Meiklejohn Civil Liberties Institute Archives logo
| HOME | HISTORY | PUBLICATIONS | DOCKETS | FINDING AIDS |

CIVIL LIBERTIES DOCKET
Vol. XIV
1968-1969

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
   
I. FREEDOM OF EXPRESSION AND ASSOCIATION (First Amendment Liberties and Ninth and Fourteenth Amendments) (0-299)

FREEDOM OF SPEECH, PRESS, ASSEMBLY (10-99)
10. LICENSING (and 203, 204, 257, 264)
11. Of Meetings (see also 201)
And see Dunbar, 24.Calif.24; Snyder, 24.Ill.3; Evers, 24.Miss.5; Smith, 24.Tenn.2; Yank 55.Calif.32a; Halvonik, 55.Calif.32b.
11.31. ACLU v HEW (DC DC) HEW Dep't employees scheduled employee forum including speech by Mike Tigar, critic of selective service laws. Sec'y Cohen ordered cancellation of forum. ACLU filed injunction to prevent cancellation. Nov. 20, 1968: DC denied request for TRO.

See also 25.

12. Of Motion Pictures (see also 14, 52)
And see Bennett, Bertolette, 59.107; Casey, 295.18.
12.25. Cusak v Teitel Film Corp (USSC) (38 Ill 2d 53; 390 US 139) Police chief refused to issue Def film exhibit or permit for "Rent-a-Girl"; Def asked Pl Motion Picture Appeal Bd to review. Jan 24, 1966: Bd viewed, impounded film. Feb 9: Pl sued to enjoin film showing. Def moved to strike, dismiss: (1) Pl acting under unconstitutional ordinance, (a) prior restraint of expression strongly presumed invalid, (b) Pl had no authority to hold film, depriving property without due process, (c) delay between viewing of film, summons to Def unconstitutional restraint on free expression, (d) obscenity inadequately defined; (2) complaint vague, evasive, uncertain. Cir Ct denied Def's motions. Sept 29, 1967: Ill Sup Ct affirmed. Jan 29, 1968: USSC reversed, remanded, per curiam: to satisfy Constitution, statute must have procedural safeguards against censorship dangers, specify period to review material, assure prompt final judicial action. Pending.

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

Brief, argument for Appts (Ill Sup Ct); motion to strike and dismiss amended complaint: MCLL.

12.26. United Artists and Interstate Circuit v Dallas (USSC) (402 SW2d 770; 390 US 676) Pl City's film bd prohibiting exhibition of films "likely to incite to delinquency or sexual promiscuity" to persons under 16. Co Ct enjoined showing of Pl's film to such persons: Ct of App aff'd: Sup Ct denied cert. 1968: USSC reversed (8-1), Marshall, J: censorship reg too vague; allowed almost unlimited discretion to censors; inhibited production of all but most inane films, thus violating 1st Amdt rights. Harlan, J, diss.

Louis Nizer, Esq, 1501 Broadway, NYC 10036; Grover Hartt, Jr, Esq, Dallas, Tex.

12.27. Fine Arts Guild v Seattle (Wash Sup Ct) (445 P2d 602) 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. Sept 26, 1968: Sup Ct affirmed (7-1): ordinance inferentially wielding licensing power of city as censorship weapon, and failing to specify time period in which city council on appeal must make decision (other than "reasonable time") to provide effective judicial review, denied due process.

Ray Brown, Esq, ACLU, 2190 Smith Tower, Seattle 98104.

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

13.6. Beverly Hills v Timmons (Beverly Hills Muni Ct) Dec 30, 1967: Def, registering voters for
- 2 -

Peace and Freedom Party, arrested: obstructing sidewalk without permit. Def argued statute violated 1st, 14th Amdts. Feb 5, 1968: Muni Ct dismissed: statute related only to construction, repair activities.

Profs Melville Nimmer, Kenneth Karst, UCLA School of Law, Los Angeles 90024.

14. Of Books, Magazines (and 21, 22, 52, 151, 152)
Articles:

Censorship Today, 1680 Vine St, Los Angeles 90028. $6/yr (bimonthly).

Newsletter on Intellectual Freedom, American Library Assn, 50 East Huron St, Chicago 60611. $3.00/yr (bi-monthly).

Legislation:

Statement by Lawrence Speiser of ACLU on HR 7375 and HR 10867 which would exclude from US mails certain obscene materials, Oct 22, 1969. 1424 Sixteenth St, NW, Washington, DC 20036.

And see Dickey, 24.Ala.7; Casey, 295.18.


14.19. Putnam's v Callissi (NJ Sup Ct) (235 A2d 893) 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. Nov 21: Sup Ct reversed: "Fanny Hill" protected by 1st, 14th Amdts.

Rembar and Zolotar, Esqs, 19 W 44th St, NYC 10036.

14.21. Long v Anaheim, Garden Grove (Calif DCA) (255 CA2d 191) 1966: Pl, leader of Socialist Labor Party, 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 free press. Super Ct held ordinance properly applied. Nov 1967: DCA reversed: taxing political organ violates 1st Amdt; newspaper, even though sold at nominal price, to be considered political organ rather than business enterprise.

Tony Geram, Esq, 8408 Sierra Ave, Fontana 92335; A L Wirin, Fred Okrand, Laurence R Sperber, Esqs, ACLU, 257 S Spring, Los Angeles 90012.

14.22. Rodale Press v Fed'l Trade Commn (CA DC) (407 F2d 1252) 1956-1960: Pet used various mailing pieces to advertise health books. Apr 3, 1964: FTC sought prohibition against advertising: alleged advertising, book made false representations (15 USC §45(a)(1)). Pet claimed advertising truthfully reflecting book contents (regardless of their falsity) constitutionally protected. H'g examiner found 10 of 19 representations false. On appeal, FTC vacated examiner's decision; ordered Pet to cease, desist: advertising falsely represented contents of book. Oct 18, 1968: CA vacated FTC order: (1) FTC decision based on theory other than that alleged in complaint; (2) Pet deprived of opportunity to present argument under new theory. Dec 4: FTC ordered complaint dismissed.

William Ross, Lawrence Speiser, Esqs, 1424 16th St NW, Washington, DC 20036, for ACLU.

14.23. Rose v Bd of Supervisors (Sacramento Co) (ND Calif) 1968: Pl sought injunction to prohibit license revocation h'g by Def-Bd re Pl's book store: h'g unconstitutional as prior restraint on circulation of books. DC enjoined Bd from considering content of matter sold, permitted inquiry whether "willful and specific" misrepresentations made in license application. Bd revoked Pl's license: fraud to sell moving picture films, magazines when "only" noted after "books" in completed application. Factual dispute: did Pl know of "only" notation not written by him? Case pending in DC: question of intent in willful misrepresentation charge: Pl thought "books" included magazines.

Lawrence Karlton, Esq, 1107 9th St, Sacramento 95818; Coleman Blease, Esq, 2691 Sierra, Sacramento.

Amicus: Paul Halvonik, Esq, ACLUNC, 503 Market St, San Francisco 94105.

14.24. Ginsberg v New York (USSC) (390 US 629) Def operated lunch counter, also sold magazines; arrested: selling "girlie" nude picture magazines to 16-yr-old boy (NY Pen L §484-h); judge trial: convicted. Sup Ct, App Term affirmed; Ct of App denied leave to appeal. Je 3, 1968: on appeal, USSC affirmed (6-3), Brennan, J: (1) magazines in this case not obscene for adults (Redrup v NY, 386 US 767) but statute does not prohibit Def from stocking and selling magazines to those over 17; (2) obscenity not in area of protected speech or press (Roth v US, 354 US 476); (3) Def did not argue that magazines are not harmful to minors within statutory definition.

Douglas, J (Black, J) diss: "As I read the First Amdt, it was designed to keep the state and the hands of all state officials off the printing presses of America and off the distribution systems for all printed literature"; it would require a constitutional amdt to change this; no reason to limit obscenity protection to juveniles: "The `juvenile delinquents' I have known are mostly over 50 years of age"; USSC is not the agency best qualified to determine what obscenity is, what publications would hurt readers; appendix excerpts by early obscenity-fighters, opponents of obscenity laws. Fortas, J, diss.

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

15. Of Miscellaneous Activities

15.20. Chavez v Visalia Muni Ct (Calif Sup Ct) (256 CA2d 149) Pl-labor organizer used sound truck. Complaint filed in Porterville Justice Ct: violation of Tulare Co loudspeaker control ordinance. Pl demurred; overruled. Pl sought prohibition writ in Tulare Co Super Ct; denied. Nov 20, 1967: DCA reversed: ordinance unconstitutionally overbroad, Bd of Supervisors not given standards. Calif Sup Ct denied Def-ct's petition for h'g.

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

Opinion (DCA): MCLL.

And see Giumarra, 55.Calif.23.

15.22. California v Barrows, Gist, Hay, Bright, McClure (CD Calif) Jan 11, 1968: Los Angeles Police Commn denied permit for play "The Beard": depicted sex act. Jan 24: DC denied motion for injunction barring police from interfering with play's production, filming it, or seeing copy of script. Play performed as scheduled; citation issued for presenting play without police permit. Jan 25: Producer, actors arrested: lewd speech, conduct; performing play without permit. Feb 13: LA Muni Ct declared city ordinance requiring permit to perform play unconstitutional. Feb: 3-judge fed'l ct convened to determine if constitutional rights violated. Pending.

Stanley Fleishman, Robert McDaniels, Eqs, 1680 Vine St 90028; A L Wirin, Esq, 323 W 5th St 90013; all of Los Angeles.

And see Dixon, 15.22a.

15.22a. Dixon v Municipal Ct (Calif DCA, 1st Dist) (73 CR 587) 1968: Actors in McClure's play "The Beard" simulated sex act on stage; arrested: lewd, dissolute conduct (Pen C §647a). Defs argued statute vague, overbroad,
- 3 -

inappropriate standard. Ct dismissed charges. State appealed. Dec 2: DCA reversed: simulation of oral copulation, in light of positions and motions of performers, duration of act, accompanying dialogue, all other circumstances, may be obscene.

Marshall Krause, Esq, ACLUNC, 503 Market, San Francisco 94105.

And see Barrows, 15.22.

15.23. Perez v California (USSC) (422 P2d 597, 89 SCt 1767) 1967: Pet convicted under Sacramento muni ordinance requiring permit to present "topless" entertainment. Feb 28, 1968: Calif Sup Ct affirmed. Mar 4, 1968: Pet filed for cert in USSC: ordinance's imposition of $1,000 license fee violates 1st Amdt. May 26, 1969: USSC denied cert.

Berrien E Moore, Hiram W Kwan, Richard K Quan, Esqs, all of Gardena, Calif 90247.

15.24. City of Philadelphia v Electric Factory, Inc (Ct of Com Pleas, #1114) 2 Defs forced to close rock music club; public nuisance. ACLU filed brief in support of Defs' Exceptions to Adjudications in Equity: rock music is constitutionally-protected activity, Pa Common Law of nuisance unconstitutionally vague on face, overbroad.

David Pittinsky, Esq, 2600 The Fidelity Bldg, Philadelphia 19109; Julian E Goldberg, Esq, 2028 Delancy Place, Philadelphia 19103.

Amicus brief of ACLU: MCLL.

16. Of Parades (and 55, 63)

16.2. Baldwin v Nosser (SD Miss, #1227) Oct 6, 1965: Pls, in class action, alleged Natchez city ordinance requiring permit to parade, make public speeches, or picket violated 42 USC §§1981, 1983, 1985, 1988; asked declaratory, injunctive relief. Nov 4, 1968: judgment entered by consent invalidating ordinance, awarding costs to Pls.

Lawyers' Comm for Civil Rights under Law, 233 N Farish St, Jackson, Miss 39201.

And see 580.

16.6. South Bay Vietnam Summer v Torrance (Los Angeles Super Ct, #922107) Def-city refused to hold h'g on Pl's application for parade permit; Pl alleged 1st Amdt violation. Nov 27, 1967: Super Ct issued order to show cause why permit should not be granted; denied writ of mandate on condition Def issue permit under certain compromise conditions, including $500 fee.

Darby Silverberg, Esq, ACLU, 3667 Torrance Blvd, Torrance, Calif 90503.

16.7. Chicago Peace Council v McDonough (ND Ill, E Div, #68 C 1528, #69 C 241) Mar 17, 1968: Pl-April Parade Comm applied to Def-Dept of Streets and Sanitation, as required by Chicago Muni C Ch 36-31, for permit to parade Apr 27, 1968. Mar 19: Def rejected request: VFW parade already scheduled Apr 27. Apr 16: Def failed to meet with Pls, answer letters expressing Pls' willingness to compromise on route. Apr 25: Def granted permit to march outside "Loop" district: Dept rule prohibited more than 1 parade in Loop on any day. Je 26: Pl-Chicago Peace Council applied for permit for Aug 10. Jy 23: Def-Parade Bd met, refused to make decision. Aug 9: Bd issued permit 1 day before parade scheduled. Aug 6: Pl-Mobilization Comm filed amended application for permit to parade at site of Democratic Party convention. Aug 18: Def having taken no action on request, Pls sued in ND Ill, E Div for injunction. Aug 21: negotiations in ct failed to produce reasonable compromise; permit did not issue. Sept 17: Pls-Citizens for Free Chicago, Chicago-Peace Council requested permit to parade to Conrad Hilton Hotel, site of convention disorders. Def refused to consider permit until rally permit, separate issue, determined by Chicago Park District; permit never granted.

Feb 6, 1969: Pls sued for injunctive, declaratory relief, alleging violation of constitutional rights: (1) Def's delay in granting permits, refusal to grant some permits constitutes arbitrary, unreasonable, capricious, discriminatory behavior against groups not approved of by Democratic Party; (2) Def's delay in issuing permits until 1 or 2 days before scheduled parade has chilling effect on exercise of Pls' 1st Amdt rights: impossible to organize, publicize parades; (3) Chicago ordinance unconstitutional on its face: fails to provide standards for disposition of parade permits, findings of fact, depriving applicants of due process; imposes no duty on Def to make finding of fact, make prompt decision, follow constitutional guidelines, violating 1st Amdt; unlawful prior restraint on exercise of 1st Amdt rights. Pending.

David Krupp, Howard Richard, Esqs, 208 S La Salle St, Chicago 60604.

Complaint for injunction and declaratory relief: MCLL.

And see Landry v Boyle, 54.36; Dellinger, 54.32.

16.8. Jeanette Rankin Brigade v Chief of Capitol Police (CA DC, #21566) 1968: Pl-demonstrators barred by statute from parading, assembling on Capitol grounds, displaying any object designed to bring public notice to any party or movement (40 USC §1939). Pls changed march route to avoid arrest; brought suit to have statute declared unconstitutional. Je 20, 1969: CA DC, Burger, J, held case not moot, constitutional question substantial, 3-judge ct should be convened. Bazelon, J, diss: CA should declare statute unconstitutional. Oct 2: 3-judge ct convened. Pending.

Law Center for Constitutional Rights, 588 Ninth Ave, NYC 10034.

16.9. Re Peace Parade Permits (Los Angeles Super Ct) 1968: Peace Action Council applied to LA Bd of Police Commrs for parade permit. Bd denied permit: traffic interference; altho proposed route followed that of city "birthday" parade year before. Council charged denial arbitrary, discriminatory, violation of 1st Amdt; appealed to Super Ct for writ of mandate. Apr 19: Super Ct denied writ. Sept: Bd granted permit for similar parade to Veterans for Peace in Vietnam, under threat of another ct action.

Fred Okrand, Esq, ACLU, 323 W 5th, Los Angeles 90013.

17. Of Mass Media (and 257)

17.4. United Church of Christ v FCC ( formerly Henry, Smith v FCC, 15.13)

(CA DC) (359 F2d 994 (1966)) 1964: Pls opposed license renewal of WLBT-TV, Jackson, Miss: claimed racial discrimination in programming, public service announcements, news shows, general station policy. FCC declined to order h'g (4-2); issued WLBT-TV 1-yr probationary license. Mar 25, 1966: CA (per Burger, J), ordered FCC h'g: public must be allowed to challenge renewal of broadcasting licenses. 1968: Church of Christ charged WLBT—TV with racial discrimination at FCC h'g; FCC renewed license (5-2). Je 20, 1969: CA (per Burger, J), ordered WLBT-TV license vacated, new applicants invited: FCC prejudiced towards established broadcasters, hostile towards public particiants; public interest must justify renewal grants.

Henry F Lerch, Esq, 815 15th St NW, Washington, DC 20005; Earl K Moore, Ann Aldrich, Esqs.

Amicus: Peter L Koff, Esq, and Lawrence Speiser, Esq for ACLU, 1424 16th St NW, Suite 501, Washington, DC 20036.

Amicus brief: MCLL.

- 4 -

17.6. Anti-Defamation League of B'nai B'rith v FCC (CA DC) (403 F2d 169) Oct 7, 1964; May 27, 1965: TV broadcast commentator equated Judaism with Socialism, Socialism with Communism. Pl opposed license renewal before FCC; FCC granted renewal without evidentiary h'g. Pl appealed. Sept 30, 1968: CA affirmed: (1) record reflected evidence in support of renewal, including broadcaster's offer to League of free equal time to respond; (2) no evidentiary h'g necessary where disposition of claim turned not on determination of facts but on inferences to be drawn from facts; (3) FCC cannot constitutionally promulgate rules regarding permissible speech relating to religion.

Harry M Plotkin, Esq, 1815 H St NW, Washington, DC 20006.

17.7. Red Lion Broadcasting Co v FCC; US v Radio Television News Directors Ass'n. (USSC) (381 F2d 908; 400 F2d 1002; 89 SCt 1794) 1964: Def-Red Lion operated radio station, WGCB; carried broadcast of "Christian Crusade" denouncing Cook, author of book critical of Sen Goldwater. Cook demanded free time to reply; Def refused. FCC declared broadcast constituted personal attack on Cook, Def failed to meet obligation under fairness doctrine to provide transcript or summary of broadcast and offer reply time; ordered Def to provide reply time regardless of Pl's willingness to pay for it. 1967: CA DC affirmed FCC order. After Red Lion case began, FCC issued rules codifying fairness doctrine, (32 Fed Reg 10303, amended in 32 Fed Reg 11531, 33 Fed Reg 5362). Pl-RTNDA sought review, argued rules abridged free speech, press. CA 7 held rules unconstitutional.

Je 9, 1969: USSC affirmed in Red Lion, reversed in RTNDA: (1) FCC order requiring station to furnish person attacked with summary of broadcast, free time for response, and FCC rules relating to personal attacks, political editorializing were authorized by Congress, enhanced rather than infringed freedoms of speech, press; (2) broadcasting licensee has no constitutional right to hold license, monopolize radio frequency to exclusion of other citizens; (3) gov't may, consistent with 1st Amdt, require licensee to share frequency with others, conduct itself as fiduciary with obligation to present views representative of community, which would otherwise be barred from air waves.

Roger Robb, Esq, Washington, DC, for Red Lion; Archibald Cox, Solicitor General, Washington, DC for FCC.

Amicus brief for ACLU (USSC): MCLL.

17.8. New York State Broadcasters Ass'n v FCC (CA 2) (414 F2d 990) Sept 25, 1968: FCC prohibited broadcasting lottery advertising, information, including state operated lotteries. Feb 26, 1969: Pls filed suit challenging FCC ruling: (1) 1st Amdt violated, (2) ruling vague, (3) FCC overlooked own fairness doctrine requiring presentation of contrasting viewpoints on controversial issues, (4) denial of access to radio, TV led to inadequate lottery profits for education. Aug 11: CA 2 set aside ruling, remanded: statute prohibiting broadcast of lottery information not overbroad, but broadcasters entitled to FCC ruling as to whether specified types of broadcasts would violate statute.

Ephraim London, Esq, 1 E 44th St, NYC 10017.

17.9. US v FCC (CA DC, #21147) 1967: ABC and ITT, large broadcasting corps, proposed merger. FCC approved license transfers from ABC to ITT on basis of ITT assurances not to influence ABC programming. Justice Dept appealed; ACLU amicus brief argued: (1) FCC made no appraisal of advantages, disadvantages accruing from ITT's ownership as required by 47 USCA §310 (b); (2) No analysis of impact of acquisition on free speech (47 USCA §326; 1st Amdt); (3) FCC had no statutory or constitutional authority to discharge its obligation to preserve free speech in broadcasting by regulating management policy instead of insisting on diversity of broadcasting ownership. Merger agreement expired before hearing; case dismissed as moot.

Robert L Wright, Esq, Suite 1000, Woodward Bldg, Washington, DC 20005; Lawrence Speiser, Esq, 1424 16th St NW, Washington, DC 20036; John deJ Pemberton, Jr, Esq, 156 5th Ave, NYC 10010; all for ACLU.

ACLU amicus brief (CA DC, 27 pp): MCLL.

17.10. Ackerman v Columbia Broadcasting System (SD NY) (301 FSupp 628, 1 RRLS 110) Pl filed suit alleging Defs, 3 major TV, radio networks, conspired to deprive presidential candidate Dick Gregory of equal broadcast time, constituting racial, political discrimination; asked $5 million punitive damages, injunction requiring major networks grant equal time to "all bona fide candidates for public office." Jy 9, 1969: DC dismissed: enforcement of equal time provision lies exclusively with FCC; alleged offense occurred under fed'l law, not state, but no statutory basis for DC hearing matter; Pls did not establish that $10,000 minimum jurisdictional sum was involved; request for relief "is so premature as to deprive their claim of the status of a case or controversy"; no real or immediate prospect of future campaign in which minority candidate will be denied equal time.

William M Erlbaum, Esq, 123-60 83d Ave, Kew Gardens, NY 11415.

20. ADMINISTRATIVE RESTRICTIONS
21. By US Customs (and 12, 14)

21.5. Teague v Regional Commr of Customs (USSC) (404 F2d 441, cd 89 SCt 1457, 1768) Nov 14, 1966: Def notified Pl he was detaining book shipment from Vietnam until Pl obtained license under Trading with Enemy Act (50 USC App §5(b)(1)), Foreign Assets Control Regs (31 CFR §500.204; amended, 32 Fed Reg 7829-30 (1967)). Pl refused to apply for license. Dec 31: Pl sued for declaratory, injunctive relief: free speech infringed. Aug 4, 1967: DC (SD NY) dismissed: "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." Pl then applied for license, moved to vacate dismissal. DC denied motion. Nov 14, 1968: CA 2 affirmed: (1) Pres Truman's proclamation of nat'l emergency (64 Stat A454, 1950) never revoked; (2) Trading with Enemy Act not unconstitutional delegation by Congress to Pres nor unconstitutional delegation by Pres to Secy of Treasury or Director of Foreign Assets Control: (3) challenged Regs do not deprive Pl of property without due process, do not violate 1st Amdt; (4) general purpose of Regs (restrict dollar flow to hostile nations) valid, incidental abridgment of 1st Amdt freedom; (5) time delay in securing license does not require invalidation of procedure; (6) licensing procedure does not violate 5th Amdt right against self-incrimination. Apr 21, 1969: USSC denied cert, Black, Douglas, JJ, diss. May 26: USSC denied reh'g.

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

Petition for writ of cert (USSC); opinion (DC); MCLL.

See also Friends Meeting, 25.36.

22. By US Postmaster (and 12, 14)
Statement by Lawrence Speiser of ACLU on HR 7375 and HR 10867-to exclude from US mails certain obscene materials, Oct 22, 1969. Washington ACLU, 1424 Sixteenth St NW, Washington, DC 20036.
- 5 -

23. On Government Information and Secrecy
24. On Students and Professors (and 56, 62, 111, 262, 281, 342, 571)
See text and forms in Ginger, 2 Civil Rights Handbook 221:1-230. (Natl Lawyers Guild, Box 673, Berkeley 94701.)

See also Bricker, 51.Calif.22; Macias, 51.Calif. 26; Ridenour, 55.Calif. 31; Van Nuys, 58.Calif.32; Garret, 58.Calif.34; Bd of Educ (Union Beach), 62.8; Public School Teachers, 62.9; Holland Teachers, 62.10; Alameda Co, 64.17; Magezis, 57.33; Overton, 303.95; Epperson, 111.51; Nichols, 74.3; Arizona ACLU, 295.22; De Rivera, 52.44.

Books:

J W Blair, ed, Student rights and responsibilities. Vol I. S Rosenthal and Co, Inc, Cincinnati, Ohio 45210. 309 pp. $2.50 paperback. MCLL.

Student protest and the law, Institute of Continuing Legal Education, 428 Hutchins Hall. Ann Arbor, Michigan 48104. 360 pp. $12.50.

Ehrenreich, Long march, short spring: the student uprising at home and abroad. Monthly Review Press, 1969.

Ridgeway, The closed corporation. Doubleday, 1968.

Schwab, College curriculum and student protest. U of Chicago Press, 1969.

Documents:

Guidelines for moral instruction in California schools; a report accepted by the State Bd of Educ, May 9, 1969.

Opinion of legislative counsel on morality guidelines, July 25, 1969.

Memos:

Ira Glasser, A student bill of rights. New York Civil Liberties Union, 156 5th Ave, NYC 10010. Aug 1969. 15 pp. MCLL.

Gordon Gaines, A proposal to supply legal resources to high school students. MCLL.

Barbara Yanow, Disciplinary procedures in public schools of San Francisco Unified School District. San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103. Apr 1969.

The culture of the university: Study Comm on Univ Governance. U of Calif, Berkeley, Jan 1968. 95 pp. MCLL.

Administrative Materials:

Tentative Administration Bulletin 25, Student discipline and control policies. Oakland Public schools, May 1969. MCLL.

Recommended revision of Tentative Administrative Bulletin 25, Student discipline and control policies. Oakland Lawyers Comm Project, Sept 23, 1969. MCLL.

University of Calif policies relating to students and student organizations, use of University facilities, and nondiscriminaton, March 17, 1969. 16 pp. MCLL.

Manual:

Training manual on public school law for the Student Advocate Service. Schools Defense Network, 1969. MCLL.

Article:

VanAlstyne, Judicial trends toward student academic freedom, 20 Florida 290 (1968).

Periodicals:

CAW! Natl magazine of Students for a Democratic Society, Box 332, Cooper Station, NYC 10003. $5-yr-monthly.

College Law Bulletin, 2115 S St NW, Washington, DC 20008. Published by US Nat'l Student Assoc. $6/yr-monthly.

The American Teacher. Journal of American Federation of Teachers, AFL-CIO, 1012 14th St NW, Washington, DC 20005. $5/yr-monthly.

Booklet:

Michael Nussbaum, A student guide to legal rights. USNSA, 2115 S St, NW, Washington, DC 20008. $1.25.

Bibliography:

Aptheker, Bettina, Higher education and student rebellion in US.-Annotated bibliography. Am Institute for Marxist Studies, 20 E 30th, NYC 10016. $1.00.


24.Ala.6. Chamless v Tuskegee (MD Ala) Def-administrators expelled Pl-nursing student for using "foul language" to off-campus roommate. Pl sued for readmission: no h'g or opportunity to face accusers; student rights same as those of other citizens, cannot be subjected to capricious rule of administrators. Agreement reached at pretrial conference: Pl readmitted; school's records changed to remove stigma of disciplinary dismissal. Suit dismissed.

ACLU Southern Regional Office, 5 Forsyth NW, Atlanta 30303.

24.Ala.7. Dickey v Alabama State Bd of Educ (Univ of Ala) (CA 5) (394 F2d 490; 402 F2d 515 (1968)) Apr 1967: Pl-editor student newspaper at Univ of Ala expelled: had published edition with "censored" written in editorial space because Univ had rule against publishing articles critical of state governor, legislature. Aug 15, 1967: Pl filed suit in DC asking declaratory, injunctive relief, reinstatement: denial of 1st Amdt rights. Sept 8: DC issued injunction to readmit Pl: (1) state cannot condition school enrollment on forfeiture of constitutional rights except as they materially, substantially interfere with appropriate discipline; (2) readmission would not interfere with such discipline; (3) state cannot circumvent this rule by dismissing student for "insubordination" rather than freedom of expression; (4) state officials do not "own" student newspaper in way permitting censorship. Sept 8: Def appealed. May 10, 1968: CA 5 reserved decision, pending factual resolution of possible mootness: Pl uncertain whether he would still desire reinstatement. Oct 21: CA held for Pl.

Morris Dees, Jr, Esq, Box 3306, Montgomery 36101.

See also 14, 55.Ala.10, 55.Ala.17.

See 54 AAUP Bull 298 (1968).

24.Alaska.1. Watts v Bd of Educ (Seward) (USSC) (421 P2d 586; 391 US 592; 454 P2d 732) Pl-school teacher circulated open letter among other teachers seeking support for ouster of school sup't. Def-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? Je 3, 1968: USSC, per curiam, vacated judgment, remanded to Alaska Sup Ct to be decided under Pickering, 391 US 563, 24.Ill.2. Douglas and Black, JJ, would reverse. White, J, diss. May 12, 1969: Alaska Sup Ct reinstated original judgment. Appeal pending.

Joseph P Josephson, Esq, 326 H St, Anchorage 99501.

24.Ariz.2. Ashton Jones v Bd of Regents (Univ of Arizona) (CA 9) (397 F2d 259 (1968)) 1966: Pl, non-student, attempted to pass out anti-Vietnam war leaflets on campus; arrested: violation of ordinance prohibiting non-students from distributing leaflets on campus. Pl sought injunction pendente lite to prevent Defs from removing Pl from campus. Jan 1967: DC denied application for injunction. Aug 13, 1968: CA 9 reversed on procedural grounds. Retried; DC denied relief. Feb 3, 1970: Appeal to CA 9 heard and submitted.

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

Brief: MCLL.

24.Ark.1. Freeman v Gould Special School Dist (Lincoln Co) (USSC) (405 F2d 1153, 90 SCt 61) Under HEW Guidelines on faculty integration, Def did not renew contracts of 2 black non-tenured teachers: failure to cooperate, incompetence, being bull-headed. Def gave Pls h'g, but did not produce principal for questioning. Pls sued for reinstatement: termination based on trivial
- 6 -

grounds, no adequate opportunity to challenge adverse action. CA 8 (2-1) held nontenured teachers had no right to h'g with opportunity to cross-examine, confront adverse witness. Dissent argued facts given as basis for discharge were irrelevant, due process required proper h'g. Oct 13, 1969: USSC denied petition for cert, Douglas, J, diss.

Conrad K Harper, Esq, NYC; Jack Greenberg, Esq, 34 Plaza Bldg, Brooklyn 12238; John Walker, Norman Chachkin, Esqs, Little Rock; George Howard, Esq, 329½ Main, Pine Bluff 71601.

And see 571.

24.Calif.7b. Eisen v Bd of Regents (Univ of California) (formerly Atthowe v Regents; Eisen v Regents, 24.37b.) (Calif DCA) 1966: Pl-Atthowe sued Def for access to documents filed with Univ stating names, addresses of officers, faculty sponsors of student organizations. Super Ct ordered Def to show cause why it should not answer request. Def said it would give information to Pl-Atthowe, on advice of Univ general counsel. Oct 10: when Pl-Atthowe went to pick up documents, she was handed TRO, filed by student Pl-Eisen, ordering Def-Univ to show cause why it should be forced to hand over documents: violation of 1st Amdt right to privacy. Super Ct denied Pl-Eisen's motion: documents part of public record. Pl-Atthowe received documents. Pl-Eisen appealed. Feb 17, 1969: DCA affirmed: Univ policy promotes freedom of expression consistent with public's right to ascertain identity of organizations, users of public property.

Arthur Wells, Jr, Esq, 2550 Telegraph, Berkeley 94705.

See also AFT, 271.55; 295.

24.Calif.15. Athos v Bd of Educ (Fremont) (Alameda Co Super Ct, #364235) 1966: Pl-student suspended: long hair. Oct 19: Pl filed complaint for injunction, damages. Judge signed TRO, issued preliminary injunction requiring that Pl be readmitted pending trial on merits. Je 1967: Pl graduated, case moot.

Newman, Marsh, and Furtado, Esqs, 22274 Main St, Hayward, Calif 94541.

Complaint for injunction, damages; memo of points and authorities; demurrer; memo in opposition to demurrer: MCLL.

24.Calif.16. Myers v Bd of Educ (Arcata) (Calif Sup Ct) (269 ACA 633, 642) 1966: Pl suspended from school; "extreme hair style." Pl petitioned for mandamus; Super Ct stayed suspension pending trial. Nov 10: Super Ct issued mandamus preventing school officials from taking any action against Pl because of hair length: Reg on hair styles too vague. Dec 1968: DCA affirmed. May 1969: Calif Sup Ct denied Def's request for h'g.

Jerome Falk, Esq. 650 California, San Francisco 94108; Paul Halvonik, Esq, ACLUNC, 503 Market St, San Francisco 94105.

ACLU brief (DCA), answer to Pet for h'g (Sup Ct): MCLL.

24.Calif.17. Akin v Bd of Educ (Riverside) (USSC) (68 CR 557, cd 89 SCt 668) Sept 1965: Bearded Pl denied admission to high school; entered private school. Sept 1966: denied admission to public school: Better Grooming Code demands 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 admission; Ct denied. Aug 1967: DCA refused order compelling admission pending result of appeal. Je 1968: DCA affirmed: (1) reasonable restraints on exercise of constitutional rights proper, considering necessity of maintaining proper academic atmosphere, (2) evidence showed beard constituted disruptive influence in educational process. Jan 1969: USSC denied cert.

Tony Geram, Esq, 8408 Sierra, Fontana; A L Wirin, Fred Okrand, Laurence R Sperber, Esqs, 257 S Spring, Los Angeles 90012.

24.Calif.19. McGlone v Bd of Educ (Mt Diablo); In re McGlone (Contra Costa Co Super Ct, #R15159) Pl-high school teacher fired, allegedly for wearing miniskirt, other misconduct. Je 29, 1967: Calif State h'g officer found none of 20 charges sufficient. Def overruled findings of h'g officer, affirmed dismissal. Nov 27: Pl sued in Super Ct for mandamus compelling rehiring, backpay. May 15, 1968: Super Ct refused mandate. DCA rejected appeal. Pending in Sup Ct.

Raoul Kennedy, Esq, 94 Bayo Vista Ave, Oakland; Peter Franck, Esq, 2905 Telegraph Ave, Berkeley 94705; Stewart Weinberg, Esq, 45 Polk St, San Francisco 94102.

24.Calif.20. Perlman v Bd of Trustees (Shasta Joint Jr College Dist) (Shasta Co Super Ct, #37298) Jan 23, 1968: Def-Dean of Students suspended Pet: inviting Socialist Workers Party members to distribute literature on campus. Pet alleged he received permission from Pres, Vice-Pres. Feb 21: Def expelled Pet for alleged violation of probation. Feb 23: Pet filed petition for writ of mandamus seeking ct review of administrative action taken by Defs, alleged denial of due process in administrative proceedings. Sept 10: Super Ct vacated order of expulsion, remanded to Bd: (1) evidence showed Bd had made decision before h'g; (2) order of suspension arrived at without h'g, Pet had 1 hour's notice to appear before Dean, not advised of charges against him, not advised of right to counsel, not advised of right to call witnesses, therefore probation order invalid and subsequent expulsion invalid; (3) expulsion procedure did not comply with due process requirements as outlined in Goldberg, 57 CR 463; (4) ct suggests college adopt rules of procedure and conduct more specific than those now existing. Nov 27: Defs appealed to DCA. Pending.

Henry Saunders, Esq, PO Box 2437, Redding 96001.

24.Calif.21. UCLA Student Conduct Comm Nov 1967: 5 students charged with participation in sit-in protesting presence of Dow Chemical recruiters on campus. Jan 13, 1968: public h'g held, both sides represented by attys. Jan 16: 1 student suspended for 2 quarters; 4 others placed on 2 quarters' disciplinary probation.

Profs Leon Letwin, Richard Wasserstrom, and Lawrence Sager, UCLA Law School, Los Angeles; Mike Kogan, NLG, Rutgers Univ Law School, 180 University Ave, Newark, NJ 07102.

24.Calif.23. Sellers v Bd of Regents (Univ of California) (CA 9, #23,581) 1968: Pls requested use of campus Greek Theater May 17, for Vietnam Commencement; request denied on advice of Univ General Counsel: assembly might lead to violations of 50 App USC §462a (counseling refusal of induction); Regents resolution of Oct 20, 1967 prohibits use of Univ facilities for unlawful activities. May 9: Pls sued in DC for declaratory, injunctive relief, damages: refusal violated 42 USC §1983, 1st, 14th Amdts. May 16: DC denied TRO: no showing of irreparable injury, unreasonable exercise of power, invalid interest of Def. Jy 19: Pls amended complaint: 50 App USC §462a and Regents resolution are overbroad and vague restrictions on freedom of speech, assembly; asked 3-judge ct to enjoin enforcement. Sept 25: DC dismissed. Oct 25: Pls appealed.

Paul Halvonik, Esq, 503 Market St-7th Floor, San Francisco 94105.

24.Calif.24. Dunbar v Governing Bd (Grossmont Jr College Dist) (San Diego Super Ct, #305336) Feb 1968: Pls-students, faculty scheduled campus debate between Communist and John Birch Society representatives Mar 8. Feb 12: Defs barred Communist, approved Bircher. Feb 26: Pls sued in Super Ct for injunction compelling equal treatment to both speakers: prior censorship violated 1st Amdt rights. Mar 7: Super Ct denied relief: Defs have full control over events on campus open only to students; granted Pls permission to amend complaint. Apr 23: Super Ct denied amended request. May: Pls appealed. Pending.

Peter Clarke, Esq, 1765 Union St, San Diego 92101.

See also 11.

- 7 -

24.Calif.25. Scarbrough v Bd of Educ (San Francisco) (Calif Sup Ct) Nov 27, 1967: Resp, principal, suspended Pet, 17 year old high school student, for alleged involvement in firebombing incident. Dec 4: Pet sought writ of mandamus to terminate suspension, declaratory judgment invalidating Calif Educ Code §§10601-10606 (permitting suspension without h'g). Issues: Resp's action unconstitutional because: (1) right to attend free public school guaranteed by 14th Amdt, Calif Const, Art 9, Calif Educ C §5655, (2) deprivation of right to h'g offends due process requirement of 14th Amdt. Dec 11: Super Ct denied application for peremptory writ at show cause h'g. Dec 27: motion for leave to file in forma pauperis filed in Calif Sup Ct; denied. Dec 29: petition for writ of mandamus filed in Calif Sup Ct; case transferred to DCA. Jan 12, 1968: DCA, per curiam, denied. Jan 22: Calif Sup Ct denied petition for h'g.

Kenneth Hecht, Esq, San Francisco Neighborhood Legal Assistance Foundation, 721 Webster St, San Francisco 94117.

Petition for mandamus and declaratory relief (Super Ct); petition for h'g, petition in forma pauperis, petition for mandamus (Sup Ct): MCLL.

24.Calif.26. Smiley v Thompson (Soquel High School) (Santa Cruz Super Ct, #40417) Pl-freshman suspended: wearing long hair in violation of school dress code. Mar 15, 1968: Petition filed for writ of mandate to compel readmission. June 27: petition denied.

Robert L Bennett, Esq, PO Box 960, Watsonville 95076.

See also 295.

24.Calif.27. In Re Carter, du Trieulle, Kern, Lipton, Manning, Pfeiffer, Rochelle, Starnes, Yamanaka (San Francisco State College) (Grievance and Disciplinary Action Panel) Feb 17, 1969: Def-professors filed memo criticizing Dept chairman, seeking his dismissal. Apr 8: charges of unprofessional conduct brought before Grievance Panel alleging false statements in memo. Je 6: defense memo: (1) comment on conduct of persons running college depts should not be hampered since threat of disciplinary action has chilling effect on right to criticize improper conditions in public institutions; (2) erroneous statements made in good faith must be protected to give breathing space to free debate; (3) conduct never intended to be unprofessional; (4) Comp admitted most of Feb memo factually correct. Pending.

Ephraim Margolin, Esq, 445 Sutter St, San Francisco 94108.

24.Calif.28. N Orange Co Junior College Dist v Nighswonger (Orange Co Super Ct #159067) Pl-school suspended Def: violating campus dress code by refusing to wear shoes. Pl expelled Def, sought ct order when Def continued to attend class. Def argued medical treatments make shoes painful. Aug 1968: Super Ct gave permanent injunction.

Pat Herzog, Esq, 3500 E Coast Hwy, Corona del Mar 92625.

24.Calif.29. Palo Verde Jr College v Hensey (Riverside Co Super Ct #11214) March 1968: Def-Prof used word "whore" in discussing venereal diseases; dismissed. School Bd said Def had been outspoken on many things, insubordinate. July 1968: Super Ct upheld dismissal. On appeal.

Ronald G Skipper, Esq, 7 Law Building, 560 N Arrowhead Ave, San Bernardino 92401.

24.Calif.30. Olff v East Side Union High School District (San Jose) (ND Calif, #52282) Sept 10, 1969: School official informed Pl he could not attend classes as long as hair length violated Reg requiring hair to be neat, clean, not cover ears, extend below collar. Pl sued under 28 USC §§1343, 1983 for injunctive, declaratory relief, damages for denial of 1st, 14th Amdt rights. Oct 1: DC enjoined Def from enforcing present haircut Reg, excluding Pl from school: noted state's legitimate interest in regulating hair cleanliness or length where safety involved, but held these concerns not present here.

Thorne, Stanton, Klopton, Herz, Stanek, Steinberg, Esqs, 510 N 3rd St, San Jose 95112; ACLU, 503 Market St, San Francisco 94105.

See also: Richards v Thurston (DC Mass, #69-993-W) (Sept 23, 1969, Wyzanski, J); Griffin v Tatum, 300 FSupp 60 (MD Ala 1969); Breen v Kahl, 24.Wisc.4, 296 FSupp 702 (WD Wisc 1969); Zachry v Brown, 299 FSupp 1360 (ND Ala 1969).

Ct order of Oct 1, 1969: MCLL.

24.Calif.31. Allen v Oakland Unified School Dist (ND Calif, #51425) Sept 1968: 9th grade student involved in infractions of school disciplinary rules. Sept 30: Central Review Bd held h'g, but did not inform Pl-student or give notice of charges, evidence, witnesses or allow Pl to appear on own behalf. Nov 7: Bd of Educ held meetings, informed Pl, allowed her to make statement, but did not notify her of all charges, witnesses against her, or allow presentation of Pl's witnesses. Def-School Dist participated in Juvenile ct hearing, did not object to judgment placing Pl on probation provided she remain in school. Dec 17: Def-Dist expelled Pl. Pl sued in DC, challenging expulsion procedures under state law, 14th Amdt. Jy 15, 1969: DC granted Pl's motion for preliminary injunction, declared Def's expulsion order void, restrained Def from expelling Pl without full, fair h'g.

Allen Kalmanoff, Esq, 6441 Raymond St, Oakland 94609.

Ct order of Jy 15, 1969; Pl's brief, memo: MCLL.

24.Calif.32. California v Jones (Los Angeles Muni Ct) May 7, 1969: Def, Black Student Union leader at nearby college, came to high school to secure support for BSU demands. High school BSU members prevented raising of flag, urged other students to leave classes; 200 gathered on playing field. Def warned by principal to leave, then arrested: trespassing on school property. Students then occupied administration bldg to protest Def's arrest; police arrived, cleared bldg.

And see Mallory, 24.Calif.42.

24.Calif.33. Modesto v San Jacinto Unified School Dist (Riverside Super Ct, #96484) 1969: school teachers sent Indian student home because hair too long; Pl cut hair, returned to school. Teacher still not satisfied, cut Pl's hair in front of class against his will. May 7: Pl sued: $25,000 compensatory, $25,000 punitive damages. Discovery underway. Ct sustained demurrer on 3 counts, overruled on all other counts. Pending.

George Duke, Esq, Calif Indian Legal Services, 2527 Dwight Way, Berkeley, Calif 94704.

Amended complaint: MCLL.

And see cases at 600.

24.Calif.34. San Francisco State Strike Sept 26, 1968: Bd of Trustees voted to request SF State Pres Smith to transfer instructor George Murray, member of Black Panthers, to nonteaching duties; Smith refused. Oct 28: Murray spoke at noon rally, allegedly encouraging students to bring guns on campus. Oct 30: Chancellor Dumke ordered Murray suspended; Nov 1: Smith suspended Murray. Nov 6: Strike began; Black Student Union (BSU) presented demands. Nov 7: Smith ordered campus closed; San Francisco police Tactical squad on campus: minor violence, damage. Nov 12: Ad hoc faculty comm threatened to strike unless Murray reinstated by 5 p.m. Nov 13: Comm went on strike. Police-student confrontations during afternoon; Smith declared campus closed. Nov 18: Bd of Trs ordered Smith to reopen campus; grievances to be negotiated through ordinary channels after classes reopened. Nov 19: Faculty voted to teach; convocation for discussion of demands, strike issues planned. Nov 20: Campus reopened; convocation convened, some classes in session.
- 8 -

Nov 21: Convocation collapsed with walkout of BSU and Third World Liberation Front (TWLF); classes permitted to meet despite Smith's promise to suspend them during convocation. Arrests attempted: Tactical squad called on campus.

Nov 22: Plainclothesmen on campus; chased to library. Tactical squad came on campus, left. Smith suspended all classes, called for faculty-student meetings to implement convocation. Faculty meeting; resolutions passed: no classes during convocation; no police on campus; trustees to be invited. Nov 25: Classes suspended; convocation convened, trustees in emergency session in LA. Nov 26: Convocation held until dismissed by TWLF leader, calling for entire student-faculty vote. Smith resigned; Hayakawa appointed acting president. Hayakawa closed campus until Dec 2; declared state of emergency. Dec 2: Campus, classes reopened; 5 strike leaders suspended. Strikers attempted to disrupt classes; Tactical squad on campus. Dec 3: Tactical squad on campus, arrested strike leaders. Disruptions continued; 31 arrested. Dec 4: Community leaders, students, faculty strikers held protest march; 600 police on campus: no violent confrontation. Dec 6: protests continued; Hayakawa at new conference indicated 6 of 15 demands could be met, including establishment of black studies dept. Rally at noon; strikers marched to city hall; no violence. Academic Senate met, proposed limited number of demands re campus situation. Dec 9: police on campus; noon rally held: strikes attempted to close bldgs. Police removed strikers from bldgs. AFT met, sought strike sanction. Injunction sought to restrain use of police on campus. Dec 10: Hayakawa's offer rejected; strike continued. Dec 14: fearing AFT strike, Hayakawa closed college for Christmas, 1 week earlier than usual. Talks continued during vacation.

Jan 6, 1969: AFT strike began; demands included removal of Hayakawa. Jan 9: Disruptions continued; students, mounted police clash; 5 arrests. AFT defied ct injunction ordering them to cease strike activities. Gov Reagan insisted on strict enforcement of statute providing for loss of pay, automatic loss of job after 5 unauthorized absences. Jan 23: Despite Hayakawa's ban on campus assemblies, over 2,000 gathered for noon rally. Hayakawa declared rally illegal; police surrounded rally, arresting 480 students, teachers, community leaders.

Mar 1969: although final resolution of strike issues not complete, strike leaders declared implementation of demands had been worked out with administration; amnesty granted for 85% of those arrested. During Jan 23 mass arrest, 456 students arrested: unlawful assembly, refusal to disperse, disturbing the peace.

By late 1969: 189 either pleaded guilty or were convicted, 52 were acquitted; remaining charged still pending.

And see Wong, 24.Calif.34a; Garrett, 58.Calif.34; Hallinan, 304.Calif.58.

24.Calif.34a. Wong v Hayakawa (ND Calif, #50983) Feb 1969: Pls, students arrested during San Francisco State demonstration (see 24.Calif.34), received letters notifying them of disciplinary proceedings for disorderly conduct: based on alleged offenses which were basis of criminal charges. Mar 18: Pls brought class action against college President, others seeking TRO, injunction; alleged: (1) disciplinary procedures denied due process, (2) lack of adequate notice of charges, (3) procedures require Pls to answer charges but statements may be introduced as evidence at criminal trial, (4) officials denied Pls' reasonable request for postponement until completion of criminal proceedings, (5) no evidence introduced regarding Pls' individual behavior, (6) no opportunity to question police officer who made report to which Pls' names were attached as allegedly having been arrested, (7) no basis in fact existed for disciplinary action taken, (8) "disorderly conduct" section of Calif Admin C (§41301 to Title V) as applied is vague and overbroad, (9) Regs prohibiting speech, assembly on main campus of SF State are prior restraint on 1st Amdt rights, (10) identical evidence introduced at respective h'gs yet 1 Pl received written reprimand while another was disciplined by 6 mos suspension and 2 yr probation-this arbitrary, discriminatory determination indicated total absence of standards prescribed for punishment, (11) h'g failed to separate adjudicatory, prosecutorial roles, denying Pls due process, (12) h'g panel incapable of making final determination reserved for unilateral determination of Pres Hayakawa based on panel recommendation.

Apr 24: DC held (1) merits of each case depend on substantiality of evidence introduced at h'gs, class action denied, (2) minimum due process requirements prescribed in Scoggin v Lincoln U, 291 FSupp at 171, 24.Mo.3, (3) Pls were named as arrested suspects in police report, but such listing is not proof of proscribed conduct, (4) "No disciplinary action can be taken which is predicated upon suspicion and suspicion alone." (emphasis in original), (5) order of h'g panel vacated, set aside, expunged from record; Defs enjoined from taking disciplinary action until such action based upon evidence that Pls were engaged in activity which could sustain disciplinary sanctions, (6) it is hoped that similar remedial action will be taken for all others disciplined solely on basis of the police report referred to here.

San Francisco Neighborhood Legal Assistance Foundation, 2701 Folsom, San Francisco 94110.

24.Calif.35. Isman v Bd of Regents (Univ of California) (ND Calif) 1968: Def-UC School of Dentistry prevented Pl-student from attending mandatory Dental Clinic: Pl's beard violated Def's requirement students be clean shaven. Def informed Pl it was reconsidering rule but wouldn't make decision for several months; negotiations with Regents failed. Pl sued in DC: following day Def admitted Pl to Clinic, decided previous absences would not reflect adversely on his academic record.

Marshall Krause, Esq, ACLUNC, 503 Market St, San Francisco 94105.

24.Calif.36. Siegel v Regents of Univ of California (ND Calif, #52014) UC Student Body Pres alleged (1) Def denied him due process in disciplinary proceedings following his People's Park speech (see 55.Calif.32), (2) Def infringed his right to free speech, (3) Def denied him equal protection of law by removing him from office, (4) Def's disciplinary Regs, emergency Regs of Feb 24, 1969 are vague, overbroad. DC granted Def's motion to dismiss. Appeal pending.

Doris Walker, Esq, 1440 Broadway, Oakland 94612.

Complaint, motion for 3-judge ct and memo, memo in opposition to motion to dismiss (DC); application for injunction pending appeal and expedited appeal, appt's opening brief, ACLU brief (CA 9): MCLL.

And see Ackerman, 429.63; Peoples' Park, 55.Calif.32.

24.Calif.37. In re Yank (Univ of California) (Academic Senate Privilege and Tenure Comm H'g) 1969: Chancellor charged Asst Prof Yank's activities during Third World strike (see California v Macias, 51.Calif.26) on Berkeley campus sufficient cause for termination of employment contract: participation in moving picket line, conducting classes off campus, failure to meet classes on occasions, participation in unauthorized rally, and open letter to campus newspaper re not meeting with classes constituted serious breach of faculty member's obligation to Univ. First time such action taken against faculty member on Berkeley campus. Pending.

Arthur Wells, Esq, 2550 Telegraph Ave, Berkeley 94705.

And see Yank, 55.Calif.32a.

24.Calif.38. California v Camejo, Bloom, Glusman (Alameda Co Super Ct) Sept 1968: UC Berkeley offered course on racism taught by Black Panther leader Eldridge Cleaver. State senate voted to censure Univ unless course cancelled. Bd of Regents resolved to limit Cleaver to one lecture if credit was to be given for course; Univ administration allowed course to be given but without credit. Oct 22: Students demonstrated against withdrawal of credit; 121 sat-in at administration bldg; arrested. 118 pleaded guilty to trespass charges, received 30 day suspended
- 9 -

sentences, $125 fines. Oct 23: 2000 students demonstrated in plaza, 150 occupied Moses Hall. 16 hours later police removed demonstrators, charged them with trespassing, disturbing peace, malicious mischief. Nov: Dist Atty charged Defs, leaders of Moses hall sit-in, with conspiracy to commit misdemeanors of trespass, obstructing police, malicious mischief. Jan 1, 1969: UC chancellor suspended 38 students, placed 133 on disciplinary probation. Oct 30: Defs acquitted after jury trial.

Richard Hodge, Esq, 228 McAllister, San Francisco 94102.

24.Calif.39. Furutani v Ewigleben (College of San Mateo) (ND Calif) (297 FSupp 1163) 1969: Pl-students participated in various demonstrations at public college. School suspended Pls prior to disciplinary h'g. State arrested Pls, brought criminal charges. Prior to date set for disciplinary h'gs, Pls sued in DC to enjoin disciplinary action temporarily: they could not adequately defend themselves without risk of giving evidence which would be incriminating at upcoming criminal trials. DC denied relief, but ruled that any potentially incriminating evidence given at disciplinary h'g could not be admitted at criminal trial.

Charles Stephen Ralston, Oscar Williams, Jr. Esqs, NAACP Inc Fund; Rubin Tepper, Arden K Weinberg, Esqs, Legal Aid Society of San Mateo County, Redwood City, Calif.

24.Calif.40. California v Queen, Martinet (San Francisco Muni Ct, #E7342, #E7343) Jan 1969: Defs-youth counselos attempted to mediate racial conflict at high school; principal ordered Defs off campus. Defs returned next day, participated in session drawing up demands. Jan 29: arrested when returned to school with demands on leaflets: remaining on school ground after going there with unlawful purpose, causing disruption or interference (Pen C §602.9). Ct denied motions for acquittal on grounds of vagueness, overbreadth, prior restraint, improper delegation of authority, lack of notice; denied instructions on 1st Amdt, clear and present danger. Jury acquitted Queen, hung on Martinet. Charges dismissed when arresting officer killed.

James Perry, Esq, 1095 Market St, San Francisco 94103.

24.Calif.41. California v Wright (LA Super Ct) Fall 1967: Def led sporadic picketing of Manual Arts High School: claimed principal unresponsive to Negro student needs. Oct 19-20: violence erupted; over 60 arrests. Oct 25: TRO against Def, others from meeting on school grounds, adjacent sidewalks to interfere with school. Feb 2, 1968: Def convicted: disturbing peace, obstructing peace officers. Mar 6: sentenced: $200, 2 yrs probation, barred from schools that her children not attending.

A L Wirin, Fred Okrand, Esqs, ACLU, 323 W 5th St, Los Angeles 90012.

And see Castro, 51.Calif.18; Averett, 24.Calif.41a.

24.Calif.41a. Averett v Bd of Educ (Los Angeles) (LA Super Ct, #952,590) Mar 10, 1969: Pl-high school students, members of Black Students Union, attempted to organize Manual Arts High School boycott, passed out leaflets at school. Pls did not actually stand on school property, no violence or blockage of entrances. School informed Pls they were expelled, transferred to other schools, never sent Pls notice of charges. Vice Principal met with Pls, parents, repeated that they were expelled, did not allow Pls to confront witnesses against them, or present witnesses, evidence in their own behalf. Pls sued, seeking writ of mandate ordering reinstatement; argued denial of due process, 1st Amdt rights. May 9: Ct denied relief: transfer was not sufficiently punitive to require formal administrative h'g, evidence that school disrupted justified sanction imposed. Pls appealed: Appeal dismissed as moot since school term ended before appeal could be heard.

Lynne Finney, Esq, Suite 1600, One Wilshire Bldg, Wilshire Blvd, Los Angeles 90017.

Order of ct; memo in support of petition for writ of mandate (18 pp): MCLL.

And see Wright, 24.Calif.41.

24.Calif.42. California v Mallory, Wilson (San Bernardino Co Muni Ct, #85473) Jan 15, 1969: Defs-non high school students began distributing Peace and Freedom Party leaflets at high school; arrested: violation of anti-leafleting provisions of Educ C §§9013, 9021. Def demurred to complaint: charges violated 1st, 14th Amdts, were vague, overbroad. City Atty decided Educ C provisions were regulatory, not penal; over Def's objection Ct allowed City Atty to amend complaint, dismissing former charges, substituting loitering charge. Later City Atty dropped these charges, concluding there was no evidence of loitering.

Albert A Sanders, Esq, Sanders and Todd, 344 W 2d St, Suite 101, San Bernardino 92401; Tony Geram, Esq, 8408 Sierra Ave, Fontana 92335.

Complaint, amended complaint, demurrer and memo: MCLL.

And see Jones, 24.Calif.32.

