Defs. Ct denied mothers' motions for intervention, appointment of counsel, stay for legal consultation. Appeal pending: denial of due process, equal protection.

ACLU; NAACP Inc Fund; Frank Kratovil, Esq, Upper Marlboro, Md; Project on Social Welfare Law, NYU Law School.

427. Employment Problems (and 263, 346, 570s)
Proposed Legislation: S 8 amends Natl Labor Relations Act to give farmworkers collective bargaining rights. Cong Rec—Sen. Apr 5, 1967, S 4650.

Newsletter: United Farm Workers Organizing Comm, The case against Perelli-Minetti. Key List Mailing, Mar 5, 1967, SNCC, 449 14th St, San Francisco, 94103.

And see Rascon, 440.16.

427.5. Reyna v Giumarra Vineyards Corp (Kern Co Super Ct, #100005) 1967: Pls-farm workers sought injunction against eviction from Def's labor camp by self-help for stopping work in labor dispute. Ct granted restraining order. Aug 23: order dissolved on Def's stipulation not to use self-help.

Gary Bellow, Esq, Calif Rural Legal Assistance Foundation, 335 Perkins Ave, McFarland, Calif 93250.

And see Garcia, 427.5a.

427.5a. Garcia v Municipal Ct (Kern Co Super Ct, #100160) 1967: Def in Reyna, 427.5, brought unlawful detainer, sought writs of immediate possession, against Reyna Pls. Aug 21: Muni Ct granted writs; stayed them 1 day for h'g; ordered they remain in force despite Pls' offer of undertakings in amount of claimed damages. Pls sought writ of prohibition. Super Ct granted writ: Muni Ct exceeded jurisdiction. Def dismissed its unlawful detainer actions.

Gary Bellow, Esq, Calif Rural Legal Assistance Foundation, 335 Perkins Ave, McFarland, Calif 93250.

And see cases at 423.

427.6. Alaniz v Wirtz (ND Cal, #47807) Pls, domestic migrant farm workers, sued to enjoin Def-Sec of Labor from certifying 8100 braceros (workers imported from Mexico) for work on tomato harvest: Labor Dept had not investigated need for foreign labor as required by law. DC issued temporary injunction; dismissed suit without prejudice, allowing certification of braceros, after negotiations in which Labor Dept agreed to (1) hold h'gs on bracero import violations affecting Pls and those similarly situated; (2) require employers to use best efforts to recruit domestic labor; (3) require State Dept of Employment to furnish lists of employers needing farm labor, whether or not they were using braceros; (4) appoint panel to study certification problems; (5) promptly notify counsel for farm workers, other groups of future bracero applications; (6) require retroactive payment of &1.60/hr minimum to braceros; (7) require affidavits under penalty of perjury of employer compliance with fed'l, state law.

Gary Bellow, Martin R Glick, Robert Gnaizda, Sheldon Green, James D Lorenz, Jr, Ralph Segura, Esqs, Calif Rural Legal Assistance Foundation, 335 Perkins Ave, McFarland, Calif 93250.