24.Calif.43. California v Agnello (Los Angeles Super Ct App Dept) (259 CA2d 571) Je 10, 1967: Pl addressed art class at UCLA, charged with violation of statute prohibiting invasion of state campus to disrupt peaceful activities. Muni Ct dismissed charge: statute unconstitutionally vague, violates 1st Amdt. Nov 22: App Dept Super Ct reversed.
24.Calif.44. Brennan v Nicasio School Dist (DCA, 1st Dist) Je, 1968: School teacher-Pet signed petition to amend state marijuana laws, admitting she had smoked marijuana 18 yrs with no ill effects. School bd fired Pet: immoral conduct. Pet sued: violation of freedom of speech, right to sign petitions. Je 10: Super Ct trial: judgment for Def. Pl appealed. Jan 1970: ACLU filed amicus brief.

Levy, DeRoy, Geffner and Van Bourg, Esqs, 45 Polk St, San Francisco 94102.

ACLU amicus brief (15 pp): MCLL.

24.Colo.1. Buttny v Smiley (Univ of Colorado) (DC Colo) (36 US Law Week 2571) 1968: Pl-students demonstrated, interfered with CIA's recruiting efforts: school suspended Pls under hazing Reg. Pls sued: unconstitutionally vague, has chilling effect on exercise of 1st Amdt rights. Feb 14: DC rejected both claims, held 1st Amdt does not protect such active, aggressive physical action.
24.Colo.2. Jones v Hopper (S Colo State College) (USSC) (410 F2d 1323; 38 US Law Week 3078) 1968: Pl, nontenured Assoc Prof, publicly objected to disqualification of Oriental applicant, criticized textbook, founded antiwar newspaper. College denied Pl reappointment; Pl sued for reinstatement, alleged violation of 1st Amdt rights. 1969: CA 10 (en banc) denied relief, held expectancy of continued reappointment not protected by Constitution. Seth, Holloway, JJ, diss. Aug 15: Pl filed petition for cert. Pending.
24.Colo.3. Browns v Mitchell (Univ of Denver) (CA 10) (409 F2d 593) Apr 1968: Pl-students participated in occupation of registrar's office of private, non-profit, tax-exempt institution. Dean warned Pls, then summarily suspended all who remained in bldg. At time of dismissal all students advised of right to appeal dismissal to Univ Conduct Review Comm. All Pls initiated review proceedings, received specific notification of charges. After individual inquisitory h'gs, Comm imposed 1 year probation in lieu of dismissal. Chancellor reviewed Comm's report, individual students' records, random sampling of tape record; recommended 1 yr suspension: suspension approved by Bd of Trustees. Pls sued for reinstatement, argued disciplinary action taken under
- 10 -

color of state law, did not comply with requirements of due process. DC avoided state action issue, denied relief, held due process had been afforded. Jan 31, 1969: CA affirmed: state action not involved; rejected Pls' argument that tax exemption constituted financial contribution to revenues of school placing it in position of interdependence with state; held that even if exemption were financial contribution, no demonstrated relationship between financial involvement of state and challenged activity.

Walter C Brauer, Esq, 621 17th St, Denver 80202; Susan Graham Barnes, Esq, 7000 W 14th Ave, Lakewood, Colo 80215.

24.Conn.1. Bourne v Rousseau (Norwalk Bd of Educ) (Ct of Com Pleas, Fairfield Co #90809) Jan 28, 1968: 51 boys suspended from high school: hair length exceeded limit in Bd of Educ's dress code. Jan 31: Pl-students, among those suspended, filed suit for injunction, mandamus, declaratory judgment: allege denial of equal protection, due process, violation of 9th Amdt right to privacy; denial of access to public facility unjustified unless in fact hazard arises in particular situation. School Bd acquiesced before trial: modified dress code: only in fact disturbances in particular cases subject to discipline. Motion for judgment re modified code pending.

Burton M Weinstein, Esq, 96 Golden Hill St, Bridgeport 06603.

24.Conn.2. Roach v Connecticut (USSC) (89 SCt 2132) 1968: Pet, Univ of Conn professor, engaged in disrupting placement interviews, unlawful entry into Univ bldgs, other disruption of school functions. After h'g, state got temporary injunction against such activities by Pet, but which allowed Pet to make public comments, express opinions, carry picket signs on campus, if such done in orderly manner, not maliciously, untruthfully, calculated to incite, encourage others to illegal acts. Feb 28, 1969: Conn Sup Ct affirmed. May 12: Pet filed petition for cert: injunction violated 1st Amdt right to free speech. Je 23: USSC denied cert.

Melvin L Wulf, Esq, ACLU, 156 5th Ave, NYC 10010.

Petition for cert; Pet's reply brief: MCLL.

24.DC.3. US Nat'l Students Assn v Finch (DC DC #Civ 970-69) Apr 16, 1969: Pl filed class action challenging legislation permitting withdrawal of fed'l aid to students who engage in "disruptive" campus protests: (1) violates right of free speech, (2) invades state powers, (3) constitutes unlawful exercise of General Welfare Clause, (4) constitutes bill of attainder, (5) legislation vague, indefinite, discriminates against poor, (6) constitutes ex post facto legislation, (7) violates due process. Pl requested injunction, declaratory judgment. Pending.

Leonard Braman, Michael Nussbaum, Juan Del Real, Esqs, 1156 15th St NW, Washington, DC 20005.

Complaint: MCLL.

24.DC.4. Hare v Howard University (CA DC) (271 FSupp 609, 412 F2d 1128) Je 1967: Def Univ dismissed Pls-professors without notice, h'g for support, participation in student demonstrations. Pls sued for immediate reinstatement; DC denied relief. Je 17, 1969: CA reversed; noted Faculty Handbook provided timetable for notifying non-tenured faculty of their reappointments; found that employment contract contemplated h'g on any charges brought against a teacher so late in year in light of assurances by Univ officials, common practice at Univ, statements in Handbook; remanded to DC to allow Pls to amend complaints to pursue claim for money damages caused by non-reappointment.

Lawrence Speiser, Esq, ACLU, 1424 16th St NW, Washington, DC 20036.

See also Greene, 24.DC.5.

24.DC.5. Greene v Howard University (CA DC) (271 FSupp 609, 412 F2d 1128) Je 1967: Pl-students engaged in black power demonstrations, expelled without h'g. Pls sued for readmission pending h'gs. DC denied relief; CA DC reversed, ordered Pls reinstated pending final decision. School officials permitted Pls to continue at Univ, agreed to make no notations on their records regarding initial disciplinary action. Je 17, 1969: Since Pls had not sought damages, CA held case moot, no further controversy to decide. Decided with Hare, 24.DC.4.
24.Ill.2. Pickering v Bd of Educ (Township High School Dist) (USSC) (225 NE2d 1, 391 US 563) 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, school. Def 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 Ill 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. Ill Sup Ct affirmed. Je 3, 1968: USSC reversed and remanded, Marshall, J: critical statements made by teachers on matters of public interest protected by 1st Amdt absent proof of knowing or reckless falsehood; cannot justify retaliatory dismissal. Douglas, Black, JJ, concur. White, J, would vacate and remand. Sept 1969: order entered to reinstate Pl as teacher; h'g on damages pending in Will Co Circuit Ct.

John Ligtenberg, Esq, 134 N LaSalle St, Chicago 60602.

Brief and argument for Appt (Ill Sup Ct): MCLL.

24.Ill.3. Snyder v Bd of Trs (Univ of Illinois) (ND Ill) (286 FSupp 927) State legislature passed Clabaugh Act: prohibits instructors, other Univ employees from extending "to any subversive, seditious, and un-American organization . . . the use of [Univ 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, sought to enjoin Defs from continuing to enforce statute. DC denied Defs' motion to dismiss for lack of fed'l question. 1968: DC granted injunction. No appeal.

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

24.Ill.5. Scoville v Bd of Educ (Joliet Township) (CA 7) (286 FSupp 988) 1968: High school principal sent pamphlet to parents through students. Pl-students distributed journal criticizing pamphlet, urging "all students in the future to either refuse to accept or destroy upon acceptance all propaganda the administration publishes." Def expelled Pls; Pls sued for reinstatement alleging expulsions violated 1st Amdt. Jy 19: DC denied relief, held Pls "speech on school grounds amounted to an immediate advocacy of, and incitement to, disregard of school administrative procedures . . . (and) constituted a direct and substantial threat to the school." Pls' appeal pending.

Paul Lurie, Esq, 6 N Michigan Blvd, Chicago 60602.

24.Ill.6. Univ of Illinois v Finamore, Lara (Univ Subcomm on Student Discipline) Oct 15, 1968: Defs, student political activists, helped organize, lead campus demonstration protesting purchase of table grapes by student union. Nov: 6 charges brought including aggravated assault on policeman, leading violent, illegal demonstration. Nov 26: closed h'g: Defs received "reprimand of record."

Robert Howard, Esq, 208 S LaSalle, Chicago 60604.

24.Ia.1. Tinker v Des Moines Independent Community School Dist (USSC) (258 FSupp 971, 383 F2d 988, 89 SCt 733) Dec 1965:
- 11 -

Pls, jr and sr high students, wore black armbands to protest Vietnam war; suspended for violation of newly-adopted Reg prohibiting such activity. 1966: Pls filed complaint seeking injunctive relief, nominal damages under 42 USC §1983. DC dismissed. 1967: CA 8 (evenly divided), affirmed. Feb 24, 1969: USSC reversed (7-2), Fortas, J: (1) wearing armband for purpose of expressing certain views type of symbolic act within free speech clause of 1st Amdt; applicable to states through 14th Amdt; (2) students, teachers do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gates . . . (O)n the other hand, this Ct has repeatedly emphasized the need for affirming the comprehensive authority of . . . school authorities, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the school"; problem arises where student's 1st Amdt rights collide with rules of school authorities; (3) where no finding or showing that exercise of forbidden right would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school" the prohibition cannot be sustained; "undifferentiated fear or apprehension of disturbance" not enough to overcome right to freedom of expression; (4) here, Pls' act silent, passive expression of opinion, unaccompanied by any disorder, disturbance, actual or nascent; other symbols of political, controversial significance not prescribed by regulation, only opposition to Vietnam war; "state-operated schools may not be enclaves of totalitarianism . . . school officials cannot suppress `expressions of opinion they do not wish to contend' "; (5) principles on which case decided not confined to supervised, ordained discussion in classroom; students' rights "do not embrace merely the classroom hours . . . we do not confine the permissible exercise of 1st Amdt rights to a telephone booth or the four corners of a pamphlet. . . ." Stewart, White, JJ, concur. Black, Harlan, JJ, diss.

Dan Johnston, Esq, 1103 Savings and Loan Bldg, Des Moines 50309.

24.Ky.2. Atty General's Opinion (Kentucky) (OAC 69-132) Pres, Student Assn, Univ of E Ky, requested opinion re: (1) authority of student comm to recommend expulsion or suspension of students; (2) whether closing hours for women's dormitories infringe their civil rights. Mar 4, 1969: opinion that only faculty or faculty comm may hear evidence or act for Regents in disciplinary matters, under KRS 164.370, Dixon v Bd of Educ (294 F2d 150), Buttny v Smiley (281 FSupp 280, 24.Colo.1); rules on welfare of students afford greater protection to females.

John B Breckinridge, Esq, Atty Genl, Frankfort 40601.

Opinion: MCLL.

24.La.5. Zanders v Louisiana State Bd of Educ (WD La) (36 US Law Week 2570) 1968: Pl-students at Grambling College led, participated in demonstrations resulting in forcible occupation of college property; college expelled them. Pl sued; expulsion of only some demonstrators violated equal protection. Mar 8: DC denied relief; such activity not within protection of 1st Amdt, college officials not obliged to dismiss large portion of student body to restore order.
24.Md.2. Johns v Bd of Educ (Baltimore) 1967: Pl-teacher used own funds to institute Black Studies program for 12th grade black English students. Def dismissed Pl: not teaching English, preoccupation with racial issues. Pl and Baltimore Teachers Union sought public h'g before Bd of Educ. Pending.

Baltimore Teachers Union AFT Local 340, Liberty Heights Ave, Baltimore 21215.

And see 525.

24.Mass.3. Sturm v Bd of Trs (Boston University) (Suffolk Co Sup Ct, Equity #89433) 1968: Pl-student charged:_academic dishonesty. Conduct comm held 3 meetings; 1st meeting heard prof's complaint, Pl not present. Comm asked Pl to appear, but did not give notice of charges, right to counsel. At 2nd meeting Pl informed of charges, given summary of charges by Prof (not present). Pl made presentation, questioned by comm: At 3rd meeting Pl not present; comm voted expulsion. Jy 3: Def sent Pl notice of expulsion; never received. Pl received 1st notice when Def sent follow up letter Nov 3. Nov 27: Pl's atty requested reh'g. Jan 20: Pl sued for reinstatement when Univ failed to act on request for reh'g. April 18, 1969: Co Ct ordered reinstatement, voided expulsion on 3 grounds: (1) no basic fairness in proceedings; Pl had received no advance notice of charges before h'g, no right to counsel, no opportunity to confront witnesses; Def had never published rules which Pl was charged with violating; (2) implied contract between Pl, Def that education would not be arbitrarily denied; (3) "Non-application" of principles of due process in private schools had little if any validity.
24.Mass.4. Massachusetts v Harvard Demonstrators (3d Dist Ct, Middlesex Co) Mar 20, 1969: 150 students protested reduction of financial aid to 9 students put on probation for anti-ROTC sit-in in Dec. Apr 8: SDS agreed on 6 demands: (1) abolish ROTC, (2) replace ROTC scholarships with regular Harvard scholarships, (3) restore scholarships to Dec demonstrators, (4) roll back rents on Univ owned bldgs to level of Jan 1968, (5) no destruction of University Road apts to make way for Kennedy School, (6) no destruction of 182 black workers' homes in Roxbury to make way for Medical School expansion. Apr 9: 70 students occupied Univ Hall, removed several Deans, listed the 6 demands; soon numbered 450. Apr 10: 400 police cleared 400 demonstrators from bldg, arrested 196 including 12 members of press who were immediately released, and 143 students. 184 arraigned before Judge Haven Parker: crim trespassing; students freed on personal recognizance, $20 bail for non-students.

Apr 11: strike began making 5 demands: (1) no police on campus again, (2) no crim charges against demonstrators, no scholarship cuts, no administrative charges other than probation, (3) restore financial aid to Dec demonstrators, (4) have binding referendum on ROTC, (5) restructure Harvard Corp to represent entire community. Faculty resolution deplored both occupation of bldg, and use of police force to clear it; asked all criminal charges be dropped, comms be established (10 faculty, 5 students) to handle discipline, investigate incident. Apr 14: Harvard Overseers "unequivocally" supported Pres Pusey's decision to call police. Apr 17: faculty voted to reduce ROTC to extra-curricular status. Apr 18: mass meeting voted to end strike, SDS and black students not concurring. Apr 19: faculty voted to give students voice in appointing faculty for new Black Studies dept. Apr 29; trial of 174 Univ Hall demonstrators on trespass charges. May 1: 170 found guilty: $20 fines. 140 said they would appeal. May 6: Harvard announced plans for construction of 1100 housing units for low, moderate income families near Medical School.

John Flym, Esq, 148 State St, Boston 02109.

24.Mich.6. Reeve v Bd of Educ (Wyandotte) (Detroit Muni Ct, #81539) Def-high school student expelled: long hair. Feb 8, 1967: action filed against school district; request for preliminary injunction denied. Apr 8, 1968: judgment against Pl: school Regs not unreasonable. Apr 24: judgment dimissed with prejudice.

Albert Best, Esq, 945 Penobscot Bldg, Detroit 48226.

24.Miss.5. Evers v Bd of Trs (Univ of Mississippi) (DC Miss) 1968: Bd forbade speech at Univ of Miss by Charles Evers, officer of NAACP; Bd rule barred speakers who might "do violence to academic atmosphere," who were held in "disrepute", or who had been charged with crime or moral wrongdoing. Pl sued. DC issued injunction allowing speech. Jan 14, 1969: 3-judge Ct, Coleman, J, held rules unconstitutionally vague, gave Bd 60 days to devise more specific rules.

And see cases at 11.

- 12 -

24.Miss.6. Wilson v White (Mississippi Valley State College) (ND Miss, Civ #GC 6852-5) 1968: Def alleged Pl encouraged students to miss classes to attend political meeting, cancelled his athletic scholarship. Def then suspended Pl when unable to pay fees. Pl sued for reinstatement: scholarship arbitrarily cancelled. DC held Pl could not be expelled prior to "full and fair h'g", ordered him reinstated "as a full student with all of the rights and privileges that he had prior to the date of his dismissal."
24.Miss.7. Perry v Bd of Educ (Grenada) (ND Miss, Civ #WC6736) (300 FSupp 748 ('69)) 1967: Def blocked Pl, unwed mother, from attending 11th grade. Sept 18: Pl filed complaint: admission denial not reasonably related to any valid purpose, discriminates on sex, status bases, against 14th Amdt. Dec 21: DC denied preliminary injunction; held exclusion of unwed mothers not arbitrary, capricious: "public opinion, enlightened or not, in the Grenada School territory, identifies an unwed mother of school age as a threat to the moral health... of all other teen age school girls"; retained jurisdiction for fuller litigation on more complete record. Pending.

National Office for Rights of Indigent, NAACP Legal Defense and Educational Fund, Inc, 10 Columbus Circle, NYC.

And see cases at 578.

24.Mo.3. Scoggin v Lincoln University (WD Mo) (291 FSupp 161, 45 FRD 133) Oct 14, 1967: State college dean posted notice acknowledging unrest over cafeteria conditions, hoping for peaceful settlement, asking that in event of demonstrations students be orderly, respect rights of others, Univ property. Oct 18: demonstration in cafeteria began, students over turned tables, destroyed property. Oct 19-27: Univ comm held h'gs to investigate demonstration, recommend charges. Oct 20: Pls, other students received formal notice of disciplinary charges for "planning and/or participating in a demonstration which led to destruction of Univ property." Oct 21: Pls appeared before comm. Oct 26: Pres informed Pls of their suspension for duration of academic year pursuant to recommendation of comm. Pls sued under 28 USC §1343(3), 42 USC §1983 alleging denial of 1st, 5th, 14th Amdt rights. May 15, 1968: DC held Pl's suspension void, ordered immediate reinstatement; announced that because of frequency with which such issues would arise, memo opinion being circulated to other judges of ct.

July, 1968: Ct en banc received briefs, oral argument from parties, amicus curiae. Sept 18: Ct en banc entered general order stating judicial standards, procedure to be used-absent exceptional circumstances-in all actions concerning student discipline at state institutions of higher education. General order stated minimum requirements: (1) student should be given adequate notice in writing of specific ground, nature of evidence against him, (2) student should receive h'g with fair opportunity for presentation of student's explanations, evidence, (3) no disciplinary action can be taken on grounds not supported by substantial evidence. Sept 19: DC filed memo opinion, held disciplinary comm's consideration of evidence rested on premise that it was not necessary to establish that Pls either (a) had planned demonstration different from that contemplated in dean's Oct 14 notice or (b) had in fact personally destroyed Univ property; in view of serious nature of charges, dismissal could not stand absent substantial evidence of these facts; rejected Def's argument of mootness because Pls had been readmitted, held collateral consequences of discipline justified judicial relief.

Robert B Curis, Esq, 4955 A Delmar, St Louis 63108.

Complaint, findings of fact, answer, brief on standards for fed'l review of discipline of students; Def's motion to amend judgment and findings, motion to dismiss for mootness; Pl's suggestions in opposition to Def's motion to dismiss for mootness: MCLL.

See Ginger, 2 Civil Rights Handbook 223:1, Nat'l Lawyers Guild, Box 673, Berkeley 94701.

24.NJ.4. Pelletreau v Bd of Educ (New Milford) (NJ Bd of Educ) Pl refused to trim hair, expelled from high school. Def-Bd held rule in question necessary to prevent disruption, to maintain discipline in classrooms, elsewhere. NJ Bd of Educ reversed (6-0): set aside school dress and appearance guidelines; threat to discipline not great enough to justify harmless experimentation with hair styling.

NJ ACLU, 45 Academy Ave, Newark 07102.

Summary of Bd of Educ opinion: MCLL.

24.NMex.1. Oliphant v New Mexico Jr College Bd (DC N Mex) 1968: Pl-instructor wrote to newspaper criticizing state legislature, 2 local legislators; also participated in merit pay controversy, wrote public letter attacking proposed investigation of state universities. Def suspended Pl for duration of 1968-69, withdrew offer of employment for 1969-70. Pl sued for reinstatement. Aug 4, 1969: DC ordered Def to rehire Pl for 1969-70, but granted no relief for suspension since Pl had been paid for period; noted there was no obligation to rehire Pl beyond 1969-70; found letter writing had been sole reason for Pl's suspension, constituting clear infringement of 1st Amdt rights.
24.NY.12. Puentes v Bd of Educ (NYC) (USSC) (392 US 653) Pl high school teacher wrote to Def-Bd criticizing it for not retaining another teacher. Def suspended Pl 7½ mths: conduct "unbecoming a teacher", "insubordination." NY Ct of App upheld suspension: no violation of 1st, 14th Amdts where substantial evidence letter defamatory, malicious, false. Sept 1, 1967: Pl appealed to USSC. Je 17, 1968: USSC vacated, remanded for further consideration in light of Pickering, (391 US 563), 24.Ill.2. Pending.

Ernest Fleischman, Esq, 120 E 41st, NYC 10017.

24.NY.13. Bd of Educ v Brennan (Mineola) (Mineola Family Ct) Def-student allegedly missed 13 days school: 11 because of illness; 2 because of peace demonstrations. Pl charges student with truancy, parents with negligence. Jan 4, 1968: Fam Ct ruled future absence for any reason in next mth may result in placement of student in Co children's shelter.

See also 56, 426.

24.NY.14. Rosenberg v Allen (Mamaroneck) (SD NY) (258 FSupp 511) 1964: Pl-teacher hired. Nov 19, 1965: Pl commenced fast protesting Vietnam war. Nov 25: Pl informed local newspaper of fast; controversy ensued. Dec: Def-Comm for Advancement of Bill of Rights allegedly published vilification of Pl-teacher in Am Legion Newsletter, pursued course of action designed to secure termination of Pl-teacher's job. April 6, 1966: Def-Bd of Trs terminated Pl-teacher's employment without notice, h'g, or stated reason under NY Educ Law §3012 permitting such dismissal during 1st 3 years of teacher's employment. Pl-teacher, others brought class action: Defs conspired to deny Pl-teacher equal protection, due process, right to continue teaching; to deny all Pls 1st Amdt rights. Pls seek 3-judge fed'l ct; injunction restraining operation, use of Educ Law §3012. Aug 12: DC denied 3-judge ct. Pending.

Jeremiah S Gutman, Esq, 363 7th Ave, NYC 10010; Philip Hirschkop, Esq, 110 Royal St, Alexandria, Va 22314; Henry diSuvero, 25 E 26th St, NYC 10010; William Kunstler, Michael Kunstler, Arthur Kinoy, 588 9th Ave, NYC 10034.

24.NY.15. Columbia University 1968 Apr 23, 1968: Students objecting to policy-making structure of Columbia Univ, self-perpetuating Bd of Trs, its involvement with Institute for Defense Analysis, its plans to construct gym on public recreational area, went to office of Pres. When Pres refused to meet with them, they went to site of proposed gym; dispersed by police. Students returned to campus, occupied Hamilton Hall, held acting dean of College captive 24 hrs. During following week
- 13 -

Hamilton Hall held by black students while white students occupied 3 additional Univ bldgs. Apr 30: At 2 AM police removed demonstrators from bldgs; several hundred arrested: criminal trespass. 100 subsequently charged: resisting arrest, assault, inciting to riot. Local hospitals treated numerous students for injuries inflicted by police.

Sept 1969, figures showed 1,255 cases: 978 dismissed, 5 acquitted, 195 pleaded guilty, 24 convicted.

Nat'l Lawyers Guild Defense Office, 1 Hudson St, 9th Floor, NYC 10013.

Books:

Cox Comm (Ed), Crisis at Columbia: Report of fact finding comm appointed to investigate disturbance at Columbia University in April and May 1968. Vintage-Random (#538) (1969).

J L Avorn, et al, Up against the ivy wall, Atheneum (1969).

And see companion cases at 24.NY.15a-15g.

24.NY.15a. Hayes v Hogan (Columbia) (NY Sup Ct) For facts, see 24.NY.15. Frank Hogan, DA of NY Co, had represented Columbia Univ in leasing the land for the gym at issue in student demonstrations, also was serving as member of Columbia Bd of Trs. Aug: Pl-demonstrators sought writ of prohibition (CPLR Art 78) to recuse DA Hogan from acting as prosecutor in criminal cases arising out of Columbia demonstrations: argued Hogan's status as both DA and Tr constituted conflict of interest preventing impartial discharge of duties as DA. Sept 5: Sup Ct denied petition.

Mary M Kaufman, Esq, Nat'l Lawyers Guild, 303 W 66th St, NYC 10023; Cammer and Shapiro, Esqs, 9 E 40th St, NYC 10016; Butler, Jablow and Geller, Esqs, 400 Madison, NYC 10017.

Pet's memo: MCLL.

And see 378.

24.NY.15b. New York v Sargent, Ziegellaub (Columbia) (NY Sup Ct, App Term 1st Dept) For facts, see 24.NY.15. Apr 1968: Defs participated in sit-in at Fayerweather Hall; arrested along with several hundred others: criminal trespass 2nd degree. Jy 10: Defs pleaded guilty to criminal trespass 3rd degree (Pen L §140.05) in order to continue Defs' education far from NYC, prior to their trial date. Jy 17: Crim Ct sentenced Defs to maximum term and fine: 15 days and $250. Jy 18: Defs released from confinement when NY Sup Ct signed certificate of reasonable doubt; Defs appealed imposition of maximum sentence. Defs argued: (1) sentences excessive, cruel and unusual punishment since both had no prior record, (2) only instance of imprisonment out of 500 virtually identical cases, (3) subsequent to their sentencing Columbia Univ obtained dismissal of 420 similar charges. Sup Ct: sentence modified to no fine, time already served (2 days).

Lubell and Lubell, Esqs, Nat'l Lawyers Guild, 103 Park Ave, NYC 10017.

Appt's brief: MCLL.

24.NY.15c. Halliwell v Criminal Court (Columbia) (NY Sup Ct, NY Co) For facts, see 24.NY.15. Apr 1968: Pls, others participated in mass demonstrations. Pls brought class action under CPLR 78 to compel Crim Ct to grant jury trials to demonstrators, argued right to jury: magnitude of penalty, political nature of offense, stigma of moral turpitude made charges "serious" under Duncan v Louisiana, 388 SCt 1440; denial of jury for misdemeanor trials in NYC constitutes denial of equal protection since juries granted elsewhere in state. NY Sup Ct denied petition.

Lubell and Lubell, Esqs, 103 Park Ave, NYC 10017; William Schaap, Esq, 120 Broadway, NYC 10005; Leon Quat, Esq, 259 Broadway, NYC 10007, Nat'l Lawyers Guild.

Memo of law on support of petition: MCLL.

And see 391.

24.NY.15d. Grossner v Bd of Trs (Columbia) (SD NY) (287 FSupp 535) For facts, see 24.NY.15. May 1968: Columbia Univ brought disciplinary proceedings against students involved in sit-in demonstrations Apr 23-30. Pl-students sued in DC: (1) alleging Univ disciplinary proceedings arose under Univ rules (Ch 1, §2; Ch 35, §352) which were vague, contrary to 1st, 5th, 14th Amdts and charges brought in bad faith without hope of success; (2) asked that disciplinary proceedings be enjoined, Univ statute be declared void; (3) sought an injunction against state criminal proceedings, arguing charges designed to chill 1st Amdt freedoms, due process denied since Def-Hogan both DA of NYC and Univ Tr; (4) sought injunction against police brutality, use of police on campus, continuation of Defs as self-perpetuating body; (5) requested injunction pendente lite barring disciplinary proceedings until all criminal charges disposed of. Jy 9: DC denied motion for injunction pendente lite: DC lacked jurisdiction as disciplinary proceedings of private Univ did not constitute state action; conduct here not protected by 1st Amdt, nor would prior disciplinary proceedings interfere with Def's privilege against self-incrimination in criminal proceedings. Pl voluntarily dismissed action.

Lubell and Lubell, Esqs, 103 Park Ave, NYC 10017; Kunstler and Kinoy, Esqs, 588 Ninth Ave, NYC 10034; Mary Kaufman, Esq, 303 W 66th St, NYC 10023.

Pl's brief, memo: MCLL.

And see 378.

24.NY.15e. Conservative Students v Bd of Trs (Columbia) (NY Sup Ct) May 1968: Student demonstrations disrupted normal campus routine for several weeks. Sept: renewed outbreaks of student protest occurred. Jan 10, 1969: 12 students, members of Conservative Union, filed suit asking dismissal of Columbia Bd of Trs, injunction against political discrimination in hiring faculty members. Pls alleged: (1) payment of tuition established contract imposing on Univ duty to maintain state of tranquility required for study; (2) Def's failure to exercise disciplinary authority over students and faculty participating in demonstrations resulted in widespread cessation of services provided to students under their contracts. Pending.

Thacher, Proffitt, Prizer, Crawley and Wood, Esqs, 40 Wall St, NYC 10005 for Defs.

Alfred Avins, Esq, for Pls.

24.NY.15f. Goldman v Columbia Univ (NYC Commn on Human Rights) See 24.NY.15. Apr 1968: Rabbi Goldman and Rev Wm Starr, counselors to Columbia Univ students, supported student demonstrations and demands: both informed by their denominational groups their contracts would not be renewed beyond current academic year. May 1969: Goldman filed complaint charging contract not renewed because of religious discrimination by Univ and its alumni Jewish Advisory Bd. Pending.

Commn on Human Rights, 270 Broadway, NYC 10007.

See also 111.

24.NY.15g. Cole v Bd of Trs (Columbia) (SD NY, #69 Civ 2355) 1969: Senate Permanent Subcomm on Investigations subpoenaed Defs for identity of students, organizations that seized Columbia Univ bldg, for identity of officers, faculty advisers of SDS, Student Afro-American Society, others. Je 4, 1969: Pls-students sued for injunction against compliance with subpoena; (1) unconstitutional as harassment, punishment for political expressions, associations; (2) illegal, having no legitimate legislative purpose. DC granted motion to dismiss: (1) fear of judicial encroachment on legislative process; (2) comm members not subpoenaed, represented in ct as Defs. Je 19, 1969: Pls' appeal pending.

Kunstler and Kinoy, Esqs, Nancy Stearns, Esq, Law Center for Constitutional Rights, 588 9th Ave, NYC 10034; Lubell and

- 14 -

Lubell, Esqs, Nat'l Lawyers Guild, 103 Park Ave, NYC 10017; NY ACLU, 363 7th Ave, NYC 10001.

24.NY.16. Columbia University 1969: Columbia Univ Trs v SDS (NY Sup Ct, #5637/69) (NY Law Jour, Je 11, 1969 p 16) Apr 16, 1969: Defs-SDS occupied building at Columbia in support of black students already occupying admissions office. Apr 17: Columbia obtained TRO restraining SDS, named individuals, 100 John Does from disruptive assemblies around or in bldgs, excessive noise, or threats of violence. All demonstrators left bldgs an hour after order was served. Apr 29: Univ sought delay in ct h'g on its application for injunction, wished to conduct campus-wide referendum on propriety of using ct orders to quell campus disorders. Apr 30: 160 SDS members occupied 2 Univ bldgs, professor allegedly beaten. That evening sheriff served order on demonstrators to show cause why they should not be held in contempt of Apr 17 TRO. May 1: NY Sup Ct issued arrest warrants for criminal contempt; students evacuated bldgs in simultaneous rush. Je 10: 8 Columbia SDS leaders convicted of criminal contempt: $100, 30 days. Appeal pending.

Lubell and Lubell, Esqs, Nat'l Lawyers Guild, 103 Park Ave, NYC 10017.

And see cases at 42.

24.NY.17. New York v Queens College Students (NY Sup Ct Queens Co) Apr 21, 1969: Students held rally protesting college refusal to rehire allegedly Marxist prof. Dean warned rally not approved; students overpowered security guards, occupied 4th floor of administration bldg. Dean asked Sup Ct for TRO against sit-in; granted; Dean informed students of consequences of continued sit-in. Students left to consider TRO; returned, continued occupation an hour later. Je 19: Sup Ct sentenced 3 profs: 15 days, $250 each for violating Apr 21 TRO; SDS chapter chairman: $250, 5 days.

Alan Levine, NYCLU, 156 Fifth Ave, NYC 10010.

24.NY.18. New York v 9 CCNY Students (NYC Criminal Ct) Oct 1967: CCNY's plans to construct temporary prefabricated classrooms required destruction of trees, lawns. Protesting students sat in trees, obstructed construction work. Oct 3: Dean suspended 7 students. Oct 4: Demonstrations continued. Suspension of 7 students was lifted pending h'g by student-faculty discipline comm. Oct. 5: 9 students among those obstructing construction arrested at request of college Pres: criminal trespass, resisting arrest. Demonstrations subsequently continued, more students suspended.
24.NY.18a. CCNY Students v Gallagher (SD NY) 1967: See 24.NY.18 for background. Feb 13, 1969: Pl students sued Bd of Higher Educ seeking reinstatement, $25,000 damages each. Pls argued suspensions imposed without due process since school officials acted as accuser, judge, jury, no specific charges ever made, no h'g provided. Pending.
24.NY.19. Howard v Clark (Bd of Educ, Westchester Co) (NY Sup Ct, Westchester Co, #2740/69) 1969: Pet-student arrested, indicted: narcotics violation. Prior to trial, Def-Bd suspended Pet under resolution requiring suspension on indictment for criminal act injurious to other students. Pet sued for reinstatement, argued suspension violated due process, presumption of innocence. Mar 25: Sup Ct held Def's resolution in excess of its statutory authority.

Antone G Singsen, Bernard Clyne, Esqs, Legal Aid Society of Westchester Co, 56 Grant St, White Plains 10601.

Copies of petition for judgment (1784B), exhibits (1784C), and decision (1784E) available from Clearinghouse Division, National Inst for Educ in Law and Poverty, 25 W Chicago Ave, Suite 500, Chicago, Ill 60610.

24.NY.20. Chuff v Bd of Educ (Central School Dist #2, Frankfort) (USSC) (290 NYS2d 936, 89 SCt 1198) 1968: Def-Bd dismissed Appt-tenured school teacher: criticizing Bd, participating in its elections. State Tenure Comm approved; State Educ Comm affirmed. Sup Ct, App Div affirmed. Feb 18, 1969: Appt filed for cert in USSC: (1) Bd failed to make findings of fact, depriving him of due process; (2) dismissal so lacked evidentiary support as to deny Appt due process; (3) dismissal on charges including criticism of Bd abridged 1st Amdt free speech. Mar. 24: USSC denied cert.

Stewart F Shrantz, Esq, Highland, NY 12528.

24.NY.21. Powe v Miles (Alfred Univ) (CA 2) (407 F2d 73) Def-Univ received 20.75% of budget from state funds; part of its operation fully state-supported ceramics college. Pl-students (from both segments of school) demonstrated, blocked view of spectators observing ROTC parade, refused to disperse after order of Dean that they would otherwise be subject to discipline. After h'gs, and appeal to Pres, Defs suspended Pls until Jan 1969 with leave to reapply then. Pls sued seeking reinstatement: expulsion violated 1st Amdt, due process. Dec 23, 1968: CA (Friendly, Medina, Smith, JJ) held institution not subject to 14th Amdt unless state's aid to Univ pertains to "activity that caused injury" (policies toward demonstrations, discipline); operation of private Univ cannot be treated as inherently gov'tal function; distinguished between students in ceramics, liberal arts colleges, dismissed case as to latter; as to ceramics students, held school rule requiring 48 hours notice of demonstrations not invalid prior restraint on speech; noted rule required only notice not approval, also held Dean could be authorized to make on-the-spot determination whether given demonstration violated school policies. Pls' petition for cert to USSC pending.

Joshua N Koplovitz, Esq, 335 Broadway, NYC 10013; Jacob D Hyman, Esq, and David Jay, Esq, both of Buffalo.

24.NY.22. Zucker v Panitz (New Rochelle) (SD NY) (299 FSupp 102) 1969: High school students sought to purchase advertising space in student paper to protest Vietnam war. Principal objected: (1) paper not for communication of ideas but for use of those students who manage it, (2) only school related topics included, (3) only commercial as opposed to political advertising acceptable. Pl-students sued. May 15: DC rejected each argument: many topics of national concern had been discussed, scope of paper not limited to interests of those who managed it, restriction of non-commercial advertising constituted unconstitutional discrimination under 1st Amdt; relied in part on Tinker, 393 US 503, 24.Iowa.1; Port of New York Auth v Wolin, 392 F2d 83, 55.NY.21.

And see Lee, 24.Wisc.2.

24.NY.23. Jones v Vassar College (NY Sup Ct, Duchess Co) (59 Misc2d 296, 299 NYS2d 283) 1969: By vote of 1375 out of 1453 students, with Trs approval, Vassar abolished restrictions on times during which students could meet members of opposite sex in their rooms. Distraught students, parents sued: such "drastic change of rules" amounted to breach of contract by college. Ct ruled college Regs may be changed, recognizing they are subject in any case to constant revision, fact to which students and parents presumably agree. Pls appeal to App Div pending.
24.NY.24. Drucker v New York University (Queens Co Civ Ct) (57 Misc 2d 937) 1968: Pl-dental student paid $200 deposit to reserve place, $910 for balance of charges for 1st semester; resigned place 6 days before classes began. College Regs precluded tuition refund. Pl sued for refund. Civ Ct ruled student not bound by every word in college catalog, contrary ruling "would place unfair burden upon student applicants
- 15 -

..."; instead read good faith requirement into contract, ordered $910 refunded.
24.NY.25. New York v Cornell Students (Ithaca City Ct) Ap 19-20, 1969: Defs peacefully occupied bldg at Cornell, carried weapons. May 13: grand jury indicted 21 for criminal trespass; prosecutor brought charges against 18. May 19: charges dropped against 3. Pending.

George Alexis, Esq, Ithaca, NY.

And see cases at 58.

24.NC.1. Dickson v Sitterson (Univ of North Carolina) (MD NC) (280 FSupp 486) 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 5th Amdt, those who advocate overthrow of gov't of US or NC) can speak on campus. SDS invited Herbert Aptheker, historian, Communist Party member, and Frank Wilkinson, chairman of Nat'l 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, 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 pres 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 bill of attainder. 1967: 3-judge ct granted injunction: unconstitutional for vagueness. No appeal.

MacNeil Smith, Esq, Jefferson Standard Bldg, Greensboro 27401; Dan Pollitt, Esq, Univ of NC Law School, Chapel Hill 27514, for amicus (NC ACLU); William Van Alstyne, Duke Law School, Durham 27706, for amicus (AAUP).

24.Ohio.2. Scisum v Dick (Woodward High School, Toledo) (ND Ohio) 1969: When negotiations with school officials failed, black students met to protest lack of black teachers, cheerleaders, absence of Negro history in American history course. School officials called police, ordered participants arrested, imposed summary suspension without h'gs. Mar: Pls sued to enjoin interference by Def-officials with lawful protest, declare suspension statute unconstitutional; argued statute provides no notice to students of proscribed conduct, gives officials blanket authority without standards. Pending.

James B Simmons, Esq, Toledo Legal Aid Society, 445 Huron Ave, Toledo 43604.

Copies of complaint (#1772A) and motion for preliminary injunction (#1772B) available from Clearinghouse Division, Nat'l Inst for Educ in Law and Poverty, 25 W Chicago Ave, Suite 500, Chicago, Ill 60610.

And see cases at 525.

24.Ohio.3. Warren v Groves (Central State Univ) (DC Ohio, #3483-A) 1968: Univ (with mainly black student body) expelled Pl-students; Ohio brought riot charges. Pls sued to obtain reinstatement, enjoin prosecution. After filing action, students reinstated, charges dropped.

Law Center for Constitutional Rights, 588 Ninth Ave, NYC 10034.

24.Tenn.2. Smith v Ellington (Univ of Tennessee) (ED Tenn) Univ refused permission to student group which wanted Dick Gregory, Timothy Leary to speak on campus. Pls filed suit attacking Univ's speaker Regs. DC issued declaratory judgment: speaker Reg invalid. Univ decided not to appeal; final judgment entered.

William Kunstler, Dennis J. Roberts, Esqs, Law Center for Constitutional Rights, 588 9th Ave, NYC 10034; Robert Ditchie, Esq, Hamilton Bank Bldg, 531 Gay SW, Knoxville 37902.

24.Tenn.3. Norton v Discipline Comm (E Tenn State Univ) (CA 6 #19107) Je 22, 1968: Students distributed leaflet, "Students are People Too". Def suspended Pls: inherent authority to maintain discipline, rather than infraction of any specific rule. Pl sued for reinstatement. Je 26: after trial, DC upheld suspensions in oral opinion. Pls appealed, argued: (1) student discipline based on leafleting violates 1st Amdt, (2) Univ presented no proof of guilt, (3) tribunal biased in that members also investigated, initiated, prosecuted charges, (4) 3 day preparation period insufficient, (5) transcript inadequate because Def advised stenographer she could include what she chose to, (6) Pls had no opportunity to confront, cross-examine adverse witnesses. Pending.

Charles Morgan, Jr, and Reber F Boult, Jr, Esq, ACLU, 5 Forsyth St NW, Atlanta 30303; Karen D Ennis, Esq, 2126 Belcourt Ave, Nashville 37212.

Appt's brief, petition for cert (USSC): MCLL.

24.Tex.5. Sterzing v Ft Bend Bd of Educ (SD Tex, Houston, #69-H-319) Feb 12, 1968: Pl began teaching 6 day unit on race, prejudice to 11th, 12th grade social science classes. Feb 27: Def-Bd dismissed Pl on complaint of Def-Kelly for alleged insubordination. Apr 2: h'g before Def Bd: affirmed dismissal. Sept 12: Texas Commr of Educ held: Pl discharged without justifiable cause; facts did not support charge of insubordination. May 1969: Pl sued under 42 USC §1983 for injunction requiring Def to offer Pl teaching contract, and damages: (1) Defs conspired to deprive Pl of rights under 1st, 14th Amdts in retaliation for Pl's teaching civil rights; (2) Defs conspired to deny Pl equal protection, free speech, right to continue as teacher; (3) Defs maliciously promoted, carried out plan to remove Pl from position without legal justification. DC denied Def's motion to dismiss complaint. Pending.

Leonard Schwartz, Esq, 708 Brooklyn Ave, San Antonio 78215; Jerry Gutman, Esq, 363 7th Ave, NYC 10001; Clyde Stanley Boose, Esq, 711 Fannin, Suite 305, Houston 77002.

Complaint: MCLL.

And see 580.

24.Tex.6. Bennett v Costlow (Bd of Educ, Houston) (SD Tex) Pl-student expelled: publishing underground school newspaper which raised issues of students rights, illegality of Vietnam war. Pl sued for reinstatement, to expunge disciplinary record, allow paper to be published. Pending.

William M Kunstler, Harriet Van Tassel, Bobby Caldwell, Esqs; Law Center for Constitutional Rights, 588 Ninth Ave, NYC 10034.

24.Tex.7. Ferrell v Dallas Independent School Dist (USSC) (261 FSupp 545, 392 F2d 697, cd 89 SCt 98) Sept 1966: Def denied Pls admission to public school under Reg banning "Beatle" haircuts; Pls sued for injunction against Reg. After h'g, ND Tex denied. Pls appealed: Reg (1) unlawful under Tex laws, Constitution, (2) denial of due process, (3) discriminatory under 42 USC §§ 1981, 1983. Mar 29, 1968: CA 5 affirmed. Oct 14: USSC denied cert, Douglas, J, diss.

Marvin Menaker, Esq, 211 N Ervay 75201; Herbert L Hooks, Esq, 8225 Bruton Rd 75217; W D Masterson, Esq, First Nat'l Bank Bldg, 75202, all of Dallas.

And see 580.

24.Tex.8. Wright v Texas Southern University (CA 5) (277 FSupp 110, 392 F2d 728) 1967: Pl-students participated in various demonstrations during spring term; Def refused to readmit them in fall. Sept 8: Pls sued for readmission: (1) denial of admission violated 1st Amdt, due process since denial based on suspensions at end of spring term for participating in peaceable assemblies protected by 1st Amdt, (2) Pls not given notice, opportunity to be heard. DC denied relief. Pls appealed. Apr 9, 1968: CA affirmed: noted students disciplined at state colleges
- 16 -

entitled under due process to notice of charges, names of witnesses, nature of their testimony, opportunity to present defense, right to inspect findings; affirmed finding of DC that 5 Pls scholastically ineligible for readmission; 3 Pls failed to keep Def informed of their addresses as required by Univ reg, thus not deprived of constitutional rights when they failed to receive notice of charges; final Pl received notice, h'g with dean, president, no denial of due process.

Barbara A Morris, Robert L Carter, Esqs, NAACP, 20 W 40th, NYC 10018; Herbert O Reid, Esq, Washington, DC; Weldon H Berry, Esq, 711 Main Bldg, Houston, Texas 77002.

And see Seattle v Dixon, 55.Wash.1.

24.W Va.1. Barker v Hardway (Bluefield State College) (USSC) (283 FSupp 228, 399 F2d 638, cd 89 SCt 1009) Oct 14, 1967: Pets demonstrated at college football game protesting lack of due process at campus disciplinary h'gs, students' right to free expression. Oct 16: Def college president, ex parte, suspended Pets indefinitely. Pets appealed to faculty comm (subject to Def's review). 6 tried, not allowed to appear with counsel, refused to participate further. 4 appeared without counsel: 2 conditionally reinstated. Pets filed suit (SD WVa): college must follow due process in disciplinary proceedings insofar as observing rights to: (1) fair, impartial h'gs where tribunal members have no prior official involvement in controversy, are not witnesses against those charged with misconduct; (2) be advised, accompanied, represented by retained counsel; (3) confront, cross-examine adverse witnesses; (4) be presumed innocent of alleged misconduct; Pets offered photographs, witnesses to rebut Def's claims. Apr 10, 1968: DC dismissed. May 28: DC denied Pets' motions for new trial, additional findings of fact. Aug 5: Pets filed suit in CA 4 for temporary injunction, accelerated appeal. Sept 3: CA 4 affirmed without apparent full review of record, held college's administrative proceedings satisfy due process. Mar 10, 1969: USSC denied Pets' petition for cert, Douglas, J, diss.

Roy Lucas, Esq, 20 E 9th St, NYC 10003; Melvin L Wulf, Esq, 156 5th Ave, NYC 10010; Herbert H Henderson, Esq, 317 9th St, Huntington, W Va 25701.

Petition for certiorari, opposition brief, reply brief (USSC): MCLL.

And see 374.

24.Wisc.1. Marzette v McPhee (Wisconsin State Univ—Oshkosh) (WD Wisc) (294 FSupp 562) Nov 21, 1968: 40 black students allegedly entered Pres's office with list of demands, began to destroy office equipment when demands rejected. Nov 22: Pres temporarily suspended 60 students, sent notice: request for h'g must be made within 10 days. Prior to h'gs set for Dec 9, Pls sued in DC for order reinstating them pending results of any Univ h'gs, argued suspension prior to h'g denied due process, resulted in irreparable injury. Dec 9: DC ordered Pls reinstated subject to condition that none need be reinstated if h'g held prior to Dec 16, final determination made before Dec 20; also reinstatement might be deferred if Univ could show danger to safety of students, administrators, or Univ property.

Percy Julian, Melvin Greenberg, Sander Karp, Esqs, 303 State St, Madison 53703; Marc Stickgold, Esq, 726 Pallister, Detroit 48202.

24.Wisc.2. Lee v Bd of Regents (Wisconsin State Univ) (WD Wisc, Civ #68-C-61) 1968: Pl-students submitted to campus newspaper editorial advertisements dealing with Univ employees' union, racial discrimination, Vietnam war. Paper rejected advertisements: it didn't accept that kind of advertising. Pls sued: Defs' policies deprived them of 1st, 14th Amdt rights. Aug 30: DC held suit not against state, nor were improper parties joined; final decision awaited.

And see Zucker, 24.NY.22.

24.Wisc.3. Soglin v Kauffman (U of Wisc) (WD Wisc) (286 FSupp 851) Oct 11, 1967: Univ of Wisc Dean stated Univ would not hesitate to discipline students who obstructed interviews during anticipated anti-Dow-recruiter demonstrations; discipline would be grounded upon Univ Reg, chap 11.02: ". . . (students) may support causes by lawful means which do not disrupt the operations of the university, or organizations accorded the use of the university facilities." Oct 16: Univ students, SDS members, sued seeking TRO against discipline under 11.02; argued chilling effect of Dean's threat, vagueness, overbreadth of Reg. Ct set h'g for Oct 23. Oct 18: Massive anti-Dow demonstrations resulted in violent contacts with police. Oct 19: Dean summarily suspended 13 student participants. Oct 23: DC issued TRO against use of Univ Reg 11.02, ordered reinstatement of students. Univ then attempted to impose discipline under 2 other provisions, but withdrew attempt when Ct questioned validity of rules, good faith of Univ. Univ then persisted with charge of 11.02, and "misconduct." Dec 13, 1968: DC held "misconduct" standard as well as 11.02 unconstitutionally vague in view of underlying 1st Amdt issues, severity of discipline involved.

Percy L Julian, Esq, 330 E Wilson St, Madison 53701; William Kunstler, LCCR, 588 9th Ave, NYC.

See also Zwicker, 51.Wisc.2, Goldman, 223.6.

24.Wisc.4. Breen v Kahl (WD Wisc, #68-C-201) (296 FSupp 702) 1969: Local Bd of Educ passed Reg governing hair length for boys. Pl expelled for violating Reg; filed suit for readmission. Feb 20, 1969: DC reversed: Reg violates 14th Amdt due process, hair style a protected form of expression; enjoined enforcement; ordered reinstatement of Pls, notations indicating disciplinary actions expunged from school records; awarded costs.

Percy L Julian, Jr, Esq, 330 E Wilson, Madison 53703.

And see Olff, 24.Calif.30.

25. On Miscellaneous Activities
See Myers v US Army, 356.70.
25.16a. Huntley v Public Utilities Commn of California (Calif Sup Ct en banc) (442 P2d 685) 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 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. Jy 19, 1968: Calif Sup Ct held requirement unconstitutional: anonymity may be indispensable to freedom of association (Bates v Little Rock, 361 US 516; NAACP v Alabama, 357 US 449), freedom of speech, press (Talley v Calif, 362 US 60); only compelling state interest can justify disclosure requirement (Canon v Justice Ct, 61 C2d 446); noted that any person libeled by recording can readily ascertain identity of defamer from PTT's records.

Reed H Bement, Esq, 405 Montgomery 94104; ACLU, 503 Market 94105, both of San Francisco.

ACLU brief (PUC); Appt's brief (Sup Ct): MCLL.

25.20. Hillside Community Church v Tacoma (Wash Sup Ct) (455 P2d 350) 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." Super Ct granted injunction:
- 17 -

unconstitutional restriction on free speech, denial of equal protection. Oct 1968: Def appealed to Wash Sup Ct. Sup Ct affirmed.

Donald J Horowitz, Esq, IBM Bldg, David Skellenger, Esq, Norton Bldg, Seattle 98104; Allan Overland, Esq, 950 S Pacific Ave, Tacoma 98402.

And see cases at 128.

25.30. Overseas Media Corp v McNamara (CA DC) (259 FSupp 162, 385 F2d 308) Defense Dept refused Pl access to Post Exchange facilities in Far East for distribution of "Overseas Weekly" despite proven popularity. DC DC upheld Def's prohibition of distribution: Defense Dept has unreviewable discretion to determine what items of merchandise to handle. Feb 17, 1967: Pl appealed. Oct 3: CA DC reversed.

Warren Woods, Betty Murphy, Esqs, 1735 K St NW, Washington, DC 20006; Richard G Brueckner, Esq, Lawrence Speiser, Esq, 1424 16th St NW, Washington, DC 20036; Marvin Karpatkin, Esq, 156 5th Ave, NYC 10010 for amicus ACLU.

25.31. Lucke v Davis (USSC) (228 A2d 313; cd 392 US 926) Pl Muni Ct employee wrote to chief judge criticizing his dept. Md Personnel Commr fired Pl. Baltimore City Ct affirmed. Apr 7, 1967: Md Ct of App affirmed, dismissed appeal: untimely ministerial error. Jy 20: USSC cert petition filed: (1) 1st Amdt bars firing if letter not scurrilous, disloyal; (2) collateral attack on docket entry's validity denied due process. Je 17, 1968: USSC denied cert.

Leonard J Kerpelman, Esq, 500 Equitable Bldg, Baltimore 21202.

25.34. NAB v FCC (USSC) (405 F2d 1082, 89 SCt 2127) Dec, 1966: one Banzhaf asked local TV station for free time for anti-smokers to counter pro-smoking views allegedly implicit in TV cigarette advertising. Station replied: fairness doctrine satisfied by its several news shows, 5 American Cancer Society public service announcements per week about smoking-health controversy; doubt that fairness doctrine applied to advertisements. Banzhaf complained to FCC. Je 2, 1967: FCC upheld Banzhaf, directed stations provide "significant amount of time for the other viewpoint," rejected contentions fairness doctrine unconstitutional, cigarette ruling precluded by 1965 Cigarette Labeling and Advertising Act; limited ruling to cigarette advertising strictly.

NAB appealed to CA DC. Banzhaf intervened: FCC should have granted equal, not merely substantial, time to anti-smokers. Nov 21, 1968: CA DC upheld FCC on all points: FCC has power so to construe fairness doctrine without violating 1st Amdt; Congress' intent in Cigarette Act not to preclude such restrictions, but to insure uniformity of warnings on packages; public interest served by broadcast regulations guaranteeing spread of anticigarette information. NAB appealed to USSC. Je 23, 1969: USSC invited Solicitor General to file memorandum giving respondents' views on applicability of Red Lion Broadcasting Co v FCC, 17.7. Pending.

John H Conlin, Esq, FCC Assoc Gen'l Counsel; Donald F Turner, Asst Atty Gen'l; Henry Geller, FCC Gen'l Counsel; Stuart F Feldstein, William L Fishman, Mrs Lenore G Ehrig, FCC Counsel; Robert D Hadl, FCC Atty; Howard E Shapiro, US Atty.

25.35. Oliver v Southern California Rapid Transit Dist (Bd of Arbitrators) 1969: Pl-bus operator fired: wearing neatly trimmed beard in violation of Resp's rule that male employees be clean shaven; appeal by Pl's union chairman with presentation of medical evidence re Pl's skin condition denied. Arbitration ruled Resp's prohibition against beards unreasonable, contravenes 1st, 14th Amdts; Pl reinstated with full back pay.

Stephen Reinhardt and James Webster, Esqs, 3540 Wilshire, Los Angeles 90005.

25.36. Friends Meeting v US (DC DC) Jan 1968: Treasury Dept forbade Pls to send aid to N Vietnam, NLF under Trading With Enemy Act. Pls filed suit: Act cannot be invoked during undeclared war, deprived Pls of religious freedom. Pending.

Charles E Kern II, Esq, ACLU, 1629 K Street NW, Washington, DC 20036.

And see Teague, 21.5.

25.37. Mayberry v Kaiser (Oakland, Calif) May 1968: Pl-nurse wore armband after death of M L King; fired. ACLU attys met with administrator; Kaiser Hospital reinstated Pl on part-time basis.

Marshall W Krause, Esq, ACLU, 503 Market St, San Francisco 94105.

25.38. 111 Wines & Liquors, Murphy's Tavern, Val's Bar v Division of Alcoholic Beverage Control (NJ Sup Ct) (235 A2d 12) ABC revoked or suspended Pls' tavern licenses: allegedly permitting homosexuals to congregate. Nov 6, 1967: Sup Ct reversed, issued mandamus: homosexuals have "equal right to congregate" if they conform to standards of decency.

Theodore Sager Meth, Esq, Busch and Busch; Norman Oshtry, Esq, Jacobson and Silverman; Louis Cerefice, Esq, South Orange Ave; all of Trenton, NJ 08611.

See also 295.

25.39. Koehl v Resor (CA 4 #13474) (296 FSupp 558, ED Va) Aug 1967: US Army refused to allow George Lincoln Rockwell's burial in Culpeper, Va, nat'l cemetery because attending party members wore Nazi symbols. Rockwell, former US Marine, was leader of Nat'l Socialist White People's Party. Dec 20, 1968: Party leader Koehl sued to enjoin Def-Sec'y of Army from preventing Nazis from displaying symbols in burial ceremony at nat'l cemetery: action based solely on dislike for Rockwell, unconstitutional attempt to deny free speech. Mar 13, 1969: DC dismissed: Def's Regs barring political demonstrations in nat'l cemetery reasonable and proper; display of uniforms, banners at burial not type of symbolic speech protected by 1st Amdt. Aug 14: Pl appealed.

Philip J Hirschkop, Esq, 110 N Royal St, Alexandria, Va 22314; Herbert A Rosenthal, Esq, 1120 Connecticut Ave NW, Washington, DC 20036.

Petition for cert (USSC): MCLL.

25.40. Novak v Los Angeles Fire Dept (LA Super Ct) 1968: Pl-fireman suspended 30 days: refusal to trim mustache; lost appeal to Fire Dept Bd of Rights. Pending.
25.41. Fishkin v US Civil Service Commn (ND Calif) 1968: Pl threatened with dismissal from job with Contra Costa Co for engaging in political activities forbidden by Hatch Act as applied to those receiving fed'l funds. Pl sued in 3-judge ct, attacking constitutionality of Act; ct granted preliminary injunction barring Pl's dismissal during pendency of case.

Marshall Krause, Esq, ACLUNC, 503 Market, San Francisco 94105.

And see Soltar, 251.57.

25.42. Lefcourt v Legal Aid (SD NY, #2678/68) 1968: Attorney suggested to fellow employee that Legal Aid advised too many indigent clients to plead guilty, attempted to organize other Legal Aid attys to better their working conditions; Def fired Pl-atty. Pl sued for reinstatement, damages; firing purely retaliatory, had nothing to do with Pl's competence. DC denied reinstatement.

Lubell and Lubell, Esqs, 103 Park Ave, NYC 10017.

And see 373.

- 18 -

25.43. LA Free Press v Los Angeles (LA Super Ct, #939807) 1968: LA Police Dept and Co Sheriff denied press cards to Pl-underground newspaper, although Pls apparently qualified under local ordinances. Sept 30: suit filed seeking mandate, injunction: violation of 1st Amdt rights; denial of equal protection: less qualified papers given press cards. Pending.

Mitchell Shapiro, Esq, 1901 Ave of the Stars, Los Angeles 90067.

25.44. California v Beagarie (San Francisco Muni Ct) Defs allegedly placed posters on utility poles in violation of Muni C §370 requiring authorization from Dept of Public Works. Defs unsuccessfully sought writ of prohibition, argued law provides no standards for granting permit. Je 1969: charges dismissed.

Marshall Krause, Esq, ACLUNC, 503 Market, San Francisco 94105.

25.45. Hitchcock, Ralls v Marin Co (Marin Co Calif) 1968: Pets, employees of Co probation dept, appeared before Co Bd of Supervisors to oppose ending family rehabilitation center. Probation officer who favored ending program deemed statements insubordinate, dismissed Pets. Pets filed complaint with Co, contended deprivation of free speech, demanded back pay, clean records. Co complied, also prepared new Regs to insure free speech for Co employees.

Paul Halvonik, Esq, ACLU, 503 Market St, San Francisco 94105.

30. ECONOMIC RESTRICTIONS (see also 251, 261, 268, 281, 571)

30.22. Meehan v Macy (CA DC) (392 F2d 822) Jan 9-15, 1964: Panamanians protested US occupation of Canal Zone after US authorities rejected request to fly Panamanian, US flags at Balboa high school. Feb 4: Pl-Pres of Police Union, met with Lt Gov, Police Personnel Dir, other union representatives to discuss Gov's plan to enlist Panamanians to serve as Canal Zone policemen, positions previously denied. After meeting, Personnel Director cautioned Pl to keep opposition in regular channels, avoid quotation in Panamanian press, avoid inflammatory comments. Feb 5: Pl spoke to Associated Press, NY Times, resulting in news stories. Feb 12: Pl arranged for printing of 5000 anonymous protest letters, poem critical of Gov, excerpt from Congressional Record, distributed to 2 policemen, left at station. Feb 20: Pl notified he would be discharged for: (1) conduct unbecoming Police Officer, (2) failure to obey instruction of superiors, (3) failure to obtain clearance before releasing articles pertaining to Gov't activity in Zone (Reg #67). Apr 10: following hearing, agency examiner concluded charges sustained, discharge warranted. Apr 15: Pl informed discharge effective Apr 16. May 6: Gov denied appeal from discharge. Sept 3: Civil Service Comm (CSC) Appeals Examining Office (AEO) sustained discharge. Feb 8, 1965: CSC Bd of App Rev affirmed AEO decision.

Feb 1966: Pl filed complaint seeking declaratory judgment, mandatory injunction to remedy illegal discharge. DC DC granted Def's motion for summary judgment dismissing action. Apr 18, 1968: CA DC remanded to DC DC: (1) agency warranted in finding charge 1 had been sustained, but record did not support conclusion Pl could be discharged for violations 2, 3; (2) Pl cannot be legally discharged except for such cause as promotes efficiency of service; (3) reject AEO's premise that Gov't employee cannot claim right to both Gov't job, free speech; (4) Gov't required to be reasonably specific in notifying employees as to prohibited utterances before it can make utterances basis for discipline. Jurisdiction retained pending consideration by Canal Zone, CSC.

Edward L Merrigan, Esq, 1700 Pennsylvania Ave NW, Washington, DC 20006.

30.23. Salt Lake City Fire Fighters v Salt Lake City (USSC) (89 SCt 1748, 449 P2d 239) Salt Lake City ordinance forbade city police, firemen, health dep't employees from engaging in certain political activities. Pls sued for judgment that law facially unconstitutional. Utah Sup Ct held law constitutional. Apr 3, 1969: Pls filed petition for cert: (1) law encroaches on 1st, 14th Amdts free speech, association; (2) 1st, 5th, 9th, 14th Amdts limit municipal governments imposition of restrictions on employees as conditions of employment. May 19: USSC denied cert.

Adam M Duncan, Esq, Kennecott Bldg, Salt Lake City 84111.

40. CONTEMPT (and 63, 330s, 390s)
41. Of Federal Courts
And see contempt aspects of US v Dellinger, 54.32.

And see Priestwood, 552.Ala.32.


41.14. Frank v US (USSC) (384 F2d 276; 89 SCt 1503) Def failed to register transaction re oil with SEC. DC issued injunction against Def using interstate facilities in sale of certain oil interests. DC charged Pet with criminal contempt; trial without jury; convicted. 1967: CA 10 affirmed. May 19, 1969: USSC affirmed (6-3), Marshall, J: 6th Amdt gives accused right to jury trial in "all criminal prosecution," but rule of long standing that so-called `petty offenses' may be tried without jury; whether Pet's offense is classified as `petty' determined by severity of penalty; hence, Pet's sentence for criminal contempt of up to 6 mths may be deemed `petty', constitutionally entails trial without jury. Warren, CJ, Douglas, Black, JJ, diss: majority puts "new weapon for chilling political expression in unrestrained hands of trial judges."

John B Ogden, Esq, Liberty Bank Bldg, Oklahoma City 73102.

41.100. FEDERAL GAG RULE

41.101. US v Tijerina (USSC) (412 F2d 661, cd 90 SCt 478) During proceedings of US v Tijerina, 59.114, h'g held on pretrial publicity. DC issued order forbidding attys, Defs, witnesses to make any public statements regarding jury, merits of case, evidence, ct rulings. Oct 22: Defs made speech at convention of Alianza Federal de los Pueblos Libres in Albuquerque. US Atty applied for order to Defs to show cause why they should not be held in contempt. After h'g, DC held Defs in contempt. Appealed to CA 10: (1) convention was private meeting; (2) recordings of speeches submitted in evidence made in violation of 4th Amdt; (3) testimony of newspaper reporter who did not understand Spanish inadmissable as hearsay; (4) order forbidding extrajudicial statements violated 1st, 5th, 6th Amdt rights. Je 23, 1969: CA 10 affirmed. Dec 15: USSC denied cert.

Irving M King, Esq, 105 W Adams St, Chicago 60603; Morton Stavis, Esq, 744 Broad St, Newark 07102; William Kunstler, Esq, 588 9th Ave, NYC 10034; Alberto Gonzales, 122 Grant, Santa Fe 87501; Beverly Axelrod, Esq, San Francisco.

And see Tijerina, 59.114.

42. Of State Courts
And see Columbia Univ Trustees v SDS, 24.NY.16; Benjamin Smith, 73.La.5; Hirschkop, 73.Va.3.
42.32. Bloom v Illinois (USSC) (220 NE2d 475; 391 US 194) Def lawyer knowingly admitted false will to probate. Cir Ct held Def in criminal contempt: 2 yrs. Sup Ct affirmed. May, 1968: USSC reversed (7-2), White, J: Def entitled to jury trial where criminal contempt is treated as "serious crime"; whether contempt is serious charge
- 19 -

to be determined by sentence imposed: Def's right to trial by jury more important than maintenance of respect for judge and ct. Harlan, J, Stewart, J, diss.

Anthony Eben, Esq, 1 N LaSalle, Chicago, Ill 60602.

42.33. In re Kenneth V Cockrel (Detroit Recorder's Ct) Def, black lawyer, was representing client in preliminary h'g related to New Bethel Church (Republic of New Africa) shooting. After stopping defense, denying Def many of his rights in h'g, judge absented himself from bench, doubled bail to $50,000. In interview with press outside courtroom, Def Cockrel pointed out illegality of judge's actions, referred to him as "racist honky dog" and "a bandit and a pirate." Judge cited Def for contempt. After ct took motion to dismiss under advisement, State agreed to dismissal of contempt citation, reduction of bail for Def's client to $10,000. Def did not apologize to court.

Dennis J Roberts, Esq, 2768 Shasta Rd, Berkeley, Calif 94708, on amicus.

National Lawyers Guild and Law Center for Constitutional Rights amicus briefs: MCLL.

And see Judge George W Crockett's description of New Bethel incident, p vi this DOCKET.

See also cases at 373.

42.34. Bd of Educ v United Federation of Teachers (NY Sup Ct, App Div) Sept 10, 1967: Ct enjoined Def-union, officers from striking city schools. Oct 5: Union, Pres found guilty of criminal contempt under Taylor Act, prohibiting strikes by public employees: union, $150,000 fine; Pres Shanker, $250, 15 days jail. Feb 1969: Def-Shanker appealed; App Div, 1st Dept granted stay. Mar 4, 1969: h'g.

Ernest Fleischman, Esq, 120 E 41st St, NYC 10017.

42.35. In Re Spencer (USSC) (223 So2d 672, 90 SCt 1483 (1970)) Mar 21, 1968: Pet, member of La state bar, filed motion for new trial, order for recusation of Judge Dixon as unfit for office, because so biased against Pet's client unable to give fair trial. Mar 26: Judge Dixon cited Pet for contempt (La CCP §222(3)). Je 10, 1969: Another judge found Pet guilty: 1 day in jail, $100, costs. Je 26: La Sup Ct refused Pet's application for cert. On appeal, Pet claimed: §222(3) abridges 1st Amdt on its face, obstructs lawyer's duty to proceed zealously on behalf of client without fear of personal penalties, Constitution protects effective advocacy, §222(3) is vague, overbroad-does not define words: "insulting," "abusive"; no evidence supports Pet's conviction. May 4, 1970: USSC affirmed judgment by equally divided court.

Melvin L Wulf, Eleanor Holmes Norton, Esqs, ACLU, 15 Fifth Ave, NYC 10010.

USSC brief for appt: MCLL.

42.36. In Re Ravitz (Mich Ct of App, #8435) Oct 14, 1969: Appt's client, charged with capital offense of armed robbery, appeared at preliminary examination in Detroit Recorder's Ct before Poindexter, J. Appt, law partner having filed written appearance, appeared. During direct exam by DA, Appt stated: "Your honor I am going to object to this—Ct: Your objection is over-ruled, Mr. Ravitz. Appt: I haven't stated it yet. Ct: Please do not interrupt this testimony; this woman is an elderly woman ... we have had trouble with you before, Mr. Ravitz. ... You are not the attorney of record in this case, so you will comport yourself properly or we will ask to have the attorney of record to come over and take your place." During cross-exam, Ct: "... I am informing you of that fact [that Ct was of opinion Appt was deliberately protracting cross-exam] and I will dispose of the matter as soon as this hearing is disposed of. Appt: I am perfectly satisfied that the Ct do dispose of it because I very much resent the Ct's charge and I would like the record to reflect the fact that—Ct:At this time the Ct will find you in contempt of Ct and I will fine you $50, Mr. Ravitz. Appt: Fine, very well, your Honor, might I proceed with this witness— Ct: And for your last remark, the Ct will fine you another $50. ..." Dec 24, 1969: Appt appealed conviction, argued for reversal of that conviction, sentence be remanded to Recorder's Ct for h'g by judge other than Poindexter. Appt argued: (1) conviction violated due process, founded on record devoid of evidence constituting contempt; (2) trial judge punished Appt for exercise of free speech; (3) trial judge punished Appt for engaging in lawful occupation, affording effective counsel to client; (4) conviction based on personal hostility, h'g not afforded by another judge. Pending.

Sheldon Otis, David Rosenthal, Esqs, 1756 Penobscot Bldg, Detroit 48226.

Brief, appendix: MCLL.

42.100. STATE GAG RULE

42.101. Hamilton v Berkeley Muni Ct (USSC) (76 CR 168, cd 90 SCt 479) Pls, Defs in crim trial, ordered by Muni Ct not to comment on issues of trial; made public statements on steps of courthouse; charged with contempt; sought writ of prohibition invalidating order as violation of 1st Amdt: order overbroad, restriction should be limited to specific matters rather than all issues, freedom of discussion necessary for justice. Aug 15, 1967: Super Ct denied writ. Mar 1969: DCA affirmed. May 13, 1969: Calif Sup Ct denied review. Dec 15: USSC denied cert.

ACLUNC, 503 Market St, San Francisco 94105.

Appt's petition for h'g (Cal SCt); petition for cert (USSC): MCLL.

And see 354.

42.102. Edmundson v Tennessee ex rel Battle (USSC) (90 SCt 52) 1968: James Earl Ray trial ct found 2 Memphis newspaper reporters guilty of contempt for violating pretrial order limiting pretrial publicity, reserved punishment for further consideration. Nov 18: Tenn Ct Crim App affirmed: trial ct's action interlocutory, not reviewable without exceptional circumstances. Feb 28, 1969: Defs filed petition for cert: violation of 1st, 14th Amdts; (2) publication of statements made in violation of injunction by parties to criminal action does not pose such "clear and present danger" to state or cts to nullify reporters' 1st, 14th Amdt rights; (3) trial ct's finding Defs guilty of contempt, refusal to impose sentence immediately deprived them of 6th, 14th Amdt rights to speedy trial. Oct 13: USSC denied cert, Douglas, J, dissenting.

Armistead F Clay, Esq, Sterick Bldg, Memphis 38103; Ezra K Bryan, John Lowell Thomas, W James Ollinger, Esqs.

43. Of Other Agencies (see also 270s, 330s)

43.2. Dawkins v Florida (USSC) (208 So2d 119, 89 SCt 101) Defs passed out handbills at ct-house charging grand jury then investigating alleged police misconduct with Negro female prisoners rigged to exonerate police; convicted of contempt. Appealed to Fla 1st Dist Ct of App: 1st, 14th Amdts violated—no showing of clear, present danger that Pls obstructed, impeded, interferred with grand jury. Ct of App affirmed. Oct 4: USSC denied cert.

Murray A Gordon, Esq, 401 Broadway, NYC 10013; Jerome J Bornstein, Esq, 125 S Court Ave, Orlando, Fla 32801.

See Dawkins, 43.3.

43.3. Dawkins v Green (CA 5, #26448) (285 FSupp 772; 412 F2d 644) Dec 18, 1967: Pl, civil rights activist and publisher of mimeographed weekly hand-civil Black Voices, testified before grand jury on discrimination.
- 20 -

Copy of Black Voices (critical of grand jury) found in grand jury room. Pl arrested, convicted of contempt. While contempt action proceeding, Pl arrested in connection with several fire bombings in Gainesville, Fl. Pl filed complaint challenging constitutionality of Fla riot and arson statutes, alleging Defs acted in bad faith in prosecuting Pl under color of law to suppress and give chilling effect to exercise of Pl's rights. June 4, 1968: ND Fla granted Defs' motion for summary judgment, dismissed complaint. June 2, 1969: CA 5 reversed, remanded to DC for evidentiary h'gs on allegations in complaint. Pending.

LCCR, 588 Ninth Ave, NYC 10034.

50. CRIMINAL SANCTIONS
Reports:

Rights in Concord: response to counter-inaugural protest activities in Washington, DC. Staff report to Nat'l Commn on Causes and Prevention of Violence. GPO, Washington, DC 20402, 1969. 125 pp. $1.00. MCLL.

Violence in America: historical and comparative perspectives. Staff report to Nat'l Commn on Causes and Prevention of Violence. GPO, Washington, DC 20402, 1969. 2 vols, $1.50 each. MCLL. The Politics of Protest: violent aspects of protest and confrontation. Staff report to the Nat'l Commn on Causes and Prevention of Violence. GPO, Washington, DC 20402, 1969. $1.25. MCLL.

Article: Malcolm Burnstein, Trying a political case. 28 Guild Practitioner 33, Nat'l Lawyers Guild, 1715 Francisco St, Berkeley, Calif 94703. $4/yr-quarterly.

51. Against Disorderly Conduct and Similar Offenses (and 16, 55)
And see Columbia Univ Trustees v SDS, 24.NY.16.
51.Ala.10. Wright v Montgomery (USSC) (282 FSupp 291, 406 F2d 867) Mar 1965: 167 students arrested in Selma-Montgomery march: disorderly conduct, loitering, disobedience. Defs removed cases from Muni Ct to DC; DC remanded. Feb 17, 1966: CA 5 affirmed remand. Je 20: USSC denied cert; Douglas, J, diss. Trials reset in Muni Ct. Defs sued to enjoin prosecution; DC refused temporary relief. CA 5 reversed, remanded to DC for decision on merits. Mar 26, 1968: DC held for city. Jan 27, 1969: CA 5 affirmed denial of declaratory, injunctive relief: (1) DC on remand properly found only issues not foreclosed by previous litigation: (a) whether §§18, 36, 59 of Ch 20 of Montgomery City Code unconstitutional on their face as vague, overbroad; (b) whether proper case for exercise of fed'l equity jurisdiction by injunction; (2) although DC abstained from ruling on constitutional questions, CA 5 decided on merits; (3) state has legitimate interest in regulating demonstrations, picketing; (4) Ala cts limit application of ordinances to "violent and menacing conduct or conduct which tends to provoke menacing and violent conduct"; (5) ordinance is reasonable regulatory measure; (6) evidence failed to make case for enjoining prosecution. May 8, 1969: Defs filed petition for cert; issue: whether disorderly conduct, loitering ordinances overbroad. Pending.

William Kunstler, Arthur Kinoy, Benjamin Smith, Dennis Roberts, Morton Stavis, Law Center for Constitutional Rights, 588 Ninth Ave, NYC 10034; Alvin Bronstein, LCDC, 603 N Farish St, Jackson, Miss 39202; Charles Conley, Esq, 1767 Davidson, Montgomery, Ala 36108.

And see Forman v Montgomery, 55.Ala.8, 13 DOCKET 19.

51.Calif.13. California v Atkins (Calif Sup Ct) (439 P2d 651, 1968) 1967: Def arrested: violation of Yorty anti-riot act (Pen C §§404.6, 448a, 451a, 452, 454-455). Def challenged constitutionality of statute: (1) vagueness; (2)-denial of equal protection: law exempts labor unions and union members from coverage. 1968: Calif Sup Ct held act constitutional.

ACLU, 323 W Fifth St, Los Angeles 90013.

And see Davis, 51.Calif.14.

And see 54.

51.Calif.14. California v Davis (Los Angeles Muni Ct) Sept 28, 1966: Def-Negro arrested: violation of Yorty anti-riot act (Pen C §404.6) against conduct urging acts of violence with specific intent to cause riot, when clear, present danger. Def charged law unconstitutional: (1) vague: not clear when speech becomes urging; speaker cannot know when clear, present danger; (2) overbroad: speaker could even be punished for actions of hostile audience; (3) provision exempting labor unions denies equal protection, shows racial bias of law. Nov 21: Muni Ct upheld Act. Apr 22, 1968: Calif Sup Ct affirmed: Act gives adequate warning of what constitutes crime.

Lawrence Sperber, Esq, ACLU, 323 W 5th St, Los Angeles 90013.

And see 54.

51.Calif.18. California v Castro (DCA 2d Dist, #SC A232902) Mar 1-8, 1968: Def-Mexican-Americans led boycott of high schools. Mar 31: Defs arrested: conspiracy to disturb peace, disturb public schools, both felonies; bail-$12,500 each. Je 3: bail reduced to $250 each. Jan 24, 1969: Defs sued in DCA for writ of prohibition enjoining Super Ct from trying Defs: (1) systematic exclusion of people with Mexican surnames from grand jury, violating Defs' 5th, 14th Amdt rights; (2) statute making it felony to organize protest which may result in commission of misdemeanor such as disturbing peace violates 1st Amdt: chilling effect. DCA granted alternative writ of prohibition; peremptory writ prohibiting trial pending.

Neil Herring, Esq, 3175 W 6th St 90005; Oscar Acosta, Esq, 408 S Spring St, Room 1210, 90013; Herbert Selwyn, Esq, 3600 Wilshire Blvd, Room 2120, 90005; Ralph Segura, Esq, USC Law Center, 90007; Paul Posner, Fred Okrand, Esqs, 257 S Spring St, Suite 416, 90013; Herman Sillas, Jr, Esq, 1271 W 2d St, 90026; all of Los Angeles.

And see cases at 314, 512.

And see Wright, 24.Calif.41.

51.Calif.19. Pain v San Francisco Muni Ct (Calif Sup Ct) (268 ACA 156; 73 CR 862) Apr 3, 1967: DA charged Pet with being public nuisance (Calif Pen C §370). Apr 26: Pet demurred: §§370, 372 (maintaining public nuisance) void on their face. Muni Ct overruled demurrer. Jy 14: Pet filed petition for writ of prohibition restraining Muni Ct from proceeding to trial on same ground. Super Ct issued alternative writ of prohibition. Aug 11: Super Ct issued peremptory writ of prohibition and mandate. Aug 21: DA appealed. Issues on appeal: (1) word "anything" in §370 does not include persons, (2) §§370, 372 so vague, indefinite they violate due process, (3) §§ invade areas protected by 1st Amdt, (4) §§ do not provide for equal protection of law. DCA reversed decision of Super Ct. Jan 22, 1969: Pet filed petition for h'g in Calif Sup Ct, also alleging deprivation of due process to try accused under construction of statute that did not exist at time he allegedly violated statute. Pending.

Paul Halvonik, Esq, ACLUNC, 503 Market St, San Francisco 94105; Ephraim Margolin, Esq, 445 Sutter St, Rm 501, San Francisco 94108.

Pet's brief (DCA); petition for h'g (Sup Ct): MCLL.

51.Calif.20. Los Angeles v Stockton (Los Angeles Muni Ct) Oct 22, 1967: Def arrested: drunk in public place under "plain drunk" law requiring that arrestee be danger to himself or others (Calif Pen C §647f). Jan 15, 1968: Def acquitted: insufficient evident that Def presented required threat.

David Chodos, Esq, 8447 Wilshire Blvd, Beverly Hills 90211.

And see cases at 411.

- 21 -

51.Calif.21. California v Thelin (San Francisco Muni Ct) May 7, 1967: Defs, reading poetry on steps of City Hall, arrested: wearing mask to conceal identity (Pen C §650a), defiling US flag, profanity in public, interfering with police. May 22: DA dropped charges: purpose of mask not to conceal identity; clothing worn was not direct representation of US flag; profanity uttered in private; insufficient evidence of interference with police.

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

51.Calif.22. California v Bricker (Los Angeles Muni Ct, #298025) Nov, 1967: Defs attempted to hear speech by Los Angeles policeman at school; turned away because of school Regs against long hair, types of dress; arrested: disturbing public meeting, disturbing peace, assaulting police (Pen C §§148, 415, 602.9). Mar 19: charges dropped against 4 Defs; 2 Defs pleaded nolo to disrupting public meeting, other charges being dropped.

Jack Fine, Esq, 8671 Wilshire Blvd, Beverly Hills 90211; Leon Turret, Esq, 5020 Sunset Blvd, Los Angeles 90027.

And see cases at 24.

51.Calif.23. California v Cohen (DCA) Aug 1968: Def arrested for disorderly conduct while wearing slogan "Fuck the Draft" on jacket in courthouse. Convicted. DCA reversed: slogan offensive but conduct was peaceful. Los Angeles city atty asked for reh'g: ct read statute incorrectly. May 23, 1969: DCA reaffirmed: conduct must be "tumultuous" as well as "offensive" to arrest.

Melville Nimmer, 270 N Canon Dr, Beverly Hills 90210.

Opinion: MCLL.

51.Calif.24. Hoffman v Muni Ct, Oakland (DCA, 1st Dist, #1 Civ 26,302) Dec 1967: Def-atty present at induction center to advise client-demonstrators, arrested: presence at unlawful assembly, disorderly conduct. Demurrer overruled, writ of prohibition sought. Super Ct denied peremptory writ. Oct 1968: appeal filed. Def argued Calif Pen C §415 (disorderly conduct), §409 (presence at unlawful assembly) unconstitutionally vague, overbroad; since §409 excludes public officers can't be applied to member of bar; charges violated 6th Amdt if applied to atty advising clients. Jan 20, 1970: DCA 1 affirmed, upheld statutes against vagueness attack, attys not public officers within meaning of statute; facts insufficient without trial to determine whether atty was present solely to advise clients, which circumstance "might well" constitute valid defense.

Paul N Halvonik, Esq, ACLUNC, 503 Market St, San Francisco 94105.

App's opening brief (32 pp), Appt's petition for h'g by Cal Sup Ct: MCLL.

51.Calif.25. California v Laski (Los Angeles Co Muni Ct) May 21, 1967: Def-member of Communist Party addressed antiwar rally in McArthur Park, used sound truck; arrested: violating city ordinance prohibiting use of sound truck on Sundays anywhere in city. Def argued no evidence that peace disturbed, ordinance too broad as Sunday afternoon logical time to address groups in public places. Sept 5: Muni Ct dismissed charges, held ordinance unconstitutional.

ACLU, 323 W 5th St, Los Angeles 90013.

51.Calif.26. California v Macias (Berkeley Muni Ct, #C22068) 1969: Defs-students arrested on UC Berkeley campus during Third World strike (Jan-March): unlawfully, willfully, maliciously disturbed the peace (Calif Pen C §415). Mar 12: Defs demurred: §415 so vague, indefinite, overbroad as to render it unconstitutional on face under 1st, 14th Amdts. Mar 26: denied. Pending.

Peter Aaron Hunt, Esq, 2905 Telegraph, Berkeley 94705.

Memo in support of demurrers: MCLL.

And see 24.

51.Calif.27. California v Weinstein (Van Nuys Muni Ct, #620610) Oct 18, 1967: Def, 21 year old Valley College student, put arms around previously arrested demonstrator during antidraft rally, refused to let go; arrested: interfering with policeman, disturbing peace. Feb 2, 1968: Def, at trial, testified he thought plainclothes officers were members of campus veterans organization dragging demonstrator off to beat him; officers testified that verbal identification was given when first arrest made. Jury trial; Def convicted. Mar 1: 5 days jail; 2 years probation.

Allen I Neiman, Esq, 1411 West Olympic, Los Angeles 90015.

51.Conn.3. Turner v LaBelle (DC Conn) (251 FSupp 443) After Watts revolt, 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 Conn Gen Statutes (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 in Defs in enforcing statute or that there would be irreparable harm to Pls, ct is justified in abstaining from staying proceedings in crim ct. Feb 4, 1966: 3 Pls convicted in Super Ct: breach of peace; $50 fine.

Emanuel Margolis, Esq, 25 Bank St, Stamford, Conn 06901; Samuel Gruber, Esq, 218 Bedford St, Stamford 06902.

Opinion (DC Conn): MCLL.

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 §221107), failure to move on. At trial, ct dismissed failure to move on, citing Shuttlesworth, 55.Ala.1, 12 DOCKET 11; found Def guilty of using profane, indecent, obscene words, suspended sentence. Def appealed to Dist of Col Ct of Apps, moved to proceed in forma pauperis; granted; moved 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: denied. Je 28, 1968: CA DC affirmed (Burger, Miller, Wright, diss). Nov 6: case argued before CA DC en banc, with Ricks, see 57.28.

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

Supplemental memo on reh'g, Appt's brief (CA DC): MCLL.

See Ricks, 57.28.

- 22 -

51.DC.5. Mailer v US (CA 4, #12,252) Oct 21, 1967: mass anti-war demonstration at Pentagon; Def-writer, others arrested: unseemly and disorderly conduct. Oct 22: guilty: $50 fine, 5 days. 1968: 5 cases consolidated on appeal attacking constitutionality of 41 CFR §101-19.304 prohibiting unwarranted loitering, assembling or disorderly conduct in gov't bldgs and 40 USC §§318(a), (c) delegating broad authority to General Services Administration to regulate fed'l property. Pending.

Philip J Hirschkop, Lawrence E Freedman, Esqs, 110 N Royal St, Alexandria 22313; Joseph Forer, 711 14th St NW, Washington, DC 20005.

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. Prosecution stayed pending Carmichael, 51.Ga.8a. 1969: Carmichael never fully litigated; no further prosecution against demonstrators.
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 (Georgia C §§26-901, -903, -904, -5301, -5302; §2-7 `disorderly conduct', Atlanta Charter, Rel Laws and Code or Ordinances, Vol II, 1022). Pls brought class action to restrain enforcement of statutes: (1) violation of 1st Amdt rights, (2) void for vagueness, (3) some previously declared unconstitutional. Pls moved for 3-judge fed'l ct; granted. Dec 1966: Ct enjoined prosecution under insurrection and insurrectionary literature statutes, §§26-901 - 26-904; held Atlanta disorderly conduct ordinance unconstitutional on its face; abstained from determining constitutionality of riot law: (1) language of statute and indictment did not show interference with 1st Amdt right, (2) Pls failed to carry burden of proof that purpose of prosecution is to discourage 1st Amdt activity, under Dombrowski, 380 US 479, 245.16d (10 DOCKET 104). Pls sought further stay to litigate the act's constitutionality in state cts. 1969: Neither side having appealed, case is apparently finished, along with 72 Demonstrators, 51.Ga.8.

Howard Moore, Jr, Esq, 75 Piedmont Ave NE, Atlanta 30303; William Kunstler, Arthur Kinoy, Len Holt, Morton Stavis, Dennis J Roberts, Esqs, Law Center for Constitutional Rights, 588 9th Ave, NYC 10034; Michael Standard, Esq, 30 E 42nd St, NYC 10017.

Complaint, opinion (DC): MCLL.

And see cases at 54.

51.Haw.2. Hawaii v Butler, Sarant (Hawaii Sup Ct) (455 P2d 4) 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: Defs filed appeal. May 22, 1969: Hawaii Sup Ct reversed: evidence insufficient as matter of law: (1) insolent, rude argument with police, refusal to obey orders not disorderly conduct without showing of imminent breach of peace; (2) non-violent, non-threatening touching of officer not offense; (3) 1st Amdt requires threat of violence or loss of police control of crowd before there can be offense, Terminello v Chicago, 337 US 1 (1949), Tinker v Des Moines Independent Community School District, 393 US 503, 24.Iowa.1 (1969).

James King, Esq, 63 Merchant St, Honolulu 96813.

Appt's opening brief; opinion (Hawaii Sup Ct): MCLL.

51.Minn.1. Minnesota v Johnson (Minn Sup Ct, #40650) Jy 1966: Minn Comm to End War in Vietnam held rally on public street corner after civic parade; distributed handbills, addressed crowd with loudspeaker from atop ladder. When crowd spilled into street, police arrested Defs: Minn Code 870.040 requiring display of American flag at public gatherings, 870.060 disturbing peace and quiet of another. Aug 31: Muni Ct held flag ordinance unconstitutional, convicted on breach of peace charges. Pls appealed, argued 870.060 unconstitutionally vague and broad, violated 1st Amdt as applied here, inconsistency between charges and Defs actual conduct, error of trial ct in excluding evidence that Police maintained records on political affiliations of citizens. Dec 13, 1968: Minn Sup Ct held ordinance need not be defined with precision, Defs had adequate notice; reversed on ground that record failed to reveal adequately specific conduct of each of Defs convicted: ordered new trial.

Stephen B Swartz, Esq, 1200 Builders Exchange Bldg, Minneapolis, Minn 55402.

Appt's Brief (42 pp): Opinion of Minn Sup Ct (9 pp): MCLL.

51.Miss.10. Samuel Johnson v US (CA 5) (394 F2d 984) 1968: 3 Defs, aged 17-20, convicted by Cox, J (SD Miss): disorderly conduct, coarse utterances, abusive language. Appealed: insufficient evidence. May 16: CA 5 affirmed for 2 Defs, reversed for 1; noted unusual severity of sentences for minor first offenders, suggested 2 convicted Defs move to reduce sentences under Rule 35, Fed R Crim P.

Alvin M Binder, Esq, 511 E Pearl, Jackson 39201.

And see 410, 430.

51.NJ.6. New Jersey v di Suvero (Newark Muni Ct; Essex Co Super Ct) Apr 20, 1968: Def, atty, former executive director of NJ ACLU, arrested in scuffle with pickets outside NJ ACLU annual meeting: assault, resisting arrest, using loud and abusive language. Nov 12: Muni Ct ordered jury trial. Nov 19: Super Ct, App Div, held jury trial improper; Muni Ct withdrew jury trial order. In ct trial, judge found several testifying police officers "lacked candor"; ct dismissed charges.

Stephen Nagler, Esq, NJ ACLU, 45 Academy St, Newark 07102.

51.NY.41. New York v 21 Students (Commack, L I, Dist Ct) Mar 13, 1969: Defs held all-night sit-in at Stony Brook campus library; arrested: criminal trespass. Mar 19: Defs pleaded guilty to loitering; 15 days.
51.NY.42. New York v Archer (Westchester Co Ct) 1968: Def charged with criminal trespass, failure to obey "lawful" police order to disperse when activities cause or create risk of "public inconvenience, annoyance or alarm" (NY Pen L §240.20.6). Def argued statute unconstitutional: (1) lodges broad discretion in police to determine 1st Amdt freedoms (Cox v Louisiana, 379 US 85, 10 DOCKET 90); (2) clear and present danger must be more than public inconvenience, annoyance or alarm (Terminillo v Chicago, 337 US 1). Jan 10, 1969: Pl pleaded guilty to minor charge; other charges dropped; conditionally discharged to continue school.

Jerry Gutman, Esq, 363 7th Ave, NYC 10001.

Def's memo in support of motions to dismiss: MCLL.

51.Ohio.1. Cleveland v Russell (Ohio Ct of App) Nov 13, 1965: Defs arrested for disorderly assembly during police raid for liquor violation at socialist dinner. Def convicted. Feb 16, 1968: Ct of App reversed: ordinance vague, infringement of right to free assembly. Je 27, 1968: charges of assault and battery dismissed.

Jerry Gordon, Esq, 1732 Standard Bldg, Cleveland 44113; Stanley Tolliver, Esq, 8811 Quincy Ave, Cleveland 44106.

51.Pa.2. Pennsylvania v Dortort (Pa Sup Ct) (208 A2d 797) Sept 20, 1963: Defs conducted sit-in at city office, protesting policy on relocating residents of substandard
- 23 -

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 1st 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 merits; 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 using criminal procedure to reach civil judgment. 1966: Pa Sup Ct denied cert. 1969: no further proceedings ever brought against Defs even though civil liability upheld by Super Ct.

William Lee Akers, Esq, Suite 805, One East Penn Sq Bldg 19107; Harry Lore, Esq, 135 S 19th St, 19103; both of Philadelphia.

Appeal from summary conviction — preliminary brief (1963); Appt's brief (Pa Super Ct); opinion of Super Ct: MCLL.

51.Tenn.8. Tennessee v Tigner (Ct of Crim App) Mar 9, 1968: White cab driver killed, car burned after driving onto Knoxville College campus during student protest. Def, militant Black student leader, arrested: felonious assault, arson. May, 1969: convicted: 10 yrs. Appeal pending. conflicting evidence.

George McDade, Esq, 3210 W Broadway, Louisville 40211; Howard Moore, Esq, 859½ Hunter St NW, Atlanta 30314.

51.Tex.1. Gunn v University Committee to End War in Vietnam (USSC) (289 FSupp 469, 89 SCt 2096) 1967: Picketers silently carried protest signs onto Ft Hood during speech by Pres Johnson; servicemen attacked them. Picketers arrested: loud and offensive language (Tex Pen C §474). Pls-picketers sued to enjoin prosecutions; DC (WD Tex) issued injunction, declared statute unconstitutional. State appealed. Oct 14, 1968: USSC noted probable jurisdiction, set case on summary calendar. Je 16, 1969: case restored to calendar for reargument. Pending.

Law Center for Constitutional Rights, 588 Ninth Ave, NYC 10034.

51.Wisc.2. Zwicker v Boll (USSC) (270 FSupp 131, 391 US 353) Pls, Univ of Wisconsin activists, arrested during Vietnam protest: disorderly conduct. Pls sued in DC seeking declaratory judgment that statute overbroad, unconstitutional on face, or injunction restraining state prosecution under statute pending against them. 3-judge ct dismissed after oral argument. May 20, 1968: USSC, per curiam, denied cert; Douglas, J, diss: Pls adequately alleged arrests, prosecutions in bad faith to punish, discourage exercise of constitutionally protected rights; under Dombrowski, 245.16d, abstention doctrine in such case inappropriate; should be remanded for evidentiary h'g.

Melvyn Zarr, Esq, 10 Columbus Circle, NYC 10019; William Kunstler, Esq, 588 9th Ave, NYC 10034; Prof Anthony G Amsterdam, Stanford Univ Law School, Palo Alto, Calif 94305.

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.

For cases in state and lower fed'l courts, see Censorship Today, 1680 N Vine St, Los Angeles 90028, $6/yr (bi-monthly); Newsletter on Intellectual Freedom, Am Library Assn, 50 E Huron St, Chicago 60611, $3/yr (bi-monthly).

See US v Ginzburg, 461.17; Bennett, Bertolette, 59.107; Casey, 295.18.

Congressional Testimony: Statement by Lawrence Speiser of ACLU on HR 7375 and HR 10867 which would exclude from US mails certain obscence materials. Oct 22, 1969. 1424 16th St, NW, Washington, DC 20036.


52.Calif.26. Daly v California (USSC) (89 SCt 1589) 1968: Pet book-seller convicted under Calif obscenity statute for selling books titled, eg, "Blood Orgy", "His Brother Love", "Pay the Devil", "The Flesh-Worshippers", "Never on Sin Day", "Gay Reunion", "That Kind of Girl." Aug 3: Santa Clara Co Super Ct, App Div, affirmed. Oct 28: Pet filed for cert in USSC: (1) Did conviction violate Pet's 1st Amdt rights? (2) Did lack of proof Pet knew contents of books or knew them to be obscene deprive him of liberty without due process? Mar 24, 1969: USSC denied cert; Black and Douglas, JJ, diss.

Stanley Fleischman, Esq, 1680 Vine, Los Angeles 90028.

52.Ga.2. Stanley v Georgia (Fulton Co) (USSC) (224 Ga 259; 89 SCt 1243) Def's home, being under investigation for alleged bookmaking activities, yielded 3 reels of 8 mm film deemed obscene. Super Ct convicted Def for `knowingly having possession of obscene matter.' Ga Sup Ct affirmed. Apr 7, 1969: USSC reversed (9-0), Marshall, J: "mere private possession of obscene matter cannot constitutionally be made a crime."

Wesley R Asinof, Esq, 1st National Bank Bldg, 615 Peachtree NE, Atlanta, Ga 30308.

52.NY.27. Rabeck v New York (USSC) (391 US 462) Def convicted of selling "girlie" magazines to minor under 18 (§481-i NY Penal Law, Consol Laws, c 40.) May 27, 1968: USSC reversed, per curiam: statute prohibiting sale of magazine "which would appeal to the lust of persons under the age of 18 yrs or to their curiosity as to sex or to the anatomical differences between sexes" unconstitutionally vague. Harlan, J, diss.

Osmond K Fraenkel, Esq, 120 Broadway, NYC 10005; Sam Rosenwein, Stanley Fleishman, Esqs, 1680 N Vine, Los Angeles 90028.

52.Ore.1. Childs v Oregon (USSC) (447 P2d 304; 89 SCt 1198) 1968: Pet cigar-store owner prosecuted under state obscenity law for sale of book "Lesbian Roommate," which described hetero- or homo-sexual acts on average of 1 of 10 pages. Pet allegedly had not read book, did not know it obscene; convicted. Ore Sup Ct affirmed: 1st Amdt no bar; law's failure to require considering "nat'l community standards" does not make it unconstitutional. Feb 17, 1969: Pet filed for cert: (1) is book obscene? (2) is law unconstitutional, facially and as applied? (3) can Pet be required, under criminal penalty, to "know" how cts might decide on books' obscenity when deciding whether to sell them? (4) must Pet's scienter be established by affirmative proof? Mar 24: USSC denied cert.

Paul R Meyer, Esq, 319 SW Washington, Portland 97204.

53. Against Defamation (see also 61)
- 24 -

54. Against Sedition, Anarchy, Syndicalism, Riot (see also 63, 241-44, 429)
Book: Byron L Bargar, The law and customs of riot duty, a guide for National Guard officers and civil authorities with commentaries on federal aid. 1907. 323 pp. MCLL.

Senate Document: Wilson, Federal aid in domestic disturbances, 1787-1903, Sen Document #209, GPO 1903. 394 pp. MCLL.

Congressional Hearings:

Hearings before the House Committee on Un-American Activities, 90th Congress, 1st session: Subversive influences in riots, looting, and burning. Parts 1 and 2. GPO, Washington DC 20402. Hearings before the Senate Judiciary Committee on HR 421, the "antiriot bill", Parts 1 and 2. GPO, Washington, DC 20402.

And see Atkins, 51.Calif.13; Davis, 51.Calif.14; Carmichael, 51.Ga.8a; Landry, 59.114.


54.9. New York v Epton (USSC) (252 NYS2d 388, cd 390 US 976) Jy 18, 1964: Def-Negro, Progressive Labor leader, made speech in Harlem about police killing of Negro youth; later 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 11: Def released on $25,000 bail on certificate of reasonable doubt. Dec 8: App Div affirmed conviction without opinion. May 16, 1967: Ct of App affirmed. May 1967: USSC denied cert.

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

Appt's brief in NY Sup Ct, App Div, and NY Ct of App; petition for cert to USSC: MCLL.

And see Anderson, 24.49, 11 DOCKET 61; Gilligan, 304.61, 10 DOCKET 145; McAdoo, 333.20, 13 DOCKET 87.

54.14. California v John Harris (LA Super Ct) Sept 1966: Def-Progressive Labor Party member wrote pamphlets on police practices in Negro ghetto, distributed during inquest into shooting of Deadwyler (see 11 DOCKET 94, at 429.) "George Washington and the American revolutionaries never went to King George's ct for justice. They smashed King George's ct . . . Bring Parker, Yorty and Bova to trial for murder in a ct 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, aid, or abet" force and violence to effect "a change in industrial ownership" or "any political change"). Def filed for injunction in DC to stop prosecution, see 54.14a. Pending.

Frank Pestana, Esq, 1680 N Vine, Hollywood 90028; A L Wirin, Esq, ACLU, 257 S Spring St, Los Angeles 90012.

And see 54.14a; 429; Carmichael, 51.Ga.8a.

54.14a. Younger v Harris (USSC) (281 FSupp 507, 393 US 813, 393 US 1013, 394 US 913, 89 SCt 2095) Initial facts same as Harris, 54.14. Mar 11, 1968: 3-judge fed'l ct (CD Calif) enjoined Pl's prosecution by Def Los Angeles Co DA: state criminal syndicalism law impermissibly vague, overbroad, unconstitutional on face; statutes in area of 1st Amdt held to stricter clarity, precision than those governing marketplace. Def appealed to USSC. Jan 13, 1969: USSC noted probable jurisdiction. Mar 24: USSC granted Pl's in forma pauperis motion. Je 16: case restored to calendar for reargument. Pending.

Frank S Pestana, Esq, 1680 Vine St, Hollywood 90028; A L Wirin, Fred Okrand, Esqs, 257 S Spring St, Los Angeles 90012.

Indictment, demurrer, Def's motion to dismiss, Pl's reply memo for injunction and 3-judge ct, memo on unconstitutionality of act on face and as construed and applied: MCLL.

And see Brandenburg, 54.34.

54.19. Kentucky v McSurely, Braden (ED Ky, Pikeville Div, #1146) Aug 11, 1967: State Atty Ratliff, 15 armed deputies raided Pls' home, confiscated records, written material, arrested Pls-3 poverty workers for SCEF: sedition (Ky Ref Stat 432.040). Aug 18: Pls sued for 3-judge panel, permanent injunction, declaratory judgment that statute unconstitutional (42 USC §1983). Sept 11: Although DA told Ct no grand jury action would be taken while issues under advisement, Pikeville grand jury indicted Pls. Sept 14: DC enjoined state cts from proceeding, ordered release of Pls, denied Pls' motion for contempt proceedings against State Atty, declared Sedition Act "overbroad . . . of such sweeping application as to run afoul of the ... Constitution."

Dan Jack Combs, Esq, 207 Carolina Ave, Pikeville 41501; Law Center for Constitutional Rights; Amicus Ky ACLU, Robert Allen Sedler, Esq, 1027 Gainseway Dr, Lexington.

And see McSurely v Ratliff, 303.90, 580.19.

54.20. Brown v Clark (ED La) (274 FSupp 95) Aug 20, 1967: Black citizens invited Pl-SNCC chairman to speak in Baton Rouge. Aug 22: Def US Atty Gen'l obtained indictment against Pl from fed'l grand jury: interstate firearm transportation by person under indictment (15 USC §902(e)). Aug 20: Def-Gov't threatened to arrest Pl under La RS 14:113 (treason), RS 14:115 (criminal anarchy). Sept: Pl filed complaint against fed'l officials: (1) for 3-judge ct to determine unconstitutionality of statutes, (2) for injunction restraining fed'l, state enforcement of fed'l, state statutes, other intimidation, (3) declaratory judgment of statutes' unconstitutionality. Oct 5: DC dismissed action; held complaint alleged no special circumstances to warrant cutting short normal adjudication of constitutional defenses in course of criminal prosecutions. Def appealed: CA 5 dismissed as to fed'l authorities for mootness; appeal as to state authorities to be argued.

Murphy Bell, Esq, 214 East Blvd, Baton Rouge 70802; William Kunstler, Arthur Kinoy, Esqs, LCCR, 588 Ninth Ave, NYC 10034; Morton Stavis, Esq, 744 Broad St, Newark 07102; Howard Moore, Esq, 859½ Hunter St NW, Atlanta 30314.

Complaint (ED La): MCLL.

And see Brown, 54.21, 403.17.

54.20a. US v Brown (ED La, #26249) Def-H Rap Brown indicted for interstate transportation of firearms by person under indictment. See facts at 54.20. Gov't admitted wiretapping; logs of wiretaps inspected by judge, found not relevant to prosecution. Def moved to continue trial pending outcome of Brown v Clark, 54.20, to disqualify judge for prejudice, for full inspection of wiretaps. Motions denied; Def convicted: 5 yrs. Def appealed, argued USSC opinion in Alderman v US allowed Def to inspect logs. Apr 3, 1969: CA 5 vacated, returned to DC for Alderman h'g. Motions set for Je 10, 1969. Pending.

William Kunstler, Esq, LCCR, 588 Ninth Ave, NYC 10034; Philip Hirschkop, Esq, 110 N Royal St, Va 22314.

And see Brown, 54.21, 403.17; and cases at 301.

54.21. Maryland v Brown (Circ Ct, Dorchester Co, #2116 Crim) Jy 24, 1967: Def-SNCC leader made speech in Cambridge, followed by riots and arson. Warrant issues: inciting riot, arson. Jy 27: Def arrested in Virginia under fed'l warrant: unlawful flight to avoid prosecution; released; arrested under state fugitive warrant. Unpublished report by President's Commission on Civil Disorders exonerated Brown. Def waived extradition in Va fed'l ct due to failing health; returned to Md, released on bail. Ct granted state's motion for change of venue (over Brown's objection) on ground Brown
- 25 -

couldn't get fair trial in Cambridge. Nov 28, 1968: Def petitioned to remove arson charges to fed'l ct because of state's refusal to try Def where crime was committed. State stipulated to postpone trial until decision by CA 4 in event of adverse ruling by DC. DC remanded to state ct; Def appealed. Appeal dismissed by CA 4 sua sponte. Pending.

Philip Hirschkop, Esq, 110 N Royal St, Va 22314; LCCR, 588 Ninth Ave, NYC 10034.

And see Brown, 54.20, 54.20a, 403.17.

54.26a. SNCC v Tennessee (MD Tenn) Facts as in Ware, 54.26, 13 DOCKET 19. City officials blamed rioting on Carmichael. Pl sued, denying Carmichael responsible, asking state inciting to riot statute to be declared void. Decided sub nomine Brooks v Briley, 54.28.
54.28. Brooks v Briley (Nashville) (USSC) (274 FSupp 538, 391 US 361) 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 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 fed'l 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. May 1968: USSC affirmed per curiam.

I T Creswell, Jr, Esq, 623 Stahlman Bldg, Nashville 37201; Wm Kunstler, Arthur Kinoy, Harriet Van Tassel, Dennis Roberts, Esqs, Law Center, 588 Ninth Ave, NYC 10034; Howard Moore, Jr, Esq, 1154 Citizens Trust Co Bank Bldg, 75 Piedmont Ave NE, Atlanta 30303; 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.

Complaint, amended complaint, pretrial memo, motion for TRO (MD Tenn); jurisdictional statement (USSC): MCLL.

54.29. Samuels v Mackell (USSC) (288 FSupp 348; 393 US 975) Herman Ferguson, 1968 NY Peace and Freedom Party candidate for US Senate, indicted with 9 other blacks under NY criminal anarchy law for alleged Revolutionary Action Movement plot to kill NAACP's Roy Wilkins, Urban League's Whitney Young. Defs sued in DC for injunction against state prosecution and declaratory judgment. June 1968: DC dismissed. Defs appealed to USSC: NY law unconstitutional. Dec 9, 1968: USSC noted probable jurisdiction. Je 16, 1969: case restored to calendar for reargument. Pending.

Victor Rabinowitz, NECLC, 30 E 42, NYC 10017; Eleanor Jackson Piel, Esq, 36 W 44th St, NYC.

And see Ferguson, 303.91.

54.31. Lynch v Maryland (USSC) (2 Md App 546, 236 A2d 45, cd 89 SCt 236) 1967: Def made inflammatory anti-Negro, anti-Semitic speeches at publicized meeting in public park, convicted: incitement to riot, disorderly conduct. Dec 6: Md Ct of App affirmed. Jy 22, 1968: Def petitioned USSC for cert: common law charges of conspiracy to incite riot, incitement to riot, disorderly conduct violate 1st, 14th Amdts when applied to persons making public speeches. Oct 21: USSC denied cert.

Melvin L Wulf, Kenneth Sammel, Esqs, ACLU, 156 Fifth Ave, NYC 10010; Elsbeth Bothe, Esq, Maryland Trust Bldg, 14 S Calvert, Baltimore 21202.

54.32. US v Dellinger (Chicago 8 Conspiracy) (ND Ill, #59 CR 180) Aug 24—31, 1968: Massive anti-war demonstrations at Democratic Convention in Chicago; 600 arrests: primarily disorderly conduct, resisting arrest. Sept 9: Fed'l grand jury impanelled, instructed to consider violations of 1968 anti-riot act (18 USC §§2101, 2102). Oct 2: Dellinger, Davis, Hayden, Rubin, Hoffman, Nat'l Mobilization Comm sued in DC for declaratory judgment that Act is unconstitutional, injunction against submission of testimony before grand jury. Mar 20, 1969: grand jury indicted 8 Defs: Davis, Dellinger, Hayden, Rubin, Hoffman, Seale, Froines, Weiner for conspiracy to use interstate commerce with intent to incite riots, teach use of explosives, and for those substantive crimes. Apr 10: All Defs pleaded not guilty. Ct denied defense request for 6 months to reply, allowed 30 days. Trial set for Sept 24.

Apr 11: Defs alleged FBI agents eavesdropped on meeting between Defs and Attys at conference room in US Atty's office. Ct denied motion for order restraining US Gov't from unconstitutional eavesdropping on Defs. May 6: Defs filed pretial motions; Gov't answered all but motion for disclosure of electronic surveillance. May 9: ACLU filed amicus brief in support of motion to dismiss: argued Act unreasonably inhibits interstate travel for purpose of engaging in political acts of expression, is vague, overbroad, violates due process by authorizing conviction in circumstances where unlawful intent and unlawful act do not coincide. Je 13: Gov't answered Def's motion for disclosure: admitted over-hearing conversations of 5 of 8 Defs; argued (1) no Def entitled to disclosure of information concerning surveillance of co-Def; (2) Pres through Atty Gen'l has constitutional power to authorize electronic surveillance to gather intelligence vital to national security, e.g. domestic organization seeking to subvert Gov't by illegal means; (3) §605 of 1934 Communications Act does not limit President's power to authorize wire-tapping; (4) legality of surveilance determined by law at time of overhearing. Jy 17: DC (ND Ill) refused to rule on Def's motion for disclosure; deferred question until after trial, would thus not have to rule on legality unless DC felt trial had been tainted by use of conversations.

Aug 27: DC denied request that trial be postponed until Nov due to illness of chief defense atty, Charles Garry. Sept 12: without notice US Marshall removed Def-Seale (in custody in San Francisco on other charges) to Chicago; officials kept Seale's whereabouts unknown during 6 day car trip. Sept 20: Chief judge banned all photographers, TV crews from fed'l bldg, plaza outside; relaxed ban somewhat after several newsmen challenged rule by submitting to arrest. USSC denied motion for delay of trial based on illness of defense atty, Garry.

Sept 24: 4 attys who had worked on pre-trial phases did not appear when trial opened. Sept 26: DC issued contempt citations to the 4 attys; ordered 2 to jail, other 2 to return to Chicago from Calif. Sept 29: Lawyers from around country, 13 Harvard law profs gathered at fed'l bldg, demonstrated. 125 filed amicus brief terming ct's action "travesty of justice (which) threatens to destroy the confidence of the American people in the judicial process." Defs argued their case prejudiced by absence of Garry; charged judge trying to pressure them by demanding they drop objections to Garry's absence, consent to present representation before ct would drop contempt citations against the 4 attys. Harvard profs sent letter to Chairman of Sen Judiciary Comm, asking for investigation of judge's behavior. Sept 30: Judge vacated contempt citations, allowed attys to withdraw from case; denied Def motion for mistrial on grounds that judge was prejudiced against Defs.

Sept 31: DC denied Def motion to end sequestration of jury; forbade Def-Seale from attempting to cross-examine witnesses himself. Seale wished to represent himself, since DC would not delay trial until his atty, Garry, could be present. During following weeks Seale continued to attempt to represent himself. DC maintained Seale was adequately represented by other attys, finally ordered him bound and gagged. Oct 17: Defs objected to removal of several black spectators, charged ctroom had appearance of armed camp. Oct 19: DC denied motion for mistrial on grounds DC had allowed Gov't witness to give hearsay testimony that others in Mobilization office considered Def-Hayden irrational, violent. Oct 25: Ct refused to enlarge provisions to allow Defs Davis, Dellinger to meet with North Vietnam Peace Delegation in Paris over weekend. Nov 5: Seale continued to attempt to act as

- 26 -

own atty: ct charged him with 16 counts of contempt, sentenced him to 3 months on each count, sentence to be served consecutively. Seale severed from trial, returned to ND Calif awaiting extradition proceedings to Conn, see Connecticut v Seale, 412.16.

Nov 7: DC denied Def motion for mistrial as to 7 other Defs. Nov 26: DC ruled Gov't had presented sufficient evidence to warrant jury instruction that all evidence previously admitted against any one Def could now be considered against others. Trial continuing.

Oct 2, 1968 Declaratory action: National Emergency Civil Liberties Committee, 25 E 26th St, NYC 10010; Stanley A Bass, Esq, 11 So LaSalle St, Chicago 60603.

Trial counsel: William Kunstler, Esq, Law Center for Constitutional Rights, 588 Ninth Ave, NYC 10034; Leonard Weinglass, Esq, 43 Bleeker St, Newark, NJ 07102. Additional counsel: Michael Kennedy, Esq, 2424 Pine, San Francisco, Calif 94115; Michael Tigar, School of Law, UCLA, Los Angeles, Calif 90024, Charles Garry, Esq, Garry, Dreyfus, McTernan, and Brotsky, 341 Market St, San Francisco 94105.

ACLU amicus brief in support of Def's motion to dismiss (52 pp); Gov't's answer to Defs' motions for disclosure of electronic surveillance (40 pp): MCLL.

Report: CLDC Newsletter, Chicago Legal Defense Comm, 127 N Dearborn, Chicago 60602. Feb 14, 1969. 8 pp.

Movies for rent: Chicago: The Seasons Change, 45 mins, $50; The Streets Belong to the People, 49 mins, $55; Yippie, 15 mins, $20; Am Documentary Films, 379 Bay St, San Francisco 94133; 336 W 84th St, NYC 10024.

And see Carter, Crawford and Shead, 334.10; Rubin, 59.109; Young, 271.54; cases at 314; Dellinger, 301.40; Seale, 371.18, 412.16; 378.

54.33. St Louis v Hutchins (St Louis Crim Ct) Sept 7, 1968: Defs-Black leaders addressed 500 in park. Hours later, police stopped Defs on way to airport, searched for guns (none found); arrested Defs: illegal assembly, inciting to riot; freed on $3000 bail. Pending.

SNCC.

54.34. Brandenburg v Ohio (USSC) (395 US 444) Appt, KKK leader, telephoned TV station, invited reporter to KKK rally. TV film of rally showed Appt speaking, mentioned possibility of "revengeance," denounced gov't suppression of whites, advocated sending "nigger" back to Africa, Jew to Israel. Other hooded Klansmen brandished weapons, burned cross. Appt arrested (Ohio Criminal Syndicalism Act-advocacy, teaching, assembling to advocate violence as means of accomplishing industrial, political reform.) Convicted: 1-10 yrs, $1,000. 1968: Pl's appeal dismissed. Je 9, 1969: USSC, per curiam, found Act invalid under 1st, 14th Amdts: advocating violent means to effect political change without such advocacy being directed to inciting or likely to produce "imminent" lawless action within protection of 1st Amdt freedom of speech; "the mere abstract teaching of moral propriety, necessity for resort to force, violence is not the same as preparing a group for violent action and steeling it to such action." Black, Douglas, JJ, conc in result, rejected majority's failure to abandon "clear and present danger" test because (1) action is often a method of expression and within the protection of the 1st Amdt, (2) "if in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way," (3) gov't does not have right to invade sanctuaries of individual beliefs unless overt acts follow immediately, inseparably from advocacy of political action, or abstract ideas.

Allen Brown, Esq, 911 First National Bldg, Cincinnati, Ohio 45202.

USSC jurisdictional statement, brief for Appt: MCLL.

And see Younger, 54.14a.

54.35. Straut v Calissi (DC NJ, #863-67) 1967: Def, Co prosecutor, learned of statute making it a crime to "... advocate that persons should not enlist in the armed forces of the US ... or advocate ... or teach that citizens ... should not aid or assist the US in prosecuting a war with the enemies of the US." Def advised grand jury of statute's existence, informed newspaper he would prosecute anti-draft advocates on complaint. Pls, ministers, anti-war activitists, sued to have statute declared invalid under 1st Amdt. Dec 18, 1968: 3-judge fed'l ct held statute unconstitutional, declared Pls had standing even though statute had only been used once in 50 years and threat of prosecution had not centered on Pls: mere existence of statute created chilling effect on 1st Amdt rights.

And see cases at 128.

54.36. Landry v Boyle (originally v Daley)

(USSC) (280 FSupp 929, 938, 968; cd 89 SCt 455) 1968: Chicago area black groups, individuals alleged: (1) they were repeatedly arrested without warrants, probable cause while peacefully demonstrating, (2) Defs, city officials, police officers, threatened to continue to "employ arrest, detention on excessive bail, threats of prosecution to harass" Pls, discourage them from asserting, exercising constitutional rights; Pls sought injunctions against Defs, declaratory judgments against 2 Ill statutes: Mob Action statute (2 or more persons assembled to do "unlawful act"); Intimidation statute (illegal to threaten to commit any "criminal offense.") Mar 1: 3-judge fed'l ct (ND Ill) voided statutes: though partially valid exercises of police power, "in some circumstances ... neither an average citizen nor an average policeman could reasonably be expected to govern his conduct by reference to them," hence due process violated, also 1st Amdt. Oct 16: Defs appealed to USSC. Dec 9: USSC denied cert.

Robert Tucker, Esq, 30 N LaSalle, Chicago 60602; Law Center for Constitutional Rights, 588 9th Ave, NYC 10036.

55. Against Picketing, Leafleting, Demonstrating (see also 51, 123, 541, 542, 551, 552)
See California v Bardacke, 314.11.
55.Ala.4c. Shuttlesworth v Birmingham (USSC) (180 So2d 114, 206 So2d 348, 394 US 147) Apr 12, 1963: Pet, black minister, led march protesting denial of civil rights in city; arrested, convicted: parading without permit. Ala Ct of App reversed: ordinance conferring discretion on city to deny permit request on basis of "public welfare, peace, safety, health, decency, good order, morals, or convenience" invidious prior restraint, vague, applied discriminatorily. 1967: Ala Sup Ct reversed: ordinance only gives city authority to regulate traffic on municipal streets; must be objectively, fairly administered; such regulatory ordinances constitutionally permitted. Mar 10, 1969: USSC reversed, Stewart, J: (1) ordinance at time of incident clearly unconstitutional prior restraint of freedom of expression, void; (2) ordinance as interpreted by Ala Sup Ct might pass constitutional muster, but that interpretation not contemplated, applied to Pet at time of arrest, conviction 4 yrs earlier. Black, Harlan, JJ, conc.

Jack Greenberg, Esq, NAACP Inc Fund, 10 Columbus Circle, NYC 10019.

55.Ala.10. Jefferson Co Bd of Educ v SCLC (ND Ala) Jan 14, 1966: 300 demonstrators, mostly students, blocked traffic in downtown Birmingham as part of voter registration campaign. DC granted Pl's motion to enjoin Def from recruiting, leading students in demonstrations during school hours. Jan 18: Def appealed: allege fed'l cts lack jurisdiction. Je 24,
- 27 -

1968: Pls dropped request for damages; Defs agreed to making TRO permanent. Appeal withdrawn.

Orzell Billingsley, Jr, Peter Hall, Esqs, 1630 4th Ave N, Birmingham 35203; Charles Jones, Jr, Charles Ralston, Esqs, NAACP Legal Defense Fund, 10 Columbus Circle, NYC 10019.

And see cases at 24.

55.Ala.17. Birdie Mae Davis v Mobile Co Bd of School Commrs (CA 5, #27849) 1963: Desegregation suit filed by Davis et al; appeal pending as of Oct, 1969. May 8, 1969: School Board sought to enjoin American Friends Service Committee Mobile staff members from picketing in or around Mobile school. May 17, 1969: preliminary injunction served on AFSC. May 23, 1969: CA 5 granted stay, pending appeal by AFSC.

Reber F Boult, Jr, Esq, Charles Morgan, Jr, Esq, 5 Forsyth St, NW Atlanta 30303; George W Dean, Esq, PO Box 248, Destin, Fla 32541.

Appts' brief: MCLL.

And see cases at 522; 24.

55.Calif.19. Re Berry (Calif Sup Ct) (436 P2d 273) Sacramento Super Ct issued injunction prohibiting picketing or demonstrating near Co buildings; Pet and 70 others arrested: carrying signs. 4 petitioned DCA for habeas corpus: Ct held 4 could not be tried for violating injunction, declined to hold injunction void on face. Jan 24, 1968: Calif Sup Ct held injunction void: overbroad in restricting 1st Amdt rights; too vague, uncertain to satisfy 14th Amdt; violation of void order not punishable.

Lawrence Karlton, Esq, 1107 9th, Coleman Blease, Esq, 2667 11th, of Sacramento 95818; Paul Halvonik, Esq, 503 Market, San Francisco 94105, for ACLU.

ACLU amicus brief in support of petition for writ of habeas corpus: MCLL.

55.Calif.23. Giumarra Bros Fruit Co v United Farm Workers Organizing Comm (Calif Sup Ct) (62 CR 567) Persons picketed vineyards to organize workers. Aug 18, 1967: Pl sued for injunction restraining pickets. Super Ct issued TRO limiting pickets to 3 at each side of main entrance, must stand at least 50 feet apart, also restrained use of bullhorns. 1968: Def filed petition for writ of prohibition to restrain lower ct from enforcing last provision. DCA denied petition. Pl filed suit for contempt. DCA denied Def's petition on contempt. Oct 23, 1968: Calif Sup Ct denied petition for h'g. Def filed petition for cert. Issues: 5th, 6th, 14th Amdts right to jury trial for criminal contempt where serious total penalty may result. Pending.

Jerome Cohen, Esq, P O Box 130, Delano 93215.

Petition for alternative and peremptory writ of prohibition; opinion (DCA): MCLL.

And see 62; Chavez, 15.20.

55.Calif.24. California v Nelson, Seligman (San Francisco Muni Ct, #D 1883, D 1930) Jan 11, 1968: Defs, 2 of 52 arrested: failure to disperse after police order to demonstrators in front of Fairmont Hotel, protesting policies of Sec of State Rusk, inside delivering speech. Police allegedly canvassed 6-block area, arresting persons. Def Nelson, who testified that he was, along with companion, attending speech, arrested 20 minutes after order to disperse in front of apartment bldg; Def Seligman arrested 2½ blocks from hotel an hour after assembly dispersed. Mar 1968: Muni Ct ordered cases dismissed: insufficient evidence.

Marshall Krause, Esq, ACLUNC, 503 Market St, San Francisco 94105.

55.Calif.25. In re Hoffman, Carson (Calif Sup Ct) (64 CR 97) Sept 5, 1966: Defs, 6 others, arrested: passing out leaflets in Los Angeles Union Station about "Fort Hood Three"; charged with remaining in train terminal longer than necessary to conduct business with common carrier. Others acquitted; Defs convicted. Super Ct, App Div, affirmed. Dec 11, 1967: Calif Sup Ct reversed, declared ordinance unconstitutional: 1st Amdt activities can be regulated only to extent necessary to prevent interference with municipality's interest in protecting public health, safety, order; use of train stations can be protected by ordinances prohibiting activities interfering with this use; 1st Amdt activities cannot be prohibited solely because property not maintained primarily as forum for such activities.

Michael Hannon, Esq, 1725 Beverly Blvd 90026; A. L. Wirin, Fred Okrand, Esqs, 257 S Spring 90012; Laurence Sperber, Esq, ACLU, 323 W 5th St 90013; all of Los Angeles.

55.Calif.26. California v Lamm, Rosenberg (Beverly Hills) Jy 27, 1967: Defs-Communist Party (M-L) members set up table outside theater to distribute copies of Mao's quotations to theater patrons; arrested: engaging in business without license, conducing business on public property. ACLU atty argued: (1) ordinances could not be applied to political groups, (2) Defs seeking contributions, not sales, other political groups often sold buttons, bumperstickers, without being arrested, (3) usual practice to permit payment of overdue license fee instead of bringing charges. Aug 31: City Atty dropped charges.

Bennett Kerns, Esq, ACLU, 9465 Wilshire Blvd, Beverly Hills 90212.

55.Calif.27. California v Kepler (Oakland Muni Ct) Dec 1967: Def, others conferred 3 times with Oakland Deputy Chief prior to anti-war demonstration. Def, 7 other monitors arrested: obstructing sidewalk, aiding and abetting blocking street. Jan 19, 1968: Def tried, sentenced: 10 days. Def charged entrapment. Appeal pending. Def Sacco: $150, 1 yr probation.
55.Calif.28. California v Heinemann (DCA) Jy 4, 1966: Def arrested: obstructing public highway, public nuisance at Port Chicago demonstration. Jury acquitted on first, convicted on latter charge. Issue: citizen's effort to prevent crime against Nurnberg judgment by stopping use of napalm. Nov 29, 1967: DCA affirmed.

Harry J Lohstroh, Esq, 1666 Newell Ave, Walnut Creek, Calif 94596.

Resp's brief (DCA): MCLL.

55.Calif.29. California v Wallace Je 1969: Def arrested under Biggs, Calif city ordinance forbidding distribution of leaflets in public; demurred, citing Schneider v State, 308 US 947. City Atty argued USSC decision in Schneider was wrong, but dismissed prosecution.

ACLU, 503 Market, San Francisco 94105.

55.Calif.30. Connor v California (USSC) (cd 89 SCt 114) 1968: Pet "sat-in" at Armed Forces Induction Center; arrested: trespass; convicted. Pet appealed: trial ct erred in excluding all evidence on illegality of Vietnam war, corresponding legality of induction center demonstrations so long as war continues. Mar 20: Super Ct, App Dept affirmed. Oct 14: USSC denied Pet's petition for cert.

Michael Connor, San Francisco.

55.Calif.31. California v Ridenour (Los Angeles Muni Ct) Dec 6, 1967: Cal State (LA) students demonstrated against Dow Chemical recruiters. City atty issued warrants for 25 Defs: riot, unlawful assembly, trespass, disturbing the peace, failure to disperse, malicious damage to property. 16 Defs surrendered to warrants. Apr 11, 1968: prosecutor dismissed 2 of 4 counts at close of case, jury acquitted 4 Defs on other 2
- 28 -

counts. Apr 18: prosecutor dismissed half of charges against 3 Defs, jury hung on remaining counts; subsequently dismissed. Def Herick found guilty: disturbing peace. Appeal pending. Of remaining 9 Defs: 1 pleaded guilty to disturbing peace: $25 fine; charges dropped for other 8.

And see 24; Herick v Los Angeles Muni Ct, 374.45.

55.Calif.32. Berkeley Peoples' Park Feb 5, 1969: Gov Reagan declared "state of extreme emergency" during TWLF strike on UC campus, ordered highway patrol to provide "all necessary manpower." 50 patrolmen dispatched to campus. See 24.Calif.36, 51.Calif.26. Strike subsequently ended Apr 20: 200 students, `street people', began work, creating `Peoples' Park' on Univ property which had been vacant for a year. May 14: 51 `no trespassing' signs posted, "final warning"; ripped down, burned. Chancellor Heyns offered students until May 21 to submit suggestions to campus architect for use of property; head of UC Comm on Housing, Environment, suggested acquiring lot as research laboratory. Rumors spread that fence would be erected around park next morning; people elected 11 man negotiating team, vowed not to leave park; 100 camped overnight. May 15, 4:30 am: 250 police cleared park, arresting 3; construction of fence began. Noon: rally on campus, crowd moved toward park, riot ensued: 128 shot by police. 6 pm: Reagan called out Nat'l Guard, set 10 pm-6 am curfew, banned assemblies in campus area.

May 16: 2000 troops arrived. Highway patrol officers broke up campus assembly of 5000, enforcing Reagan edict. Alameda Co sheriff, in charge of police activities, announced only lightweight birdshot used by police on May 15. News services distributed picture of officer shooting at fleeing youth. May 17: Students vowed to disrupt business in downtown Berkeley until Nat'l Guard removed. Numerous but isolated incidents continued. May 18: Many arrested, injured as police, Nat'l Guard broke up protest march of 4000. Some Guardsmen displayed sympathy to demonstrators, clenching fists, giving peace sign, negligent in following orders. May 19: Obstruction of business in downtown area continued; many arrested, 1 stabbed by Nat'l Guard bayonet. Rooftop observer of May 15 riot shot by police, died from gunshot wounds (buckshot).

ACLUNC challenged ban on public assemblies, see Halvonik, 55.Calif.32b. May 20: 700 encircled on campus by Nat'l Guard, helicopters then spread CS tear gas. Special `arrest units' took groups into custody en masse: assault, unlawful assembly, resisting arrest. Newsmen reported 1 Guardsman arrested for throwing down rifle, refusing to obey orders; Guard denied, said he was overcome by gas, assisted by medics. May 21: Police charged dormitory allegedly to remove obscene, anti-police banners from windows of residents, to silence playing of song entitled "Revolution" on many record players; scuffle ensued as police went from room to room; many beaten, arrested. May 22: 482 arrested in downtown demonstration; guardsmen encircled demonstrators, ordered them to disperse; police arrested all those trapped within ring, many shoppers, mailman included. Those arrested taken to Santa Rita Rehabilitation Center, many forced to lie face down on ground for 7 hours, not allowed to move, talk, contact legal counsel, or to relieve physical demands; many beaten. Eventually charged with 3 misdemeanors: obstructing public thoroughfare, public nuisance, failure to disperse; bail-$500-$1,000 (normal bail $60-$100); some bailbondsmen charged higher rates than normal. Campuses across country demonstrated in protest.

Murray, 304.Calif.67 sought injunction. May 23: Academic Senate asked Justice Dept to investigate "police and military law-lessness". May 24: In largest turnout in UC history, 85% of those voting in referendum favored returning park to status before May 13. City Council (1) asked Reagan to lift emergency restrictions, remove Nat'l Guard; Reagan refused, (2) called for full investigation by Alameda Co, Justice Dept of alleged misconduct at Santa Rita.

Berkeley residents sought TRO against Alameda Co sheriff, Kessel, 304.Calif.67a; granted. May 25: Reagan rescinded order banning public assemblies. May 26: DC dismissed Halvonik, 55.Calif.32b. H'g for those arrested May 24; ct refused to disqualify itself for prejudice, placed Defs in groups of 10 for trial. May 27: UC-Academic Senate voted for removal of at least part of fence around park. City Manager asked that Nat'l Guard be kept within confines of park; Reagan refused, vowed use of "whatever force is necessary" to control planned Memorial Day march. May 28: Sen McCarthy urged Pres Nixon to put Nat'l Guard under fed'l control to prevent excessive violence; student body presidents of 9 UC campuses appealed to Nixon, asking fed'l marshals for protection, commission to investigate strife. May 29: Sheriff armed deputies, announced shotguns, buckshot would be used in Memorial Day March if situation warranted. May 30: 30,000 Memorial Day marchers protested situation peacefully; barbed wire fences decorated with flowers; some police, Guardsmen put flowers on. Je 30: 130 day `state of emergency' ended, Nat'l Guard, highway patrol, sheriff's men removed; total of 5200 saw duty. City Council voted to lease park from UC if Regents willing. Je 4: Defs from May 22 mass arrest appeared in groups of 10; no guilty pleas. 200 joined in motion to dismiss charges on grounds of misconduct endured after arrest.

Je 6: Police broke up march of 1000, later stormed People's Park #2, on non-Univ property, arresting several dozen, destroying much park equipment, landscaping. Je 9: Calif Chief Justice Traynor approved use of 5 additional ct rooms, 3 extra judges to assure prompt trials. DA announced 200 weeded out for "various reasons" in conferences with police before those arrested in disturbances were charged. ACLUNC Police Conduct Complaint Center reported "marked pattern of selective enforcement of `state of emergency' Regs by police who seemed intent on intimidating young men under 30-especially the `hip', the defiant, those with cameras." Je 19: Berkeley police chief acknowledged officer violated dept rule by carrying unauthorized, high powered Krag-Jorgensen rifle during crisis; refused to name officer or announce action taken, "discipline is an internal matter."

Muni Ct denied motion to dismiss charges against all those arrested on May 22 despite what it conceded were "forceful" arguments that Defs' civil rights had been violated at Santa Rita; "mistreatment is unrelated to guilt or innocence earlier." Charges dropped against 88 of original 482 who filed affidavits that they were bystanders not demonstrating at time; charges against another 66 not pressed, no reason given. July 2: Sheriff recommended 10 members of his dept, including Santa Rita prison commander, be suspended, further disciplined. Aug 5: Berkeley police chief reported police lieutenant suspended 2 days, sergeant 1 day, inspector, 2 sergeants reprimanded for conduct during crisis; declined to elaborate: "internal matter". Nov 18: Student body president acquitted of inciting to riot on May 15; subsequently filed suit challenging UC order of disciplinary probation which barred his official presidency. See Siegel, 24.Calif.36.

Approximately 1000 arrested during 2 weeks: 91 felonies. 32 of 91 felonies either not charged, or allowed to plead to misdemeanors. Charges against 482 arrested May 22 all eventually dropped, lack of evidence. Nearly half of other misdemeanor charges dropped before trial, lack of evidence. Most misdemeanor convictions: $100 fines, 6 mth suspended sentences.

Former People's Park remained fenced, under 24 hour guard by private security police. Numerous incidents occurred at site during following months. Playing field constructed during summer; intramural athletes voted boycott. Part of lot offered to nonprofit black corp sponsored by OEO as parking lot; refused: "scheme." Lot then designated as student parking lot: boycotted. Lot remains fenced, unused.

See also: Siegel v Regents, 24.Calif.36; Murray v Madigan, 304.Calif.67; Kessel v Madigan, 304.Calif.67a; Ackerman, 429.63.

55.Calif.32a. California v Yank, Lustig (Berkeley-Albany Muni Ct, # # C 23843, C 23845) May 15, 1969:
- 29 -

Defs, instructors at Univ of Calif, charged with violating emergency Reg against public meetings, use of sound equipment during People's Park dispute, 55.Calif.32. (See Halvonik, 55.Calif.32b.) Je 26: Defs filed demurrer: Reg conflicts with 1st, 14th Amdts; Military and Vets C §1581 null and void; traditionally unconstitutional to ban means of communication, instead of specific uses. Jy 30: DA dismissed charges.

Paul Halvonik, Esq, ACLUNC, 503 Market St, San Francisco 94105.

Demurrer to complaints and memo in support: MCLL.

And see Yank, 24.Calif. 37, and cases at 11.

55.Calif.32b. Halvonik v Reagan (ND Calif, #5138) May 1969: During civil disturbances in Berkeley (see 55.Calif.32), Defs state governor and Alameda Co sheriff, made, enforced "emergency" Regs: (1) no loitering; (2) "no person shall conduct or participate in a meeting, assembly or parade . . . in or upon the public streets . . . or other public places . . ." May 19: Pls filed class action: (2) overbroad, inappropriate, unconstitutional abridgement of freedom of speech, religion, press, expression; "chilling effect" on 1st Amdt (Dombrowski, 380 US 479, 10 DOCKET 104, 245.16d) and other rights; asked TRO, injunction, declaratory judgment. May 26: DC dismissed for mootness. Jan 20, 1970: Appeal brief filed in CA 9.

Paul Halvonik, Charles C Marson, Esqs, ACLU, 503 Market St, San Francisco 94105.

Complaint for injunctive relief, TRO, declaratory judgment, and memo; supplementary memo, Appt's opening brief, reply brief: MCLL.

And see cases at 72; 304.Calif.67 and .67a; Ackerman, 429.63.

55.Calif.33. California v Glass, Barkley; Barkley v Pitchess (DCA, 2d Dist) Je 23, 1967: antiwar demonstration at Century City Hotel; police ordered all to disperse; 4 Defs arrested: unlawful assembly (Pen C §409); 1 Def arrested: resisting arrest (Pen C §148). Je 28: 4 convicted. Jan 17, 1969: Super Ct, App Dept reversed 4 convictions under §409: improper jury instructions; but held §409 constitutional on face; affirmed conviction under §148. Feb 20: Def under §148 filed habeas petitition in DCA. Pending.

David Ziskind, Esq, 3345 Wilshire Blvd, Los Angeles 90005; Gerald T Manpearl, Esq, 626 Wilshire Blvd, Los Angeles 90017.

Memo opinion and judgment (Super Ct); Appt's opening brief, petition for writ of habeas corpus, points and authorities: MCLL.

55.Colo.1. Perdew, Phillips, Deluxe v Denver (Colo Sup Ct) (432 P2d 239) Jan 6, 1966: Defs went to Fed'l Bldg to protest failure of fed'l gov't to enforce 1965 Voting Rights Act and murder of Samuel Younge; asked to leave; refused; arrested: disturbance of peace (§842.1, Denver Rev Muni C). 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 fed'l govt, (b) Defs had right to be free from unreasonable searches and seizures under 4th Amdt, (c) not illegal to distribute leaflets in fed'l 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: §842.1 unconstitutionally vague and overbroad. Sept 18: Colo Sup Ct directed parties to file briefs on merits, affirmed conviction without oral argument: docket fee untimely paid.

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

Brief of Pl in error (Colo Sup Ct): MCLL.

55.Ill.6. Gregory v Chicago (USSC) (233 NE2d 422, 394 US 111) Def civil rights marchers held lawful, orderly demonstration at Mayor's home; police ordered them to disperse when onlookers threatened riot. Defs refused, arrested: disorderly conduct. Cir Ct convicted; Ill Sup Ct affirmed. Mar 10, 1969: USSC reversed (unanimous) Warren, CJ: (1) no evidence Defs in any way disorderly-conviction totally devoid of evidentiary support violates due process; (2) conviction based on refusal to disperse when ordered, though Defs not charged with refusal to obey police order-equally a denial of due process to convict on charge that was never made. Black, Douglas, JJ, conc: (1) when diametrically opposed groups demonstrate grievances in public streets, often tranquility and order cannot be maintained despite best efforts of police, demonstrators to abide by laws: "It is because of this truth and a desire to promote order and to safeguard 1st Amdt freedoms . . . Ct has repeatedly warned States and governmental units that they cannot regulate conduct connected with these freedoms through use of sweeping, dragnet statutes that may, because of vagueness, jeopardize these freedoms"; (2) states may enact narrowly drawn laws regulating conduct even though connected with 1st Amdt rights; (3) Chicago's broad disorderly conduct ordinance is unconstitutionally vague "meat-ax" ordinance in which what constitutes criminal conduct turns on a police officer's moment-tomoment decision.

Marshall Patner, Esq, 123 W Madison, Chicago 60602.

And see Hibbs, 64.21.

55.Ill.9. Lyons v Chicago Park District (USSC) (237 NE2d 519; 89 SCt 294) Oct 17, 1966: Def-pastor convicted: placing religious tracts in parked cars against anti-litering ordinance. Def appealed to Ill Sup Ct: ordinance overbroad, denies religious freedom. Ill Sup Ct affirmed, upheld statute's constitutionality. Nov 12, 1968: USSC denied cert.

S T Sutton, Esq, 193 1st St, Elmhurst, Ill 60126.

55.La.10. Davis v Francois (CA 5, #25562) (278 FSupp 466, rev'd, rem 395 F2d 730) 1968: Pls arrested under Port Allen ordinance limiting number of picketers to 2 regardless of time, place, circumstance; action for declaratory judgment, injunctive relief against picketing ordinance as violative of 1st and 14th Amdts. Mar: DC (ED La) dismissed: ordinance should be tested under state criminal proceedings, does not warrant fed'l injunction. May: CA 5 reversed (citing Zwickler, 72.3, 389 US 241), held ordinance void for overbreadth: unduly restricted right to protest; did not aim specifically at serious encroachment on state interest or attempt to balance individual's rights to effective communication and state's interest in peace, harmony.

Murphy W Bell, Esq, 214 East Blvd, Baton Rouge 70802; Jack Greenberg, Charles S Ralston, Charles Jones, Melvyn Zarr, Esqs, Suite 2030, 10 Columbus Circle, NYC 10019; Lolis E Elie, Esq, Rm 1110, 344 Camp St, New Orleans 70130.

55.Miss.7. Cameron v Johnson (USSC) (262 FSupp 873, 381 US 741; 389 US 809, 390 US 611) Apr 13, 1964: Pls-civil rights leaders sued Def-Miss Gov, other state officials to enjoin enforcement of 1964 Miss anti-picketing statute (House Bill #546). 3-judge fed'l ct denied relief (2-1), dismissed. USSC, 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 fed'l 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 §2283? (2) Does evidence of selective enforcement
- 30 -

of statute for purpose of deterring exercise of fed'l rights warrant fed'l declaratory and injunctive relief? Oct 9: USSC granted forma pauperis petition. Apr 22, 1968: USSC affirmed, Brennan, J: (1) terms "obstruct," "unreasonably interfere" clear, precise words of common understanding; (2) statute regulates conduct; does not sweep unnecessarily broadly; "does not prohibit picketing ... unless engaged in in a manner which obstructs or unreasonably interferes with ingress or egress to ... the cthouse"; insufficient showing of "special circumstances" of bad faith enforcement, harassment to constitute irreparable injury justifying injunctive relief under Dombrowski. Fortas, J (Douglas, J) diss: (1) record compels conclusion pickets arrested, prosecuted with no hope of success; arrests deliberate plan to intimidate, end voter rights demonstrations; (2) "Dombrowski means precious little ... if the presumption supporting state action is not overcome by facts such as those before us now."

Arthur Kinoy, William Kunstler, Morton Stavis, Harriet Van Tassel, Esqs, Law Center for Constitutional Rights, 588 Ninth Ave, NYC 10034; Benjamin Smith, Esq, 305 Baronne St 70112, Bruce Waltzer, Esq, 335 Decatur 70130, both of New Orleans; L H Rosenthal, Esq, 406 W Capitol, Jackson, Miss 39201.

Jurisdictional statement (USSC): MCLL.

And see Hartfield, Anderson, 55.Miss.9a at 73.

55.Miss.26. Smith v Grady (Hattiesburg) (CA 5, #25,351) 1967: Pls sought to conduct economic boycott; arrested, harassed. Jy 24: Pls sued, requesting preliminary injunction against law enforcement officials enjoining: (1) interference with boycott, (2) prosecution of those arrested without cause, (3) baseless arrests, (4) failure to protect Pls in exercise of 1st Amdt rights. DC (SD Miss) entered order which: (1) limited Pls' right to picket, (2) enjoined any congregations of "well wishers" near picketing sites, (3) upheld right to issue arrest warrants solely on private affidavits with no basis in fact, refused to enjoin pending or future prosecutions. Mar 18, 1969: appeal argued in CA.

Lawrence Aschenbrenner, Esq, 233 North Farish St, Jackson, Miss 39201.

55.Neb.2. Nebraska v Burns and McCaslin (Omaha Muni Ct, #C6-36-16/17) Mar 1968: Defs, priests, led demonstration of priests, nuns, students to protest Wallace for President rally. Spectators jostled demonstrators, who then pelted speakers platform. Police drove demonstrators from auditorium; rioting in ghetto ensued. Defs charged with disrupting public meeting: fined $10 and court costs.
55.NY.19. Street v New York (USSC) (229 NE2d 187, 89 SCt 1354) Je 6, 1966: Def learned sniper had shot James Meredith, took American flag into street, ignited it. Crowd gathered; Def said "We don't need no damn flag.... If they let that happen to Meredith, we don't need an American flag." Def arrested; crime to publicly mutilate, cast contempt by words or act on US flag (NY Pen Law 1425-16-D). Def convicted in Crim ct; NY Ct of App affirmed. Apr 21, 1969: USSC reversed (5-4); Harlan, J: question whether state cts have jurisdiction to decide question essentially fed'l in nature; words spoken by Def, after setting flag afire could not constitutionally be punished because 14th Amdt prohibits state from imposing criminal punishment for public advocacy of peaceful change in institutions; concomitantly, Def's conviction in NY cts denied him rights of free expression under 1st Amdt. Warren, CJ, Black, White, Fortas, JJ, diss.

Osmond K Fraenkel, Esq, 120 Broadway, NYC 10005; Burt Neuborne, Alan H Levine & Melvin Wulf, Esqs, 156 Fifth Ave, NYC 10010; David T Goldstick, Esq, 10 E 40th St, NYC 10016.

Brief, appendix of appellant, jurisdictional statement: MCLL.

55.NY.20. New York v Neier Apr 27, 1968: Def atty arrested while monitoring protest march.

Suit for false arrest filed. Criminal charges dismissed. Civil litigation withdrawn.

Jerry Gutman, NYCLU, 363 7th Ave, NYC 10001.

55.NY.21. Port of New York Authority v Wolin (USSC) (268 FSupp 855; 392 F2d 83; 89 SCt 290) 1966: Resp Vietnam war protesters using Pet's bus terminal peacefully to distribute leaflets, carry placards, set up card tables, and talk to travelers. Pet tried to stop Resps through police, pvt guards. Resps asked declaratory judgment in SD NY that they had right to such activities in bus terminal, to enjoin Pets from restraining them, requiring them to get permit, discouraging public from accepting leaflets. 1967: DC held Resp a public place, may not abridge free speech, expression, but may impose appropriate Regs to govern traffic flow in terminal. Mar 1, 1968: CA 2 affirmed. Nov 12, 1968: USSC denied cert.

Bradley R Brewer, Esq, 340 W 72, NYC 10023. On brief: Eugene G Eisner, David Fitzpatrick, Henry di Suvero, Esqs, NYCLU, 156 Fifth Ave, NYC 10010.

55.Ohio.2. Leedy v Sausser (ND Ohio) 1968: City of Findlay, Ohio threatened Pls-union members with prosecution under ordinance requiring purchase of license for distribution of handbills. Pls sued, obtained permanent injunction against enforcement of ordinance. City officials arrested Pl contrary to ct order; Pl brought damage action in same ct for improper arrest. Pending.

Jack E Gallon, Esq, 435 S Hawley, Toledo 43609.

55.Pa.3. Amalgamated Food Employees, Local 590 v Logan Valley Plaza (USSC) (227 A2d 874; 391 US 308) Dec 8, 1965: Pl-market opened store in Pl shopping center; separated from adjoining highways, entrances to center; market posted no trespassing, no soliciting signs. Dec 17: 6 pickets began peacefully carrying signs: market nonunion, its employees did not receive union wages or benefits. Dec 27: Pls market and center obtained ex parte order from Blair Co Ct of Com Pleas enjoining Defs from picketing, trespassing. After later evidentiary h'g, ct continued original order without modification. Pa Sup Ct affirmed on sole ground that Def's conduct constituted trespass on Pls' property. May 20, 1968: USSC reversed, 6-3, Marshall, J: shopping center serves as community business block, is freely accessible to people in area and passing through, Marsh v Ala, 326 US 506, thus state may not delegate power through use of trespass laws, wholly to exclude members of public wishing to exercise 1st Amdt rights on premises in manner and for purpose generally consonant with use to which property actually put; restricting Defs to areas outside shopping center substantially hindered ability of Defs to express their message to patrons of market; Pls' reliance on property rights amounted to no more than naked title since no disruption of normal business activity resulted, nor was there invasion of privacy which would result were private home involved. Black, Harlan, White, JJ, diss.

Bernard Dunau, Esq, Dupont Circle Bldg, Washington, DC 20036.

55.Pa.4. Pennsylvania v Haugh (Pa Super Ct, #1152) Jy 4, 1967: Def, 20, and another at annual college parade displayed US flag inscribed "MAKE LOVE NOT WAR, THE NEW AMERICAN REVOLUTIONARIES" to protest Vietnam War; arrested: exposing flag to public view upon which words had been placed (18 PS §4211). Oct 2: Def's request at arraignment for atty rejected: Def making $40/wk not entitled to appointed counsel. Later, still without atty, Def denied severance, waived jury trial, stood trial, testified. Nov 9: Def convicted: $200, 1-2 mths. Oct 1968: appeal filed: (1) act unconstitutional restraint of free speech (Street v New York, 89 SCt 1354, 55.NY.19; (2) no proof of intent to disgrace flag as required by Street; (3) Def's actions "political demonstration" expressly
- 31 -

excepted by statute; (4) due process denied at trial. Pending.

Harry E Sprogell, Esq, Packard Bldg, Philadelphia 19102.

Brief for Appt: MCLL.

55.Wash.1. Seattle v Dixon (Seattle Muni Ct) Mar 29, 1968: Defs-Negroes sat-in in principal's office at Franklin High. Je 17: Defs convicted: unlawful assembly. Jy 1: Appeal: denial of 1st Amdt rights. Pending.

ACLU, 1412 18th St, Seattle 98122.

And see cases at 24.

56. Against and Concerning Minors (including Contributing to Delinquency) (see also 24, 430, 560)
See Brennan, 24.NY.13.
57. Against Vagrancy, Loitering (and see 304.)
And see Erwin, 295.19.
57.28. Ricks v District of Columbia (DC Ct of App) (228 A2d 316) Feb 2, 1968: Pls including Def in 51.DC.4, filed appeal of vagrancy conviction: statute (DC Code §§22-3302(1), (3), (8)) violates 5th Amdt, requires prior criminal convictions be considered bearing on guilt or innocence, not merely for impeachment; questions regarding enforcement practices, policies explained by police officials: vagrancy laws used to round up suspects when not enough evidence for arrest on meatier charge: since there are "nothing but thieves" in slum Pl lives in, vagrancy arrests considered logical means of "crime prevention." Dec 23: CA DC held statute unconstitutionally vague.

Monroe Friedman, Sol Rosen, Esqs, Munsey Bldg, Washington, DC 20004.

And see Williams, 51.DC.4.

57.29. Carmel v Parr (Calif DCA, #26594) Jy 31, 1968: City adopted ordinance, making criminal, inter alia, sitting on lawns; accompanying declaration stated influx of "hippies" necessitated ordinance. Aug 18: Appt arrested while participating in public assembly discussing ordinance: sitting on lawn. Aug 29: Muni Ct overruled Appt's demurrer to complaint. Nov 1: Super Ct denied Appt's petition for writ of prohibition. Apr 28, 1969: Appt filed opening brief in DCA: ordinance: (1) violates equal protection of law, (2) unconstitutionally vague, (3) invades free speech, peaceable assembly guarantees of 1st Amdt, (4) conflicts with general laws of Calif, is thus unconstitutional, (5) not adopted as prescribed by law, is therefore invalid. Pending.

Paul N Halvonik, Esq, ACLUNC, 503 Market St, San Francisco 94105; Francis Heisler, Herbert A Schwartz, Richard M Silver, Esqs, PO Drawer 3996, Carmel 93921.

Appt's opening brief, reply brief: MCLL.

57.30. Lazarus v Faircloth (SD Fla; #68-1249-Civ-TC) Pl, single man, 22, supports self by temporary jobs in winters in Miami, arrested for vagrancy 3 times in one mth, acquitted the 2 times he had counsel: Pl sued for declaratory, injunctive relief to protect from harassment, arrest (2 USC §1983); pleaded violations of 1st, 4th, 5th, 14th Amdts, commerce clause. May 11, 1969: DC granted TRO. 3-judge ct convened, considering jurisdiction. Pending.

Miami Economic Opportunity Legal Services Program, Inc, 395 NW 1st St, Miami, Fla 33128.

57.31. Smith v Hill (ED NC) (285 FSupp 556) Jy 10, 1967: Def-Hill, Recorder's Ct judge (Denn, NC) announced crackdown on vagrants, loafers, Police arrested Pls, 2 Negroes: violation of ordinance barring from public streets tramps, vagrants, persons under suspicion or without visible means of support. Both Pls employed on that day; charges later dropped. Oct 12: Pls maintained they still had standing to sue: prior arrest, authorities' intention to continue using statute; filed class action under 28 USC §1343, 42 USC §1983 seeking injunction against further enforcement of vagrancy statute, declaration of its unconstitutionality: (1) vague, no fair notice, gives administrative officials arbitrary power, (2) makes class of people stay off streets, restraining freedom of movement protected by commerce, privileges and immunities, due process clauses, (3) allows arrest on "mere suspicion," against 4th Amdt: probable cause needed for arrest, (4) violates 5th Amdt: Pl must account for himself or go to jail, (5) infringes 13th Amdt: no compulsory employment; 14th Amdt: due process, (6) invades rights 9th Amdt reserves to people, violates 8th Amdt: cruel and unusual punishment. Apr 11, 1968: DC granted injunction, held ordinance void for vagueness; awarded Pls atty's fees.

J LeVonne Chambers, Esq, 216 W 10th St, Charlotte, NC 28202; Conrad O Pearson, Esq, 203½ E Chapel Hill St, Durham, NC 27701; Samuel S Mitchell, Esq, 126½ E Hargett St, Raleigh, NC 27601; NAACP Legal Defense Fund Inc, 10 Columbus Circle, Suite 1790, NYC 10019; Prof Anthony Amsterdam, School of Law, Stanford University, Palo Alto, Calif 94305.

57.32. Gomez v Layton (CA DC) (394 F2d 764) 1968: Police stopped, questioned Pl twice while walking late at night: "vagrancy observation" form filled out, Pl warned if he was seen in area again he would be arrested. DC dismissed action for declaratory and injunctive relief: (1) complaint failed to state case or controversy, (2) Pl had adequate remedy at law if arrested, (3) failed to demonstrate irreparable injury. April: CA DC vacated and remanded: complaint alleging police vagrancy observation practice deprived Pl of liberty without due process in contravention of 5th Amdt, stated case or controversy; cts have power to enjoin unconstitutional police practices, are not always required to await criminal trials which may never materialize in order to vindicate crucial rights.

James B Blinkoff, Stephen P Goldman, Ralph J Temple, Esqs, 1700 K St NW, Washington, DC 20006.

57.33. California v Magezis, Biderman (San Francisco Municipal Ct) 1969: Defs among theater group which presented impromptu play across street from Lincoln High School. Play included portraying of police officer defecating on students, and use of word, "shit." Defs charged with loitering in or about school, violations of state, local obscenity laws. Before trial state obscenity charge dropped on motion of DA. Ct granted Defs' motion to dismiss local charge on constitutional grounds. At conclusion of DA's case, Def asked acquittal on grounds evidence did not establish Defs were idle. Judge denied: loitering means lurking around to do unlawful act or doing unlawful act near school, unlawful act being disturbing the peace; held that use of word "shit" in hearing of women and children in loud, boisterous manner, is disturbing peace; permitted DA to reopen case to prove "shit" had been said loudly. Jury convicted.

Paul Halvonik, Esq, ACLU, 503 Market St, San Francisco 94105.

58. Against Trespassing (see also 541, 542, 551, 552)
See Cornell Students, 24.NY.25; Johnson, 365.17.
58.Calif.32. Van Nuys v Shinoff (Los Angeles Muni Ct-Van Nuys Branch, #620601) Oct 18, 1967: Def arrested while speaking at anti-draft rally at Valley State College: trespassing, resisting arrest, remaining on school
- 32 -

property when asked to leave, interfering with school procedures. Dec: Def, maintaining innocence, pleaded no contest to trespassing; Muni Ct dismissed other charges. Jan 4, 196: Def sentenced: 10 days jail; 3 yrs summary probation.

Neil M Herring, Esq, 3175 W 6th St, Suite 203, Los Angeles 90005.

And see 24.

58.Calif.33. Oakland v Demonstrators (Oakland Muni Ct) Dec 19, 1967: 67 Defs arrested during peaceful protest at Oakland Induction Center. Dec 20: 11 pleaded not guilty; 8 asked continuances; rest pleaded no contest, sentenced 21 to 90 days in jail.
58.Calif.34. California v Garrett (SF Muni Ct) Dec 1967: Def-Black Student Union leader at San Francisco State joined demonstrators protesting summary dismissal of students. Demonstrators entered locked administration building, shut down classes. Feb 1968: Def, roommate arrested, charges stemming from demonstrations; police ransacked apartment. Bail: $13,000 for both. Pending.

Assemblyman Willie Brown, Esq, State Office Bldg, 10th and Capitol Mall, Sacramento 95814.

And see cases at 24.

58.Calif.35. California v Long (Super Ct, App Dept #269) March 21, 1966: Def appeared at Oakland Induction Center pursuant to induction order, wearing sign critical of LBJ, Vietnam war; arrested: disturbing the peace when he refused to remove sign. Charge later changed to trespassing. Jy 25: convicted on trespassing charge. Dec 27, 1967: App Dept reversed trespass conviction: no adequate showing of intent to trespass.

Paul N Halvonik, Esq, Marshall W Krause, Esq, ACLUNC, 503 Market St, San Francisco 94105. Michael E Ballachey, Esq, 2020 Milvia St, Berkeley 94704.

Opinion (App Dept): MCLL.

58.Md.5. Maryland v Bell (Md Ct of Special Appeals, #210) 1968: Bowie State College students remained in State Capitol bldg after closing; arrested: blocking bldg under Art 27, §577 AC of State C. Feb 14, 1969: brief in support of motion to dismiss filed by Def. May 15: Motion denied. Je 3: Appeal filed to Ct of Spec Appeals. Pending.

Gerald Smith, Esq, American Bldg, Baltimore, Md 21202; Melvin Zarr, Haywood Burns, Esqs, Lawyers Comm for Civil Rights Under Law, 233 N Farish St, Jackson, Miss 39201.

58.Mass.1. Egleson v Massachusetts (USSC) (244 NE2d 589, cd 89 SCt 1793) 1969: Def draft resistance group member sought to inform pre-inductees of rights, went into local draft bd bldg over custodian's protest to lecture inductees awaiting transport to draft physical. Def arrested, convicted: trespass under Mass statute forbidding entry into bldgs against wishes of those with control over them. Mass Sup Ct affirmed. Je 2: USSC denied cert.

John G S Flym, Esq, 148 State St, Boston 02109.

59. Against Miscellaneous Criminal Activities
Report: Appalachia: case study in repression. Southern Conference Education Fund, 3210 W Broadway, Louisville, Ky 40211. 8 pp. MCLL.
59.31. US v Hensley, Stacy, Turner, Engle (USSC) (374 F2d 341, 88 SCt 25) Je 17, 1963: Defs miners arrested: violating fed'l train wreck statute (conspiracy to blow up RR bridge); freed on bail. Def Stacy turned state's evidence. Oct 1963: fed'l grand jury indicted 5 miners, 1 dynamite supplier. Feb 7, 1964: gov't moved to remove trial from coal field area: impossible to get jurors not intimidated by Defs. DC denied. Jy 1964: charges against Def Gibson dismissed on gov't motion; 4 Defs convicted. CA 6 affirmed. Je 17, 1967: USSC denied cert. Petition for reh'g: (1) denial of right to counsel—after counsel retained, Commr questioned Defs alone, (2) failure to grant separate trials, (3) jury to pass on voluntariness of confessions before general verdict, (4) gov't failed to make record of grand jury proceedings, (5) failure to strike testimony of gov't witnesses whose prior statements FBI destroyed, (6) improper conduct of gov't witnesses. (7) unlawful searches and seizures, (8) no proof Defs intended to wreck train. Oct 9: USSC denied reh'g.

Paul O'Dwyer, Esq, 40 Wall St 10005; I Philip Sipser, Esq, 50 Broadway 10004; Leonard Boudin, Henry Winestine, Esqs, 30 E 42d St 10017; Committee for Miners, 96 Greenwich Ave 10006; all of NYC. Dan Jack Combs, Esq, 205 Carolina Ave, Pikeville, Ky 41501.

59.75. Kirkland v Wallace (CA 5) (403 F2d 413) Pls engaged in boycott demonstrations; arrested; Ala anti-boycott statute. Pls sued for: (1) preliminary injunction against prosecution of Pls, (2) declaration that statute unconstitutional. Ala Atty Genl dropped charges against Pls, moved Pls' 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 of 1st Amdt rights of peaceable petition. Oct 22, 1968: CA 5 reversed: (1) DC erred in applying doctrine of abstention; (2) Zwickler v Koota, 72.3 (389 US 241, 1967) emphasized duty of fed'l cts to vindicate fed'l rights especially when challenge is that statute on its face repugnant to 1st Amdt; (3) 3-judge ct not required where "prior decisions make frivolous any claim that ... state statute on its face is not unconstitutional"; (4) on its face, statute prohibits actions protected by 1st Amdt; (5) Ala C, Title 14 §56 unconstitutional, void; (6) Appt entitled to declaratory judgment to that effect, DC can decide propriety, necessity for injunctive relief, DC need not convene 3-judge ct; remanded to DC.

Alvin Bronstein, Esq, LCDC, 603 N Farish St, Jackson, Miss 39202. Donald Jelinek, Esq, 245 Vicksburg St, San Francisco 94114.

59.85. California v Gray, Coleman (DCA 2d Dist) (63 CR 211) Defs, civil rights workers, placed signs reading "B—, B—, B—" alongside those already posted on behalf of candidates for political office; arrested: violation of ordinance prohibiting placing of placards on private property without consent of owner. Muni Ct convicted. Defs appealed: denial of 1st Amdt rights; Defs convicted but others putting up political signs were not. Sept 11, 1967: DCA reversed: instructions given to trial jury, stating that it was Defs' burden to prove ordinance discriminatorily enforced, placed too heavy burden of proof on Defs, constituted denial of equal protection.

David Binder, Esq, ACLU, 3810 Wilshire, Los Angeles 90005.

59.91. Mississippi v Chinn (Miss Sup Ct) (210 So2d 666) 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. Hinds Co Ct convicted: 10 yrs. 1969: Miss Sup Ct reversed.

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

59.98. Cleveland v Anderson (Ohio Ct of App) (13 Ohio App 2d 83) Nov 13, 1965: Benefit for The Militant newspaper; police arrested some: liquor violations;
- 33 -

remainder asked to leave; Def Schneider moved to center of all, said "They can't make us leave. Make the sons of bitches us out"; arrested; melee broke out; 30 arrested: wilfully oneself part of disorderly assemblage. Jy 12, 1966: assembly charges dismissed: faulty police affidavits. Jy : at height of Hough ghetto outbreak, 30 rearrested on assembly charge. Feb 6, 1967: 8 Defs convicted; 21 . Feb 15, 1968: Ct of App reversed: unreasonable on right of free assembly (US, Ohio Constitutions); in disorderly assembly defined so vaguely neither police citizens can ascertain what conduct is proscribed in violation 14th Amdt.

Gordon, Esq, Standard Bldg, 1370 Ontario 44113; Stanley Toliver, Esq, 811 Quincy Ave 44104, both of Cleveland.

(Ct of App): MCLL.

59.106. New York v Radich (NY Ct of App) Artist displayed American flag shaped like a cadaver hanging from 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 Pen C. Def contends artist's right to create art sacred even to warrant offending some citizens; as sacred as man's religion. Convicted. App term affirmed. Def appealed to NY Ct of App. Pending.

Richard Green, Esq, NYCLU, 156 Fifth Ave, NYC 10010.

59.107. Delaware v Benett, Bertolette (Family Ct, Wilmington) Defs published story in underground newspaper which called Jesus a bastard, reviewed movie on necrophilia. May 26, 1969: Defs arrested: blasphemy, lewdness. May 28: Released on $6,600 bail. First time 1826 statute used in 20th Century. Case retired without costs.

Max S Bell, Esq, DuPont Bldg, Wilmington 19801.

And see cases at 12, 52.

59.108. Watts v US (USSC) (402 F2d 676; 89 SCt 1399) Def arrested: threatening life of President by declaring: "If they ever make me carry a rifle the first man I want in my sights is L.B.J." Convicted. CA DC affirmed. Apr 21, 1969: USSC, per curiam, 6-3, reversed: words spoken by Def not threat against life of President, for statute making criminal form of pure speech must be interpreted with commands of 1st Amdt clearly in mind; what is threat must be distinguished from what is constitutionally protected speech; `willingness' requirement of statute might convict Def if his charged words indicated `apparent' determination to carry them into execution; but, whatever `willingness' requirement implies, statute initially requires Gov't to prove true `threat'—failing to prove must amount to acquittal as the kind of political hyperbole indulged in by Def fits within statutory term.

Daniel Marcus, 900 - 17th St NW, Washington, DC 20006; Ralph J Temple, ACLU, 1424 - 16th St NW, Washington, DC 20036; Melvin L Wulf, ACLU, 156 Fifth Ave, NYC 10010.

Motion in forma pauperis, ACLU amicus brief (USSC), memo of amicus curiae on petition for cert: MCLL.

59.109. New York v Rubin (NY Crim Ct, #A8084/68) June 1968: Police broke into Def's apartment, arrested him: criminal possession of dangerous drugs. Police asked Def numerous questions about his political activities in Chicago, communist beliefs. Def's atty moved to suppress evidence: obtained with phony, invalid search warrant. Pending.

William Kunstler, Esq, 588 Ninth Ave, NYC 10034.

And see Dellinger, 54.32, cases at 303.

59.111. Johnson v Florida (USSC) (202 So2d 852, 391 US 596) Def sat on park bench at 4:25 am, arrested: vagrancy; convicted. Def appealed: essential-elements of statutory misdemeanor not proved: wandering about, absence of lawful purpose. Fla SCt affirmed. Je 3, 1968: USSC reversed, per curiam: (1) DA has burden of proof of essential elements; (2) no evidence of "wandering or strolling around from place to place." Black, Stewart, JJ, would dismiss. White, J (Harlan, J) diss.
59.112. Wallace v Sampson (Greenwood) (ND Miss, #GC 6840-S) 1968: City anti-noise ordinance barred loudspeakers which could be heard over 50 feet, with numerous exceptions, particularly for merchants. Sept 11: Pls sued to enjoin enforcement; trial set for Oct 28. Oct 18: City amended ordinance deleting exception for merchants, extending limits from 50 to 125 feet. Pls moved for continuance to test amended ordinance; granted. Trial set for Apr 1969.

Robert Fitzpatrick, Esq, 23 North Farish St, Jackson, Miss 39201.

59.113. Cortez v Schroering (Louisville) (WD Ky, Louisville Div, #6121) May 8, 1968: Pl Reid, black real estate man, arrested: allegedly physically assaulted and battered by Def Clifford, white policeman. Clifford, temporarily suspended due to black community protests, reinstated to force. May 27: Pls, others spoke at rally to protest reinstatement, beatings by police, US domestic, foreign policies; later disorder broke out in West End. June 1: Pl Cortez, arrested at 2 AM, not allowed phone call, charged: "common nuisance" for remarks made May 27. Noon: Def Judge Colson, Louisville Police Ct, held "Ct of Inquiry," ordered Pls Hawkins, Sims arrested; set $50,000 bond each (normal bond $200). Jy 28: Def Colson adjourned scheduled trial one mth, refused to reduce bonds. Aug 20: Def Colson held h'g, amended common nuisance charge on spot, convicted Cortez of "breach of peace": 30 days but credited time already served (51 days more than sentence); bound Defs to Grand Jury on charge of violating KRS 437.110(2) (conspiracy to destroy private property).

Aug-Sept: Def Schroering, State's Atty, failed to present case to grand jury despite definite date (Aug 28) set. Sept 24-25: Kentucky Un-American Activities Comm held h'gs in Frankfort; Def Hyde, Louisville Police Chief, mentioned names of Pls Bryant, Cosby as instigators of disorders. Oct 4: Cir Judge Jorris dismissed charge of violation of KRS 437.110(2); set $10,000 bail on charge of uttering worthless money orders that had been placed against Cortez while in jail (average bail: $300). Oct 17: Grand jury indicted Cortez, Hawkins, Sims, Bryant, Cosby, Reid: KRS 437.110(2). Apr 1969: trial set, venue changed from Louisville to Munfordville, Hart County. Jan 16, 1969: Pls filed suit seeking declaratory relief, injunction, equitable relief; sought 3-judge fed'l ct to restrain enforcement of KRS 437.110(2) on ground of unconstitutionality on its face; alleged deprivation of fair, impartial trial, interference with visitation rights of counsel, prejudicial pre-trial publicity generated by Defs. June 5: DC granted motion to dismiss.

Daniel Taylor, III, Esq, 528 W Jefferson St, Louisville 40202; William Kunstler and Dennis Roberts, Esqs, LCCR, 511 Fifth Ave, NYC 10017; Neville Tucker, Esq, 308 W Broadway, Louisville 40202; Robert Delahanty, Esq, 808 Center Bldg, Louisville 40202; Percy Julian, Jr, Esq, 330 E Wilson St, Madison, Wisc 53703.

Complaint: MCLL.

59.114. US v Tijerina (USSC) (407 F2d 349, cd 90 SCt 76) Oct 22, 1966: Appt, Spanish-American leader, led demonstration at Carson Nat'l Forest, NM, concerning Spanish, Mexican land grants guaranteed by 1848 Treaty of Guadalupe Hidalgo and denial of grazing permits by US gov't. Mar 16, 1967: Appts indicted: forcibly assaulting, resisting officers (forest rangers), 18 USC §111,1114. Oct 20: Def moved for change of venue; suggested NY, Chicago, or San Francisco; denied. DC NM convicted Appts. Appeal filed in CA 10: (1) indictment insufficient: did not state that
- 34 -

rangers had been designated by Sec'y of Agriculture to come under provisions of §1114; (2) trial should not have been held in NM: unfavorable publicity; (3) insufficient evidence. Feb 14, 1969: CA 10 affirmed. Oct 13: USSC denied cert.

Morton Stavis, Esq, 744 Broad St, Newark 07102; Beverly Axelrod, Esq; Alberto Gonzales, Esq, 122 Grant, Santa Fe 87501; Arthur Kinoy, William Kunstler, Esqs, 588 9th Ave, NYC 10034.

And see Tijerina, 41.101, 54.

60. CIVIL SANCTIONS (and Contempt Charges)
UN DECLARATION OF HUMAN RIGHTS: Art 12
61. Against Defamation, Libel, Slander (see also 53)

61.30. Frick v Stevens Cumberland Co, Pa, Com Pleas Ct, #65/1) 1964: Pl, child of late industrial tycoon Henry Clay Frick, sued to enjoin sale of Def-historian's book, "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 of ethics, good conscience, Christianity. Je 16, 1965: h'g. Aug 2: Def moved to dismiss: suppression of Def's book would violate 1st Amdt. May 25, 1967: complaint dismissed; Weidner, J, concluded, inter alia: (1) all Def's statements re Frick were true; (2) injunctive relief not available to deter freedom of speech, press; (3) no libel exists absent showing of malice; (4) estate, descendants of Frick cannot recover.

George F Douglas, Jr, Esq, 27 High St, Carlisle, Pa 17013.

Opinion by Weidner, J: MCLL.

61.36. Dodd v Pearson (USSC) (279 FSupp 101, cd 89 SCt 2021) Apr, 1966: Def newspaper columnists received, published information on lobbying they knew surreptitiously copied from Pl-Senator's office files. Pl sued: conspiracy, conversion, privacy invasion, libel. DC granted Pl's motion to limit discovery attendance to witnesses, attys, litigants. Jan 15, 1968: jury found for Defs: no privacy invasion because Pl public official. CA DC affirmed. Je 9: USSC denied cert, Warren, CJ, abstaining.

John F Sonnett, Esq, 1000 Vermont Ave NW 20005; Warren Woods, Esq, 1735 K St NW 20006; both of 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, made slanderous remarks about Pl. Defense: (1) Def acting within scope of employment, (2) Def privileged. Pl requests $5,000,000. Issue whether Pl must answer questions on extramarital relations under 5th Amdt. Trial Jan 1970.

Gostin and Katz, Esqs, 1540 6th, San Diego, Calif 92101.

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. Def's motion to strike complaint overruled; trial pending.

Elmer Gertz, Esq, 120 So LaSalle St, Chicago 60603.

Complaint: MCLL.

61.49. Carroll v Princess Anne Co (USSC) (230 A2d 452, rev'd 393 US 175) 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 on-lookers; 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 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. Nov 19, 1968: USSC reversed; Fortas, J: (1) proper procedure to challenge constitutionality of injunction is judicial review, not defiance, since underlying question of local authorities' power to restrict Pl's rallies and meetings remains, case not moot tho injunction expired, (2) 10-day injunction invalid because of defective procedure Def used to obtain it, (3) in extraordinary circumstances cts may issue ex parte TRO but only with showing of impossibility to serve or notify Pls, (4) order limiting 1st Amdt rights should be as narrow as possible to accomplish essential needs of public order, (5) lack of participation of party seeking to exercise 1st Amdt rights reduces possibility of narrowly drawn order, prevents sufficient assurance that adversary procedure will produce balanced analysis, (6) Md's post-issuance h'g procedure does not overcome infirmity of original ex parte proceeding. Black, J, conc; Douglas, J, joined opinion.

Melvin L Wulf, Eleanor Holmes Norton, Esqs, ACLU, 156 Fifth Ave, NYC 10010; William H Zinman, Esq, 500 Equitable Bldg, Baltimore 21202.

Petition for writ of certiorari: MCLL.

61.52. Yorty v Los Angeles Times (Calif DCA, 2d Dist, #35021) Def published cartoon depicting LA mayor Yorty. Pl mayor brought libel suit. Feb 1969: Super Ct held cartoon not libelous in itself. Sept 1969: Pl filed appeal. Pending.

Gibson, Donn, and Crutcher, Esqs, 634 S Spring St, Los Angeles 90012.

61.53. Dreksler v Time, Inc (Cir Ct, Chicago, #69L8556) Dec, 1968: Def Life magazine published alleged picture of Pl, unidentified by name, with caption: "This club-swinging cop was photographed by newsman he attacked and arrested." Je 10, 1969: Pl sued in Cir Ct for $700,000: willful intent to defame by publication of known false, injurious information. Pending on jury calendar.

Kirkland, Ellis, Hodson, Chaffetz, Masters, Esqs, 130 E Randolph, Chicago 60601.

And see cases at 304.

61.54. Goldwater v Ginzburg (DC NY) (261 FSupp 784) Oct 1964: Defs Ginzburg, Boroson published article in Fact magazine on psychological fitness of 1964 presidential candidate. Pl alleged malicious defamation, said article characterized him as paranoid, latent homosexual, anal, Hitler-like character; asked $2 million damages. May 1968: Jury awarded $50,000 punitive damages against magazine, $25,000 against Ginzburg, $1 compensatory damage against each of 3 Defs.

For defense: Harris Steinberg, Esq, 22 E 36th St, NYC 10016.

- 35 -

61.55. St Amant v Thompson (USSC) (196 So2d 255; 390 US 727) Def said on TV that Pl deputy sheriff accepted bribes: Pl sued for libel: Co Ct awarded Pl $5000; Ct of App reversed. Sup Ct reversed. Apr 1968: USSC reversed (8-1), White, J: Def must show "reckless disregard for truth" to libel public official; 1st Amdt protects even erroneous publications of matters concerning public.

Russell J Schonekas, Esq, Pere Marquette Bldg, New Orleans 70112.

62. By Injunction in Labor Disputes (and see 24)
UN DECLARATION OF HUMAN RIGHTS: Art 23 (4)

Forms: Motion to vacate temporary injunction, affidavit, memo of law, by Victor Rabinowitz. 1 Civil Rights Handbook 131-138 (Nat'l Lawyers Guild, Box 673, Berkeley 94701.)

And see Giumarra v UFWOC, 55.Calif.23.


62.8. Bd of Educ, Borough of Union Beach v New Jersey Educ Assn. (NJ Sup Ct) (53 NJ 29) Nov 25, 1968: Pl-Bd of Educ obtained injunction against Def promulgating, disseminating, or implementing its "sanctions program," under which Assn declares conditions in school dist unprofessional, urges members not to accept employment there; ultimate penalty for teacher's violation of sanction is expulsion from Teacher Assn. Ct held: sanction is equivalent of strike and thus unlawful on basis of NJ common law.

Kaye, Scholer, Fierman, Hays and Handler, Esqs, 425 Park Ave, NYC 10022.

62.9. Public School Teachers v Orleans Parish School Bd (New Orleans Civil Dist Ct) 1969: Public school teachers struck, then reached agreement with school bd. Later Pls alleged they suffered reprisals for walkout, notwithstanding agreement: some previously permanent teachers employed only as substitute teachers after strike. Pls sued, asked ct to enjoin bd from reprisals or other punitive action. Pending.
62.10. Holland Teachers v Bd of Educ (Michigan) (Mich Sup Ct) (380 Mich 314) 1968: Pl-state obtained injunction after teachers refused to sign contracts, report to work. Sup Ct held injunctions in labor disputes only proper upon showing of violence, irreparable injury, breach of peace; prima facie showing of prohibited activity by public employees insufficient; state cannot compel exercise of equity power in every case without interfering with independence of judiciary; remanded to appellate ct to consider whether school dist had refused to bargain in good faith.

Theodore W Swift, David C Coey, Edmund E Shepherd, G Michael Warren, Esq, 900 Am Bank & Trust Bldg, Lansing 48933.

Appt's brief (Mich SCt): MCLL.

62.11. Illinois ex rel Clark, Atty Gen'l v Belsamo (Cir Ct, Cook Co, #68 CH 4131) United Farm Workers Organizing Comm, AFL-CIO, instituted boycott of non-union grape producers, including Def grape growers, Giumarra. Oct 14, 1968: Atty Gen'l sued for injunction against Def for selling grapes in Chicago under false labels to circumvent union boycott, violating Ill Consumer Fraud Act, Uniform Deceptive Trade Practices Act, Fraudulent Advertising Act. Pending.

Saul R Wexler, Asst Atty Gen'l, State of Ill, 160 N LaSalle St, Chicago 60601.

Movie for rent: Huelga, 50 mins color, $40: Am Documentary Films, 379 Bay St, San Francisco 94133; 336 W 84th St, NYC 10024.

63. By Injunction in Racial Situations (see also 40s, 550s)

63.43. Tracy v Robbins (CA 4) (373 F2d 13) 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: DC SC dismissed as to Def-Mayor and Def-Town Atty, retained as to Def-Chief of Police. Feb 7, 1967: CA 4 dismissed appeal because not proper as interlocutory. On remand, complaint withdrawn after Def-Town repealed ordinance.

Russell Brown, Esq, 39 Spring St, Charleston, SC 29403, Henry M di Suvero, Esq, ACLU NJ, 45 Academy St, Newark 07102.

63.53. Chinn v Johnson (SD Miss) (294 FSupp 909) 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 fed'l 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. Jan 1969: DC held statute constitutional, denied relief. State dropped charges.

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

63.55. 24 Merchants v Civil Rights Organizations (DC Miss, Holly Springs) 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. DC granted TRO. Defs later agreed to Pl's motion to dismiss.

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

And see Liberty Grocery, 63.51, 13 DOCKET 33; Chinn, 55.Miss.17, 17a, 12 DOCKET 12; Belzoni, 55.Miss.22, 13 DOCKET 22; Grenada, 55.Miss.24a, 12 DOCKET 12; Selma Bus Lines, 55.Ala.12, 13 DOCKET 20; Allen, 64.11, 12 DOCKET 18.

63.60. Moore v Weisman (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. Jy 25: DC remanded to Ct of Common Pleas, Phila Co. Pending.

Norris, Brown and Hall, Esqs, 1510 Chestnut St, Philadelphia 19102.

63.61. Ditto v Chicago (USSC) (86 Ill App2d 340, 89 SCt 626) 1966: Pet, black leader with Rev Martin Luther King, Jr, held series of demonstrations in Resp city. Aug 19: City, police sup't got Ill Super Ct injunction requiring Pet to notify police of future demonstrations, time, place. Aug 23: Pet cited for contempt. Aug 26: h'g before Ct. Sept 6: ct refused Pet's timely request for jury: 6 mths. Pet appealed: injunction void, contempt conviction should be too; Pet should have had jury trial. App Ct affirmed: injunction's invalidity no defense, it must be obeyed until set aside, Walker v Birmingham, 388 US 307; contempt Def with 6 mths sentence not entitled to jury. App petitioned USSC for cert: (1) should Walker be overruled? (2) was Def with 6 mos contempt sentence due jury? Jan 13, 1969: USSC denied cert.

Richard F Watt, Irving M King, Robert H Nichols, Esqs, 105 W Adams St, Stanley A Bass, 11 S LaSalle, Esq, all of Chicago 60603.

- 36 -

64. Against Miscellaneous Activities

64.17. Alameda Co v Regents of Univ of California (Alameda Co Super Ct) Oct 16, 1967: Pls alleged scheduled use of Univ facilities for student discussion of draft 1 day prior to massive Oakland draft protest illegal: threat to public order, promotion of illegal acts against Selective Service. Super Ct granted TRO. Oct 16-17: 6,000 attended rally on campus despite ct order. Oct 17: TRO challenged: overbroad, preempts fed'l cts. Oct 24: Pls withdrew complaint after Regents passed resolution prohibiting use of Univ facilities for illegal activities.

Profs Richard M Buxbaum, Caleb Foote, School of Law, Univ of Calif, Berkeley 94720.

And see cases at 24.

64.18. Gallagher v Mission Tenants Union (San Francisco Super Ct, #590639) Pl asked injunction limiting number of tenant-Defs that could picket his realty office in protest of alleged slum-landlord practices. Defs: injunction limiting number of pickets would abridge free speech (Ex parte Lyons, 27 CA 2d 293); labor union precedents do not apply because of legal difference between labor union and unincorporated assn of tenants: latter acting individually, not reinforced by economic effects of strike, not known to represent large organized memberships. Apr 19, 1968: Ct granted TRO, order to show cause. Defs planned appeal, but Pl settled out of court.

Marvin S Kayne, Esq, San Francisco Neighborhood Legal Assistance Federation, 2701 Folsom St, San Francisco 94110.

Complaint for TRO and preliminary injunction; order to show cause re TRO, preliminary injunction; Defs memo: MCLL.

And see 423.

64.19. A G Corp v SCLC (Miss Sup Ct) Sept 1966: Def-SCLC, others boycotted Pl's store; Pl sued to recover $900,000 for injury to business, attached $10,000 funds, property of local Negro cooperative. Nov 16, 1967: trial ct denied motion to vacate attachment; judgment against SCLC for $114,000. Apr 1969: appealed to Miss Sup Ct.

Fred Banks, Melvin Zarr, Esqs, Lawyers Comm for Civil Rights Under Law, 233 N Farish St, Jackson, Miss 39201. Margaret Cotton, Esq, NAACP Legal and Educational Defense Fund, Inc, 10 Columbus Circle, NYC 10019.

64.20. California v Los Angeles Free Press (LA Super Ct, #95898) Aug 8, 1969: Def-underground newspaper published names, addresses, phone numbers of 80 state narcotics agents, reported activities of UCLA campus police. Aug 11: Atty Genl obtained restraining order in LA Super Ct prohibiting Def from publishing other Narcotics Bureau documents; brought civil action alleging invasion of privacy, obstruction of justice, breach of constructive trust. Pending.

Sidney I Pilot, Esq, 1901 Ave of the Stars, Los Angeles 90067; H Peter Young, Esq, 1237 So Bedford Dr, Los Angeles 90035.

Amicus: ACLU, 323 W 5th St, Los Angeles 90013.

And see Feldman, 64.20a; Dock of the Bay, 295.15; cases at 304.

64.20a. Feldman v Los Angeles Free Press (LA Super Ct, #958886) Aug 8, 1969: Def-underground paper published names, addresses, phone number of 80 state narcotics agents. Aug: Pl agent filed class action seeking damages: publication of confidential personnel roster invaded privacy; conspiracy to convert list, cause injury to Pl. Def demurs: (1) complaint does not show false portrayal of Pl, using name for profit, intrusion of solitude, disclosure of private facts; (2) Defs not responsible for readers' actions; (3) right of privacy does not extend to matters of public interest, 1st Amdt protects free flow of information re-public officials; (4) Pl has no standing to complain of conspiracy to convert list; (5) conspiracy alone not tort; (6) Pl has not set out actionable infliction of injury and distress by conspirators. Demurrer overruled.

Mel Albaum, Walter H King, Mitchell Shapiro, Esqs, 1532 3rd St, Suite 106, Santa Monica, Calif 90401; H Peter Young, Esq, 1237 So Bedford Dr, Los Angeles 90035.

Points and authorities in support of demurrer: MCLL.

And see Free Press, 64.20; cases at 295., 304.

64.21. Hibbs v Neighborhood Organization (Pa Sup Ct) (252 A2d 622) 1968: Def-tenant's group picketed Pl's suburban home to protest his rental practices in city; pickets peaceful, no complaints to police. Pl sued; obtained injunction forbidding all pickets at home, 2 at a time at office. Def appealed: residential picketing within 1st Amdt if orderly, especially where person seeks to escape community pressure by residing in suburbs. Sup Ct reversed: Pl's home proper site for informational picketing since no alternative site available.

Charles Baron, Esq, Community Legal Services, Inc, 313 So Juniper St, Philadelphia 19107; Prof Howard Lesnick, Univ of Pa School of Law, Philadelphia 19104.

See also Chicago v Gregory, 55.Ill.6.

And see 530s.

70. PROCEDURAL PROBLEMS
Practice tips: Osmond K Fraenkel, Procedural pitfalls in civil liberties cases. 1 Civil Rights Handbook 31-40 (Nat'l Lawyers Guild, Box 673, Berkeley 94701).

Class suits, by Libby Wernick Ginsberg, 2 Civil Rights Handbook 151-61. Appeals in federal courts, by Siegfried Hesse. 2 Civil Rights Handbook 187-200.

Analysis: Creative legal thinking under pressure. 1 Civil Rights Handbook 44a-44h.

71. In Alleging Standing To Sue
See Flast, 111.48; Bd of Educ, 111.40.
72. In Raising and Preserving Constitutional Questions
See Halvonik, 55.Calif.32b.
72.3. Zwickler v Koota; Golden v Zwickler (USSC) (213 NE2d 467; 261 FSupp 985, rev'd 389 US 241 (1967); 394 US 104 (1969)) 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 injunctive relief that Act unconstitutional on its face; 3-judge fed'l ct convened. Ct (2-1) dismissed: Pl must defend later criminal charges or seek declaratory judgment in state ct. Dec 5, 1967: on direct appeal, USSC reversed (9-0) Brennan, J: (1) abstention doctrine not appropriate simply because Pl could have asserted his rights in state ct; (2) abstention may be appropriate when state ct could construe statute narrowly to save its constitutionality; (3) abstention not appropriate when claim is that statute is overbroad because state ct could not save constitutionality by narrow reading; (4) questions of abstention and injunctive relief 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.

DC entered declaratory judgment for Pl. Def appealed. Mar 4, 1969: USSC reversed (9-0), Brennan, J: because Congressman who was subject of handbills had left House of Representatives, Pl did not present controversy of sufficient immediacy, reality to

- 37 -

warrant issuance of declaratory judgment; complaint should be dismissed.

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

and see cases at 74.

59.75. Kirkland v Wallace (CA 5) (403 F2d 413) See facts at 59.75, p 32. Oct 22, 1968: CA 5 reversed: (1) DC erred in applying doctrine of abstention; (2) Zwickler v Koota, 72.3, (389 US 241, 1967) emphasized duty of fed'l cts to vindicate fed'l rights especially when challenge is that statute on its face repugnant to 1st Amdt; (3) 3-judge ct not required where prior decisions make frivoulous any claim that state statute on its face is not unconstitutional; (4) on its face, statute prohibits actions protected by 1st Amdt; (5) 14 Code of Ala §56 unconstitutional, void; (6) Appt entitled to declaratory judgment that effect, DC can decide propriety, necessity for injunctive relief, need not convene 3-judge ct. CA remanded to DC, Godbold, J, diss. Pending.

Alvin Bronstein, Esq, LCDC, 603 N Farish St, Jackson, Miss 39202, Donald Jelinek, Esq, Vicksburg St, San Francisco 94114.

73. In Removing From State to Federal Courts
Note: Removal aspects of cases raising other issues will be reported here, usually using the original DOCKET number.

And see removed cases in other sections.

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. 1 Civil Rights Handbook 72a-72ii (Nat'l Lawyers Guild, Box 673, Berkeley 94701.)


51.Ala.10. Wright v Montgomery See discussion at 51.
73.Kan.1. Willingham v Morgan (USSC) (383 F2d 139; 395 US 402) Pl, prisoner at Leavenworth fed'l pen, sued warden, chief MD, for brutality. Defs removed from Co Ct to DC under 28 USC §1442. Pl sought remand to Co Ct; DC denied, granted Def's motion for summary judgment: CA 10 reversed, remanded to Co Ct: removal doctrine not as broad as official immunity doctrine. Je 1969: USSC reversed, remanded (9-0), Marshall, J: Removal doctrine applies to civil actions against fed'l officer for acts done "under color of office."

Joseph M Snee, Esq, Austin, Tex.

And see cases at 411.

73.La.5. In re Benjamin Smith, Esq (ED La) 1969: Benjamin Smith, President, Law Center for Constitutional Rights, removed Rouselle v Perez from Plaquemine Parish to the fed'l DC. State judge cited atty for contempt for removing case; deputy sheriff attempted to arrest him in fed'l ct. Atty took refuge in fed'l law library, prepared motion for TRO. Before argument, State withdrew contempt warrant.

Benjamin Smith, Esq, 305 Baronne St, New Orleans 70112; William Kunstler and Arthur Kinoy, Esqs, 588 Ninth Ave, NYC 10034.

See also 42, 373.

73.Mich.4. Michigan v Altman (Washtenaw Co) (ED Mich, #31825) Sept 5-6, 1968: Defs peacefully staged protest regarding discrimination in welfare funds' allocation at County Bldg. At 5:30 pm, Defs ordered to leave purportedly on basis of lateness of hour; refused; arrested: criminal trespass. Defs sought removal to DC on basis they were ordered to leave bldg because of racism, that other groups had been allowed use of bldg after 5:30, thus violation of fed'l laws against discrimination in public accommodations (42 USC §§2000a and 2000a-1). DC found allegations legally sufficient for removal, ordered h'g on facts. Pending.

William H Goodman, Esq, 3200 Cadillac Tower, and Ronald Reosti, Esq, Neighborhood Legal Service Centers Inc, 8545 Gratiot, Detroit 48213.

Petition for removal, opinion and order granting further hearing: MCLL.

And see cases at 421.

55.Miss.9a. Mississippi v Hartfield, Anderson (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. Dec 8, 1965: Appeal argued in removal case on unconstitutionality of Miss stat (1964) on its face and as applied. CA affirmed remand.

Smith, Waltzer, Jones, and Peebles, Esqs, 305 Baronne St, New Orleans 70112.

Appt's brief (CA 5): MCLL.

See also Cameron v Johnson, 55.Miss.7.

73.Miss.13. Jackson v Alexander; Alexander v Cox (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. Majority of cases disposed of per Guyot v Pierce, 13 DOCKET 15, 51.Miss.4, 372 F2d 658; remainder settled.

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.Va.3. Hirschkop v Virginia (Va Sup Ct) (209 Va 678, 166 SE2d 322, cd 90 SCt 72) 1969: Pl, atty, filed petition for removal in Recorder's Ct, Lynchburg, in case of young black man charged with rape. Judge cited Atty Hirschkop for contempt, struck atty Kunstler from roll of attys eligible to practice in that ct. Hirschkop tried, convicted of contempt; Kunstler ordered reinstated to roll. Def appealed, Sup Ct affirmed. Oct 13: USSC denied cert.

Arthur Kinoy, Esq, 588 Ninth Ave, NYC 10034.

And see cases at 42; 373.

74. In Obtaining Three-Judge Federal Courts

74.3. Nichols v Vance (SD Tex) (293 FSupp 680) Pl-student at Texas Southern Univ participated in peaceful racial protest. Police officer killed in riot at which Pl not present. Pl charged with riot, capital offense, 304.Tex.4a, 13 DOCKET 84. Mar 1, 1968: Pl filed suit for declaratory and injunctive relief in 3-judge ct to attack statute applied in situation where those charged with crime were activists but not even on campus at time of shooting. Nov 25: 3-judge ct dismissed action: riot statute not going to be used, murder and accomplice statutes constitutional on their face. Pl filed supplemental
- 38 -

and amended complaint, request for evidentiary h'g. Pending.

Benjamin E Smith, Esq, 305 Baronne St, New Orleans 70112; Bobby Caldwell, Esq, 2024 Eastex Freeway, Houston, Texas 77026.

Pl's brief: MCLL.

And see 24.

THREE-JUDGE COURT CONVENED OR REQUESTED:

In cases marked with asterisk, the 3-judge court held statute or regulation unconstitutional:

California v Barrows, 15.22; Jeanette Rankin Brigade, 16.8; Sellers, 24.Calif.3; In re Yank, 24.Calif.37; *Evers, 24.Miss.5; Rosenberg, 24.NY.14; *Dickson, 24.NC.1; Fishkin, 25.41; *Carmichael, 51.Ga.8a; Zwicker, 51.Wisc.2; *Younger, 54.14a; *Kentucky v McSurley, Braden, 54.19; Brown, 54.20; Brooks, 54.28; *Straut, 54.35; *Landry, 54.36; Cameron, 55.Miss.7; Lazarus, 57.30; Cortez, 59.113; Chinn, 63.53; Zwickler, 72.3; Flast, 111.48; Tilton, 111.59; Aronow, 112.38; WEB DuBois Clubs, 211.16a; Dombrowski, 245.16d; Healy, 255.5; Dymytryshyn, 258.19; *Law Students Civil Rights Research Council, 265.32; Schneider, 268.22; Stamler, 271.50; Krebs, 271.52; Davis, 271.53; Young, 271.54; *Georgia Conference of AAUP, 281.21; *Ehrenreich, 281.22; *Thalberg, 281.29; *Haskett, 281.31; *Gilmore, 281.34; Coxe, 282.17; Fletcher, 304.Del.1; Burmeister, 304.NY.29; Shaw, 314.12; Gilmore, 372.69; Boddie, 372.92; Sobol, 373.23; *Kuig, 421.Ala.1; *Dews, 421.Ariz.2; Jenisch, 421.Calif.23a; Kerr, 421.Calif.35; Ramos, 421.Calif.43; Paulson, 421.Calif.48; Lewis, 421.Calif.49; McCall, 421.Conn.5; *Solman, 421.Conn.6; McClellan, 421.Conn.7; *Doe, 421.Conn.9; *Barley, 421.DC.1; *Robinson, 421.Ill.1; Alexander, 421.Ill.2; New Orleans Welfare Rights Organization, 421.La.1; Lampton, 421.La.2; *Westberry, 421.Me.1; McCullough, 421.Md.1; *Dandridge, 421.Md.2; Snell, 421.NY.14; *Kelly, 421.NY.23; *James, 421.NY.24; Waggoner, 421.Pa.3; Lindsey, 421.Wash.4; Macias, 422.9; Hernandez, 422.18; Tory, 423.Ga.4; Local Union 300, 427.17; Wynn, 429.44; Gonzales, 430.30; Morris, 468.2; Hadnott, 501.Ala.31; Allen, 501.Va.2; Amos, 502.Ala.2; Moore, 502.Ill.3; Mitchell, 502.Minn.1; Hall, 505.4; Kramer, 506.2; McDonald, 506.11; *Matthews, 506.12; *Bokulich, 512.Ala.15; Del Valle, 512.Calif.3; Turner, 512.Ga.18; Rodriquez, 512.Tex.5; Alabama State Teachers Association, 522.Ala.26; Tijerina, 522.NM.1; *Washington, 557.Ala.1; Major, 557.La.2; Mengelkoch, 578.20; *McSurely, 580.19; Oklahoma, 603.6.

90. MISCELLANEOUS FREEDOM OF THOUGHT

90.6. Nick Cipy v Intl Bhd of Teamsters (CA 9) 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 1st Amdt and Labor-Management Disclosure Act of 1959 protections. Aug 26, 1968: DC ruled in favor of reinstating Cipy to Union; found no damages regarding lost wages, harrassment. Appeal pending.

ACLU, 503 Market St, 94105; on appeal—Jerrold E Levitan, Esq, 1231 Market St, Penthouse, Whitcomb Hotel 94103, 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. Ct dismissed: advocacy of political sentiment not within purview of statute regulating commercial advertisements.

William Butler, Esq, 400 Madison Ave, NYC 10017.

FREEDOM OF RELIGION (100-199)
110. SEPARATION OF CHURCH AND STATE
Case Reports:

Litigation docket of pending cases affecting freedom of religion and separation of church and state. Commn on Law and Social Action, American Jewish Congress, 15 E 84th St, NYC 10028. MCLL.

111. In Education (and see 24)
Article:

Paul Freund, Public aid to parochial schools. 74 Case and Comment (Nov 1969).

See Goldman v Columbia, 24.NY.15f.


111.40. Bd of Educ, Central School Dist No 1, NY v Allen, Rock (USSC) (273 NYS2d 239, 276 NYS2d 234, 228 NE2d 791, 392 US 236) 1965: Statute passed requiring local public school bds, dists to purchase and, on individual requests, loan textbooks to all pupils, including parochial pupils, in grades 7-12. Pl school bd sued for: (1) declaratory judgment that statute violates 1st Amdt, NY constitution; (2) injunction restraining Def state Commr of Educ from appropriating moneys for acquisition of textbooks to use under program. Aug 22, 1966: Sup Ct ruled statute unconstitutional. App Div reversed: (1) Pls had no standing to sue (3-0); (2) statute constitutional (2-1). Je 1, 1967: Ct of App reversed on standing, affirmed on constitutional issue. Je 10, 1968: USSC affirmed (6-3), White, J: (1) Pls have standing thru personal stake in outcome of litigation; (2) to withstand stricture of 1st Amdt establishment clause, primary purpose of challenged legislation must be secular, primary effect neither advances, inhibits religion; (3) primary purpose of NY act "furtherance of the educational opportunities available to the young"; (4) loaned textbooks to be non-sectarian, no impermissible state advancement of religion. Douglas, J, diss: (1) statute gives parochial school initiative in selecting textbooks desired to be furnished at public expense; school bds given no criteria for determining whether requested book impermisibly sectarian; (2) difficult to determine "where the secular ends and the sectarian begins in education"; primary purpose of parochial school to propagate religion, "textbooks go to the very heart of education in a parochial school." Black, Fortas, JJ, diss.

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

Appt's brief: MCLL.

And see 71.

111.42. DeSpain v DeKalb Co Community School Dist 428 (USSC) (255 FSupp 655; 384 F2d 836; cd 390 US 906) 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 1st Amdt, state constitution. May: trial. Je 27: ND Ill dismissed on merits. Jy 26: CA 7 reversed; stayed mandate pending petition for cert. Jan 22, 1968: USSC denied cert; Stewart, J, would have granted. DC, on remand, issued injunction against school bd.

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

- 39 -

111.43. Calvary Bible Presbyterian Church of Seattle v Univ of Washington (USSC) (436 P2d 189; cd 89 SCt 389) Def-Univ offers course on `The Bible as Literature.' Pls, 2 churches and pastors, sued for injunction against Defs 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. Mar 8, 1968: Wash Sup Ct held no 1st Amdt, state constitution violation. Nov 25: USSC denied cert.

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

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 1st Amdt establishment clause. Defs moved for summary judgment. Cir Ct granted Defs' motion; denied reh'g. Nov 1968: Ct of App affirmed. Pls decided not to appeal.

Kenneth Laing, Esq, 1504 Michigan Nat'l Tower, Lansing 48933; Edwin Ellman, Esq, 1800 Penobscot Bldg, Detroit, 48266; Leo Pfeffer, Esq, Am Jewish Congress, 15 East 84th St, NYC 10028.

111.48. Flast v Cohen (formerly Flast v Gardner)

(USSC) (271 FSupp 1, 392 US 83) Pl, taxpayer, challenged 1965 Fed'l Elementary and Secondary Educ Act, Tit 2 (expenditure of fed'l funds to purchase textbooks, library materials for use in nonpublic as well as public schools): alleged such expenditures for religiously affiliated schools violates 1st Amdt. Je 19, 1967: 3-judge ct held (2-1) Pl lacked standing to sue. Je 10, 1968: USSC reversed (8-1), Warren, CJ: (1) USSC has jurisdiction on direct appeal under 28 USC §1253; 3-judge ct below properly convened under 28 USC §2282; (2) Frothingham v Mellon (262 US 447) "expressed no more than a policy of judicial self-restraint" in denying standing of taxpayer to bring "taxpayer's suit," not constitutional rule compelled by Art III limitations on fed'l ct jurisdiction; (3) "cases" and "controversies" restrictions of Art III require, relative to standing, that dispute "be presented in adversary context and in a form historically viewed as capable of judicial resolution"; standing focuses on party seeking ct's intervention, not substantive issues; party must have "personal stake in the outcome of the controversy"; (4) test of personal stake in taxpayer's suit: whether logical link between taxpayer status, type of legislative enactment attacked; nexus between taxpayer status, precise nature of unconstitutional infringement alleged; (5) here "taxpayer will have standing consistent with Art III to invoke fed'l judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions [1st Amdt establishment, free exercise clauses] which operate to restrict the exercise of the taxing and spending power." Douglas, J, conc: "where wrongs to individuals are done by violation of specific guarantees, it is abdication for cts to close their doors . . . I would not be niggardly in giving private attorney general standing to sue." Stewart, Fortas, JJ, conc. Harlan, J, diss.

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

And see 71, Polier, 111.48a.

111.48a. Polier v New York City Bd of Educ (Sup Ct, NY Co) Bd established programs under Title I, Fed'l Elementary and Secondary Education Act of 1965, §205(a) (2) to provide, inter alia, remedial instruction and guidance services on premises of nonpublic schools for both nonpublic and public school students after school hours. Pls-taxpayers and residents of NYC filed suit for declaratory judgment that expenditures violate state, US Constitutions, and injunctive relief. Parents of students attending parochial schools intervened. Pending.

Leo Pfeffer, Esq, Special Counsel, Am Jewish Congress, 15 E 84th St, NYC 10028.

And see Flast, 111.48.

111.48b. Protestants and Other Americans United for Separation of Church and State v US (CA 6) (266 FSupp 473) Facts and issues similar to 111.48. Mar 20, 1967: SD Ohio dismissed suit. Sept 27, 1968: CA reversed on authority of Flast, 111.48. Pending.

Emanuel Nadlin, Esq, 300 Lowe Bldg, 127 S Main St, Dayton, Ohio 45459.

111.48c. Smith v Philadelphia School Dist (Philadelphia Ct of Com Pleas) Facts and issues similar to Flast, 111.48. Def answered, alleging (1) aid under ESEA goes to educationally deprived children, not to parochial schools themselves, (2) parochial schools receive no benefits, (3) no portion of taxes paid by Pls to Def being used in ESEA program. Pending.

Joseph R Siegert, Esq, 1420 Walnut St, Philadelphia 19102.

111.48e. Yurick v School Dist of Philadelphia (Philadelphia Co Ct of Com Pleas) Facts and issues similar to Flast, 111.48. Je 27, 1967: Def filed answer, seeking dismissal of complaint; alleging entire cost of ESEA program borne by fed'l govt, Pls lack standing to challenge its validity. Pls replied: Pls have standing; sums, credits, equipment, services of employees of Dist are expended. Pending.

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

Complaint; answer; interrogatories to Def: MCLL.

111.49. Clayton v Kervick (NJ Sup Ct) (52 NJ 138) 1966: NJ statute created Educ Facilities Auth to assist public, private colleges in providing dormitories, other facilities. 1967: Def-State Treas refused to transfer funds to Auth: statute violates NJ const, 1st, 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. Super Ct rejected Pl's claims on constitutional issues other than aid to religious institutions. Je 28, 1968: NJ Sup Ct affirmed; remanded to Super Ct for trial on church-state issue.

Alfred C Clapp, Esq, 744 Broad St, Newark 07102 (for Def); Lewis Stein, Esq, 13 Maple Ave, Netcong, NJ 07857; Joseph B Robison, Esq, Am Jewish Congress, 15 E 84th St, NYC 10028 (for intervening taxpayers).

111.50. Opinion of the Justices (New Hampshire) (NH Sup Ct) (108 NH 268) NH law provided proceeds from sale of state sweepstakes tickets should be distributed to both public and private schools on basis of flat grant per pupil. Gov't requested advisory opinion on constitutionality of grants to parochial schools. Oct 6, 1967: Sup Ct distinguished cases allowing books, transportation; held statute unconstitutional as direct aid contrary to 1st Amdt establishment clause.

Winthrop Wadleigh, Esq, 95 Market St, Manchester, NH 03101, for ACLU, Am Jewish Congress, Nat'l Council of Churches, Warren E Waters, Esq, 16 Centre St, Concord, NH 03301, for Protestants and Other Americans United for Separation of Church and State.

Burns, Bryant, Hinchey and Nadeau, Esqs, Burns Bldg, Dover, NH 03820, for Roman Catholic Bishop of Manchester, United Catholic Conference.

- 40 -

111.51. Epperson v Arkansas (USSC) (242 Ark 922, rev'd 393 US 99) 1965: Pl, high school biology teacher, wanted to use text containing chapter on Darwinian Theory; sought: (1) declaratory judgment that statute making teaching of evolution misdemeanor and grounds for dismissal void; (2) injunction preventing her dismissal for violation of law. Chancery Ct held law void: violates 14th Amdt, infringes on 1st Amdt freedom of speech, thought. 1967: Ark Sup Ct reversed. Nov 12, 1968: USSC reversed Sup Ct, Fortas, J: statutes forbidding teaching of evolution in public schools violate 1st Amdt freedom of religion, 14th Amdt: ". . . 1st Amdt mandates governmental neutrality, between religion and religion, and between religion and nonreligion."

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

111.55. ACLU v Albert Gallatin Area School Dist (WD Penn, #69-558) May 8, 1969: Pls alleged compulsory prayer, Bible reading in Def school dist violated 1st Amdt; asked injunction. Pending.

Louis Kushner, Esq, 300 Grant Bldg, Pittsburgh 15219.

111.56. Garber v Kansas (USSC) (419 P2d 896; 389 US 51) Kansas Compulsory School Attendance Law required children 7 to 16 to attend school through 8th grade. July, 1965: Law amended to delete 8th grade limit. Yoder, Kansas Amish community of religious rural ascetics had been ending formal education at 8th grade. To comply with amdt, Amish children beyond 8th grade required to attend local Amish school 1 day per week, study high school correspondence lessons at home the other 4. Def-Amish father refused to send 14 yr-old daughter to regular public school; arrested. State maintained: to comply with law, education had to be within "four walls", 5 days per week, 6 hrs per day, 180 days per year; equivalent education unacceptable, no matter where obtained. Def contended if daughter's schooling did not conform to law, then law unconstitutional as applied to him: to force him to place her in another school would violate his freedom of religion, due process, equal protection. Dist ct, without jury, convicted: Amish school did not qualify as school within meaning of Law. Kansas Sup Ct affirmed. Oct 23, 1967: USSC affirmed, per curiam, Douglas, Fortas, JJ, diss.

Marvin M Karpatkin, Esq, 660 Madison Ave, NYC 10021; E Dexter Galloway, Esq, 303 1st Nat'l Bank Bldg, Hutchinson, Kansas 67501; Melvin L Wulf, Eleanor H Norton, Esqs, ACLU, 156 5th Ave, NYC 10010.

Jurisdictional statement, appendix (54 pp): MCLL.

111.57. California v Holt (Compton Muni Ct) Def and family, including 2 minor children, spent 8 months secluded in their home, during which Def's mother died of natural causes; Def-wife charged with violation of Calif Educ Code for failing to send their children to school. Jan 1968: Def testified at trial that "we were gathered together by Almighty God." Jury acquitted Defs.

Hugh Manes, Esq, 1680 Vine St, Los Angeles 90028.

111.58. Mettle v San Jose Unified School Dist (Santa Clara Co Super Ct #196740) 1967: School trustees voted to distribute Gideon Bibles to 24,000 students despite opinion of Co counsel that this would violate Calif Const, Educ C §8453, 1st Amdt. Pl sued to enjoin distribution of Bibles. Oct 11: Dismissed.

James W Stewart, Esq, ACLUNC, 1504 Wessex, Los Altos 94022.

111.59. Tilton v Finch (DC Conn, #12767) 1969: Fed'l gov't granted 4 sectarian colleges $1 million to aid in construction of library, science and art, laboratory bldgs. Taxpayers sued to enjoin grants to sectarian colleges under Higher Educ Facilities Act, 20 USC §§701-758: constitute establishment of religion; though statute forbids grants for bldgs to be used for sectarian instruction, worship, any aid helps budget for sectarian purposes, permits increased enrollment. Dec 2: H'g before 3-judge panel. Pending.

Melvin Katz, Esq, 983 Main St, Hartford, Conn 06103; Paul Orth, Esq, 266 Pearl St, Hartford 06104; Leo Pfeffer, Esq, 15 E 84 St, NYC 10028; Robert Smith, Esq, 60 Walton Dr, West Hartford 06107; Jerry Wagner, Esq, 860 Park Ave, Bloomfield, Conn 06002; Peter Costas, Esq, 111 Pearl St, Hartford 06104.

111.60. Lynch v Grantham (San Joaquin Co Super Ct, #97855) Je 1969: Def, Rev Kirby Hensley, through Def Universal Life Church, ordained 17,000 clergymen, gave Doctor of Divinity degrees for $20, but did not comply with Calif Educ C requiring accreditation from nationally recognized group, posting of bond, approval of Sup't of Public Instruction. Atty Gen sued for injunction barring further sale of degrees. Je 6: Super Ct granted. Def's appeal pending.

Dr Kirby J Hensley, Universal Life Church, 1766 Poland Rd, Modesto 95351, in pro per; Vincent Hallinan, Esq, 345 Franklin St, San Francisco 94102.

Preliminary injunction: MCLL.

111.60a. California v Hensley (San Jose Muni Ct) Feb 17, 1969: Def-Rev sold policeman Doctor of Divinity degree for $20 without authority of Calif Dept of Educ; arrested: violating Educ C. Muni Ct ruled Ct lacked jurisdiction.

Robert C. Bienvenu, Esq.

Dr Kirby Hensley, Universal Life Church, 1766 Poland Rd, Modesto 95351.

111.61. New York v McCartney (NY Sup Ct, Binghamton) 1968: Def's son unable to enroll at Maine Memorial School until vaccinated for polio under NY law making polio vaccination mandatory prerequisite to public school attendance unless religious article of faith forbids vaccination, or doctor certifies vaccination would be health hazard. Def opposed vaccination as matter of individual religious conscience, viewed it as health hazard. Aug 21: Sup Ct upheld constitutionality of immunization requirement.
111.62. Mann v Vermont Educ Bldgs Financing Agency (USSC) (247 A2d 68, 90 SCt 9) 1968: Resp Agency approved leasing agreements, financial grant to private, church-related college to construct classrooms, science bldg, under Vt statute authorizing such for nonprofit high schools, colleges. Pet, Chairman of Resp Agency, refused to execute leases, issue revenue bonds contemplated by statute: debentures unmarketable, statute unconstitutional. Agency filed suit in Co Chancery Ct to uphold leases, grant, force action on them. Chancery Ct did so, Vt Sup Ct affirmed: no 1st, 14th Amdt violations: college financed from tuition, gifts, got no money from church, nor did church have any proprietary interest, in reversion or otherwise, in college property. Dec 27: Chairman appealed to USSC: does grant here constitute state aid to religion, contra 1st, 14th Amdts? Apr 7, 1969: USSC postponed jurisdictional decision until h'g of case on merits. Jy 1: USSC dismissed under Rule 60.

Neil J Cohen, Esq, 660 Maryland NE, Washington, DC 20002; Robert D Rachlin, Esq, 95 Main, St Johnsbury, Vt 05819.

112. In Public Places (and 13, 151, 152, 261)
See Damico v Calif, 421.Calif.22, 13 DOCKET 113.
112.33. Paul v Dade Co (USSC) (210 So2d 200, 89 SCt 374) Lighted cross placed on Co cthouse every Christmas. 1966: Co Commn appropriated tax moneys for cross. Aug 1966: Pl, taxpayer, sued to enjoin expenditure
- 41 -

of public funds for cross: with or without use of public funds, erection of cross on public bldg violated fed'l, 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. Fla Sup Ct denied cert. Nov 18, 1968: USSC denied cert. Pl refiled action in DC (SD Fla): even if no tax funds spent, religious symbol on public bldg unconstitutional. Pending.

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

112.34. Lowe v Eugene (Ore Sup Ct) (451 P2d 117) 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 1st 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 filed by one of Def-corps that maintained cross. 1968: Ore Sup Ct held cross violated establishment clause of 1st Amdt. Def's petition for reh'g pending.

Leo Pfeffer, Esq, Am Jewish Congress, 15 E 84th St 10028, Marvin M Karpatkin, Esq, 660 Madison Ave 10021, 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, Oregon 97401; Daniel Pollitt, Esq, Univ of NC, Chapel Hill, NC 27514.

112.38. Aronow v US (ND Calif, #49992) Sept 18, 1968: Pl alleged use of motto "In God We Trust" by US violates 1st Amdt, denies his freedom of religion; asked declaratory, injunctive relief, 3 judge ct. Sept 30: DC dismissed. Oct 10: Pl appealed to CA 9. Pending.

Stephen Aronow, #2, 546 1st St, Woodland, Calif 95695.

112.39. Serbian Orthodox Church Congregation of St Demetrius of Akron v Kelemen (USSC) (393 US 527) Oct 23, 1967: Ohio Sup Ct held Serbian Orthodox Church in Yugoslavia may change US, Canada diocese bishops without prior consent of diocese members; those controlling Ohio Church, being in schism, forfeited all rights in mother church, including those to occupy, worship in local church property. May 13, 1968: Pet filed for cert in USSC: May civil ct, consistent with 1st Amdt, decide that certain of church hierarchy are schismatic, absent any such decision by church authorities and proceed to deny such church members right to worship in that church? Feb 24, 1969: USSC, per curiam, granted cert, vacated judgment in light of US vs Hill Memorial Presbyterian Church, 393 US 440.

Bernard R Roetzel, Bernard J Roetzel, Esqs, 902 1st National Tower, Akron 44308.

112.40. Maryland and Virginia Eldership of Churches of God v Church of God at Sharpsburg, Inc (USSC) (241 A2d 691, 89 SCt 850) 1968: Resp congregation voted to secede from Appt, Appt brought suit to prevent pull-out, stop Resp from using church property after withdrawal. Trial ct dismissed, state Ct of App affirmed: local churches incorporated under state Gen'l Religious Corporation Law entitled to own, use, control local church property after congregation majority votes to withdraw from mother church; statute, as applied, did not violate 1st, 14th Amdt freedom of religion. Jy 31: Appt appealed to USSC: Does above application of state religious incorporation law violate Const? Feb 24, 1969: USSC vacated judgment, per curiam.

James H Booser, McNees, Wallace and Nurich, Esqs, all of Harrisburg, Pa; Martin J Flynn, Shea and Gardner, Esqs, all of Washington, DC; Alfred L Scanlan, Esq, Bethesda, Md.

120. CONSCIENTIOUS OBJECTION TO WAR (see also 356, 362)
Note: Only cases decided by US Supreme Court in 1968-1969 are reported here. For all reported opinions and many unreported opinions, see Selective Service Law Reporter, 1029 Vermont Ave NW, Washington, DC 20005.

And see Davis, 151.16; Weitzman, 295.55.

Books:

Ann Fagan Ginger, The New Draft Law: Manual for lawyers and counselors. 5th ed, 1970. National Lawyers Guild, Box 673, Berkeley, Calif 94701. $10, $6 students, $5 bulk order/20+ copies. (Exactly same text as in CIVIL RIGHTS HANDBOOK pp 235:1-235: 134).

Curry First, Attorney's guide to selective service and military case law (1863-1969): outlines of selective service and military cases, statutes and issues. CCCO, 437 Market, San Francisco 94100; 2016 Walnut, Philadelphia. 187 pp. $3.

David Suttler, IV-F-guide to medical, psychiatric, and moral unfitness standards for military induction. New York, Grove Press, 1970. 171 pp. $1.50.

Central Comm. for Conscientious Objectors (CCCO), Handbook for Conscientious Objectors. 2016 Walnut, Philadelphia. $1.

Alice Lynd, ed., We won't go. Beacon Paperback, 331 pp. 1968. $1.95.

Arlo Tatum and Joseph Tuchinsky, Guide to the draft. Beacon Paperback, 218 pp. 1969. $1.95.

Leslie S Rothenberg, The draft and you. Anchor paperback, 332 pp. 1968. $1.45.

Periodicals:

Central Committee for Conscientious Objectors, News Notes. Bimthly. 2016 Walnut St, Philadelphia, Pa 19103.

Counterdraft (CD), PO Box 74881, Los Angeles 90004. $3/yr.

Direct Action, Comm for Nonviolent Action (CNVA), RFD 1, Box 197 B, Voluntown, Conn, 06384.

Downdraft (DD), 280 Ninth Ave, New York 10001.

Draft Counselor's Newsletter. Mthly. Central Committee for Conscientious Objectors, Western Region Office, 437 Market St, San Francisco, Calif 94105.

Fellowship, Box 271, Nyack, New York. $4/yr.

Midwest Committee for Draft Counseling. Newsletter. 179 N Michigan Ave, Chicago, Ill 60601.

Selective Service, monthly bulletin of SSS, GPO, Washington, DC 20402. $1/yr.

The Peacemaker, 10208 Sylvan Avenue, Cincinnati, Ohio 45241, thrice-monthly, by contribution.

The Reporter for Conscience's Sake (R), 550 Washington Bldg, 15th and New York Ave NW, Washington, DC 20005.

Guild Practitioner, Selective Service issues: Vol 25 #3, ($2); 26 #3, 27 #1. $1.35 ea.

War Resisters League News. Bi-mthyl. 339 Lafayette St, New York, NY 10012.

WIN, 5 Beekman St, New York 10038.

Legal reporter services:

Advocate, monthly newsletter for military defense counsel. US Army Judiciary, Defense Appellate Div, Washington, DC 20315.

Selective Service Law Reporter (SSLR), 1029 Vermont Ave NW, Washington, DC 20005.

Judge Advocate Legal Service (JALS), US Army, Charlottesville, Va 22901.

- 42 -

GENERAL SSS MATERIALS:

Berkeley-Oakland Women for Peace, Your draft-age son: A message for peaceful parents. 27 pp. Apr 1968. 2495 Shattuck Ave, Berkeley, Calif.

National Council to Repeal the Draft, 2160 Lake Street, San Francisco 94121.

Books:

Allan Blackman, Face to face with your draft board. World Without War Council, 1730 Grove St, Berkeley, Calif 94709. 90 pp. $.95.

Selective Service System, California headquarters. Manual for use of government appeal agents. Federal Bldg, 805 I St, Sacramento, Calif 95814.

1967 SSS ACT:

Military SS Act of 1967, with analysis, 59 pp. 1967. GPO #85068.

Richard V Levin, New draft law re-examined. 19 Case Western Res 912-20.

"Task force on SSS structure," Oct 1967, SSS Nat'l Hdq. MCLL. US Congress. House Comm on Armed Services. Civilian advisory panel on manpower procurement. Washington, DC, GPO, 1967. 30 pp.

Library of Congress. Legislative Reference Service, Study of Selective Service Act of 1967.

1969 SSS ACT:

Peter Aaron Hunt, 1970 draft lottery system, Guild Practitioner (Selective Service issue), National Lawyers Guild, Box 673, Berkeley, Calif 94701. $2.

Legislation:

US Congress. Senate Comm on Armed Services, Report authorizing modifications of system of selecting persons for inductions into armed forces, to accompany HR 14001, 91st Congress, 1st sess, 1969. 10 pp.

Rep Thomas Curtis (Mo), Executive abolition of graduate student and occupational draft deferments. Cong Rec, Mar 28, 1968, p 2397.

Sen Mark Hatfield, Voluntary Military Manpower Procurement Act of 1969 (S 503). Cong Rec, Jan 22, 1969.

Book:

David Kendall and Leonard Ross, Lottery and the draft: where do I stand? New York, Perennial Library ed of Harper & Row, 1970. 159 pp. $.95.

Articles:

Ann Fagan Ginger, Young workers and the draft—know your rights, Labor Today, Vol 9, 1970, p 24.

CCCO memos:

Justice Dept Recommendations On COs. 14 pp. Dec 1967.

So you would fight if this country were attacked. 1 p.

"So you would have fought Hitler?" 1 p. May-June 1968.

SSS Law and Procedure: Guide for Attorneys. 56 pp. 1963 ed. SSS and aliens, CD vol 1, #5, pp. 3-4.

Lewis B Hershey, Legal Aspects of Selective Service, Govt Appeal Agent's Manual. 90 pp, Jan 1969. $1.00.

S. L. Halleck, Psychological price of deferment, Current Mar 1968.

Symposium: Draft, war, public protest. 37 George Washington 433-563.

Michael Tigar and Robert Zweben, SSS: Problems and answers, 37 George Washington 510-35.

Declaration of concern and appeal for amnesty, Amnesty International Review, No 29, Nov 1969. 8 pp. AIR, Turnagain Lane, Farringdon St, London EC 4, England.

Henry Mark & Phyllis Holzer, The Constitution and the Draft, Objectivist, Oct and Nov 1967. 9 pp.

Southern Conference Educational Fund, An Enemy of the people: how the draft is used to stop movements for social change. SCEF, 3210 W Broadway, Louisville, Ky 40211.

SOME SOURCES OF INFORMATION ON DRAFT AND MILITARY LAW, LAWYERS' PANEL COORDINATORS (INCOMPLETE)

For lawyers handling draft and military cases, see Referral Directory in this DOCKET, p. 189.

ALABAMA:

Erskine Smith, Esq, 14th Fl, Nat'l Bank Bldg, Birmingham 35203.

ARIZONA:

Edward Morgan, Esq, 45 W Pennington, Tucson 85701.

CALIFORNIA:

Berkeley: ASUC Draft Help, 309 Eshleman Hall, UC Berkeley Campus.

Chico: Chico Draft Help, 544 W 3rd St.

Davis: CACA, 433 Russell Blvd.

Eureka: Humboldt Peace Center, 20 5th St.

Fresno: Fresno Draft Counseling, 3222 Liberty Ave.

Morris Futlick, Esq, 1756 L St, 93721.

Hayward-Castro Valley: So Alameda Cty Draft Info Cntr, 3137 Castro Valley Blvd.

Los Angeles: Nat'l Lawyers Guild, 5255 W Sunset Blvd, 90027.

William G Smith, Esq, 3175 W 6th St, 90005.

Monterey: West Coast Counseling, 288 Alvarado St.

Oakland: Oakland Draft Help, 597 15th St.

West Coast Counseling, Oakland GI Help, 1733 Jefferson.

Palo Alto: Alan Strain, Dean's Office, Stanford Univ.

Sacramento: Sacramento Draft Help, 1715 15th St.

San Anselmo-Marin: Marin Draft Help, 404 San Anselmo.

San Diego: John Porter, Esq, 1346 Garnet Ave, 92109.

West Coast Counseling, 520 E St.

San Francisco: CCCO, 437 Market St.

Lawyers' Selective Service Panel, 1182 Market St, Rm 404, 94102.

Nat'l Lawyers Guild, 197 Steiner St, 94117.

San Francisco Draft Help, 3684 18th St.

West Coast Counseling, 491 Guerrero.

San Jose: Bill Hutchinson, San Jose State, Experimental College Union Bldg, S 9th St at San Carlos.

Santa Cruz: Draft Help, 202 Lincoln St (upstairs).

Santa Rosa: Draft Info Cntr, 608 College.

Stockton: Anderson YMCA, Stan Stephens, Ted Adams.

Woodland: John Pamperin, 165 4th St, Apt 7.

COLORADO:

Denver: Nat'l Lawyers Guild, c/o Walter Gerash, Esq, 1700 Broadway, Suite 2317, 80202.

Rudolph Schware, Esq, 5650 E Evans Ave, 80222.

DISTRICT OF COLUMBIA:

Nat'l Lawyers Guild, 1724 20th St NW, 20009.

GEORGIA:

C B King, Esq, Box 1904, Albany, Ga 31702.

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

ILLINOIS:

Chicago: CADRE, 519 W North Ave.

MCDC, 179 N Michigan Ave.

Nat'l Lawyers Guild, c/o Marc Kadish, Esq, 2156 N Halstead 60614.

Michael Postilion, Esq, 100 N LaSalle St, 60602.

IOWA:

Robert Oberbillig, Esq, BHCLAS, 708 First Nat'l Bank Bldg, Waterloo 50703.

KENTUCKY:

William and Marie Allison, 465 Woodlawn, Lexington 40508.

LOUISIANA:

Richard A Buckley, Esq, NOLAC, Room 605, Carondelet Bldg, New Orleans 70130.

MASSACHUSETTS:

Boston: Nat'l Lawyers Guild, 70 Charles St, 02114.

Edward Rudnitsky, Esq, 185 Devonshire, 02110.

Cambridge: Comm for Legal Research on Draft, Rm 32, Langdell Hall, Harvard Law School 02138.

- 43 -

MICHIGAN:

Detroit: David Klein, Esq, 1331 First Nat'l Bldg, 48226.

Nat'l Lawyers Guild, 5705 N Woodward 48202.

Flint: Nat'l Lawyers Guild, c/o Carl Bekofske, Esq, 1003 Church St, 48503.

MINNESOTA:

Lyn Castner, Esq, ACLU, Upper Midwest Bldg, Minneapolis 55401.

Twin Cities Draft Information Cntr, 529 Cedar Ave, Minneapolis 55404.

MISSOURI:

Francis Ruppert, Esq, 7701 Forsyth Blvd, Clayton 63105.

James H Harrington, Esq, 630 Commerce Tower, Kansas City 64106.

NEVADA:

Student Union Bldg, Univ of Nevada, Reno.

NEW JERSEY:

Jeffrey Fogel, Roger Baldwin Foundation, 45 Academy St, Newark 07102.

NEW YORK:

New York City: Nat'l Emergency Civil Liberties Comm, 25 E 26th St, 10010.

Alan Levine, Esq, ACLU, 156 Fifth Ave, 10010.

Nat'l Lawyers Guild, One Hudson St, 9th Fl, 10013.

OHIO:

Cleveland: Laura Ober, Esq, ACLU, 1302 Ontario St, 44113.

Columbus: James Kozelek, Esq, 40 S Third St, 43215.

OKLAHOMA:

Warren McConnico, Esq, McBirney Bldg, Tulsa 74103.

OREGON:

Gerald Robinson, Esq, Standard Plaza Bldg, Portland 97204.

PENNSYLVANIA:

Philadelphia: Central Committee for Conscientious Objectors, 2016 Walnut, 19103.

Nat'l Lawyers Guild, c/o Harry Levitan, 1412 Fox Bldg, 1612 Market St, 19103.

Paul Walker, Esq, Panel Coordinator, 206 S 15th St, 19102.

Pittsburgh: Draft Info Center, United Oakland Ministry, Fifth and Bellerfield 15213.

Marjorie Matson, Esq, Law and Finance Bldg, 15219.

PUERTO RICO:

Lorenzo Piniero, Esq, PO Box 1082, Hato Rey 00919.

Puerto Rican Peace Center, 156 De Diego St, Rio Piedras (Box 22940, University Station, San Juan 00931); Centro Puertorriqueno de Paz, Calle De Diego 156, Rio Piedras (Apartado 22940, Estacion Universidad de Puerto Rico, San Juan 00931).

SOUTH CAROLINA:

Columbia Draft Info Service, Suite 704, Columbia Bldg, PO Box 1283, Columbia 29202.

TEXAS:

Houston: John Barnhart, Esq, Mandell & Wright, 707 South Coast Bldg 77002.

Austin: James Simons, Esq, 500 W 10th St, 78701.

SW Regional Counsel, 2200 Guadalupe.

WASHINGTON:

Seattle: Michael Rosen, Esq, ACLU, Smith Tower 98104.

Tacoma: The Shelter Half, 5437 S Tacoma Way.

Tacoma Military Help, 3019 N 21st St.

WISCONSIN:

Sander Karp and Melvin Greenberg, Esqs, 303 State St, Madison 53703.

CANADA:

Toronto: Toronto Anti-Draft Programme, 2279 Yonge St, Toronto 12, Ontario.

Vancouver: Comm to Aid American War Objectors, PO Box 4231, - Vancouver 9, British Columbia.

121. Application for CO Status—Pre-Induction (and see 122, 125, 126, 127, 362)
Books:

Ann Fagan Ginger, New Draft Law,

Application for conscientious objector status, pp 235:45-235:63; Draft refuser: Federal prisons, prisoners' rights and consequences of criminal conviction, pp 235:106a-235:106r;

5th Ed. 1970. National Lawyers Guild, Box 673, Berkeley, Calif 94701. $10.

Articles:

Nat'l Service Bd for Religious Objectors, Agencies approved for employment of COs in civilian work. 1964. 80 pp. Washington Bldg, Rm 604, 15th & NY Ave NW, Washington, DC 20005.

NSBRO, Statements of religious bodies. 62 pp.

Calif. SSS directive on COs. CD Vol 1, #3, p. 6; #7 pp. 4-7.

Sincerity of belief obviates specific intent. 7 pp. NECLC Draft Panel, 25 E 26 St, NYC.

NY Memo on COs, CD Vol. 1, #8, pp. 11-13.

CCCO, CO and ROTC, 11 pp. Aug 1962.

CCCO Memo, Details of CO work program, 14 pp.

Fred Hiestand, Selective COs: An outline, 7 pp. MCLL.

Hugh C Macgill, Selective CO: divine will and legislative grace. 54 Virginia 1355-94.

James B White, Processing CO claims: Constitutional inquiry. 56 California 652-80.

William V O'Brien, Selective CO and international law. 56 Georgetown 1080-1131.

New Form 150, CD Vol 1, #8, p. 9-11.

Selective CO—Moot Ct problem, 24 pp. Stanford. MCLL.

Selective CO: Practical moral alternative to killing. 1 Loyola 113.

Catholic Peace Fellowship, Can a Catholic be a conscientious objector, 5 Beekman St, New York, NY 10038. 6 pp.

Dr Edward Tamler, Sources and comments on Jewish conscientious objection, 1968. 3 pp.

And see John "Rolling Thunder" Pope, 607.1.


121.51. US v Spiro (USSC) (384 F2d 159; cert den 390 US 956) 1962: Catholic Def filed SSS Form 150 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 Gov't 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 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. Mar 4, 1968: USSC denied cert.

Esther Strum Frankel, Esq, 455 E 42nd St, Paterson, NJ 07504. CA briefs: MCLL.

121.100. Pre-1967 Act CO Applications

121.102. Welsh v US (USSC) (—US—, 3 SSLR 3001) 1961: Def classified I-A. 1964: ordered to physical exam; Def requested, received, filed Form 150 for CO status. Bd classified Def I-A-O; Def appealed for I-O. Appeal Bd denied appeal. Def refused to submit to induction. Indicted.
- 44 -

DC convicted. Sept 23, 1968: CA affirmed: registrant not necessarily entitled to copy of FBI report; failed to show prejudice from denial of right to amend security questionnaire, "basis in fact" for denial of CO. Nov 28, 1969: Def argued in USSC: (1) Def possessed "religious beliefs" since source of beliefs irrelevant if beliefs held with requisite strength, not exclusively "political, sociological, or philosophical"; (2) Def's deletion of "my religious training and" phrase from Form 150 did not materially alter form; (3) alternatively, Def need not be considered "religious" since Act creates impermissible distinction between sincere COs who are nonreligious and those who are religious; violating establishment clause since Bd found sincerity; (4) Act violates Def's right to free exercise of religion; (5) Supreme Being clause constituted impermissible classification violating due process in view of Def's expressed disbelief in Supreme Being; (6) mandatory loyalty oath prior to induction (DD Form 98) not given here, denying due process. Pending.

J B Tietz, Esq, 257 South Spring St, Los Angeles, Cal 90012. USSC briefs: MCLL.

121.103. US v Haughton (CA 9, #23556) (413 F2d 736, 2 SSLR 3173) May 18, 1967: Local Bd denied Def's CO claim. Def appealed. Aug 1: Appeal Bd classified Def I-A. Justice Dept h'g and inquiry refused since Act expired June 30, 1967. Def refused to submit to induction. DC convicted: no constitutional compulsion to provide Justice Dep't h'g; "basis in fact" for denial of I-O. Appeal pending: Justice Dep't inquiry provisions of old Act should be applied retrospectively to appeals pending on June 30, 1967, or prospectively. Je 19, 1969: CA reversed, held: (1) Def not entitled to Justice Dept h'g; (2) local Bd must state reasons for denial of classification where Def has met "statutory criteria" or placed himself "prima facie within statutory exemption," otherwise Ct can not determine whether denial based on: (a) belief that Def's statements, even if true, did not entitle him to classification or (b) reasonable disbelief of allegations necessary for prima facie case; (3) Def here made prima facie CO claim; (4) since Bd gave no basis for decision, Ct can not determine whether Bd properly denied claim.

David R Hood, Esq, Hoge Bldg, Seattle, Wash.

CA brief: MCLL.

121.200. Problem of Elements

121.203. US v Sisson (DC Mass, Cr #68-237-W) (294 FSupp 511, 1968) Feb 29, 1968: Def requested Form 150 from Local Bd; failed to return it because concluded his conscientious objection was not religious within definitions on (old) Form. Mar 18: Local Bd mailed Def order to report for induction. Apr 17: Def reported, refused to submit to induction. US indicted. Before trial; DC held Def had standing to raise freedom of religion issues, but DC had no jurisdiction to decide "political questions" (whether Vietnam war violated Constitution or int'l law). Mar 21, 1969: Jury convicted Def. Mar 28: Def filed motion in arrest of judgment (FRCrP 34). Apr 1: DC (Wyzanski, J), granted motion: indictment did not charge an offense since 1st Amendment "free exercise of religion" and "establishment of religion" clauses prohibit application of 1967 draft act to Def to require him to render combat service in Vietnam. DC assumed: (1) Gov't has right to conduct Vietnam war; (2) Gov't using lawful methods in Vietnam; (3) Gov't has power of conscription in peace and war; (4) Gov't has power to conscript anyone for combat service in defense of homeland; (5) Gov't has power to conscript CO for some kind of duty in peace or war.

DC reasoned: None of these presented a bar to Def's defense; nor did failure to exhaust administrative remedies, since only a court and not an administrative agency could declare 1967 Act unconstitutional as applied, (citing Gabriel, 127.14); Def had strong and sincere moral and ethical (not political) beliefs that prevented him from engaging in combat service in a foreign campaign; the fact that these beliefs were not religious was of no consequence, since they were sufficient under the rationale of Seeger, 121.32, for Def to be constitutionally exempted from combat service in Vietnam; thus (1) it would violate "free exercise of religion" clause to require Def under 1967 Act to render combat service in Vietnam; (2) in §6(j) of Act "Congress unconstitutionally discriminated against atheists, agnostics, and men, like Sisson, who, whether religious or not, are motivated in their objection to the draft by profound moral beliefs which constitute the central convictions of their beings"; hence violated "establishment of religion" clause; re selective CO issue: "When he honestly believes that he will act wrongly if he kills, his claim obviously has great magnitude. That magnitude is not appreciably lessened if his belief relates not to war in general, but to a particular war or to a particular type of war. Indeed a selective conscientious objector might reflect a more discriminating study of the problem, a more sensitive conscience, and a deeper spiritual understanding."

John G S Flym, Esq, 148 State St, Boston 02109.

Amicus briefs: MCLL.

121.900. Miscellaneous

121.902. US v Joseph Mulloy (USSC) (3 SSLR 3011) Def classified II-S. 1967: Def reclassified I-A. Def appealed classification, but Bd ordered induction, later cancelled. Oct 21, 1967: Def, SCEF organizer, filed Form 150, requested personal appearance. Bd granted "courtesy interview" instead; affirmed I-A, informed Def he had no right to appeal. Def refused induction; indicted. Apr 8, 1968: DC convicted. Issues on appeal: (1) procedural due process, (2) right to appeal. CA affirmed conviction. In USSC, Def argued: (1) CA erred in holding Def's Bd neither abused discretion in refusing to reopen under Reg 1625.4 nor reopened in fact under Reg 1625.2; (2) CA permitted Bd to engage in evaluative consideration of whole record under guise of determining whether Def had made out prima facie case for CO; (3) "basis in fact" test applied on substantive claim not applicable to review Bd's determination that Def did not make out prima facie case; (4) Bd can only deny reopening if new facts would not justify claim, not if whole record would not justify claim; (5) CA erred in concluding Def had not made out prima facie case because beliefs partly religious, partly political; (6) Congress may not limit exemptions to those whose opposition based on religious training; (7) Bd's denial of review by Appeal Bd violated due process; (8) Bd failed to give full, fair consideration to Def's claim by refusing to read with care answers on Form 150, by not possessing minimum understanding of applicable statute, Regs.

Prof Robert A Sedler, % SCEF, 3210 Broadway, Louisville, Ky 40211.

CA, USSC Briefs: MCLL.

122. Application for CO Status—After Induction (see also 124, 356)
Publications:

Central Comm for Conscientious Objectors, Advice for COs in armed forces. Apr 1971. CCCO, 437 Market St, San Francisco 94105. 152 pp.

- 45 -

Constitutional objection to DOD 1300.6—COs, NECLC-NY NLG, 11 pp.

In-service COs: Due process, NECLC-NY NLG, 30 pp.

Robert Montgomery, Jr, In-service CO, 56 California 379-447.


122.69. Noyd v McNamara (USSC, #722) (267 FS 701; 378 F2d 538; 389 US 1022) 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? Dec 18: USSC denied cert.

Marvin M Karpatkin, Esq, 660 Madison Ave, NYC 10021; William F Reynard, Esq, 507 Am Nat'l Bank Bldg, Denver 80202.

CA, USSC Briefs: MCLL.

And see Noyd, 122.69a.

122.69a. Noyd v Bond (USSC) (285 FSupp 785; 402 F2d 441; 89 SCt 1876) Facts 122.69. Mar 9, 1968: Ct martial convicted Pet: willful disobedience of lawful order; merits of CO claim not heard; held only fed'l cts can rule on AF Secy's decision. May 10: Commanding Officer ordered Pet to Ft Leavenworth pending review. Pet filed habeas petition against this order. May 24: DC issued habeas writ: order violated UCMJ Art 71(c) re confinement pending appeal. Sept 3: AF Bd of Review affirmed conviction. Oct 30: CA 10 reversed DC: military remedies not exhausted. Pet filed for cert: (1) improper application of exhaustion doctrine; (2) violation of UCMJ Art 71(c); due process denied because no tribunal heard merits of CO claim after AF Secy denied it. Dec 24: Douglas, J, granted stay pending consideration of cert; ordered nonincarcerated status. Jan 20, 1969: USSC granted cert; continued stay. June 16: USSC affirmed CA, held Harlan, J: (1) Douglas' order sufficient to interrupt running of Pet's sentence, case not moot; (2) UCMJ 57(b) represents Congressional decision that when Def temporarily at liberty, should be given sentence credit unless sure freedom not curtailed later without plenary h'g; (3) Def's failure to exhaust available military review not excused where Def failed to show prompt, effective relief unavailable from Ct of Mil App; (4) mere distance from Ct of Mil App, sitting in Washington, DC, not sufficient excuse; (5) in absence of Air Force Bd of Rev power to assert emergency interlocutory relief, Def not required to exhaust non-existent remedy; (6) Def did not act in bad faith in light of substantial questions raised; (7) Def placed in nonincarcerated status pending argument before Ct of Mil App. White, J, diss.

Marvin M Karpatkin, Esq, 660 Madison Ave, NYC 10021; William F Reynard, Esq, 507 Am Nat'l Bank Bldg, Denver 80202.

USSC cert petition: MCLL.

And see Noyd, 122.69.

122.200. CO Discharge from Reserves

122.203. Craycroft v Ferrall (USSC) (408 F2d 587; 90 SCt 1152, 2 SSLR 3692) 1966: Pl enlisted in Navy, entered Reserve Officer Corps program, scheduled for two years active duty. Feb 1967: Pl asked to resign from ROC, applied for discharge as CO. Mar: Pl disenrolled from ROC: poor attendance, unprofessional attitude. Je: Genl Hershey advised Def that Pl would not be classified as CO if matter were before SSS; Pl filed 2nd CO discharge application. Jy: Chief of Naval Personnel denied both applications; Pl sued for CO 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. DC declined to grant injunctive relief; held: without jurisdiction; dismissed with prejudice. Appealed. Nov: Navy ordered Pl to active duty; disobeyed; arrested; ct-martialed: UCMJ Arts 86, 92; convicted, sentenced 60 days. Jan 1968: imprisoned Pl applied for CO discharge; denied. Pl filed habeas petition; DC dismissed; appealed. May: Pl again refused to report to active duty; ct-martialed; convicted; incarcerated. Mar 5, 1969: appeals consolidated; CA 9 affirmed DC dismissals; held: DC had no jurisdiction since Pl did not exhaust his military administrative remedies when he failed to apply to Bd for Correction of Naval Records for correction of error or for removal of injustice, 32 CFR §723 (1968); no error that DC declined to issue order restraining active duty order or ct-martial. Mar 30, 1970: USSC, per curiam: (1) granted motion to proceed in forma pauperis; (2) granted petition for cert; (3) vacated judgment; (4) found Solicitor Gen'l conceded administrative remedies exhausted or nonexistent tho conflict among circuits on this; (5) held remaining issue is whether Pl's failure to seek relief in Ct of Mil App precluded claim in fed'l ct; (6) remanded for consideration of that issue on merits. Pending.

John Caughlan, Esq, 615 Arctic Bldg, Seattle, Washington 98104. Complete file: MCLL.

122.300. EXHAUSTION RULE
Material:

Eric Sietz, Exhaustion of military remedies, 25 pp. MCLL.


122.301. Quinn v Laird (USSC) Pet applied for CO discharge from Army; denied. Pet filed habeas petition; DC denied: no exhaustion of remedies to Bd for Correction of Military Records. Pet ordered to Vietnam. CA 9: denied stay of order pending appeal. May 1, 1969: Douglas, J, as Circuit Justice, granted application for stay to maintain status quo, citing Schwartz v Covington, 341 F2d 537.

Ezra Hendon, Esq, 1440 Broadway, Oakland, Calif.

123. Through Nonregistration, Noncooperation Before/ At Induction
Articles:

CCCO, Delinquency and prosecution. 6 pp. Nov 1967.

Frank Clifford, Draft delinquents. 159 Science 721.

Constitutionality of Ill. Draft Card Burning Act. 2 Prospectus 275-81.

Delinquents and extension of liability. CD Vol 1, #10, p 7.

Draft card burning. 3 Portia 52-60.

Draft resistance. CD Vol 1, #4, p 1-5.

Illegality of resistance. 4 pp. NLG.

Michael Kaufman, Delinquency and appellate rights. 5 pp. MCLL.

- 46 -

Gerald P Norton, SS Reclassification. 53 ABAJ 539.

CCCO Memo, Refusal of induction. 3 pp. Feb 1969.

Joseph Sax, Conscience and anarchy: prosecuting war resisters, 57 Yale Rev 481.

Why men refuse induction: analysis by mental health professionals, by Finison, Gumpert, Hornstein, Kadushin. 10 pp.

123.300. REFUSAL TO CARRY DRAFT CARD

123.301. US v O'Brien (USSC) (376 F2d 538; 391 US 367) 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: constitutionality of 1965 amdt to 50 USC App §462(b) barring destruction or mutilation of draft certificates; 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. May 27, 1968: USSC, Warren, CJ, vacated CA judgment, reinstated DC conviction and sentence; held 1965 amdt to Act does not abridge free speech on its face, nor as applied because draft card burning is not speech; Gov't has substantial interest in assuring continuing availability of certificates which facilitate work of SSS and amdt is appropriate narrow means of protecting this interest; USSC will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive to suppress free speech. Douglas, J, dissent: the underlying question of the case and USSC opinion is whether conscription is permissible in absence of declaration of war; case should be reargued on this basic issue.

Howard Whiteside, Esq, 60 State St, Boston 02109; Marvin Karpatkin, Esq, 660 Madison Ave, NYC 10021.

And see US v Miller, 367 F2d 72; cd 392 US 917; Wills v US, 384 F2d 943; cd 392 US 908.

Case Notes: 18 Amer U 232-40; 37 George Washington 596-603; 81 Harvard 1347-52; 14 Howard 186-91; 6 San Diego 81-91; 20 Syracuse 98-101.

123.302. US v Gutknecht (USSC) (90 SCt 506, 2 SSLR 3367) June 21, 1967: Bd classified Def I-A after review of CO claim. Oct 16: Def turned in draft papers at Fed'l Bldg in Minneapolis. Nov 1: State App Bd approved I-A. Dec 20: Bd declared Def delinquent for failure to possess registration, classification cards; ordered Def to report for induction. Jan 24, 1968: Def refused induction. DC convicted: failure to report, to submit to induction. CA 8 affirmed conviction: (1) no evidence delinquency order based on Def's political views; (2) Def willfully frustrated Gov't interest by placing draft certificates beyond continuing availability; (3) such frustration not protected by First Amdt; (4) Def did not claim I-A not based on evidence or Bd denial of fair administrative procedure; (5) Def's order of call impartially advanced pursuant to 50 USC §456(h)(1) giving priority of induction to "delinquents"; (6) Def here not deprived of statutory exemption, deferment; given fair notice of delinquency; given reasonable period to correct; had statutory notice of consequences; (9) induction here not lawless, irregular. Jan 19, 1970: USSC reversed (9-0), Douglas, J: declaring Def delinquent, accelerating induction as punitive measure not authorized by Selective Service Act: "Gives local boards a type of administrative absolutism not congenial to our law-making traditions." Melvin L Wulf, ACLU, 156 Fifth Ave, NYC.

USSC briefs: MCLL.

123.700. FAILURE TO EXHAUST SSS REMEDIES

123.703. US v McKart (USSC) (395 F2d 906, 89 SCt 1657) 1963: Local Board classified Def I-A; Def did not appeal. Mar 23, 1964: Bd ordered Def to report for physical exam; Def did not report. May 1: Bd ordered Def to report for induction; Def did not report. Def wrote Bd: said he objected to killing and conscription, refused to cooperate at all with SSS, or to fill out CO form. Jy 27: Bd classified Def IV-A on its own initiative, as sole surviving son. 1966: Bd learned of death of Def's mother; erroneously reclassified Def I-A. Def did not appeal; refused new orders to report for physical exam and induction. DC tried, convicted. Jan 14, 1968: CA 6 affirmed: registrant who has not exhausted administrative remedies cannot raise defense at trial that he was wrongfully classified in violation of statute even when facts wholly undisputed; distinguished Wolff, 127.100a, as case where Local Bd misled or stifled registrant's decision to appeal. Dissent: termination of IV-A exemption based on erroneous interpretation of law by Local Bd; thus exhaustion doctrine does not apply. May 26, 1969: USSC reversed (unan) Marshall, J, remanded for entry of judgment of acquittal: (1) SSS interpretation (continuing existence of family as prerequisite for IV-A) failed to effectuate Congressional purpose of preserving family line; (2) Bd erred in reclassifying Def I-A, ordering induction; (3) doctrine of "exhaustion" subject to exceptions, requires understanding of administrative scheme; (4) Def's failure to appeal only deprived SSS of opportunity of having App Bd resolve question of statutory interpretation; no compelling Gov't interest for requiring exhaustion; (5) exhaustion does not influence low number of registrants who subject selves to prosecution in such cases; (6) case here not matter of Bd discretion, expertise as in I-O, II-A; (7) Def's failure to appeal does not bar him from defending criminal prosecution on grounds which could have been raised on appeal; (8) since alternative prosecution for failure to report to physical possible, Gov't can not require exhaustion of this step or allege its failure as bar to classification challenge in defense to charge of failure to report for induction; (9) Def entitled to exemption as sole surviving son.

Arnold Morelli, Esq, Executive Bldg, Cincinnati, Ohio.

USSC US brief: MCLL.

124. Challenges to Military Orders (see also 122, 356)
Articles:

Civil Ct preempted by military arrests. DD, Vol 3, #4, p 18-21.

Ct decisions on reservists. CD, Vol 1, #5, p 7.

John G Kestler, Soldiers who insult presidents. 81 Harvard 1697-1769.

Reservists and Canada. CD, Vol 1, #5, p 8.

Peter B Work, Misbehavior before enemy: reassessment. 17 American U 447-65.

Periodicals:

Ally. Mthly. Box 9276, Berkeley, Calif 94709. Free to GI's. $10 yr to others.

Second Front, journal of news and opinion from American deserters and draft resisters all over the world. Mthly. 33, Rue Vauttier, 92-Boulogne, France.

Task Force, Box 31268, San Francisco, Calif 94131. Free to GI's. $5 yr to others.

124.100. BY MEMBERS OF RESERVES, NAT'L GUARD

124.101. Winters v US (USSC) (281 FSupp 289, 390 F2d 879, stay denied 390 US 993; 391 US 910; 89 SCt 34, 57, 188) 1967: Pet enlisted in Marine
- 47 -

Corps Reserves; contract provided that failure to give 90% satisfactory participation could result in order to perform 45 extra days' duty (see 10 USC §270(b).) 1968: Marine Corps changed 100% requirement; Pet missed a double drill—within 10% leeway; recalled to active duty. Pet filed habeas petition in NY for release. DC denied; CA denied stay pending appeal. Mar 22: Harlan, J, referred request for stay to USSC: denied (Douglas, J, diss). Apr 16: on h'g date re habeas, Corps released Pet from active duty, returned to reserve unit; DC dismissed case as moot. Pet appealed. Apr 29: Pet again ordered to active duty for same missed drill; shipped to Calif; filed habeas petition re second callup May 20: Douglas, J, referred to USSC Pet's application for reconsideration of denial of first stay; USSC denied (Douglas, J, diss). Jy 15: DC held second call-up valid. CA denied stay pending appeal. Pet sought stay of transfer overseas pending USSC decision on merits. Sept 23, 1968: Harlan, J, denied application for stay: "even ... a limited interference with the orderly workings of the military process would not be justified" in this case. Oct 14: USSC denied cert, (Douglas, J, diss). Oct 21: Douglas, Circuit Justice: Pet raised substantial questions: (1) Pet already served more than 45 extra days, (2) second call-up violated due process; stay granted til CA 9 decides on merits.
124.102. In re Smith v Ritchey (USSC) (89 SCt 54) Pet, member of Reserves, ordered to Asian theatre Sept 30, 1968, sued Commanding Officer, alleging violation of (1) Ready Reserve Acts, (2) First Amdt. DC denied relief; CA denied stay pending appeal. Sept 29: Douglas, J, granted stay to keep Pet at Hamilton Air Force Base pending CA decision on merits on condition Pet file record in CA by Oct 4, 1968.
124.104. Johnson v Powell (USSC) (89 SCt 250) Pets, members of Nat'l Guard, filed petition for habeas writ to prevent their shipment to Vietnam. Issue: whether Guardsmen can be sent to Vietnam in light of US Const, Art I, §8: militia to be called to service "to execute the laws of the Union, suppress insurrection, and repel invasions." DC denied habeas; CA denied stay pending appeal. Pets sought stay from Black, J; denied. Pets referred stay to Douglas, J, who asked Solicitor Gen'l for response in order to submit application to entire USSC on Oct 25, 1968. Oct 24: Army moved Pets to Vietnam. Oct 25: USSC denied stay; Douglas, J: Since Pets "have been pirited out of the country," "flouting" USSC Rule 49 against transferring custody of prisoner pending review of his habeas, case is moot in practical effect, tho not legally.
124.105. McArthur v Clifford (USSC, #613) (402 F2d 58; 89 SCt 43, 487) Pet's Army Reserve Unit ordered to active duty. Pet filed habeas petition. DC denied. Aug 26, 1968: CA affirmed and held 1967 Act did not repeal or render void 1966 Act concerning reservists. Issue: power of President to conduct war and order men overseas without Congressional declaration of war. Oct 8, 1968: USSC denied stay. Dec 16: USSC denied cert; Douglas, J, diss, citing his dissents in Holmes and Hart, 126.16.
124.106. Drifka and Allen v Brainard (USSC) (89 SCt 434) 386 Nat'l Guardsmen sued to stay their shipment from Washington State to Vietnam. DC denied stay; CA denied stay pending CA appeal; Pets sought stay from USSC. Dec 5, 1968: Douglas, J, listed recent cases on same issue in which USSC had denied cert; said:

There should not be the slightest doubt but that whenever the Chief Executive of the country takes any citizen by the neck and either puts him in prison or subjects him to some ordeal or sends him overseas to fight in a war, the question is a justiciable one. To call issues of that kind `political' would be to abdicate the judicial function which the Court honored in the midst of the Civil War in the Prize Cases [2 Black 635, 17 LEd 459]"; denied stay because USSC wouldn't hear this case either.

125. By Members of Minority Groups and Aliens (and see 121)
And see Weitzman, 259.55; Simmons, 512.Ga.25.

Articles: Naturalization of COs. CCCO memo, 3 pp.

Changes in SSS law affecting aliens. CD, Vol 1, #5, p 3.

Comm for Legal Research on Draft, Aliens and Selective Service System: under 1967 SSS Act and Immigration and Nationality Act, 7 pp. CLRD, Rm 32, Langdell Hall, Harvard Law School, Cambridge, Mass 02138.

Carl Broege, Racial composition of Southern draft boards, 1966. 32 pp.

And see alien materials at 129.

Systematic exclusion of Negroes from SS Bds: Some proposals for reform, 67 Michigan 756-811.

Counseling:

Black Draft Counseling Union, 1373 Page St, San Francisco 94117.


125.19. DuVernay v US (USSC) (394 F2d 979; cert granted 89 SCt 461; 89 SCt 1186) Negro Def entered college; received II-S. Jan 1966: Def, 21, left college; Local Bd reclassified him I-A. March: Def employed by New Orleans Social Welfare Planning Council, began sending financial support to mother, 6 brothers and sisters. Apr 13: Local Bd sent induction notice for May 20. Def and mother gave SSS Clerk evidence for III-A dependency deferment; employer sought II-A occupational deferment. Apr 27: Local Bd decided 234 classifications, including Def's. Apr 28: Bd notified Def no change in status; did not inform Def of appellate procedures. Def refused induction; indicted. Aug: at trial, Def proffered proof that no Negroes served on Def's Local Bd in 5 yrs; no Negro ever served on it; Bd chairman was known member of KKK. Jury convicted Def: 5 yrs. CA 5 affirmed. Issues: (1) should this Def be prevented from raising constitutional defenses in criminal trial when his failure to exhaust administrative remedies was due to ignorance of SSS procedures; (2) did Local Bd ignore due process requirements, eg, by Clerk failing to show Def's letters to Bd, by permitting Clerk to make classification decisions labeled "routine"; (3) did systematic exclusion of blacks from service on Bd violate Def's Fifth, 13th, 14th Amdt rights. USSC granted certiorari. Mar 24, 1969: After briefs and argument, USSC affirmed (4-4), no opinion. (Fortas. J. did not sit.)

Benjamin E Smith, Esq, 305 Baronne St, New Orleans, La 70112; Harriet Van Tassel, Rita Murphy, Morton Stavis, Esqs, 116 Market St, and Frank Askin, Esq, 180 University Ave, all of Newark, NJ; Arthur Kinoy, Esq, 588 9th Ave, NYC 10034.

Amicus brief for Nat'l Lawyers Guild by Michael Tigar and Ann Fagan Ginger, Esq, 1715 Francisco St, Berkeley 94703.

USSC brief: MCLL.

125.24. US v Sumrall (USSC) (1 SSLR 3122; cd 89 SCt 467) May 10, 1967: Def Negro civil rights activist refused induction; claimed Negroes kept off Local 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. On appeal, Def attacked validity
- 48 -

of dismissal of misdemeanor charges preventing his induction. June 19, 1968: CA affirmed conviction: (1) Dismissal within discretion of prosecutor, despite fact he was also Bd appeal agent; (2) Def has no right to have charges kept alive in order to escape induction; (3) Def did not contend induction order premature; (4) Def's racial exclusion plea settled in Clay, 125.28; (5) Def's allegations of other errors lack substance. Dec 9: USSC denied cert.

Jonathan Shapiro, Esq, Lawyers' Comm for Civil Rights Under Law, 233 N Farish St, Jackson, Mississippi 39201; Jacob Tanzer, Esq.

And see Sumrall, 125.24a.

125.24a. Sumrall v Kidd (SD Miss, #4041) (89 SCt 1019) 1966: Pl Negro activist ordered for induction, see Sumrall 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 5th and 14th Amdts, 42 USC §1981. DC dismissed for lack of jurisdiction and justiciable controversy. Sept 1968: appeal to USSC. Mar 10, 1969: USSC vacated DC judgment, remanded so DC may enter fresh decree from which appeal to CA 5 may be taken.

Lawrence Aschenbrenner, Esq, Lawyers' Committee for Civil Rights Under Law, 233 N Farish St, Jackson, Miss 39201.

And see Sumrall, 125.24.

125.28. Ali a/k/a 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 (CA 5) (397 F2d 901, 89 SCt 1164) 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: Local 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: 5 yrs, $10,000. May 6, 1968: CA affirmed: (1) acts of draft bds without representative number of Negroes not invalid; appeals are de novo, not judicial proceedings, any prejudice on local level cured by fair consideration on appeal to Presidential Bd where one member was Negro; (2) vocation was that of professional boxer as Def had initially claimed up to and through reclassification period, not minister; (3) adequate evidence to justify rejection of Def's CO claim; (4) no merit to bill of attainder argument; Congress' intention shown in §10(b)(3). Jy 8: Def filed for cert in USSC: Exclusion of Negroes from SSS Boards, failure to grant I-O and IV-D classifications. Gov't wiretapping during preparation of case. Mar 24, 1969: USSC granted cert, vacated CA judgment, remanded to DC for hearing on wiretapping in light of Alderman v US, 89 SCt 961.

Quinnan H Hodges, Esq, 811 First City Nat'l Bank Bldg, Houston 77002; Hayden C Covington, Esq, 405 Lexington Ave, NYC 10017.

USSC briefs, record: MCLL.

Casenotes: Right to minority representation on draft boards, 57 Georgetown 189-98; 37 G Washington 603-8; 1969 Wisconsin 283-90.

And see Clay, 125.28.

125.33. Boyd v Clark (USSC) (237 FSupp 561; 89 SCt 553) Pls, blacks, 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. Je 26, 1968: 3-judge ct dismissed: No jurisdiction: (1) challenges to classification prematurely made under §10(b)(3) of 1967 Act; (2) amount in controversy less than $10,000. Dissent: Not a challenge to individual classifications, but to whole System; amount in controversy sufficient. Jan 13, 1969: USSC affirmed, per curiam, without opinion, relying on §10(b)(3) (not reaching amount in controversy issue).

Victor Rabinowitz, Esq, 30 E 42nd St, NYC 10017.

DC complaint, briefs: MCLL.

126. Based on US Constitution, Treaties and Agreements, Nurnberg Judgment (and see 121, 123, 128)
Articles:

George Schwarzenberger, From laws of war to law of armed conflict. 17 J of Public Law 61-77.

Howard S Levie, Maltreatment of POWs in Vietnam. 48 Boston U 323-59.

Mason Willrich, Non-proliferation treaty: Nuclear technology confronts world politics. 77 Yale 1447-1519.

M Cherif Bassiouni, War power: theory and realism. 18 DePaul 188-201.

Charles Chaumont, Critical study of American intervention in Vietnam, 1968. Permanent Comm of Enquiry for Vietnam, 49, Avenue Jupiter, Brussels 19, Belgium.

US war crimes in Vietnam: civilian "resettlement" in operation Cedar Falls, compiled from articles in NY Times and other publications, Jan 1967. 36 pp.

John C Wells, Draft and militia clauses of Constitution: layman's view, 28 Guild Practitioner 27. $1.35. Box 673, Berkeley, Calif 94701.

Comments:

Congress, President, power to commit forces to combat. 81 Harvard 1771-1805.

International law and military operations against insurgents in neutral territory. 68 Columbia 1127-48.

NURNBERG JUDGMENT

Special issue, 25 Guild Practitioner #3 (Summer 1966):

Mary M Kaufman, Judgment at Nurnberg—An appraisal of its significance on its twentieth anniversary; Statements, declarations and agreements leading to the war crimes trials at Nurnberg, Germany, and relevant documents; The individual's duty under the law of Nurnberg: The effect of knowledge on justiciability;

Francis Heisler, Problems in raising the defense of international law;

Milton Koss, Bibliography on Nurnberg war crimes trials.

Box 673, Berkeley 94701. $2.

Assorted materials on Nuremberg defense in SSS cases. MCLL.

Articles:

Gunther Anders, Nuremberg and Vietnam: a mosaic. DD, Vol 3, #4, p 3-9.

Stanley Faulkner, War in Vietnam: constitutional? 56 Georgetown 1132-43.

Benjamin B Ferencz, War crimes law and Vietnam. 17 American U 403-23.

Lawrence R Velvel, Vietnam: Unconstitutional, justiciable, and jurisdictionally attackable. 16 Kansas 449-503(e).

- 49 -

Warren F Schwartz, Wayne McCormack, Justiciability of legal objections to US military effort in Vietnam. 46 Texas 1033-53.

David W Robertson, Debate among US int'l lawyers about Vietnam. 46 Texas 898-913.


126.14. Levy v Corcoran (USSC) (389 F2d 929; 387 US 915; cd 389 US 960) 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.

Complete file: MCLL.

And see Levy (ct-martial), 126.14a; Levy (bail), 126.14b; Levy (Habeas), 126.14c, 126.14d.

126.14a. US v Levy CMA, #21,641) May 10, 1967: Ft Jackson 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 Convention; (c) Special Forces committed war 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. Aug 29, 1968: Army Bd of Review affirmed conviction and sentence. Jan 6, 1969: Ct of Mil App denied review.

Case description: Ira Glasser, Judgment at Ft Jackson, 4 Law in transition Q 123.

And see Levy, 126.14, 126.14b-d.

<126.14b. Levy v Resor (USSC) (17 USCMA 135; 384 F2d 689; 389 US 1049) Jy 6, 1967: After ct-martial conviction, Pet filed petitions for habeas, bail pending appeal, and mandamus in DC and Ct of Mil App for release. Je 6: DC denied habeas: bail entirely in discretion of Commanding Officer. Jy 7: CMA denied habeas and mandamus. Oct CA 4 affirmed; authorized transfer of Def from Ft Jackson Ft Leavenworth Disciplinary Barracks. Jan 15, 1968: USSC denied cert.

And see Levy, 126.14a-d.

126.14c. Re Levy (CA 10) (286 FSupp 593) See facts 126.14, 126.14a, 126.14b. Pet transferred to Ft Leavenworth Disciplinary Barracks. Dec 15, 1967: Pet filed habeas petitions in DC and CMA claiming sentence had been executed prior to review by military authorities contra to UCMJ Art 71(c). Jy 29, 1968: DC denied hebeas, held sentence not being executed. Nov 27: CMA denied habeas. Jan 20, 1969: Pet dismissed from Army. Jan 21: appeal argued in CA. Jan 28: CA authorized transfer from military to civilian custody (Lewisburg Prison Farm); sentence expires Aug 1969. Pending.

And see Levy, 126.14a-d.

126.14d. Levy v Parker, Resor (MD Penn) See facts 126.14—.14c. 1969: Pet filed petitions for habeas, bail pending habeas. Brief (272 pp) attacks: (1) pre-trial Gov't actions; (2) unconstitutional application of UCMJ Art 90; (3) selective and unequal application of military law; (4) denial of truth defense to pure speech charges; (5) UCMJ Arts 133 and 134 as overbroad and vague; (6) lack of evidence; and (7) denial of Bill of Rights and due process rights in military justice—no jury trial, unfair system of prosecution. Aug 2, 1969: denials of bail by DC, CA, Circuit Justice Brennan. Douglas, J, granted Pet $1000 bail pending final determination by full USSC on merits since violation of constitutional rights alleged, since full conference on bail denial not possible when USSC in recess. Pending.

Charles Morgan, Jr, Reber F Boult, Jr, Morris Brown, Esqs, 5 Forsyth St NW, Atlanta, Ga; Laughlin McDonald, Esq, 17 S Circle Dr, Chapel Hill, NC; George W Dean, Jr, Esq, PO Box 248, Destin, Fla; Ambrose Campana, Esq, 36 W Willow St, Williamsport, Pa; Prof Anthony G Amsterdam, Univ of Pa Law School, Philadelphia; Alan H Levine, Burt Neuborne, Eleanor H Horton, Melvin L Wulf, Esqs, 156 5th Ave, NYC.

And see Levy, 126.14a-c.

And see Eminente v Pres Johnson, McNamara, Rusk (361 F2d 73; cd 385 US 929); Luftig v McNamara (373 F2d 664; cd 387 US 945; US v Mitchell (363 F2d 323; cd 386 US 972, 1042).

126.16. Holmes v US (USSC) (387 F2d 781; 391 US 936); Hart v US (USSC Misc) (382 F2d 1020; 391 US 956)

Aug 1965: Pet Holmes, Jehovah's Witness minister, classified I-O. Feb 7, 1966: Pet refused to report for civilian work; indicted. DC convicted. CA affirmed. Issue: constitutionality of peacetime draft. May 27, 1968: USSC denied cert. (Same facts in Hart.)

Douglas, J, diss: USSC has never decided issue. Hamilton v Regents of U of Calif. (293 US 245) indicated it was open question. Draft Law of 1917, held valid by courts, was enacted after declaration of war. Prior decisions also did not reach issue. Civil War Enrollment Act of 1863 created draft on paper only due to possibility of substitution; dicta on validity of 1863 Act did not refer to peacetime draft. Decisions involving application of 1940 Act all occurred after declaration of war. Orloff v Willoughby (345 US 83) and US v Nugent (346 US 1) concerning Universal Military Training and Service Act of 1948 involved inductions before termination of state of war. Many decisions link power of conscription to Congress' power under Art I, §8, clause 11 to "declare war," (see US v Macintosh (283 US 605)). USSC has not reached merit of question since Prize Cases (17 L Ed 459) in 1863 which involved internal insurrection; even there USSC was closely divided. Weighty view that what has transpired respecting Vietnam is unconstitutional, absent declaration of war. USSC should consider these questions.

Douglas, J, diss in Hart: Failure to exhaust administrative remedies doctrine, tho applicable to classification issue, wholly inapplicable to constitutional question; at time of classification (1962), question of peacetime draft not ripe for review; Appeal Bds do

- 50 -

not have jurisdiction to pass on constitutional questions so appeal on such grounds would have been futile gesture since it would be asking SSS to undercut own authority.

Holmes: Kenneth S Jacobs, Esq, 207 S Villa, Villa Park, Ill.

Hart: Mercer D Tate, Esq, Garard Trust Bldg, Philadelphia.

Casenotes: 1969 Utah 252-64.

127. Civil and Criminal Judicial Action on SSS Regulations, Orders, Induction (and see 121, 362)
Book:

Ann Fagan Ginger, New Draft Law, Testing SSS procedures and other draft questions in litigation, pp. 235:80-235:92, 5th Ed. 1970. National Lawyers Guild, Box 673, Berkeley, Calif 94701. $10.

Articles:

Ann Fagan Ginger, Minimum due process standards in SSS cases. 19 Hastings 1313-1348.

Ralph Reisner, CO: Administrative procedure, judicial review. 35 Chicago 686-720.

John Griffiths and Richard Ayres, Interrogation of draft protestors. 77 Yale 300-19.

Marvin Karpatkin, SSS litigation. 12 pp. ACLU, 156 Fifth Ave, NYC 10010.

Comment:

Frank Garfield, Case for preinduction judicial review in SSS cases. 57 California—(Fall 1969).

Memos in Meiklejohn Civil Liberties Library:

Fay Stender, Duties of Gov't appeal agent. 2 pp. Je 1968. MCLL.

Mollie Cohen, Exhaustion of administrative remedies. 22 pp. MCLL.

San Francisco Selective Service System Lawyers Panel, Additional discovery demands, questions 53-80. 8 pp.

Peter Hunt, Judicial review of SSS. 23 pp. May 1968. MCLL.

Norman Leonard, Pre-indictment judicial review as of Nov 1968. 2 pp. MCLL.

George Costello, Duke Law School, Denial of due process by Form 110's misleading notice of right to appeal. 21 pp. MCLL.

Samuel Koenigsberg, Authorities on question of subpoenas to SSS Bd members. 3 pp. Mar 1969. MCLL.

Charge to jury on proof of culpable intent. 1 p. NECLC.

Proof of culpable intent in SSS prosecutions. Oregon Panel Memo. 10 pp. MCLL.

Right to counsel. 10 pp. Oct 1968. NECLC Memo #5.

Jury challenge by age of jurors. 9 pp. MCLL.

Def's Proposed Voir Dire Questions, US v Thomas (ND Calif, #41488) 3 pp.

US v McCabe (ND Calif, #42581) 7 pp.

Committee for Legal Research on the Draft:

Checklist for the preparation of a case for trial;

Informal procedures;

Memos to appeal boards in CO cases;

CLRD, Rm 32, Langdell Hall, Harvard Law School, Cambridge, Mass 02138.

Sentencing:

Loren Basham, Eliminating disparity in federal sentences, 1969; Sentencing report of selective service cases in ND Calif (1967-1969) 21 pp.

Pittsburgh Draft Information Center, SSS violations in WD Pa (1967-1969), David R Morrison and Cary Lund, PDIC, 5th and Bellefield Aves, Pittsburgh, Pa 15213.


127.2. Del Bourgo v Mansfield (CA 9) (300 FS 500, 502) 1965: Pl filed Form 100 after Seeger, 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. Appeal filed in CA 9. Jan 1968: Bd classified Pl I-A. Mar: Bd held personal appearance re I-O; minister acted as translator of Pl's young, Eastern religious belief. May: Bd classified Pl I-O; case dismissed as moot.

Ann Fagan Ginger, Esq, 1715 Francisco St, Berkeley; Norman Leonard, Esq, 1182 Market St, San Francisco.

127.5. Petersen v Clark (CA 9) (285 FSupp 700) 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) Forms 100 and 150 inadequate, 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 fed'l ct; issue: constitutionality of Act §10(b)(3) prohibiting judicial review before refusal of induction. Jan 1968: DC ordered 3-judge ct convened.

May 13: 3-judge ct issued order dissolving three-judge ct, remanded case to single judge. May 28: DC denied Def's motion to dismiss; held §10(b)(3) unconstitutional: Congress can not deny due process right to precriminal judicial review by some Constitutional or Article III ct to review validity of order to report for induction, stayed injunction proceedings pending decision by DC on merits. Aug 26: trial on merits. Sept 16: DC adjudged Pl had no lawful duty to submit to induction: Pl affirmatively misled by board members about qualification for CO when told needed to believe in God in traditional or orthodox sense contrary to rule in Seeger, 121.32; distinguished ignorance of law holding of Dugdale v US, 389 F2d 482; held Pl entitled to Bd decision on whether his beliefs entitle him to CO classification. CA 9: After Oestereich, 127.13 and Gabriel, 127.14, Gov't moved for summary reversal; argued. Pending.

Doris B Walker, Esq, 1440 Broadway, Oakland.

Casenotes: 33 Albany 224-30; 44 Notre Dame 469-78; 22 Vanderbilt 212-18; 18 Catholic U 103-11.

- 51 -

127.6. US v Butler (USSC) (389 F2d 172; cd 88 SCt 1636) 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 Gov't which followed challenges to necessity of conscription in Congress; DC denied motion. At trial, DC excluded from evidence copies of Congressional speeches, comm hearings re draft law. Def convicted: 5 yrs. Issue on appeal: 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. CA 6 affirmed: factual issue as to which is best way to provide Army does not make Congress' way unconstitutional. Apr 29, 1968: USSC denied cert.

Ralph Rudd, Esq, 33 Public Sq Bldg, Cleveland, Ohio.

ACLU amicus by Bernard Berkman, Marvin Karpatkin, Esqs, 156 Fifth Ave, NYC.

127.13. Oestereich v SSS Local Bd #11, Cheyenne, Wyoming (USSC) (280 FS 78, 390 F2d 100, 89 SCt 414) Pl enrolled in theological school; classified IV-D. Pl returned draft registration certificate to Gov't. Local Bd declared Pl delinquent for failure to have certificate and to provide Bd with notice of local status; changed Pl from IV-D to I-A. Pl appealed; lost. Pl sued Bd in DC; complaint dismissed. CA affirmed. Dec 16, 1968: USSC reversed (6-3), Douglas, J: (1) Gov't concedes 1967 Act, §10(b)(3) cannot prevent review of SSS registration by habeas corpus after induction; (2) Pl entitled to IV-D as statutory exemption; (3) no Congressional authorization for SSS delinquency Regs; (4) no authorization for delinquency proceedings to take away a statutory exemption unrelated to merits of that exemption; (5) §10(b)(3) can not be read literally to preclude pre-induction judicial review here; (6) §10(b)(3) specifically prohibits judicial review of SSS classifications except in criminal prosecutions or habeas proceedings; when no question statute is constitutional, harshness of Congressional intent not for USSC to deal with. Harlan, J, concurred in result. Stewart, J (Brennan, White, JJ) diss.

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

Complete file: MCLL.

Many fed'l DCs and CAs granted preliminary injunctions to stay inductions in affirmative suits similar to Oestereich, 127.13, and Gabriel, 127.14, pending USSC action.

See, eg, Woods v SS Local Bd #3, (ED NY), 1 SSLR 3175.

But see Clark v Gabriel, 127.14.

127.14. Clark v Gabriel (USSC) (287 FSupp 369, 89 SCt 434) Pl applied for I-O at age 20; Local Bd denied I-O, disregarded 3 requests for personal appearances. May 19, 1966: Bd granted appearance after complaint to State SSS Hqtrs; Pl concerned with age gap between himself and Bd members; their belief he was perhaps subversive due to listed civil rights activities; their assumption most of his beliefs based on his being a Negro who thought his rights had been denied. Justice Dept recommended denial of I-O. Bd ordered Pl to report for induction. Pl sued to enjoin induction, for declaration that rejection of I-O improper because no basis in fact for it, Bd misapplied statutory definition of CO, Bd members improperly motivated by hostility and bias against CO claimants. DC granted preliminary injunction til determination on merits, held §10(b)(3) unconstitutional as applied. Gov't appealed to USSC directly (28 USC §1252).

Dec 16, 1968: USSC, per curiam, without briefs or argument on merits, summarily reversed: (1) unlike Oestereich, 127.13, where exemption of Pl was statutory; (2) Pl here sought discretionary I-O classification; (3) to permit preinduction judicial review here would mean "litigious interruption of proceedings to provide necessary military manpower" Congress sought to prevent by §10(b)(3); (4) no constitutional objection to Congress requiring CO to defer challenge to denial of I-O til criminal trial for refusal of induction or habeas after induction. Douglas, J, conc: (1) when decision re I-O depends on weight and credibility of testimony, §10(b)(3) precludes review at preinduction stage; (2) different matter if Bd moved registrant from I-O to I-A for making speech unpopular with Bd, or (3) if Pl clearly entitled to I-O (eg, if a Quaker); (4) "in my view it takes the extreme case where the Bd can be said to flout the law, as it did in Oestereich . . . , to give preinduction review of its actions." Brennan, Stewart, White, JJ, concur in judgment for reasons stated in Stewart, J, diss in Oestereich. Black, J, would note probable jurisdiction and hear argument.

Norman Leonard, Esq, 1182 Market St, San Francisco.

DC memo, USSC petition for reh'g: MCLL.

See Appendix to USSC opinion for excellent description of beliefs of 20 year old CO applicant with white father, Negro mother, educated in Berkeley High; of his reaction to personal appearance before Local Bd; of thinking and methods of investigation of FBI and Justice Dept re CO applicants (under pre-1967 Act).

And see, accord: Costas-Elena v President of US, 288 FSupp 388; Johnson v Clark, 281 FSupp 112; Hodges v Clark, 1 SSLR 3286; Paulekas v Clark, 89 SCt 890; Carpenter v Hendrix, 277 FSupp 660; Moskowitz v Kindt, 394 F2d 648.

127.101. Nat'l Student Assn v Hershey (CA DC) (412 F2d 102) Oct 1967: Def issued LBM 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. Nov 24: White Plains bd reclassified Gibbons after returning draft card. Pls are NSA, Students for Democratic Society, Campus ADA, 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 who want to continue to express dissent under First Amdt. Dec 4, 1967: Pls sued SSS Dir for 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, under 42 USC §§1981, 1983, 1985; 28 USC §§1331(a), 1343(3), (4), 2201; $10,000 jurisdictional amount.

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

- 52 -

with statutory deferments in 1967 draft law; directive issued in violation of Adm Procedure Act (5 USC §552); SSS Regs 1642.1, 1602.4 re delinquency violate all listed constitutional rights, and employ draft as administrative punishment.

Mar 8, 1968: DC granted Def's motion for summary judgment: (1) no jurisdiction due to 1967 Act §10(b)(3); (2) directive was advisory, not mandatory upon Local Bd; (3) those punitively reclassified have remedies after reclassification. Je 6, 1969: CA reversed, held Pls entitled to partial relief: (1) §10(b)(3) does not bar suit contesting neither "classification" nor "processing" but attacking administrative Reg, official policy; (2) allegation of "chilling effect" does not automatically establish justiciable case; (3) no case or controversy with respect to delinquency Regs or that part of Hershey directive which construes them or LBM 85; (4) controversy existed re reclassification on account of protest activity not within scope of delinquency Regs; (5) Pls here have standing since organizations and members subject to chilling effect; (6) Hershey directive authorizing denial of deferments, exemptions on basis of illegal protest activity invalid, Bds have no such authority; (7) injunction not appropriate; (8) remanded to DC for entry of declaratory judgment.

Eleanor Holmes Norton, Esq, 1424 16th St NW, Washington, DC 20036; Arthur Kinoy and William Kunstler, Esqs, 588 9th Ave, Melvin Wulf, Esq, ACLU, 156 5th Ave, all of NYC; Harriet Van Tassel and Morton Stavis, Esqs, 116 Market St, Newark, NJ.

Complete file: MCLL.

And see Anderson v Hershey (CA 6) (1 SSLR 3159); Kimball v SSS Local Bd 15 (SD NY) (1 SSLR 3058, 3114).

127.107. Breen v SS Local Bd #16 (USSC) (1 SSLR 3024, 3316) Appt, college student with II-S deferment, mailed draft card to Gov't to protest Vietnam war. Local Bd reclassified I-A. Feb 20, 1968: Appt moved in DC for declaration that his reclassification was invalid; for preliminary injunction restraining Local Bd from inducting him; for convening of 3-judge ct. Mar 13: DC denied all motions: No jurisdiction due to 1967 Act §10(b)(3). Jy 17: DC enjoined Bd from inducting Appt pending appeal. Jan 10, 1969: CA 2 affirmed: Pre-induction review of reclassification not allowed under §10(b)(3) when student deferment granted under 1967 Act §6(b)(1), distinguishing Oestereich, 127.13, when §10(b)(3) bar to preinduction review held inapplicable because Appt had been granted statutory exemption and Local Bd flouted law in reclassifying him. Apr 28: USSC granted cert. Jan 26, 1970: USSC reversed (8—0), remanded, Black, J: held Oestereich controlled; (1) nothing in Act indicated Congressional intent to allow Bd to deprive otherwise qualified students of deferments for reasons relied on here; (2) Gutknecht, 123.302, held induction pursuant to delinquency Regs not authorized by Congress; (3) no relevant, practical, legal differences between deferment and exemption for purposes of pre-induction review; (4) pre-induction review available.

Lawrence Weisman, Esq, 955 Main St, Bridgeport, Conn; Emanuel Margolis, Esq, 25 Bank St, Stamford, Conn.

CA, USSC briefs: MCLL.

127.111. Shiffman v SS Local Bd No 5 (USSC) (391 US 930) Pet turned in draft card. Bd designated delinquent, cancelled II-A deferment, classified I-A. Before date of induction Pet sought temporary restraining order. DC denied. Apr 30, 1968: CA 2 affirmed: no right to stay of induction pending filing of petition for cert. May 27, 1968: USSC denied application for stay; Douglas, J, dissent.

And see Zigmond v SS Local Bd #16 (284 FSupp 732; 396 F2d 290; stay denied 391 US 930).

128. By Civilians (and see 50s)
Downdraft articles:

Anti-draft movement. Vol 4, #2, pp 13—19.

Challenge the draft. Vol 1, #3, pp 3—5.

Criticisms of draft protests. Vol 1, #3, pp 6—7.

Questions on the movement. Vol 4, #3, pp 3—4.

Fellowship articles:

J N Sayre, Foursquare against conscription. Vol 31, #9, p 11.

Military's growing power since Vietnam. Vol 32, #3, pp 7—9.

Moral, Technological implications of peace (special issue). May 1965. 39 pp.

Howard Schomer, New approach to Vietnam. Vol 31, #9, p 4.

Rev P J Riga, Question of War. Vol 31, #9, pp 20—4.

Organizations:

Taxpayers against war, PO Box 15394, San Francisco 94115.

Vocations for Social Change, Canyon, Calif. Tool for finding jobs in anti-war organizations.

Article:

Stewart Meacham, Resistance to the draft. Liberation, Mar 1966. 3 pp.

Memos in Meiklejohn Civil Liberties Library:

David R Gilson, Anglo-American conscription: its history. 68 pp. MCLL.

Kenneth Cloke, Civilian rights on military bases. 11 pp. MCLL.

Feb 1967 NY NLG Draft Conference transcript. 75 pp. MCLL.

Draft law and anti-war protests. Draft law group, Yale Law School. 15 pp. Nov 1967. MCLL.

John Greenspan, Three aspects of war protesting. 28 pp. MCLL.

Universal military training and 1st Amendment. 4 pp. MCLL.

Proposed Legislation:

Excess War Profits Tax: S 2277, May 27, 1969, (Sen McGovern and 15 others) alternative to surtax charge on personal income; imposes tax of 37% of excess profits on corporations during period Jan 1, 1969—Dec 31, 1970. 24 pp.

And see Hillside Community Church, 25.20.


128.5. US v Spock, et al (CA 1) (416 F2d 165) Aug 1967—Jan 1968: 5 Defs from varied walks of life made speeches and various public expressions of view that Vietnam war is illegal and immoral; encouraged and praised draft resisters; signed public manifesto against war along with several hundred others. Defs not well acquainted with each other, met seldom, as at antiwar functions where each expressed his own opinion. US indicted Defs: conspiracy to violate §12(a) of 1967 Act by counseling evasion of military service, turning in of registration and classification cards, and hindering of administration of Act. Aug 14: After jury trial, Def Spock and 3 others convicted; 1 acquitted. Issues on appeal: (1) Defs convicted solely for speech protected by 1st Amdt; (2) no agreement, unlawful objective, or criminal intent on part of Defs, hence no conspiracy; (3) indictment failed to give adequate notice of crime charged; (4) Defs' belief that war and draft were unconstitutional and violated int'l law should have been submitted to jury on issue of criminal intent; (5) Defs should have been allowed to establish illegality of war and draft; (6) §12(a) unconstitutionally overbroad; (7) petit jury did not represent cross-section of community and was unconstitutionally selected (no women). Jy 11, 1969: CA reversed: (1) when alleged agreement bifarious, political within 1st Amdt, specific intent may be shown by prior or subsequent unambiguous statements, by subsequent commission of illegal act, or by subsequent legal act undertaken for specific purpose of rendering effective later illegal act; (2) specific intent of one Def not ascertained by reference to conduct or statements of another even if
- 53 -

has knowledge thereof; (3) 1st Amdt, per se, does not require acquittal; (4) evidence of agreement, illegal purpose sufficient to jury; (5) jury could have found Goodman, Coffin had intent; (6) Spock, Ferber entitled to acquittal since jury not have found intent; (7) trial ct's submission of "special findings" in criminal case prejudicial error; (8) new trial for Goodman, Coffin.

Boudin, Victor Rabinowitz, Esqs, 30 E 42d St, NYC; Rosenberg, Esq, 60 State St, Boston, Mass.

: Edward J Barshak, Esq, CLUM, 73 Tremont St,

: William P Homans, Jr, Esq, CLUM, 73 Tremont St,

: James D St Clair, Esq, 60 State St, Boston; Arthur J , Esq, 301 E 73rd St, NYC; Prof Abraham Goldstein, Yale School, New Haven.

: Calvin P Bartlett, Esq, 225 Franklin, Boston; Telford , Esq, 60 E 42nd St, NYC.

: Jessica Mitford, The trial of Dr. Spock. Knopf (Sept 1969).

:

P Mack, Strange trial of Dr Spock. Progressive, Sept 1968. Sax, Saturday Review. Sept 28, 1968; 57 The Yale Rev, 1968.

Woodward. Commentary, Nov 1968.

Stone. Nation, Dec 9, 1968.

brief: MCLL.

129. Miscellaneous (including Expatriation)
Periodicals:

Other Alternative, Irregular, 215 Cottingham St, Toronto 7, Ontario, Canada.

Books:

Montreal Council to Aid War Resisters (Comite de Montreal d'Aide aux Objecteurs de Conscience), Immigration to Canada and its relation to draft, March 1970, Case Postale 231, Montreal 215, Quebec.

130. DENIAL OF TAX EXEMPTION TO INSTITUTIONS (see also 202, 266)
140. SUNDAY CLOSING LAWS
150. MISCELLANEOUS RESTRICTIONS
And see Dewey, 576.76, Desloges, 576.78.
151. In Prisons (and see 411, 557, 580, 590)
And see Moore, 580.25.
151.16. Davis v Eaton (Jefferson Cir Ct, #CR 123,641) Nov 7, 1968: Pl, Presbyterian minister, not allowed to visit Danny R Owens, convicted draft resister, by Def Sheriff's agents. Dec 6: filed for writ of mandamus, TRO. Dec 19: Ct dismissed: prisoner moved to Fed'l Penitentiary at Terre Haute, Ind—moot.

Daniel T Taylor III and Robert E Delahanty, Esqs, 528 W Jefferson St, Louisville 40202.

Order (Dec 19): MCLL.

And see cases at 120s.

151.17. Walker v Atlanta Federal Peniteniary (CA 5) (411 F2d 23) Jan 1968: Fed'l prison furnished Catholics, Jews, Protestants with ministers at no expense. Muslim prisoners, numbering slightly less than Jews, sued in DC asking provision of Muslim minister, right to subscribe to Muslim newspaper, preparation of special meals, access to Muslim radio broadcasts. Jan 25: DC ordered prison to hire Muslim minister, denied all other requests. Feb 9: Pl appealed to CA; CA remanded to DC. Jy 11, 1969: Final judgment, decree in DC.

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

151.18. Abernathy v Cunningham (CA 4) (393 F2d 775) 1960: Pl entered Va State Farm to serve sentence for murder, robbery. Jan 1965: Officials placed Pl in maximum security "C" bldg at Richmond State Pen because of numerous disciplinary problems. Pl petitioned DC: (1) for release from "C" bldg: confinement there unreasonable punishment, resulted from religious and racial discrimination; (2) relief from prison Regs which hindered free exercise of religion; specifically, pork free meal at noon, right to receive Muhammad Speaks, book by Elijah Muhammad. DC held evidentiary h'g, denied relief; Pl appealed. Apr 1, 1968: CA held (2-1): absence of racial, religious discrimination, long history of disciplinary problems justified detention in "C" building; sufficient evidence submitted that Pl could get adequate diet without eating prison food cooked in pork; racist content of publications justified ban. Diss argued publications should be allowed subject to restriction against distribution to other prisoners.

Robert L Taylor, Esq, Richmond, Va; Edward Lane, Esq, 700 E Main, Richmond, Va 23219, on brief.

151.19. Barnett v Rodgers; Clark v Rodgers (CA DC, # #20940, 20942) (410 F2d 995, 1 RRLS 183) Pls, Muslim prisoners, filed habeas petitions in consolidated cases: Defs denied them pork-free diet, coffee 3 times daily consonant with Muslim religious tenets; alleged denial was cruel, unusual punishment; sought release from custody. DC DC dismissed. Feb 18, 1969: CA DC reversed: held, citing Sherbert v Verner (83 SCt 1970), there must be clear showing of burden on free exercise of religion justified by compelling state interest in regulation within state's power to regulate; "That penal as well as judicial authorities respond to constitutional duties is vastly important to society as well as the prisoner. Treatment that degrades the inmate, invades his privacy, and frustrates the ability to choose pursuits through which he can . . . gain self-respect erodes the very foundations upon which he can prepare for a socially useful life. Religion in prison subserves the rehabilitative function . . . within which the inmate may reclaim his dignity . . ." Remanded to DC to see whether "the provision of meals at the District Jail can be squared with constitutional requirements."

Ross O'Donoghue, Esq, George A Fisher, Esq, Washington, DC.

And see cases at 557.

151.20. Knuckles v Prasse; Washington v Brierley (ED Pa, # # 41770, 42445) (320 FSupp 1036, 1 RRLS 224) Pls, Black Muslim prisoners, filed consolidated suits alleging denial of right to worship with minister of Muslim faith; to receive Muslim publications; forbidden to wear Black Muslim medallions; denied pork-free diet. Jy 31, 1969: DC denied in part, affirmed in part: Pls permitted to worship so long as doctrines preached remain religious, non-defiant of prison authority; Defs permitted to monitor services; Black Muslim publications denied: such literature could be read as urging defiance; Pls failed to show ban on medallions, pork-free diet an abuse of Defs' discretion to maintain discipline.

- And see cases at 557.

- 54 -

152. In Other Places (and see 550s)

152.11. Hollon v Pierce (DCA, Calif.) (257 ACA 525) 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. Dec 1967: DCA affirmed, stating that an aberration may be expressed in religious terms. 1968: Sup Ct denied petition for h'g.

Marshall W Krause, Esq, 503 Market St 94105; Robert Laws, 646 Van Ness Ave 94102; both of San Francisco; Henry Saunders, Esq, 1428 West St, Redding 96001; all for ACLU.

152.12. California v Petersen (DCA) Fall 1966: Def-writer arrested: possession of marijuana. Defenses: freedom of religion (drug provides "inner harmony"); right to privacy; cruel and unusual punishment. Convicted; DCA reversed in unpublished opinion.

Paul K Robertson, Esq, 777 N First St, San Jose 95112.

FREEDOM OF ASSOCIATION: AFFECTING THE ORGANIZATION (200-223)
200. ORGANIZATIONAL PRIVILEGES CHALLENGED
201. As to Meetings (see also 11, 63)
202. As to Tax Exemption (see also 130, 266)
203. As to NLRB Certification (see also 245, 291)
204. As to Continued Existence (see also 63, 213, 223)
210. COMPULSORY REGISTRATION
211. Under 1950 Internal Security (McCarran) Act (see also 336)

211.16a. W E B DuBois Clubs of America v Clark (DC DC) (277 FSupp 971, 389 US 309, 285 FSupp 619) Apr 26, 1966: Pls filed suit for interlocutory injunction, permanent injunction, and declaratory judgment to restrain Atty Genl from ordering it to register (see Katzenbach v DuBois Clubs, 13 DOCKET 58): 1950 Subversive Activities Control Act §7(b)-(d) void and illegal as violation of US Constitution, Art I §9, Clause 3, Art III; 1st, 5th, 8th, 9th, 10th, 13th, 14th, 15th Amdts. DC agreed to convene 3-judge ct to determine constitutionality of Act. May 5, 1967: 3-judge ct dismissed complaint. Je 12: DC 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, 380 US 479, 10 DOCKET 104, 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 1st 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 1st 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.

Jan 22, 1968: USSC denied petition for reh'g. Jan 2: Pres signed amdt to McCarran Act (PL 90-237, 81 Stat 765) requiring Def-SACB to hold h'gs under Act by Dec 31, 1968 or Def-Bd shall be dissolved, members' yearly salaries of $26,000 be terminated. Feb: Def-Bd scheduled h'gs in Mar to compel Pls to submit to punitive regulations of Act. Mar: Pls refiled suit in DC DC for declaratory, injunctive relief before 3-judge ct: amended Act violates Const, sections mentioned in 1966 suit, above: no rational connection between fact to be proved and ultimate facts presumed; vague, overbroad restriction on freedom of association; ex post facto punishment; bill of attainder; unconstitutional delegation of legislative power; purpose of statute, Bd action to harrass, intimidate Pls, deter exercise of 1st Amdt rights by class represented by Pls. Je 12: DC dismissed complaint for want of subject matter jurisdiction; present suit identical with previous suit already considered by USSC.

Terrence Hallinan, Esq, 345 Franklin St, San Francisco 94102; Arthur Kinoy, William Kunstler, Harriet Van Tassel, Dennis Roberts, Morton Stavis, Esqs, 588 9th Ave, NYC 10034; David Rein, Esq, 711 14th St NW, Washington DC 20005; Melvin Wulf, Esq, 156 5th Ave, NYC 10010.

Complaint for declaratory judgment and injunctive relief (DC DC); jurisdictional staement (USSC): MCLL.

211.17. Boorda v Subversive Activities Control Board (CA DC) (421 F2d 1142) Pls, Utah residents, held series of meetings, formed organization, committed no unlawful acts. SACB proceedings begun: organization unregistered affiliate of Communist Party. Pl alleged McCarran Act violated 1st Amdt, due process in lack of substantial justification, presumption of guilt through association, lack of judicial determination of clear and present danger. Pl petitioned under §14(a), 1950 Internal Security Act (50 USC §781-98), to set aside orders of SACB that each Pl is member of Communist Party USA, a Communist action organization. Dec 3, 1969: CA reversed SACB: (1) SACB did not err in holdings Pls may not challenge status of Communist Party in instant proceeding; (2) disclosure provisions of §13(g)(2) of 1950 Act unconstitutionally required public disclosure of mere fact of membership, whether or not member has engaged in, or intends to further, illicit ends of organization; (3) since disclosure provisions attach solely to rights protected under 1st Amdt and disclosure can operate as "substantial burden" on exercise of free association right, §13(g)(2) unconstitutional; (4) same result obtains under balancing test; remanded to SACB to dismiss petitions.

John J Abt, Esq, 299 Broadway, NYC 10007; Joseph Forer, Esq, 711 14th St NW, Washington, DC 20005.

Richard Young, Law Bldg, U of Utah, Salt Lake City 84112; Melvin Wulf, Esq, 156 Fifth Ave, NYC 10010; Lawrence Speiser, Esq, 1424 16th St NW, Washington, DC 20036, for ACLU amicus.

- 55 -

212. Under 1954 Communist Control Act
213. Under State Laws (see also 204, 245)
214. Under Foreign Agents Registration Act
220. LISTING AND INVESTIGATING
221. By the Attorney General of the United States

221.7. Veterans of Abraham Lincoln Brigade v Attorney General (USSC) (409 F2d 1139; cert den 90 SCt 72) 1938: Some American veterans of Spanish Civil War formed organization to provide medical, employment aid to members, encourage continued contacts. 1948, 1953: US Atty Gen listed Abraham Lincoln Brigade as Communist front organization without hearing or notice. 1967: Pl-members Fishman, Colow, Yates sued in DC to have Atty Gen's list of subversive organizations declared unconstitutional under 1st, 5th Amdts. DC dismissed complaint without opinion. Feb 14, 1968: CA DC, Pettyman, J, held Pl had timely made plain its opposition to being put on list, "struggled constantly and vigorously for years against classification as a Communist-front organization"; 1st Amdt rights involved; joint motion to abandon Def's petition to register Pl before SACB (Apr 20, 1966) was material development favorable to Pl; therefore, Pl should have been granted extended time before being placed on Atty Gen'l's list. Feb 14, 1969: CA vacated DC order, remanded. Danaher, J, diss. Oct 13, 1969: USSC denied petition for cert; Douglas, J, diss.

Leonard Boudin, Esq, National Emergency Civil Liberties Committee, 25 East 26th St, NYC 10010.

222. By Congressional Committees
223. By State Authorities (see also 24, 281)

223.4. Liveright v Joint Committee (MD Tenn) (279 FSupp 205) Jan 11, 1968: DC issued permanent injunction against Joint Comm and General Assembly of Tenn from investigating Highlander Center, Knoxville, as "front for subversive activities"; Dombrowski principle applied in first granting of permanent injunctive relief against such a legislative comm.

Charles Morgan, Jr, Esq, 5 Forsyth St NW, Atlanta, Ga 30303; Cecil D Branstetter and George E Barrett, Esqs, 216 Third Ave N, Nashville, Tenn 37213.

And see Dombrowski, 380 US 479, 10 DOCKET 104; Tennessee ex rel Sloan v Highlander Folk School, 245.6, 6 DOCKET 13, 7 DOCKET 42.

223.5. Black Unity League of Kentucky v Miller (USSC) (89 SCt 766) 1968: Ky Un-American Activities Comm decided to investigate civil disorders of May 1968. Pls, politically active groups, sued in DC seeking injunctive, declarative relief against Def-KUAC: argued Def established to harrass groups such as Pls, vagueness, overbreadth of establishing resolution would have chilling effect on their activities; did not allege any of their members had been called or issued subpoenas; failed to respond to Def's motion to dismiss. DC dismissed. Mar 3, 1969: USSC affirmed, per curiam: Pl did not show irreparable harm; Def had not called witnesses, issued subpoenas, or begun criminal prosecution. Douglas, J, diss.

Robert A Sedler, Esq, Univ of Ky College of Law, Lexington, Ky 40506; Kunstler, Kinoy, Stavis, Esqs, LCCR, 588 Ninth Ave, NYC 10034.

223.5a. Braden v Nunn (CA 6, # 18,849) Pl executive director of Southern Conference Education Fund. 1968: Same facts as Black Unity League, 223.5. CA denied relief on basis of that case.

Same counsel as above.

223.6. Goldman v Olson (WD Wisc) (286 FSupp 35) 1968: State Senate authorized legislative comm to investigate "possible involvement of DuBois Club, SDS in riots accompanying visit by campus recruiters from Dow Chemical." Pl-students sued for declaration Senate resolution was void: overbreadth, intrusion upon 1st Amdt rights. Ct held record did not establish state interest so compelling as to justify invasion of constitutionally protected privacy of association; nevertheless denied declaratory, injunctive relief since investigators had not yet intruded into constitutionally protected areas or produced chilling effect.

Law Center for Constitutional Rights, 588 9th Ave, NYC 10034.

FREEDOM OF ASSOCIATION: AFFECTING THE MEMBERS (240-294)
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)

245.16. The Dombrowski Litigation Cases arising from the 1963 search of Southern Conference Education Fund offices, confiscation of records, arrest of 3 men on charges of subversion by Louisiana State UnAmerican Activities Committee:

Article: Robert A Sedler, Dombrowski-type suit as an effective weapon for social change: Reflections from without and within. 18 Kansas 237-276.

245.16d. Dombrowski v Pfister (USSC) (227 FSupp 556, 380 US 479) Nov 12, 1963: Pls sued for injunction against city and state officials, grand jurors and Def-
- 56 -

Comm using SCEF records and for declaratory judgment (under 28 USC §§ 2201, 2202, 2281) that La statutes were unconstitutional. Nov 18: 1 of 3-judge panel enjoined state and city officials from "taking any prosecutive action" against 3 Defs and from presenting evidence to grand jury re possible violation of La statutes. 1964: 3-judge ct (2-1) held La statutes constitutional under 10th Amdt, refused to hear testimony on their illegal application; injunction against further criminal proceedings withdrawn; Wisdom, J, diss. Feb 4: 3-judge ct vacated Jan 10th ruling on constitutionality under abstention doctrine pending state ct decision; dismissed complaint. Je 15: USSC noted prob juris. Issues: (1) do La Rev Stat Title 14 §§ 358-374, 390-390.8 on their face violate freedoms guaranteed by 1st and 14th Amdts, (2) are statutes so vague as to deny due process, (3) have statues been superseded by existing fed'l legislation, (4) does complaint state cause of action under 42 USC §§1983, 1985. Apr 26, 1965: USSC (5-2) reversed and remanded, Brennan, J: (1) on abstention: Pls "allege threats to enforce statutory provisions other than those under which indictments have been brought" against them; "a series of state criminal prosecutions will not provide satisfactory resolution of constitutional issues"; "We hold the abstention doctrine is inappropriate for cases such as the present one where ... statutes are justifiably attacked on their face as abridging free expression or as applied for the purpose of discouraging protected activities." A state ct "interpretation rendering the statute inapplicable to SCEF would merely mean that appellants might ultimately prevail in the state cts. It would not alter the impropriety of appellee's invoking the statute in bad faith to impose continuing harrassment in order to discourage appellant's activities"; (2) on DC injunction: proper to enjoin state ct prosecution for vagueness, later modify it if state ct interpretation justifies. Held registration, §364(7) invalid, citing Jt Anti-Fascist Refugee Comm v McGrath, 341 US 123; support of "subversive organization," §364(4), invalid; definitions, §359(5), invalid as overly broad, citing Baggett, 377 US 362, Speiser, 357 US 513; remanded for DC to order prosecution restrained, all papers returned, no enforcement of void sections of Act, prompt determination of other issues. Black and Stewart, JJ, took no part in case. Harlan, J (Clark, J) diss.

Amicus brief (National Lawyers Guild), amicus brief (ACLU), Appts response to motion to dismiss or affirm, Appts brief, jurisdictional statement (USSC); dissenting opinion of Judge Wisdom (ED La): MCLL.

245.16b. Dombrowski v Eastland (USSC) (358 F2d 281, 387 US 882) Sept 1963: Pls, 2 attys and official of SCEF, 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' 4th 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, (3) ordered Sourwine to pay ct costs. 1969: suit against Sourwine in DC DC pending.

Arthur Kinoy, Esq, 588 9th Ave, NYC 10034.

Petition for cert, Pet's reply to brief for Resps: MCLL.

245.16e. SCEF v Pfister SCEF, 3 men arrested, sued Pfister, members of Louisiana Un-American Activities Comm: $750,000 damages. May 1969: conference between opposing attys resulted in statement by Comm members retracting allegation of subversion against Pl-individuals; statement distributed to all who received initial defamatory charge. No retraction made as to SCEF itself.

Bruce Waltzer, Esq, 335 Decatur St, New Orleans 70130.

Committee retraction statement: MCLL.

246. Under 1950 Internal Security (McCarran) Act
Articles:

"A challenge to concentration camp law", and "Resume: Test-case Title II `Emergency Detention' McCarran act concentration camp law". Liberty, Vol VII #1, Fall, 1968. 22 E 17th St, NYC 10003. MCLL.

Congressional Testimony:

Testimony of Lawrence Speiser on HR 15018. Apr 1968, 21 pp. Testimony of Lawrence Speiser on S 2988, Mar 1968, 70 pp. Both published by Washington ACLU, 1424 Sixteenth St NW, Washington DC 20036. MCLL.

Memo:

Memorandum on S 12 (proposed 1969 Internal Security Act). Washington ACLU, 1424 Sixteenth St NW, Washington DC 20036. 47 pp. MCLL.


246.2. Bick v Mitchell (DC DC #2856-68) Class action brought by many organizations including SNCC, SDS, CP seeking declaratory judgment on constitutionality of McCarran Act, Title II which provides for concentration camps. Mar 13, 1969: argument of Def's motion to dismiss for lack of justiciability. May 12: Bryant, J, granted Gov't motion to dismiss, without opinion. Pl filed motion for reh'g based on new threats to invoke statute made by Dep Atty Gen in magazine interview. Pending.

Dennis J Roberts, Esq, 2768 Shasta Rd, Berkeley Ca 94708.

Complaint for declaratory judgment (13 pp); Pl's memo (66 pp): MCLL.

250. CIVIL DISABILITIES FOR MEMBERSHIP: FEDERAL
251. In Federal Employment (see also 30, 268)
Article: Charles O Jones, Remember the Hatch Act? Nation, Oct 20, 1969. 33 Sixth Ave, NYC 10014. $10/yr-weekly.

Statement of the ACLU in opposition to HR 12699, Sept 24, 1969. ACLU, 1424 Sixteenth St, Washington DC 20036.

Dissenting view of Congressman Louis Stokes on HR 14864, Defense Facilities and Industrial Security Act of 1970. Report No. 91-757, 5 pp.


251.57. Soltar v O'Brien (ND Calif) (277 FSupp 579) 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. Dec 8: DC gave judgment for Pl. Gov't declined to appeal.

Jerome Falk, Esq, 650 California 94108; Marshall Krause, Esq, 503 Market 94105, both of San Francisco.

Memo in support of motion for judgment on pleadings: MCLL.

See also Fishkin, 25.41.

251.61. Kahn v Public Health Service (DC DC) 1968: Pl-doctor openly opposed Vietnam war, supported memorial for W E B DuBois. May 6: Pl applied for commission in Reserve Corps of Public Health Service (CORD Program). Aug 15: Def advised Pl he was qualified, would begin 2 years duty Jy 1970. Dec 12: Def advised Pl despite "tentative selection" he
- 57 -

did not meet standards for appointment; refused to specify grounds. Pl sued, challenged denial of commission; sought injunction preventing Army from inducting him as a private. Pending.

Leonard Boudin, Esq, National Emergency Civil Liberties Committee, 25 E 26th Street, NYC 10010.

And see 253., 362.

252. As to Passport Applications and Right to Travel
UN DECLARATION OF HUMAN RIGHTS: Art 13(1).
252.67. Wittman v Secretary of State; Lynd v Rusk (CA DC) (389 F2d 940) 1964: Pl-Wittman traveled to Cuba. Jan 1966: Pl-Lynd visited N Vietnam. On their return both informed their passports tentatively withdrawn: violation of State Dept travel restrictions. Pls pursued administrative remedies within Passport Office. At h'g Lynd agreed not to use passport in areas restricted by Sec, but reserved right to travel to those areas without using passport. Pl-Wittman refused to give any assurances as to her travel. H'g officer recommended final withdrawa; decision affirmed by Dir of Passport Office, Sec, Bd of Passport Appeals. Pls sued in DC for injunctions against revocation of passports, declaratory relief. Jy 28: DC granted summary judgment for Def in both cases. Pls appealed. Dec 20, 1967: CA held: (a) Wittman: Sec's revocation affirmed unless Pl agreed not to use passport to travel to restricted areas. (b) Lynd: Since Pl gave all assurances requested of him with respect to use of passport, CA issued declaratory judgment that Sec could not withhold passport because of Pl's failure to give assurance that he wouldn't go to restricted areas without it; but refused to grant injunctive relief: Pl must first show concrete travel plans before entitled to injunctive relief, Gov't may also impose restrictions on Pl to insure use of passport is not abused.

David Rein, Esq, 711 14th St NW, Washington, DC 20005; Leonard Boudin, Esq, 30 E 42nd St, NYC 10017.

Appt's brief (CA DC): MCLL.

252.68. Gregory v Secretary of State (CA DC) (390 F2d 494) 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 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. Dec 20: CA DC decided with Wittman, 252.67.

Leonard Boudin, Esq, 30 E 42nd St, NYC 10017; David Rein, Esq 711 14th St NW, Washington, DC 20005.

253. As to Military Acceptability, Discharges (see also 122, 341)
See Kahn, 251.61.
254. As to Veterans Disability Payments

254.3. Thompson v McNamara (CA DC) (408 F2d 154) Pet, Spanish Civil War veteran, decorated as US hero after World War II. 1949: Pet convicted of violating Smith Act. 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, 10 DOCKET 32-11 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: (1) Nat'l 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 1st Amdt freedoms. Dec 13, 1968: CA DC reversed: Army not authorized by Congress to cut down class of honorably discharged veterans eligible for burial. Jan 1969: Thompson buried; case dismissed without prejudice.

Wm Warfield Ross, Lawrence Speiser, Joel E Hoffman, Esqs, ACLU, 1424 16th St NW, Washington, DC 20036.

Appt's brief (CA DC): MCLL.

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)

255.5. 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. Case dismissed when law changed to eliminate disqualification.

Ben Margolis, Esq, 3325 Wilshire Blvd, Los Angeles 90005.

Amicus by A L Wirin, Fred Okrand, Esqs, 257 So Spring St, Los Angeles 90012, for ACLU.

Amended complaint for injunction (7 pp.): MCLL.

256. In Housing Projects (see also 423, 530s)
257. As to Federal License Applications (see also 17)

257.9. Ilowite v US (USSC) (390 F2d 589, 89 SCt 47) FCC asked Pl, amateur citizen's radio license applicant, to disclose under oath past, present membership in Communist Party, any group advocating violent overthrow of US gov't. (1934 Communications Act, §§301(1), 308(b), 309(a)). Pl refused, FCC dismissed his application without prejudice. On Pl's petition CA 3 affirmed FCC. Pl petitioned USSC for cert: (1) does 1934 Communications Act authorize FCC to require political information as above; (2) if so, does it abridge 1st Amdt speech, belief, association rights, deprive due process, abridge 5th Amdt self-incrimination privilege; (3) is FCC requirement of unlimited political disclosures facially void for overbreadth. Oct 14, 1968: USSC, per curiam, vacated and remanded: mootness.

Victor Rabinowitz, Leonard B Boudin, Michael B Standard, David Rosenberg, Esqs, 30 E 42nd St, NYC 10017.

- 58 -

258. Through Deportation Proceedings (see also 358)
UN DECLARATION OF HUMAN RIGHTS: Art 14(1).
258.19. Dymytryshyn v Esperdy (USSC) (285 FSupp 507, 511, 393 US 77) Between 1952-58 6 Pls received deportation orders based on findings of past Communist Party membership. Deportation never effected. Immigration Service subjected Pls to orders of supervision (Imm and Nationality Act §242(d).) Pls brought declaratory judgment, injunction action challenging constitutionality of supervision order provision in Act. Je 12, 1968: fed'l 3-judge ct held: (1) Pls lack standing, ripeness to raise constitutional issues because no violation or threat of violation of supervision order, no threat of prosecution; (2) Pls attack only procedure which would be used to prosecute them, so Dombrowski, 380 US 479, "chilling effect" doctrine does not apply. Oct 21, 1968: USSC, per curiam, affirmed.

John J Abt, Esq, 299 Broadway, NYC 10007; Ira Gollobin, Esq, 1441 Broadway, NYC 10018.

258.21. INS v Sanders (Bd of Immigration Appeals) Resp lived in US since 1903, believed himself a citizen. 1953: Resp ordered deported because of statement to INS official that he had attended 4 meetings of Communist Party in 1936. INS did not execute order since USSR did not consider Resp a Soviet citizen, refused to accept him. Resp remained on supervisory parole, reported regularly to parole officer. Mar 25, 1968: Bd ordered deportation proceeding reopened. Jan 10, 1969: Bd ordered deportation proceeding terminated.

Ira L Gollobin, Esq, 1441 Broadway, NYC 10016.

259. Through Denaturalization and Naturalization Proceedings (see also 358)
UN DECLARATION OF HUMAN RIGHTS: Art 15(1).
259.55. Weitzman v US (CA 8) (284 FSupp 514) Pet, citizen of S Africa, married US citizen, lived in US since 1963. Oct 1966: Pet filed petition for naturalization, but refused to take that portion of oath which would require her to bear arms on behalf of US or perform noncombatant service in Armed Forces (8 USC §1448a5A). When naturalization examiner denied Pet's application she obtained de novo review in DC. In DC Pet argued: (1) religious requirement unconstitutional, (2) she was "religious" within US v Seeger, 380 US 163. DC found refusal to bear arms based on personal moral code rather than on religious training and belief. 1968: on appeal to CA, Pet abandoned (2), contended 8 USC §1448a violates free exercise, establishment, due process clauses by requiring applicants for citizenship who are conscientious objectors to establish that their pacifism is by reason of religious training and belief. Pending.

Thomas C Kayser, Esq, MCLU, 1210 Minnesota Bldg, St Paul, Minn 55101.

Pet's brief (16 pp): MCLL.

And see 120s.

260. CIVIL DISABILITIES FOR MEMBERSHIP: STATE, LOCAL AND PRIVATE
261. In State, Local Government Employment (see 421)
And see Wynn, 429.44.
261.27. Hurme v Ashland Co Supervisors (WD Wisc, #69-C-39(S)) Mar 1969: Co Supervisor fired Pl from job as bookkeeper, alleging she was communist sympathizer. Mar 8: Pl sued in DC challenging constitutionality of relevant state statutes, co ordinances; sought reinstatement, back pay, compensation for harassment, atty's fees. Pending.

David Loeffler, Esq, 110 E Main St, Madison 53703; Goldberg, Previant, and Uelmen, 211 W Wisconsin Ave, Milwaukee 53203.

262. In Teaching (see also 24, 267, 281, 342, 571)
And see Johnson, 571.64; Collins, 571.73.
262.18. McLaughlin v Tilendis (Cook Co, Ill) (CA 7) (398 F2d 287) 1966: Pls, probationary teachers, joined AFT, participated in union activities; dismissed by Bd of Educ. Oct: Pls sued under 42 USC §1983 asking $100,000 damages from Sup't of school district, members of Bd of Educ for harm resulting from their dismissals. DC (ND Ill) dismissed: Pls had no 1st Amdt right to join labor union, thus no jurisdiction under Civil Rights Act. Je 12, 1968: CA 7 reversed: absent some illegal intent, 1st, 14th Amdts protect right to engage in union activity; Defs not protected from suit by Ill Tort immunity statute: 42 USC §1983 prevails under Supremacy Clause. Aug 1969: Case ready for trial after remand.

Andrew Leahy, Esq, Ligtenberg, DeJong, and Leahy, 134 N LaSalle St, Chicago 60602.

262.21. 12 Teachers v Village Children's School (Colo Sup Ct) Apr 1966: Pls walked out to protest firing of teacher who belonged to union; demanded collective bargaining. Def school director ordered lockout, dismissal. State Industrial Commn ordered reinstatement. Dist Ct reversed: commn has no jurisdiction over private schools. May 1968: Sup Ct reversed: state's Labor Peace Act establishing Commn applies to private schools.
262.22. Beauboef v New Orleans (ED La, Civ #69-407) Apr, 1969: Pl teacher allegedly fired from Delgado College for union activities. May: Pl filed suit with DC for injunction requiring Def city bargain with AFT, Local 1130. Pending.

Benjamin Smith, Esq, 305 Baronne St, New Orleans 70112.

262.23. Copelin v Giarusso (ED La, CA #69-828) Apr 14, 1969: Pl-teachers arrested while picketing New Orleans school bd: trespass. Apr 16: Pls sued in DC for injunction, declaratory relief: (1) violation of 1st Amdt
- 59 -

right to assemble, petition; (2) denial of equal protection: other public employees allowed to unionize, negotiate with city. May 16: trial dismissed as moot.

William Wessel, Esq, 1605 National Bank of Commerce Bldg, New Orleans 70112.

262.24. Davis, Karst v Univ of California Regents (Los Angeles Co Super Ct, #962,3888) Aug 1969: Pl-Davis, Black UCLA asst prof, admitted membership in Communist Party to Regents. Sept 19: Regents voted to fire Pl; h'g available before Comm on Privilege and Tenure of Academic Senate, but Comm could only recommend reconsideration, not reverse Regents' decision. Taxpayers (Karst) sued to restrain Univ from dismissing Davis, spending more money on her case; Pl-Davis filed complaint in intervention. Oct 3: when Davis said she would teach regardless of Regents' decision, Regents resolved no credit would be given for her course. Oct 22: Super Ct, in unreported decision, granted Pl-taxpayer's motion for summary judgment, rendering moot question of Davis's obligation to exhaust possible remedy of h'g before Comm of Academic Senate; also granted Davis's motion for summary judgment, ordered full reinstatement to employment status prior to Regents' Sept 19 resolution; held Regents' 29-yr-old policy against hiring Communists unconstitutional: Regents cannot make any such political test for employees. UCLA Chancellor ordered credit given for Pl's course.

John T McTernan, Esq, 3325 Wilshire Blvd, Los Angeles 90005, for Davis; for taxpayers: Charles H Phillips, Richard H Borow, Esq, 900 Gateway East Bldg, Century City, Los Angeles 90069.

Def's brief before Academic Senate Comm; in Karst, memo, intervenor's memo in opposition to demurrer: MCLL.

262.25. Johnson v California Bd of Educ (San Francisco Super Ct) 1960: Pl teaching under provisional credential refused to testify when called before HUAC. 1966: Credentials comm refused Pl's permanent teaching credential application: unprofessional conduct under Dilworth Act (Educ C §12955); Calif Bd of Educ affirmed. Pl sought writ of mandate ordering Bd of Educ to issue credentials: action unlawful and unconstitutional. Jan 1968: Super Ct granted writ; May: credential issued.

Paul Halvonik, Esq, 503 Market St, San Francisco 94105.

263. As to State Unemployment Insurance Benefits (see also 255, 346, 421, 422)
264. As to State License Applications
265. In Proceedings Against Attorneys and Bar Applicants (see also 345, 361, 373)

265.32. Law Students Civil Rights Research Council v Wadmond; Wexler v Supreme Court, NY App Div, 1st App Dept (USSC #696) (291 FSupp 772, 299 FSupp 117) 1968: Pets, law students and graduates, brought class actions for injunctive and declaratory relief challenging constitutionality of NY admission procedures which include "character and fitness" questionnaires (§90(1)(a), NY Judiciary Law, Art 94 CPLR), based on 1st, 5th, 9th, 14th Amdts, questioning power of state to inquire into personal lives, political beliefs as condition of admission. Feb 17, 1969: 3-judge ct gave Defs 90 days to modify or eliminate 3 questions from questionnaire, upheld constitutionality of statutes authorizing questionnaire and requiring proof of loyalty. Motley, J, diss: endorsed Pets' position that admission procedures unconstitutional. Je 16: Judgment entered for Defs. Jan 1970: USSC noted probable jurisdiction.

Alan H Levine, Esq, ACLU, 156 Fifth Ave, NYC 10010; Jeremiah S Gutman, Esq, 363 Seventh Ave, NYC 10001; Leonard B Boudin, Esq, 30 E 42nd St, NYC 10017; David Rosenberg, of Counsel.

Complaint, Opinion, Brief in Opposition to Motion to Affirm, Appt's brief, jurisdictional statement (USSC): MCLL.

265.34. Resner v California Bar Association (Calif Sup Ct) (433 P2d 748) 1960: Atty allegedly deposited client's funds in own account, appropriated to own use $16,000 of client's funds: disbarred. Atty had previously represented Communists, other left wing figures. Nov 28, 1967: Calif Sup Ct ordered Pet readmitted, held Pet had convincingly established rehabilitation, moral fitness.

Herbert Resner, Esq, 722 Montgomery, San Francisco 94111.

265.35. March v California State Comm of Bar Examiners (Calif Sup Ct) (433 P2d 191) 1959: Pet allegedly lied about Communist Party membership before Steel Workers Union local trial committee; also falsely denied membership in 1939 HUAC h'g; arrested frequently in course of activities as union organizer. Comm of Bar Examiners refused to admit Pet: not of good moral character. Nov 16, 1967: Sup Ct ordered Pet admitted to bar, noted testimonials to Pet's character, commitment to democratic process.
266. Through Deprivation of Right to Tax Exemption (see also 130, 202)
267. In Private Employment—Teaching (see also 24, 262, 281, 342)
268. In Private Employment—Defense Establishments (see also 344)

268.20. McBride v Smith (formerly v Roland) (USSC) (390 US 411, 405 F2d 1057) Coast Guard refused Pl-seaman a validated merchant marine certificate: Pl past Communist Party, Int'l Workers Order member, signed Party nominating petition, attended summer camp with "sympathizers." 1964: Pl sued to compel issuance of papers. SD NY denied relief; CA 2 affirmed; USSC denied cert. Je 1967: Pl filed for USSC reh'g. Jan 29, 1968: USSC asked Solicitor Genl to file response to reh'g pet. Mar 18: reh'g granted; cert denial vacated; CA 2 judgment vacated; remanded to DC for consideration in light of Schneider v Smith, 390 US 17, 268.22. On remand, DC ordered Coast Guard to issue validation. Dec 8: CA 2 reversed: DC should have remanded to Coast Guard Commandant, in accord with USSC remand, not have issued instructions to him: Commandant to determine whether reason to believe Pl might engage in present subversive acts. Pending.

Melvin L Wulf, Esq, 156 5th Ave, NYC 10010, for ACLU.

Pl's memo in support of motion for summary judgment (SD NY); Appt's brief (CA 2): MCLL.

268.22. Schneider v Smith (formerly v Roland) (USSC) (263 FSupp 496, 390 US 17) Pl-seaman, as condition for consideration of application for specially validated documents, required by Magnuson Act to answer extended questionnaire, re:
- 60 -

connection with organizations on Atty Gen'l's list, political beliefs, reading People's World. Pl refused; further consideration suspended. Pl sued for injunction against enforcement of Act through Regs. 3-judge fed'l ct dismissed. USSC granted appeal; postponed jurisdiction to h'g on merits. Jan 16, 1968: USSC reversed (8-0), Douglas, J: (1) authority under Act to "safeguard" vessels from "sabotage or other subversive acts" speaks only in terms of actions, grants no authority to withhold employment from seaman because of beliefs, reading habits, social, educational, or political associations, (2) an unlimited and indiscriminate search of the employee's past which interferes with his associational freedom is unconstitutional.

John Caughlan, Esq, 620 Arctic Bldg; Michael Rosen, Esq, Smith Tower; Leonard Schroeter, Esq, and Charles Talbot, Esq, Central Bldg, all of Seattle 98104.

268.23. Shoultz v McNamara (CA 9) (282 FSupp 315, 418 F2d 868) 1966: Pl, holder of secret security clearance for 10 yrs, told screening bd of industrial clearance established by Def desired answers to certain questions; Pl requested to schedule appointment for "interview." Pl's atty demanded authority for such interview prior to charges against Pl. Def amended Reg to provide that one who refused to answer relevant questions of DOD investigator shall have clearance suspended and case discontinued; interview scheduled. Prior to interview, Pl sought TRO; denied: premature, since no determination that Pl would refuse to answer. Je 1967: interview held; Pl refused to answer. Oct: Def suspended Pl's security clearance without availability of further proceedings. Nov: DC issued TRO preventing suspension pending trial. Issues: (1) new Reg constitutes attempt to circumvent requirement that Pl be given reasons for revocation, h'g on these reasons in order to present evidence and confront accusers; interview procedure allows Def to circumvent requirement of presenting evidence in support of security clearance removal, (2) Pl required to decide at his peril whether question is "relevant". Feb 1968: DC granted summary judgment for Pl: Def not authorized by President to remove security clearance under such circumstances, as required by Greene v McElroy, 268.12, 360 US 474. Je 27, 1969: CA 9 reversed, held failure to answer pertinent questions prevents determination of continued eligibility for clearance. Dec 8: USSC denied cert; Black, Douglas, JJ, diss.

Marshall W. Krause, Esq, 503 Market St, San Francisco 94105.

Brief for Appee (CA 9), petition for cert: MCLL.

269. In Private Employment—Other
Book: Corliss Lamont, "The trial of Elizabeth Gurley Flynn by the American Civil Liberties Union (1940)." Horizon Press, NY, 1968. 222 pp, $5.95.
269.12. Bridgewood v Local 707, UAW (Pub Rev Bd, Int'l Union, UAW, #202) 1968: Pet, Human Rights Chairman of Local #707, delegate to Dist Labor Council, ran for Provincial office as Canadian Communist Party candidate. May 30: Local removed Pet from all elective union offices; Pet's CP membership said to violate Art 10, §8 of UAW Int'l const forbidding union members to hold office if they also belong to organization which owes allegiance to any gov't other than US, Canada. Je 10: Pet appealed to Int'l Exec Bd, which denied relief. Mar 13, 1969: Pet appealed to Pub Rev Bd, argued: (1) denial of procedural guarantees afforded by Union const, (2) no showing that membership in Canadian CP equivalent to membership in type of group prohibited, (3) Art 10, §8 contrary to laws of Canada, US, US Const, providing for freedom of association, (4) Art 10, §8 contrary to Ethical Practices Code of Canadian Labor Congress. Aug 25, 1969: Rev Bd held membership alone insufficient, absent a showing that organization also presently owes allegiance to gov't other than US or Canada; ordered Local to restore Pet to all union offices held as of May, 1968.

Ernest Goodman, Esq; Goodman, Eden, Robb, Millender, Goodman, and Bedrosian, 3200 Cadillac Tower, Detroit, Michigan 48226.

Pet's brief, decision: MCLL.

269.13. Wetherton v Martin Produce, Growers Farm Assn (DCA Calif, #63696) Pls, 9 Salinas farm workers, fired by Defs for activities as members of United Farm Workers Organizing Comm, AFL-CIO. Jy 8, 1967: Pls filed suit. Jan 1968: Super Ct (Monterey Co) ruled: (1) farm workers, despite exclusion from NLRA, cannot be fired for union activities, farm workers protected by Calif Labor C §§921, 922, 923; (2) such firing constitutes tort; (3) Defs must re-hire workers, pay punitive damages. Out-of-Ct settlement granted Pls life-time contracts; annual income of $4,500; $6,750 punitive damages; right to arbitration of future grievances. Appeal filed re liability of Def-Growers Assn for acts alleged in violation of state law.

Robert L Gnaizda, Martin R Glick, Esqs, California Rural Legal Assistance, 1212 Market St, San Francisco 94102.

270. CRIMINAL PENALTIES FOR NONDISCLOSURE (see also 330)
271. Before Congressional Committees (see also 222, 330)
Publications: Nat'l Comm To Abolish House Un-American Activities Comm, P O Box 74757, Los Angeles 90004.
271.50. Stamler, Hall v Willis, Ashbrook, HUAC (USSC) (371 F2d 413; 287 FSupp 734, 89 SCt 395, 677; 415 F2d 1365) 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 fed'l ct re HUAC's constitutionality under 1st, 5th 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, argued 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 fed'l 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.

1968: Pls again sued (ND Ill) to enjoin HUAC from holding h'g, enforcing subpoenaes: violation of 1st Amdt rights. Je 26: DC (Judge Hoffman) held Speech or Debate Clause shields Congressmen, even though no judgment would make them personally liable. Sept 5: Pls appealed to USSC: (1) Speech or Debate Clause does not prohibit civil actions against Congressmen about constitutionality of fed'l legislation; (2) complaint may not be dismissed as against US Atty, Atty Gen'l because Defs-Congressmen asserted Speech or Debate Clause immunity; (3) Congressmen waived clause's rights, privileges by delay in asserting them; (4) statute setting up HUAC facially unconstitutional. Nov 25: USSC dismissed; Black, Douglas, Harlan, JJ, diss, Marshall, J, abstaining. Jan 20, 1969: USSC denied reh'g, vacated dismissal and judgment below, remanded to DC to enter fresh decree from which timely

- 61 -

appeals may be taken to CA. Aug 5: CA 7 (3-0) reversed dismissal, remanded to DC for trial; ordered indictments for contempt held in abeyance pending final outcome of civil case; rejected Def's arguments that Pls lacked standing, ct lacked jurisdiction, civil suit rendered moot by indictments, venue improper, lack of substantial fed'l question; held Pls should not be subjected to lengthy criminal litigation, entitled to adjudication of claim that Rule XI (establishing HUAC) is overbroad, chills exercise of 1st Amdt rights. Def's appeal to USSC pending.

Raymond, Mayer, Jenner, Block, Esqs, 135 LaSalle St, Chicago 60603; Flamm, Susman, Esqs, 33 N Dearborn, Chicago 60602; Harry Kalven, Jr, Esq, 4929 S Woodlawn, Chicago 60615; Richard Orlikoff, Esq, 33 N Dearborn, Chicago 60602; Arthur Kinoy, Esq, LCCR, 588 Ninth Ave, NYC 10034.

Complaint (ND Ill, 1965) Memo: MCLL.

271.52. Krebs v Ashbrook (USSC) (275 FSupp 111, 89 SCt 619) 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, 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 1st Amdt freedoms, Dombrowski, 380 US 479, 245.16d; Rule 11 is void for vagueness; denial of due process; violation of rights of privacy under 1st, 4th, 9th, 10th Amdts; illegal and non-legislative purpose of public exposure of witnesses to scorn and embarrassment. Aug 15: DC granted certification to convene 3-judge ct; TRO enjoining HUAC h'g and enforcement of subpoenas. Aug 16: chief judge, CA DC, ordered convening of 3-judge ct; dissolved TRO. Pls testified before HUAC. Aug 17: Pls moved for injunction restraining HUAC. Aug 18: 3-judge ct, sua sponte, postponed h'g on Pls' motion for injunction, directing parties to file memo on whether case should be before 3-judge ct. Sept 11: 3-judge ct dissolved itself, remitted case to single district judge. Pls appealed to CA. May 14, 1968: CA affirmed orders of 3-judge ct in per curiam opinion; Pls petitioned USSC for cert. Jan 13, 1969: USSC denied cert, Douglas, J, diss.

Arthur Kinoy, William Kunstler, Harriet van Tassel, Esqs, 588 9th Ave, NYC 10034; Jeremiah Gutman, Nancy Stearns, Esqs, 363 7th Ave, NYC 10001; Melvin Wulf, Burt Neuborne, Esqs, 156 5th Ave, NYC 10010; Philip Hirschkop, Esq, 110 N Royal St, Alexandria, Va 22313.

Complaint for injunctive and declaratory judgment relief; Pls' memo; Pls' reply memo (DC DC 1966); petition for cert: MCLL.

And see Kinoy, 373.20.

Discussion: HUAC h'gs Aug 1966: Cong Rec-Appendix: Aug 17, 1966, A4353; Aug 18, A4373; Aug 19, A4405; Aug 22, A4416, A4428; Aug 23, A4449; Aug 24, A4490; Aug 25, A4522; Aug 26, A4543; Cong Rec-House: Aug 16, 1966, 18697; Aug 18, 19038; Aug 22, 19296; Aug 24, 19575; Aug 29, 20127; Aug 30, 20403; Aug 31, 20515; Cong Rec-Senate: Aug 22, 19336.

271.53. Davis v Willis (CA DC, #Civ 2441-68) Pls, Rennie Davis, Jerry Rubin, Abbie Hoffman, Dave Dellinger, others field suit attacking constitutionality of HUAC, for declaratory and injunctive relief from subpoenas issued to them. DC denied request for 3-judge ct, dismissed suit. Pls appealed. Nov 1968: CA remanded to DC at request of Pls for filing supplemental complaint attacking constitutionality of mandate of new Committee (House Comm on Internal Security) and use by that comm of files gathered under old mandate. Pending.

Arthur Kinoy, Esq, 588 9th Ave, NYC 10034; Jeremiah Gutman, Nancy Stearns, Esqs, 363 7th Ave, NYC 10001.

271.54. Young v Willis (DC DC, #2455-68) Sept 19, 1968: HUAC issued subpoena to Pl, physician and Univ of Ill professor, re alleged Communist Party membership. Sept 20: HUAC invited Pl to appear voluntarily. Oct 2: Pl filed class action alleging: (1) statute (60 Stat 817), rule (HR Rule XI) establishing HUAC, resolution authorizing investigation of Aug 1968 Chicago violence violate Art I, §9, Clause 3; Art III; 1st, 4th, 5th, 6th, 8th, 9th, 10th, 13th, 14th, 15th Amdts of Constitution; (2) fed'l grand jury convened in Chicago to investigate Aug 1968 violence; similar attempt by HUAC will violate separation of powers, invade jurisdicition of executive, judicial branches. Pl seeks: (1) 3-judge fed'l ct; (2) injunction restraining operation of statute and rule establishing HUAC, restraining investigation and criminal actions to enforce subpoena, ordering HUAC to close all files; (3) declaration HUAC unconstitutional; (4) interlocutory injunction restraining enforcement of subpoena, issuance of more subpoenas; (5) all other appropriate relief. Nov 15: DC dismissed for want of jurisdiction: separation of powers. Pending.

Arthur Kinoy, Harriet van Tassel, William M Kunstler, Esqs, 588 9th Ave 10034; Jeremiah S Gutman, Nancy Stearns, Esqs, 363 7th Ave 10001, all of NYC.

And see US v Dellinger, 54.32.

271.55. Am Fed of Teachers, Local 1570 v Permanent Subcomm on Investigation of Gov't Operations Comm, US Senate (ND Calif) Defs subpoenaed Univ of Calif at Berkeley for records of 300 students, 11 student organizations. Pls alleged subpoena unconstitutional harassment, intimidation. Je 5, 1969: DC dismissed Pl's suit without comment.

Francis McTernan, Esq, 341 Market St, San Francisco 94105.

And see cases at 24.; Eisen, 24.Calif.7b.

272. Before State Committees (see also 204, 213, 223, 332)
273. Before Legal and Administrative Tribunals (see also 333)
274. For Refusal to Produce Records
280. CIVIL PENALTIES FOR NONDISCLOSURE
281. By Teachers (see also 24, 223, 262, 342, 571)

281.21. Georgia Conference of AAUP v Regents of Univ of Georgia (formerly 160 Professors v Georgia)

(ND Ga) (246 FSupp 553) 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. Oct 1, 1965: 3-judge fed'l ct declared portion of loyalty oath unconstitutional which required general disavowal of sympathy with doctrines or teachings of communism: standard too vague; penal provision violates 14th Amdt. Security questionnaire revised prior to trial; problem moot.

Emmet J Bondurant, Esq, for Ga CLU, 5 Forsyth 30303; Prof D Mead Field, U of Ga; Hugh Gibert, Charles Morgan, Esqs, 5 Forsythe St, all of Atlanta.

- 62 -

281.22. Ehrenreich v Kansas (DC Kan) (273 FSupp 178) 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 1st Amdt. Sept 12, 1967: 3-judge ct ruled oath unconstitutional, enjoined enforcement.

Irving Achtenberg, 531 Walnut, Kansas City, Mo 64106; Wayne Stratton, Esq, Columbian Bldg, Topeka, Kansas 66603.

281.26. Brush v Oregon (Ore Sup Ct) (422 P2d 268) 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 1st and 14th Amdts, section of State Const. State Atty Gen'l appealed. Dec 1966: Ore Sup Ct ruled oath unconstitutional under 1st, 14th Amdts.

Thomas P Deering, Esq, Davis, Strayer, Stoel and Boley, Yeon Bldg, Portland 97204.

281.27. Aronson v Regents of Univ of California (formerly Smith v Regents)

(Calif Sup Ct, #SF 22553) 1967: UC required all employees to sign oath stating signer is not and for 5 years has not been member of organization advocating violent overthrow of gov't. Aug 2: 10 UC Berkeley profs, teaching assts filed suit requesting immediate decision from Sup Ct: argued threat to civil liberties so large, constitutionality of oath so dubious that delay unwarranted. Oct 5: Sup Ct dismissed order to show cause; instead brought up Vogel v Co of Los Angeles, (68 C2d 18, 261.25, 13 DOCKET 63), from Ct of App, held oath unconstitutional as prohibiting mere membership.

Albert Bendich, Esq, 2550 Telegraph Ave, Berkeley 94704; Marshall Krause, Esq, ACLU, 503 Market St, San Francisco 94105.

ACLU amicus brief: MCLL.

281.29. Thalberg v Bd of Trs (Univ of Illinois); Krehbiel v Bd of Educ (Morgan Co, Ill) (ND Ill, E Div, ##68 C 211, 212) Nov 13, 1967: Pl Thalberg, visiting lecturer, executed contract with Univ. Dec 20: Pl Krehbiel, teacher, executed contract with Bd of Educ. Defs requested Pls to execute loyalty oaths (Ill Rev Stat, C127, §§166a, b), which disallow compensation to state employees who knowingly join or remain in subversive organizations; both refused, but performed contracts; denied compensation. Feb 6, 1968: Pls filed suits in DC challenging constitutionality of oath and seeking damage, consolidated. Je 13, 1969: 3-judge fed'l ct declared Ill Stat and loyalty oath unconstitutional: cannot deny compensation to members of subversive organizations who have knowledge of group's aims but no specific intent to further them; enjoined enforcement; awarded compensation, interest, damages, costs.

Richard H Prins, Esq, 33 N Dearborn St 60602; David C Long, Esq, 19 S LaSalle St, 60603; Lois Lasky, Esq, 6160 N Damen Ave 60622, all of Chicago.

281.30. Ball v Los Angeles Bd of Educ (LA Super Ct, #927830) Jy 1967: Pl sought employment at Los Angeles City College, refused to sign negative oath form required by Dilworth Act (Educ C §12955). Def refused to process application. Dec: Pl filed directly in Sup Ct to consolidate with Vogel v Co of Los Angeles, 261.25; Sup Ct remanded to DCA, which remanded to Super Ct for trial on merits. Mar 1968: Pl filed in Super Ct, seeking writ of mandate to compel employment, invalidation of oath requirement: Act violates 1st Amdt guarantees of freedom of speech and association, infringes on privilege against self-incrimination, invades prerogative of fed'l gov't to deal with interstate and internat'l affairs. Apr: Def admitted unconstitutionality of Act; repealed oath requirement. Trial pending.

A L Wirin, Fred Okrand, Esqs, 257 S Spring, Los Angeles 90012; Laurence R Sperber, Esq, 323 W 5th, Los Angeles 90013.

281.31. Haskett v W E Washington (DC DC) (294 FSupp 912) 1968: Pl-teachers refused to execute 2 loyalty oaths, condition of employment at DC Fed'l City College, sued to declare oaths, underlying statutes (5 USC §§3333, 7311; 18 USC §1918) unconstitutional, to enjoin enforcement. Oct 21: Amicus brief filed alleging oaths, statutes violate 1st, 5th Amdts: (1) overbroad, vague, (2) gov't employment applicants coerced re political beliefs, activities without demonstration of relevance of inquiries, (3) No procedure for non-signers to demonstrate fitness for public employment. Dec 4: 3-judge ct held oath unconstitutional as prohibiting mere membership, granted injunction.

John W Karr, Esq, Washington Bldg, Washington, DC 20005. Amici: Sanford Jay Rosen, Esq, 500 W Baltimore St, Baltimore 21201; Herman I Orentlicher, 1785 Massachusetts Ave NW, Washington, DC 20036 for AAUP; Lawrence Speiser, Melvin L Wulf, Ralph J Temple, Esqs, 1424 16th St NW, Washington, DC 20036, for ACLU.

Amicus briefs: MCLL.

281.32. McManmon v California State Dept of Educ (Los Angeles Co Super Ct) 1968: Pl-professor applied for teaching credential, refused to sign loyalty oath indicating support for US, state constitutions, willingness to promote respect for flag, reverence for law and order (Educ C §13121): Def withheld certification. Pl sued in Super Ct challenging constitutionality of oath. Super Ct granted writ of mandate compelling Def to process application without requiring subscription to oath.

A Wirin, Fred Okrand, Esqs, 257 S Spring St, Los Angeles 90012; Laurence Sperber, Esq, ACLU, 323 W Fifth, Los Angeles 90013.

281.33. Bullough v San Fernando Valley State College (Los Angeles Co Super Ct) 1968: State Educ C §13121 required teachers to disclose past, present membership in subversive organizations. Pls, college teachers, sued for injunction to prevent Bd of Trs, Calif State Colleges, from requiring disclosure: interferes with free speech, due process, privilege against self-incrimination. Pending.

A L Wirin, Esq, ACLU, Wirin, Rissman, and Okrand, 257 S Spring St, Los Angeles 90012.

281.34. Gilmore v Texas (USSC) (274 FSupp 75, 389 US 572) 1967: Pl refused to take oath requiring all state employees to swear they are not members of any of 200 subversive organizations on Texas Atty Gen'l's list; dismissed from job as instructor at Dallas Co Junior College. Aug 30, 1967: 3-judge ct ruled oath unconstitutional. Jan 15, 1968: USSC, per curiam, granted Pl's motion to affirm.

David R Richards, Esq, Clinton and Richards, 205 Texas AFLCIO Bldg, 308 West 11th St, Austin 78701.

Proposed original complaint of intervenor; Pl's second amended complaint; Def's motion to dismiss, motion to sever, motion to change venue, motion to strike: MCLL.

281.35. Hartman v Romney (DC Mass) (294 FSupp 794) 1968: Pl-Harvard prof refused to sign loyalty oath required to collect $110 consulting fee from Def. Dec 18: Pl sued to have oath declared invalid, collect fee. Dec 26, 1968: DC denied relief; addenda filed Jan 6, Feb 3. Feb 24: Pl filed appeal.

Daniel Klubock, Daniel F Feathersont Jr, Esqs, 7 Water St, Boston 02109; Sanford J Rosen, School of Law, Univ of Md, Baltimore 21201; Melvin Wulf, Esq, ACLU, 156 Fifth Ave, NYC 10010; Gerald A Berlin, Esq, 73 Tremont St, Boston 02108.

Memo in support of Pl's motion for summary judgment: MCLL.

- 63 -

282. By Others (see also 343, 344)

282.16. In re Marvin (USSC) (53 NJ 147, 97 NJ Super 62, 234 A2d 408, 90 SCt 62) 1966: Pet applied for gun permit, refused to answer whether he was or had been member of organizations advocating violent overthrow of gov't or seeking to deny others their rights under Constitution. Municipal official refused permit. Co Ct granted h'g, denied permit. 1967: Super Ct, App Div affirmed denial. Oct 1968: NJ Sup Ct affirmed. 1968: Pet sought writ of cert in USSC, argued gun control law violates 1st Amdt, is unconstitutionally vague, violates due process, provides no standards. Oct 13, 1969: USSC denied cert.

Michael D Schottland, Esq, ACLU, 268 Norwood Ave, West Long Branch, NJ 07764.

Petition for cert: MCLL.

282.17. Coxe v Osser (ED Pa #4289) 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, violated 1st, 14th Amdts. 3-judge fed'l ct entered preliminary injunction against Bd, enjoined enforcement of oath, compelled receipt of nomination petition without oath. Case dismissed without prejudice after Pl placed on ballot, Atty Gen'l represented to ct that Loyalty Act would be amended to comply with Baggett v Bullitt, 377 US 360, and Keyishian v Univ of New York, 385 US 589.

A Harry Levitan, Esq, 1412 Fox Bldg, 10th and Market, Philadelphia 19103.

Pl's memo on constitutionality of Pa loyalty oath; MCLL.

285. BILLS OF ATTAINDER
Congressional Testimony: Testimony of Lawrence Speiser on HR 17023. Washington ACLU, 1424 Sixteenth St NW, Washington, DC 20036. June 1968, 12 pp. MCLL.
290. PENALTIES FOR FALSE DISCLOSURE
291. Under Taft-Hartley Oath (see also 203, 245)

291.3a. Bryson v US (USSC) (238 F2d 657, cd 355 US 817 (1957), 403 F2d 340, 90 SCt 355) 1955: Pet convicted under 18 USC §1001 for having falsely denied Communist Party affiliation in NLRB affidavit, required by §9(h), Taft-Hartley Act, before Pet's union could use NLRB services. CA 9 affirmed. USSC denied cert. 1967: Collateral proceedings initiated to set aside verdict. DC (ND Cal) set aside conviction, discharged parole; Gov't had no right to ask questions Pet answered falsely. 1968: CA 9 reversed. Dec 8, 1969: USSC affirmed (6-2), Harlan, J: (1) Constitutionality of §9(h) legally irrelevant to Pet's conviction under §1001; "(T)his is a prosecution directed at Pet's fraud. It is not an action to enforce the statute claimed to be unconstitutional"; (2) meaning of statutory term "affiliated" not constitutionally vague, overbroad; (3) regardless of constitutionality of §9(h), NLRB had apparent authority to request affidavit; matter within jurisdiction of bd within meaning of §1001; (4) "(O)ur legal system provides methods for challenging the gov't's right to ask questions—lying is not one of them." Douglas, J (Black, J) diss: (1) question is whether §9(h) is unconstitutional, bill of attainder; not within jurisdiction of NLRB to require question be answered in affidavit; (2) Pet's union therefore entitled to services of NLRB without affidavits; "US had been deprived of nothing or defrauded of nothing by the filing of any affidavit."

Richard Gladstein, Esq, 1182 Market St, San Francisco 94102.

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. Civil Service Commn denied. Complaint in DC pending.

Melvin L Wulf, Eleanor H Norton, Esqs, ACLU, 156 5th Ave, NYC 10010.

292.4. Minnesota v Forichette (Minn Sup Ct) (156 NW2d 93) Je 1, 1960: Def filed applications denying membership in organizations advocating overthrow of gov't; obtained employment with city of Minneapolis. July 1964: City instituted discharge proceedings against Def based on false statements in applications. At h'g Def denied under oath testimony of witnesses that he was member, treasurer of Communist organization. May 5, 1965: Grand jury indicated Def for perjury based on testimony at h'g. Je 18: Def convicted: 2 yrs. Def appealed to Minn Sup Ct. Jan 5, 1968: Ct held perjury conviction could stand even though false testimony was given in proceeding initiated under Reg which could have been successfully attacked as unconstitutional under 1st Amdt.

James Bullock, Lynn Castner, Joseph Perry, Esqs, Minn ACLU, 925-26 Upper Midwest Bldg, Minneapolis 55401.

293. In Miscellaneous Cases

293.3. California Bd of Educ v Sloat (Los Angeles Co Super Ct) 1962: Pl alleged Def as member of Communist Party, had lied in signing loyalty oath (Levering Act) required for position as school teacher. Apr 24: Pl sued in Super Ct seeking permission to fire Def, tenured teacher. 1967: Ct granted Def's motion to dismiss for failure to prosecute during 5 year statute of limitations. Pl fully restored Def to her position, including back pay, retirement plan payments, credit for length of service, and interim salary increases.

Margolis and McTernan, Esqs, 3325 Wilshire Blvd, Los Angeles 90005.

295. RIGHT OF PRIVACY (and 301, 302, 303, 421)
And see Eisen, 24.Calif.7b; 111 Wines and Liquors, 25.38; Roberts, 303.73; Los Angeles Free Press, 64.20, 64.20a.

Articles:

"Computerization of government files, what impact on the individual?" 15 UCLA Law Review 1371-1498. MCLL. "Sex and the law," Wall St Journal, July 5, 1968.

Periodical: Drug Law Bulletin, Vol I, #1, May 1969. Nat'l Students Assn, 2115 S St NW, Washington, DC 20008. Bimonthly, $8/yr, $6 for libraries, $5 for students.

Senate Testimony:

Testimony of Lawrence Speiser on S 1791. Washington ACLU, 1424 16th St NW, Washington, DC 20036. July 1969. 9 pp. Testimony of Atty Gen'l Mitchell on S 2637. US Dept of Justice, Washington, DC, Sept 1969. 18 pp.


- 64 -

295.11. Leopold v Levin (Ill Sup Ct, #41498) 1959: Leopold, of Leopold-Loeb 1924 thrillslaying 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. Apr 1964: Summary judgment granted to Pl on issue of liability. Apr 1968: judgment vacated by successor judge, summary judgment granted to Defs. Pl appealed to Ill Sup Ct. Pending.

Elmer Gertz, Esq, 120 S LaSalle, Chicago 60603.

295.14. Lamont v Commr of Motor Vehicles, R L Polk and Co (USSC) (269 FSupp 880; aff'd 386 F2d 449; cd 391 US 915) 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: DC (SD NY) dismissed suit: No fed'l question; refused to convene 3-judge ct. Je 6: appeal filed in CA 2. Dec 12: CA 2 affirmed, per curiam. May 20, 1968: USSC denied cert.

Leonard Boudin, Esq, 30 E 42nd St, NYC 10017.

295.15. California v Dock of the Bay (San Francisco Super Ct) Aug 12, 1969: Defs published names, addresses of state narcotics agents from list previously printed by Los Angeles Free Press; threatened to print list of San Francisco Tactical Squad (controversial special police unit used to break up demonstrations). Aug 13: state sued for injunction against future printing of narcotics agents' names. Super Ct granted TRO: publication of secret, confidential information jeopardizes lives, health, safety of agents, informants; inhibits effective operation of law.

And see cases at 64.20, 64.20a.

295.16. Citizens for Parental Rights v San Mateo Co Bd of Educ (San Mateo Super Ct, Calif) Sept, 1968: Pls asked injunction prohibiting teaching sex education in schools: (1) violates Pls' right of privacy; (2) encourages minors to lead idle, dissolute, lewd, immoral lives; outrages public decency; disturbs public peace; illegal practice of psychology without license. Je 21, 1969: Super Ct dismissed allegation (2); issued OSC for allegation (1). Pending.
295.17. Carter v US (CA DC, #20694) (407 F2d 1238) 1965: FBI fired Pl after receiving letter: Pl "sleeping with young girls and carrying on." Pl sued in DC for reinstatement, back pay. DC granted summary judgment for Def: Pl not entitled to trial. Jy 26, 1968: CA DC remanded to DC: law gives returning veteran right to be free of discharge except for "cause" (50 USC App §459(c)); employer has burden of coming forward with cause sufficient to justify discharge; Pl has right to trial on issues of fact, to ct determination. Dec 13: CA denied petition for reh'g.

Richard M Millman, Esq, 1730 M NW, Washington, DC 20036.

295.18. Casey v Collectors Publications, Ltd. (San Diego Super Ct, #311492) Apr 8, 1969: Pls received unsolicited pornographic mail. April 25: 4 named Pls, 5000 Does filed suit in tort for money damages; allege invasion of privacy. Pending.

David S Casey, Esq, 110 Laurel St, San Diego 92101.

And see 12, 14, 52.

295.19. Erwin v Beck (ED Ark, #LR-68-C010) 1968: Defs, members of bi-racial social group, arrested in private home under state vagrancy statute, convicted, fined, sent to work-house to work off fines. Jan 23: Defs filed habeas action in DC, released on own cognizance pending DC ruling on constitutionality of statute. On appeal from conviction, state app ct upheld statute, but "pardoned Defs by finding them not guilty" because they had already served 12 days on $25 fine.

Theodore Lamb, Esq, 312 Louisiana, Little Rock 72201.

And see cases at 57.

295.20. Adams v Palmieri (DC NJ) Pl sought to enjoin local welfare agency, chairman from disclosing his confidential welfare files after being appointed to welfare bd, also sought damages, injunctive relief for local Welfare Rights Organization whose organizational efforts had been limited by disclosures by welfare officials. DC granted TRO. Pending.

William Bender, Esq, 157 So Harrison St, East Orange, NJ 07018; Carl Broege, Esq.

And see cases at 421.

295.22. Arizona ACLU v Tucson School Resource Officer Program (Pima Co Super Ct) Pl sought abolition of Def-program: (1) unconstitutional invasion of student's privacy: faculty-police officer has authority to interrogate students re themselves, schoolmates, families, neighbors, to examine school confidential student files; (2) invalid extension of school dist authority: school bd granted powers for sole purpose of promoting education; (3) violates rights of students in non-SRO schools: deprived of equal education-benefits city attributed to SRO Program. Pending.

William Messing, Esq, Arizona ACLU, 7014 N 16th St, Phoenix, Arizona 85020.

And see 24.

295.23. Caro v Marin Co (ND Calif) 1969: Attempting to discourage houseboat dwelling, Marin Co allegedly threatened to discontinue electricity to boats, tow cars, enforce previously unenforced parking Regs as to underwater "streets." May 2: suit filed on behalf of 400 houseboat residents: deprivation of right to enjoy life, property. Pending.

Carl Shapiro, Esq, 404 San Anselmo Ave, San Anselmo, Calif 94960.

295.24. Massachusetts v Weiss (Mass Sup Ct) (37 USLW 2418) 1968: Defs arrested at airport: possession of marijuana. Defs challenged constitutionality of act prohibiting possession. Jan 9, 1969: Ct upheld ban; legislature presumed to have acted rationally, though no absolute statistical, scientific proof exists that marijuana is harmful; State has legitimate interest in preventing psychotic breaks, use of more dangerous drugs, car accidents.

Joseph S Oteri, Esq; Crane, Inker, Oteri, Ashburton Place, Boston, Mass 02108.

295.25. Mason v Police Commissioner (NY Sup Ct, #17662 NY Co) 1967: Pet-policeman began living with girl friend in her apartment. Former girl friend informed Police Dept; Dept investigated, held h'g on charge that Pet had brought adverse criticism on police. Dept did not produce Pet's accuser, or offer proof adverse criticism had actually resulted. Jy 19, 1968: Police Dept dismissed Pet. Nov 12, 1968: Pet sued Dept seeking reinstatement, back pay: argued dismissal arbitrary, invasion of privacy, deprivation of right to cross-examine witnesses. Ct (App Div, 1st Dept) ordered Pet reinstated with back pay; said previous sanction too harsh, substituted 5 day suspension.

David G Miller, Esq, Phillips, Nizer, Benjamin, Krim and Ballon, 477 Madison Ave, NYC 10022.

Pet's brief: MCLL.

And see cases at 304.

295.26. Mindel v US Civil Service Commn (ND Calif, Civ #49300) 1968: Pl-post office clerk allegedly lived with woman not his wife; charged with immoral conduct, fired.
- 65 -

May 23: Pl sued seeking reinstatement; argued dismissal by Civil Service Commn interferes with constitutional right of privacy of Gov't employees. Pending.

Ronald Pinsky, Esq, ACLUNC, 503 Market, San Francisco 94105.

Pl's memo: MCLL.

295.27. Goldman v Life (SF Super Ct) 1969: Pls sued Def-magazine: invasion of privacy; article "Young American Nomads Abroad" ascribed set of beliefs, mode of living to Pls which would cause Pls to be shunned by normal society. Pending.

Richard B Griffin, Esq, 310 Sansome, San Francisco 94104.

295.28. Travis v Marin Co Sheriff's Dept (Marin Co Personnel Bd, California) 1959: Pl took temporary job as nude model to pay college expenses; later joined Sheriff's Dept as deputy sheriff. Oct 1968: anonymous source sent Sheriff figure study magazine containing photo of Pl; Sheriff fired Pl, said conduct didn't fit image of deputy sheriff. Pl retained atty to obtain h'g before personnel bd, argued conduct was 9 years previous, was neither immoral nor illegal. Oct 24: Commn ordered Pl reinstated.

David R Baty, Esq, 1010 B St, San Rafael 94901.

295.100. BIRTH CONTROL

295.108. California v Belous (Calif Sup Ct) (71 AC 996) Pregnant woman asked Def-doctor to perform abortion, threatened to obtain one "one way or another." At length Def referred woman to abortionist; referral led to Def's prosecution under Pen C §274 (forbidding abortions unless necessary to save mother's life). Def convicted, appealed to Calif Sup Ct. Sept, 1969: Ct (4-3) held phrase "necessary to preserve life" unconstitutionally vague in context of modern surgical techniques employed during the first trimester of pregnancy; noted law was enacted in 1850 when risk of death from abortion was high regardless of techniques employed; also spoke of woman's constitutional right to choose whether to bear children in rejecting statutory construction which would have required certainty of death before abortion would be justified; Calif legislature has now passed Therapeutic Abortion Act, allowing abortions where there is substantial risk mental, physical health of mother would be impaired.

ACLU, 323 W Fifth St, Los Angeles 90013.

295.109. Jessin v Shasta Co (Calif DCA, 3rd Dist, #12027) Co hospital refused to grant vasectomy to Pl who felt he had already fathered as many children as he could support. Pl sued. Shasta Super Ct Judge Abbe overruled 1950 decision of State Atty Gen'l, held voluntary vasectomies not against public policy. Co appealed. Issues on appeal: consensual vasectomy not proscribed by law, contrary rule would conflict with US Const; vasectomies no more mayhem than appendectomies; USSC in Griswold, 381 US 479, leaves decisions about contraception to husband and wife in consultation with physician. Pending.

Jere Hurley, Jr, Esq, 1548 West St, Redding, Calif 96001; Paul Halvonik, Esq, ACLUNC, 503 Market St, San Francisco 94105.

295.110. O'Beirne v O'Beirne (Calif Sup Ct) Nov 1967: Pl-husband sought order to prevent estranged wife from undergoing abortion "to preserve mental health"; denied; DCA affirmed; Pl's appeal to Sup Ct pending. Pl filed separate damage suit against Kaiser Foundation for permitting its hospital to recommend abortion. Pending.
295.111. California v Gurner, Maginnis (Calif DCA, #1/Crim 7709) Feb 21, 1967: Defs arrested: dissemination of information on methods of abortion (Calif Bus & Prof C §601). Je 1: Muni Ct granted Defs' motion to dismiss, held §601 unconstitutional. Dec 22: Super Ct, App Div reversed. Je 5, 1968: Defs' application for certification to DCA denied. Aug 5: DA filed information charging same offense. Oct 23: Defs found guilty. Nov 29: Defs filed notice of appeal: §601 is unconstitutional (1) infringement of speech, (2) vague and overbroad, (3) prohibits mode of expression. Pending.

Paul N Halvonik, Esq, ACLU, 503 Market St, San Francisco 94105.

Appt's opening brief, reply brief: MCLL.

295.112. New Jersey v Baird (50 NJ 376) 1966: Def displayed contraceptives in open van, offered advice on birth control to woman making specific inquiry on subject; arrested: display or dissemination of information on contraceptive devices without just cause (NJS 2A: 170-76). Magistrates Ct convicted Def: $100. Monmouth Co Ct affirmed. Nov 20, 1967: NJ Sup Ct reversed: displaying contraceptives incident to good faith explanation of birth control devices to someone seeking such information in absence of obscene conduct was acting with "just cause," thus no violation of statute.

Robert Ansell, Esq, Anschelewitz, Barr and Ansell, 513 Bangs Ave, Asbury Park, NJ 07712.

Nancy Wechsler, Esq, amicus for Planned Parenthood Federation of America: McCarter and English, NYC; Harriet Pilpel, Esq, Greenbaum, Wolff and Ernest, on brief.

295.200. HOMOSEXUALITY
And see 111 Wines and Liquors, 25.38.
295.201. Brass, Teper v Hober (SD NY, #68/2993) Teper: Sept 3, 1967: Pet passed written, medical exams for NY welfare dept caseworker. Sept 26: Pet submitted required letter from SS Bd stating reasons for rejection from Army as "Myopia, Astigmatism, Homosexual Tendencies." Oct 30: Pet found unqualified. Later, Pet denied homosexual experiences at brief medical interview. Dec 18: Pet found unqualified as per medical review. Pet sought reexam, which he was told he could do, but was not contacted further. Jan 10, 1968: Pet finally disqualified.

Brass: Feb 7, 1967: Pet passed written, medical exams for NY welfare dept caseworker. Dept knew Pet fired from previous employment: membership in homophile organization; admission of homosexuality allegedly obtained by fraud, duress; alleged instance of homosexual conduct which Pet denied. Je 20: Pet given brief "medical reexamination"; homosexuality not mentioned. Jy 6: Pet found unqualified on basis of exam. Aug 1: Pet appealed, merely told he was medically unfit. On 2nd appeal told rejection due to homosexuality.

1968: Pets requested injunction: (1) 14th Amdt protects gov't job applicants from arbitrary, discriminatory exclusion; (2) exclusion on basis of unproved assertions of homosexuality denial of due process; (3) exclusion based on homosexual designation, which gives no rational basis for casework qualification, denies equal protection. May 5, 1969: Consent decree signed establishing right of homosexuals to hold jobs as NY welfare dept caseworkers.

Alan H Levine, Martin Berger, Martin Gerry, Esqs, 156 5th Ave NYC 10010.

Brief for Pls; Consent decree: MCLL.

- 67 -

II. DUE PROCESS AND RELATED RIGHTS (Fourth, Fifth, Sixth, Seventh, Eighth, and Fourteenth Amendments) (300-499)

300. SEARCHES AND SEIZURES (and see 295)
UN DECLARATION OF HUMAN RIGHTS: Art 12.

Practical problems:

Suggestions in search and seizure cases by Manuel Nestle. 1 Civil Rights Handbook 70a-70e.

Search and Seizure Bulletin. Mthly. Quinlan Publishing Co, 177 Milk St, Boston. $15/yr.

301. By Electronic Eavesdropping (and see 295)
And see Guido, 580.26.
301.25. New York v Robles (App Div, NY Sup Ct) Oct 8, 1964: narcotics addict under questioning by police offered information re 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; police allegedly denied his repeated requests for counsel; certain tape recordings allegedly used to induce stationhouse confession. Jan 27: Def arraigned; ordered held without bail. Def alleged violation of 4th Amdt by installation of eavesdropping device. Def convicted. Feb 14, 1968: App Div ordered new h'g to determine voluntariness of confession, admissability of recordings which led to confession. Pending.

Jack S Hoffinger, Arthur C Muhlstock, Esqs, 21 E 40th, NYC 10016.

301.26. US v Guglielmo (CA 7) (245 FSupp 534, aff'd 371 F2d 176) Def indicted for fed'l gambling offense. On Def's motion, DC (ND Ill) dismissed: evidence unlawfully obtained by wiretap. May, 1966: US appealed. Dec 20: CA 7 affirmed: relayed signal emitted by dial pulses upon dialing phone number is "wire communication" within meaning of statute so that recording of number dialed was violation of 47 USCA §605; record obtained by "pen register" wiretapping device subject to suppression; indictment properly dismissed.

Amicus: James Latturner, Esq, for ACLU, 141 W Jackson Blvd, Chicago 60604.

301.32. Uniformed Sanitation Men Assn v Commr of Sanitation (SD NY) (383 F2d 364; 88 SCt 1917; 287 FSupp 703, 304 FSupp 65) Def tapped city-owned telephones to obtain evidence for inquiry re Pls' performance of their duties; at inquiry Pls pleaded 5th Amdt; discharged from jobs. Pls sued to enjoin discharge. SD NY dismissed suit: lack of jurisdiction, failure to exhaust state remedies. Sept 20, 1967: CA 2 affirmed: No 4th Amdt violation. USSC reversed, remanded. DC ordered Pls rehired with backpay. Aug 12, 1968: DC denied Pls' motion to reinstate 1966 application for preliminary injunction against intercepting calls, investigating individual Pls, and motion directing Defs to appear for oral exam, produce documents under FRCP 26, 30, 34: (1) investigatory documents privileged as matter of public policy, (2) no immediate threat of irreparable damage, (3) adequate remedy exists at law, (4) wiretap issue not considered by USSC.

Rabinowitz, Boudin, and Standard, Esqs, 30 E 42nd St, NYC 10017.

301.33. Taglianetti v US (USSC) (274 FSupp 220, 398 F2d 558, 394 US 316) Appt convicted in DC: 3 counts willful tax evasion. CA 1 remanded. On remand, Gov't purported to turn over all Appt's conversations overheard by means of unlawful electronic surveillance. Trial judge checked accuracy of Gov't identification of Appt's voice, whether Gov't turned over all relevant records by in camera inspection; upheld convictions. CA 1 affirmed. Mar 24, 1969: USSC affirmed, per curiam: (1) nothing in Alderman, Ivanov, Butenko (394 US 165) requires adversary proceeding, full disclosure for every electronic surveillance issue; (2) here in camera inspection, identification by trial judge of instances of surveillance Appt had standing to challenge adequately safeguarded Appt's 4th Amdt rights.

Raymond LaFazia, Esq.

301.34. New York v Broady (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 proceedings. Dec 15, 1966: Many persons arrested who worked independently in various groups in Calif, NJ, Conn, and NY; charge: illegal wiretapping, illegal electronic eavesdropping. Aug 1969: ready for trial.

Frank S Hogan, Dist Atty, 155 Leonard, NYC 10013.

- 68 -

301.39. Balistrieri v US (USSC) (403 F2d 472; 89 SCt 1463, 1769, 2032) After Def's offices bugged over a year, FBI agents broke into sec'y's apt, photographed private file of papers; IRS agents searched sec'y's apt, seized Pet's records with warrant later held invalid. Def convicted (SD Ill): income tax evasion. DC dismissed one count: evidence tainted; convicted on 2 others. Nov 7, 1968: CA 7 affirmed. Apr 21, 1969: USSC denied cert. Je 16, 1969: USSC per curiam granted petition for reh'g, vacated denial of cert, granted cert, vacated CA judgment, remanded to DC for proceedings in light of Alderman v US, 394 US 165, Giordano v US, 394 US 310, Black, J, diss.

Edward Bennett Williams, Harold Ungar, Esqs, 839 17th NW, Washington, DC 20006; Maurice Walsh, Esq, 29 LaSalle, Chicago 60603.

301.40. Dellinger v Mitchell, Hoover (DC DC) Je 26, 1969: Chicago conspiracy Defs, see 54.32, and other anti-war, civil rights organizations sued for injunction against electronic surveillance of political dissenters, for criminal prosecution of Atty Genl and FBI Dir: Gov't's newly-announced policy of eavesdropping violates 1st, 4th Amdts. Pending.

ACLU, 1424 16th St NW, Washington, DC 20034.

And see US v Dellinger, 54.32.

301.41. US v DeCavalcante (DC NJ) Je 1969: Def charged: conspiracy, extortion; Def's atty demanded Gov't produce any wiretap evidence. US Atty released to public 2000 pp of FBI-recorded conversations of Mafia leaders transcribed from illegal wiretaps. Def moved to enjoin further publication of transcripts in press: material should have been released to Def and DC, not to public. Gov't admitted evidence could not be used in ct. DC denied injunction: violation of 1st Amdt freedom of press. Pending.

Sidney M Franzblau, Esq.

301.42. US v Roy Cohn (SD NY, #68 Cr 938, 69 Cr 55) Nov 22, 1968: Def, former counsel for McCarthy subcommittee, indicted: conspiracy, mail and wirefraud, security violations, and alleged plot to bribe state ct official. Jan 17, 1969: 2d indictment: conspiracy, bribery, extortion, blackmail. Def filed motions to dismiss: (1) personal animosity by US Atty, (2) use of illegal wiretaps, other electronic devices to procure evidence, (3) indictments otherwise based on illegal evidence. Je 3: DC denied motion to dismiss 1st indictment. Oct 16: DC denied motion to dismiss 2d indictment. Oct: trial in progress.
301.43. US v Ferrara (SD NY) 3 Defs indicted: killing FBI informant. Sept 1967: DC dismissed indictment: Gov't case based on inadmissible wiretap evidence.
301.44. New York v William Gibson (NY Ct of App) Def convicted of sale of narcotics. Issue on appeal: whether transmission to police of incriminating conversations with Def by informant using radio device concealed on his person violates Def's right of privacy, thereby invalidating conviction. Feb 19, 1969: Ct of App affirmed, held NY Pen C §250.00 (prohibiting eavesdropping) expressly exempts conversations overheard with consent of "a party to" or of "at least one party to" the conversation; such transmission of a conversation by one party to it, to be heard by persons not present, does not violate 4th Amdt.

Bruce Carpenter, Esq; Herald Price Fahringer, Esq, 1 Niagara Sq, Buffalo 14202.

Opinion: MCLL.

301.45. Lee v Florida (USSC) (191 So2d 84, 392 US 378) Summer 1963: State police-installed listening, recording equipment on party-line phone, conducted surveillance of Def. Def arrested: violating lottery laws. At trial, recordings of telephone conversations admitted as evidence; Def convicted. Je 17, 1968: USSC reversed (6-3) Stewart, J: (1) deliberate installation of listening devices on party phone by police constitutes interception (605, Fed'l Communications Act); (2) evidence obtained by wiretap in violation of fed'l statute inadmissible in state or federal court-overruling Schwartz v Texas, 344 US 199. Black, J (Harlan, White, JJ) diss.

Edward R Kirkland, Esq, 22 Lake Beauty Dr, Orlando, Fla 32806.

301.46. Giordano v US (USSC) (385 F2d 988, 394 US 310) Evidence obtained through use of electronic surveillance devices used to convict Pet in DC. CA 6 affirmed. Mar 24, 1969: USSC, per curiam, vacated, remanded to DC to develop facts, decide if surveillance unlawful under Alderman v US, 394 US 165. Stewart, J, conc: Alderman requirement that certain products of gov't electronic surveillance be turned over to defense counsel limited to 4th Amdt violations, with DC to decide lawfulness of surveillance in first instance.

Carlton Roeser, Esq.

301.47. Desist v US (USSC) (277 FSupp 690, 384 F2d 889, 89 SCt 1030) 1967: Pet convicted in DC of conspiracy to import, conceal heroin; important part of US case rested on evidence obtained by electronic eavesdropping not carried out with warrant, conducted prior to Katz v US, 389 US 347, holding such eavesdropping violates 4th Amdt rights. 1968: CA 2 affirmed. Mar 24, 1969: USSC affirmed, Stewart, J: (1) Katz will not be applied retro-actively, because it would unduly burden administration of law; it will affect only eavesdropping conducted after Katz, Dec 18, 1967; (2) purpose of Katz to deter unconstitutional police practices would not be served by retroactive application. Harlan, J (Douglas, J) diss: (1) Katz not clear break; foreshadowed by prior decisions; (2) "New" rules of constitutional law should, at minimum, be applied to cases still subject to direct review at time "new" decision announced. Fortas, J, diss.

Abraham Glasser, Esq, 52 8th Ave, NYC 10014.

And see Kaiser v NY, 301.48.

301.48. Kaiser v New York (USSC) (28 AD2d 647, 282 NYS2d 207; 21 NY2d 86, 286 NYS2d 801, 233 NE2d 818; 89 SCt 1044) 1966: Def convicted by NY trial ct of conspiracy to extort, attempted extortion, coercion; conviction rested largely on evidence obtained by wiretapping; Def contended intercepted conversations unlawful, inadmissible; violation of 4th, 14th Amdts; App Div and Ct of App affirmed. Mar 24, 1969: USSC affirmed (7-2), Stewart, J: (1) rule of Katz v US, 389 US 347, (wiretap evidence inadmissible in state cts) must be applied wholly prospectively; (2) evidence obtained without any intrusion into Def's constitutionally protected area. Douglas, J, diss. Harlan, J, diss: rule of Katz should be applied retroactively because Def's case was before USSC on direct appeal; see diss in Desist v US, 89 SCt at 1038.

Peter L F Sabbatino, Henry J Boitel, Esqs, 233 Broadway, NYC 10007.

301.49. Kolod v US (USSC) (371 F2d 983, cd 389 US 834; 390 US 136) DC allowed evidence obtained by illegal wiretapping; convicted Def of conspiracy to transport murder threats. CA 10 affirmed. USSC denied cert. Jan 29, 1968: USSC granted petition for reh'g, reversed (7-1), per curiam: relevancy of illegally obtained evidence must be determined in judicial proceeding; Solicitor General may not determine relevancy in ex parte proceeding. Black, J, diss.

Edward Bennett Williams, Harold Ungar, Esqs, 839 17th St NW, Washington, DC 20006. W H Erickson, Esq.

- 69 -

301.50. Ragen v California (USSC) (68 CalRptr 700; cd 89 SCt 489) Je 1964-May 1966: Pet, MD, allegedly raped 2 females, prevented them from resisting by administration of narcotic, anesthetic substance. At police suggestion, one victim phoned Pet, while police taped call. Pet said nothing incriminating, but promised to return call later, made several very incriminating statements when he did so hours later. Pet arrested, tried, convicted. On appeal, Def argued tapes obtained by wrongful deception, constituting mental coercion, unconstitutional search and seizure, hence 14th Amdt prohibits use of such tapes as evidence in criminal trials. May 22, 1968: Calif DCA affirmed: "deception . . . does not render statements inadmissible if it is not a type reasonably likely to procure an untrue statement." Dec 16: USSC denied cert.

Herman F Selvin, Esq, 270 N Canon Dr, Beverly Hills 90210.

301.51. US v White (USSC) (405 F2d 838; 89 SCt 1305) Dec 9, 1965-Jan 7, 1966: Def was monitored without warrant 8 separate times, in his house, car, a restaurant, in narcotics dealings with an informer, by Gov't agents via radio transmitter on informer's person. Jan 8: Def arrested, in possession of heroin. At trial, in DC (ND Ill), Def objected to use of incriminating statements so monitored; overruled. Def appealed: electronic interception of his private conversations violated his 4th Amdt rights, despite fact other party to those conversations had consented to it. CA 7 (3-judge panel) reversed. Gov't petition for reh'g in banc granted. CA 7 affirmed panel, remanded for new trial: (1) speaker's 4th Amdt right to privacy would be illusory if it could be waived by another, eg, his listener, to extent of allowing 3rd party to eavesdrop when speaker intended, could reasonably expect, privacy; (2) exceptions, inter alia, where speaker in public, or must take risk listener will later testify as to conversation, do not apply here; (3) clandestine searches such as this, without prior judicial authorization, seem per se unreasonable, by Katz v US, 389 US 347. Apr 7, 1969: USSC granted US petition for cert. Pending.
302. In Other Federal Criminal Cases

302.29. Harris v US (USSC, #92) (370 F2d 477, 386 US 1003, 390 US 234) Pl convicted of car theft on evidence obtained without search warrant. CA DC affirmed: 4th Admt does not bar evidence obtained when police officer saw victim's car registration while opening car door to roll up window to protect against rain, although having no search warrant. Mar 5, 1968: USSC affirmed, per curiam: once car door lawfully opened, registration card, with victim's name on it plainly visible; "objects falling in the plain view of an officer having right to be in position of view are subject to seizure and may be introduced as evidence."

Paul H Weinstein, Esq, 711 14th St NW, Washington, DC 20005.

302.30. US v Laney, Covington (DC NC) May 29, 1969: 40 fed'l, county, local police broke into home of Def-Laney. Defs, allegedly associated with Black Panthers, arrested. Def-Laney charged: resisting lawful search. Bond $25,000. Def-Covington charged: violation of fed'l law prohibiting purchase and possession of firearms by convicted felons. Bail $5000. Pending.
302.31. Sabbath v US (USSC) (380 F2d 108, 391 US 585) Feb 19, 1966: Custom agents using informant set up delivery of illegal drugs to Def. Feb 20: 10 minutes after informant entered apartment of Def, agents approached, knocked, entered unlocked door without awaiting response. Def arrested, indicted: knowingly importing, concealing cocaine. At trial, narcotics seized in apartment admitted as evidence; Def convicted. CA 9 affirmed. Je 3, 1968: USSC reversed (8-1) Marshall, J: (1) validity of entry of fed'l officers to effect arrest without warrant subject to statutory requirements as with warrant that officer announce authority and purpose before entry; (2) opening unlocked door is within meaning of statutory words "break open"-use of force not necessary; (3) nothing in record supports gov't's invocation of exception to notice rule, ie, danger to officers or informant. Black, J, diss.

Murray H Bring, Esq, 1229 19th St NW, Washington, DC 20036.

302.32. Simmons v US (USSC) (371 F2d 296, 390 US 377) Feb 27, 1964: 2 men robbed Chicago saving, loan assn. FBI, following lead, unearthed suitcase containing money wrappers from bank robbed, secured photos of alleged suspects; witnesses identified Pets 1, 2, and 3. DC (ND Ill) denied Pet-2 motion to suppress; Pet-2 testified at h'g. At trial, over Pets' objections, DC withheld photos used to identify Pets; admitted contents of suitcase; used testimony of Pet-2 at h'g against Pet-2. Convicted. CA 7 affirmed Pets 1 and 2 as guilty, exonerated Pet-3 for insufficient evidence to convict. Mar 18, 1968: USSC (6-2), Harlan, J: affirmed CA as to Pet-1: DC did not err in refusing Pet request for photographs shown to identifying witnesses because they had nothing to do with official statement of witness, as witness trial identification of Pet-1 sufficiently non-prejudicial; USSC reversed DC decision against Pet-2, in part: "in these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a Def testifies in support of a motion to suppress evidence on 4th Amdt grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection." Black, J (White, J) conc and diss.

Michael Meltsner, Esq, NAACP Inc Fund, 10 Columbus Circle, NYC 10019.

303. In Other State Criminal Cases
And see Caperci, 580.27.

And see Dombrowski, 245.16b, 245.16e.


303.68. Peters v New York (USSC) (219 NE2d 595, 392 US 40) Appt observed by off-duty policeman in apt house under suspicious circumstances; pursued, stopped, frisked; burglar tools found. Appt convicted: unlawful possession of burglar tools. Appt appealed: evidence inadmissible, unlawful search, seizure. 1966: NY Ct of App affirmed. Je 10, 1968: USSC affirmed, Warren, CJ: (1) NY "stop and frisk" statute not unconstitutional on face: categories of statute not categories of 4th Amdt search, seizure safeguards; questions arising under statute must be resolved "in the concrete factual context" of individual cases under criteria of 4th Amdt reasonable search, seizure clause; (2) here probable cause to arrest existed under circumstances; (3) search incident, subsequent to lawful arrest authorized; (4) search justified by need to seize possible weapons, prevent destruction of evidence; limited in scope by officer to those purposes. White, Fortas, Harlan, Douglas, Black, JJ, concur.

Robert Stuart Friedman, Esq, 261 Madison Ave, NYC 10016.

Decided with Sibron v New York, 303.80.

303.73. California v Roberts (DCA, San Francisco) (64 CR 70) 1967: Def arrested: violation of Pen C §288a: proscribes oral copulation committed in public or private, whether participants are married, homosexual or heterosexual. Def convicted, appealed. ACLU amicus brief: (1) §288a on face violates `marital right of privacy', (2) evidence of act obtained by unlawful search and seizure: police drilled peepholes in men's room wall. Nov 29: DCA reversed: held peephole
- 70 -

observation to `public area' of rest room not violation of 4th Amdt; §288a not unconstitutional violation of privacy or cruel, unusual punishment; but trial judge failed to give reasonable doubt instructions.

Pat Lane, Esq, Carmel, Calif.

For ACLU: Paul Halvonik, Esq, 503 Market St, San Francisco 94105.

And see 295.

303.74. California v Quilon (Calif Sup Ct; ND Calif) Def-parolee suspected by fed'l agents of having narcotics. Agents contacted Def's parole officer; parole officer gained entry to Def's house; fed'l agents then conducted extensive search, found narcotics. Def arrested: violation of parole; convicted. Dec 1966: DCA affirmed: Def cannot complain of illegal search and seizure so long as parole officer present during search, and authorized it. Jy 31, 1969: Sup Ct denied Def's petition. Jan 22, 1970: Def filed fed'l habeas corpus.

ACLU, 503 Market St, San Francisco 94105.

303.80. Sibron v New York (USSC) (219 NE2d 196, 392 US 40) 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 4th and 14th Amdts? (2) was law unconstitutional as applied to pre-arrest search and seizure of narcotics when there was no probable cause for arrest or search? Mar 13, 1967: USSC granted forma pauperis and noted prob jurisdiction. Je 10, 1968: USSC decided together with Peters, 303.68, 392 US 40. USSC reversed, Warren, CJ: (1) case not moot because sentence served; conviction may entail adverse collateral legal consequences; (2) NY "stop and frisk" statute not unconstitutional on face: categories of statute not those of 4th Amdt search, seizure safeguards; questions arising under statute must be resolved "in the concrete factual context" of individual cases under criteria of 4th Amdt reasonable search, seizure clause; (3) Appt's unheard conversations with known drug addicts, sans more, not probable cause for arrest; subsequent search, apprehension of heroin not justified; (4) no reasonable grounds for belief Appt armed, dangerous; search on these grounds unjustified; (4) assuming arguendo such grounds existed, scope of search so unrelated to justification as to render evidence inadmissible. White, Fortas, Harlan, Douglas, JJ, conc. Black, J, diss.

Kalman Finkel, Esq, 1465 Flatbush Ave, Brooklyn 11210; Gretchen White Oberman, and Leon B Polsky, Esqs, NYC.

303.81. Terry v Obio (USSC) (214 NE2d 114, 392 US 1) After 10-minute observation of Def "casing" jewelry store, police officer frisked Def, found loaded weapons, arrested Def. At trial, ct found police officer made legal search, convicted. Ct of App affirmed. June 10, 1968: USSC affirmed (8-1), Warren, CJ: police officer had right to search for weapons if he reasonably believed his life or the lives of others would be threatened by armed opponent; did not have to have reasonable cause to make arrest before searching for weapons. Douglas, J, diss: police officer must have reasonable cause to believe crime has been or will be committed to justify any search.

John G Day, Esq, Standard Bldg; Louis Stokes, Esq, 75 Public Square, both of Cleveland 44113.

303.85. California v Harold Johnson (Calif Sup Ct) (450 P2d 865, 75 CR 401) Police conducted illegal search of co-Def Howard's apt; co-Def confessed to burglary, after Miranda warning, implicating Def-Johnson. Police confronted Johnson with illegally seized contraband; Johnson also confessed to burglary after Miranda warning. Both Defs convicted. Mar 3, 1969: Calif Sup Ct reversed, Peters, J: both confessions inadmissible as "fruit of the poisonous tree"; Def-Howard's confession secured after confrontation with illegally obtained evidence; Miranda warning not sufficient when Def not advised that evidence against him illegally obtained, inadmissible at trial. Mosk, J, diss.
303.86. In re Donaldson (Calif Sup Ct) (269 ACA 593, 595) 1969: High school vice-principal searched student's locker without warrant; trial ct upheld search. DCA affirmed: vice-principal not "governmental official within the meaning of 4th Amdt." Mar: ACLU filed amicus petition for h'g in Sup Ct. Jy: Sup Ct denied petition. Habeas petition pending.

Paul Halvonik, Esq, for ACLU, 503 Market St, San Francisco 94105.

ACLU brief (Sup Ct): MCLL.

And see cases at 24, 56, 430.

303.87. California v Cheatham (DCA 2, #2 Crim 14071) Apt bldg tenants caught Def shortly after burglary of one apt; Def admitted burglary of property, pills; convicted. Appealed: tenants failed to advise Def of constitutional rights. Je 25, 1968: DCA affirmed: no violation of Miranda doctrine; no coercion or other duress alleged; even though Def's statement inadmissible if elicited by policeman, private persons under no affirmative duty to advise of rights, absent mob pressure or other duress.

J. Barry Nakell, Esq, 3325 Wilshire Blvd, Suite 901, Los Angeles 90005.

303.88. A'Hearn v New York Co Lawyers Assn (NY Ct of App, #467) Nov 21, 1966: Resp-Assn Comm on Unlawful Practice of Law requested Appt, licensed life insurance agent and broker, to discuss and supply representative sampling of his records. Dec 27: Appt wrote refusal to cooperate. Comm applied for issuance of subpoena: had cause to believe Appt unlawfully practicing law; desired to conduct investigation. Appt moved in Sup Ct to quash subpoena duces tecum: ct did not have authority to issue subpoena because no "cause pending" under NY Judiciary Law §2b; subpoena unreasonable search and seizure in violation of 4th, 5th, 6th, 14th Amdts. Jan 8, 1968: Sup Ct denied motion. May 3: App Div affirmed: investigative body need establish only that "materials sought are reasonably related to the matter being investigated and to the public purpose sought to be achieved"; investigatory power of Comm analogous to that of grand jury. Herlihy, J, diss: insufficient showing of probable cause to satisfy 4th Amdt where individual is concerned. Appeal filed in NY Ct of App, pending.

Charles M McCarty, Esq, 188 Montague St, Brooklyn 11201..

Opinion (App Div): MCLL.

303.90. McSurely v Ratliff (CA 6) (390 US 412) Aug 11, 1967: During arrest in McSurley, 54.19, Resp seized Appts' books, documents, and pamphlets. Sept 14: DC ordered Resp to continue custody of materials pending possible appeal of decision in McSurely, 580.19. Oct 16: Resp served with subpoena duces tecum from McClellan Comm to produce, inter alia, seized material; Appts also served. Oct 18: Appts filed motions in DC, seeking TRO and order directing return of materials. Oct 30: DC denied motions without h'g. Nov 10: USSC issued stay, conditional on Appts' filing objections with DC to validity of subpoenas; Appts filed objections. Dec 13: DC overruled objections. Jan 29, 1968: USSC issued stay pending perfection of appeal to that court, conditional on filing record, jurisdictional statement by Appts. Mar 18: USSC, per curiam, granted motion to dismiss for want of jurisdiction, continued
- 71 -

stay to allow Appts to appeal to CA 6. July 30: CA 6 reversed, per curiam, ordering return of materials to Appts.

Dan Jack Combs, Esq, 207 Carolina, Pikeville, Ky 41501; Arthur Kinoy, William B Kunstler, Esqs, LCCR, 588 9th Ave, NYC 10034; Morton Stavis, Esq, 744 Broad St, Newark 07102.

And see 54.19, 580.19.

303.91. New York v Ferguson, Harris (NY Ct of App) Je 20, 1967: Defs indicted: conspiracy to murder Roy Wilkins, Whitney Young. Search warrants issued same day. Je 21: Defs searched and arrested. Je 15, 1968: trial ct convicted Defs: 3½ to 7 yrs. App Div affirmed (3-2). Appeal filed: issuance of search warrant after indictment violates 5th, 6th Amdts; gives prosecution license to seize evidence not allowable in search incident to mere arrest. Pending.

Gene Ann Condon, Esq, 15 Park Row, NYC 10038.

And see Ferguson, 502.NY.12; Samuels, 54.29.

303.92. California v Toulson (DCA 2) (77 CR 271) Dec 1966: Long Beach police searched Def's room without warrant or probable cause of suspicion; seized marijuana cigarettes. Before trial, Def moved to bar admission of marijuana as evidence: police required to advise suspect that he may refuse permission for warrant-less search; waiver of 4th Amdt right must be given knowingly; denied. 1968: DCA affirmed; Aiso, J, diss.

Boyd S Lemon, Jane Bray, Esqs, for ACLU, 611 Wilshire Blvd, Los Angeles 90017.

303.93. Fuller v Alaska (USSC) (437 P2d 772; 393 US 80) Super Ct tried Def for assault; admitted intercepted telegram in evidence tho obtained in violation of Fed'l Comm Act (47 USC §605); convicted. Sup Ct affirmed. Oct 1968: USSC affirmed (7-2), per curiam: USSC decision in Lee v Florida (392 US 378) prohibiting admission of such evidence in state criminal trials has prospective application only.

George Kaufmann, Esq.

303.94. Shipley v California (USSC) (395 US 818) Police arrested Def for robbery as he was stepping out of automobile; searched Def's house without warrant; found stolen goods. Super Ct convicted; Ct of App affirmed; Calif Sup Ct refused to hear. Je 1969: USSC reversed (8-1), per curiam: search incident to arrest should be limited to immediate vicinity of arrest. White, J, diss.
303.95. Overton v New York (USSC) (229 NE2d 596; 89 SCt 441) 1966: Police got warrant for search of 2 high school students, lockers; presented warrant to vice-principal, who sent for students, including Pet, to be searched. Pet's locker held 4 marijuana cigarettes. May: at trial, ct granted Pet's motion to invalidate part of warrant directing search of locker, denied motion to suppress evidence gained. NY Sup Ct, App Term, reversed. Ct of App reversed again: vice-principal consented to locker search, had legal authority to do so: school retains control over lockers as part of duty to supervise students, whose exclusive possession of lockers is only vis-à-vis other students, not as against school authorities. Oct 28, 1968: USSC vacated and remanded for further consideration in light of Bumper v NC, 391 US 543 ("consent" not valid in face of warrant later found defective). Pending.

And see cases at 24.

303.96. Chimel v California (USSC) (395 US 752) Sept 1965: Police arrested Pet pursuant to valid arrest warrant, conducted extensive search of Pet's home without search warrant. Evidence seized used to convict Pet of burglary. Calif Sup Ct affirmed conviction: search justified inspite of absence of search warrant-incident to lawful arrest. Je 23, 1969: USSC reversed (7-2), Stewart, J: warrantless search of Pet's entire house unreasonable as extending beyond Pet's person, area from which he might have obtained weapon, or destroyed evidence against him. White, J, Black, J, diss.

Keith Monroe, Esq, 1428 Broadway, Santa Ana, Calif 92706.

303.97. Bumper v North Carolina (USSC) (155 SE2d 173, 391 US 543) Def convicted of rape: life sentence. Appealed; exclusion of jurors opposed to capital punishment, introduction into evidence of rifle found in illegal search. NC Sup Ct affirmed. Je 3, 1968: USSC reversed (8-1), Stewart, J: (1) where jury has option of choosing death sentence but imposes life sentence, exclusion for cause of jurors opposed to capital punishment does not fall under Witherspoon, 394.1, rule; (2) where law officers represented they possessed lawful warrant to search home, subsequent search cannot be justified on basis of consent; consent must be freely, voluntarily given; mere acquiescence to claim of lawful authority not sufficient. Douglas, Harlan, JJ, concur. Black, J, diss.

Norman B Smith, Esq, Southeastern Bldg, Greensboro, NC 27401.

304. Suits for False Arrest, Police Practices, Police Review Bd. (and 151, 301, 302, 303, 305, 353, 411, 429, 454, 557, 580, 590)
And see Ballard, 61.39; Dreksler, 61.53; Free Press, 64.20, 64.20a; Mason, 295.25.

Form:

Chart of successful and unsuccessful false arrest suits under 42 USC §1983. 3 Civil Rights Handbook 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, Publications, Box 673, Berkeley 94701) ($2.)

Report: Law Enforcement: The matter of redress. ACLU of S Calif, Institute of Modern Legal Thought, Inc, 323 W 5th, LA 90013. 80 pp. MCLL.


304.Ala.9. Houser v Hill (MD Ala, #2564-N) (278 FSupp 920) 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 counter-claimed, joining SNCC, Rap Brown, Autauga Co Voters Assn, others to dismiss complaint, to enjoin organization from advocating violence, employing weapons, parading in night or without notifying police. Jan 16, 1968: DC filed memo and order finding fault on both sides, enjoining Defs from: (1) inflicting summary punishment on Negroes, (2) unlawful interference with Negro assemblies, (3) failing to protect Pls while they exercise constitutional rights, (4) arresting Negroes on pretense and subterfuge, (5) allowing hostile white groups to threaten or assault Negro groups; and enjoining Pls from: (1) sponsoring meetings to be addressed by advocates of violence, (2) using violent means to protest and demonstrate. Pending.

Solomon S Seay, Jr, Esq, 34 N Perry St, Montgomery.

Complaint, counterclaim, court memo and order: MCLL.

And see Prattsville, Ala v Carmichael, 54.17, 13 DOCKET 18.

- 72 -

304.Ala.9a. Devine v Wood (MD Ala) (286 FSupp 920) Je 21-22, 1967: Pls-Negroes arrested at meeting where S Carmichael advocated Black Power: unlawful assembly. Je 21, 1968: Pls filed class action to enjoin Def law enforcement officers from prosecuting: unlawful assembly statute violates 1st Amdt (vague), 14th Amdt (overbroad). DC denied: (1) men of common intelligence need not guess at meaning, (2) state has compelling interest in preserving peace, order; statute proscribes only activities having unlawful purpose.
304.Ariz.2. Arizona Civil Liberties Union v Garmire (DC Ariz #Civ2524) Jy 6, 1968: Def police officers allegedly searched Pls, 40 other juveniles in and about "Sanders," Pl-business establishment, in intimate, abusive, humiliating manner, warned them not to return to "Sanders," detained them at Juvenile Detention Home. No criminal charges filed. Defs announced plans to enforce specific laws selectively, allegedly to close various areas of juvenile activity. Nov 13: complaint filed: violation of constitutional rights under color of law, depriving "Sanders" of business without due process; class action to remedy damages resulting from mass arrest; jurisdiction under 42 USC §1983, FRCP 23; asked injunction against enforcement of specific Ariz statutes, harassment of patrons or persons around "Sanders," $5,000 damages for "Sanders," $5,000 each for 3 named juveniles. Pending.

S Leonard Scheff, Esq, 1535 East Boardway, Tucson, 85719.

Complaint: MCLL.

304.Calif.30a. Trepanier v San Francisco (SF Super Ct) (see Gallagher, 13 DOCKET 76) Jan 1966: Pl, merchant seaman, interrogated, handcuffed, allegedly beaten by two SF police officers, suffered broken jaw; hospitalized 7 days. After police dep't investigation, one officer resigned, the other, who tore up police report of incident, suspended for 90 days. Pl sued for damages. May 1969: after 7-day trial, jury held for Pl: $20,000 general damages, $4000 punitive damages.
304.Calif.33. Marlowe v Coakley (USSC) (404 F2d 70, cd 89 SCt 2017) 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 Def-Alameda Co DA: false arrest, malicious prosecution, knowingly using perjury to obtain indictment. Apr 11, 1967: DC granted Def's motion to dismiss: absolute immunity of DA. Nov 22, 1968: CA 9 affirmed dismissal: DA, assistants immune from civil liability for acts committed while performing an integral part of judicial process. Je 9, 1969: USSC denied cert.

Benjamin F Marlowe, Esq, 508 16th St, Oakland 94612.

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. Parties settled for $3,000 damages to Pl before jury impanelled.

Hillel Chodos, Esq, Suite 604 Gibralter Tower, 9107 Wilshire Blvd, Beverly Hills 90210.

304.Calif.47. MacDonald v Masick (CA 9, #22781) (cd 386 US 127) Def arrested. Issues on appeal: (1) constitutionality of Calif Pen C §834a imposing duty not to resist unlawful arrest, (2) DA's refusal to dismiss charge on which it admitted it had no case because Def refused to stipulate to probable cause for arrest. Feb 1967: USSC denied cert: lack of jurisdiction. Def petitioned for habeas; DC denied. Nov 26, 1967: appeal in CA 9. Oct 6, 1969: oral argument; pending.

Hillel Chodos, Esq, for ACLU, 9107 Wilshire Blvd, Beverly Hills 90210.

304.Calif.49. Moore v San Francisco (DCA, 1st Dist, Div 2) Def-police 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; held 1½ more hours before release. Pl sued for false arrest, imprisonment. Jury found for Def-city, officers. Oct 23, 1967: Super 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. Apr 4, 1969: Amicus brief in DCA: trial ct's test of mere reasonableness to find whether state unconstitutionally infringed Pl's 8th, 14th Amdt rights not strict enough; test should be whether state can show compelling interest in infringement. Pending.

Marvin E Lewis, Esq, 690 Market St, San Francisco 94104.

Opinion (Super Ct); amicus brief (DCA): MCLL.

304.Calif.52. Barsi v City of Pleasant Hill (Contra Costa Super Ct, #113 890) July 26, 1968: Barsi, his wife and family, arrested: battery and obstructing a police officer. Muni ct acquitted. Apr 1969: Barsi filed suit against police dept for wrongful arrest, beating; pending.

William Hodges, Esq, 1330 Broadway, Oakland 94612.

304.Calif.54. Stokes v Cahill (ND Calif, #49618) Jy 15, 1968: Pl filed suit which alleged numerous instances of police harassment of Pls and other blacks, violation of their civil rights; class action under 1st, 4th, 5th, 6th, 8th, 14th Amdts, 28 USC §§1331, 1343, 2201, 2202, 42 USC §§1981-86, 1988: asked injunctive relief from: police harassment, police racist hiring policies, placing of psychologically unfit police officers in black areas, other allegedly unlawful police practices; asked actual damages of undetermined amount in excess of $10,000, punitive damages of $10,000. Pending.

Sidney Wolinsky, Esq, 1095 Market St, San Francisco 94103.

Complaint: MCLL.

304.Calif.55. Re Beggars Opera Feb-Je, 1968: Beggars Opera, contemporary music group, rented mansion in Alamo, Calif; had continual, harassing attention from local dog catcher, zoning inspector, health inspector, fire inspector, and constabulary, culminating in a 90-minute, allegedly illegal search for drugs. No charges, arrests or prosecutions resulted. Matter resolved by informal ACLU contact with Co sheriff's dept.

Harry J Lohstroh, Esq, 1666 Newell Ave, Walnut Creek 94596.

304.Calif.56. California v Boyd (SF Muni Ct, #51017, #51017A) Dec 17, 1968: SF policeman found guilty of two counts of battery against teenagers on July 31, 1968. Jan 30, 1969: Def sentenced: 6 mths, suspended; 2 yrs probation on each count running concurrently; $700.00 fine.

Ass't Dist Atty S Guralnick, 880 Bryant, San Francisco 94103.

304.Calif.57. Davis v Contra Costa Co (Co Bd of Supervisors) Apr 17, 1968: During black riots in Richmond, Co Disaster Office declared emergency; Pl arrested for alleged curfew violation in El Pueblo. Jy 25: Pl and others filed claim for $500,000 damages: declaration invalid because area
- 73 -

preempted by state; Pl suffered injury to reputation, financial loss in employment, mental distress. Aug 13: claim refused. Suit for false arrest filed; pending. Other claims pending.

Donald K Gayden, Esq, 2034 Blake St, Berkeley 94704.

And see Davis, 429.74.

304.Calif.58. Terence Hallinan v Brady, Gutierrez (San Francisco Sup Ct) May 22, 1968: Pl atty attacked by police during SF State demonstrations, see 24.Calif.34. Tried, acquitted of assault on officers. Aug 27: filed suit against officers, city and co of San Francisco. Sept 6, 1969: filed formal complaint before Bd of Police Commrs alleging assaults, perjury at trial, beating of another person, and murder of a third. March 20, 1970: awaiting trial.

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

Complaint to Bd of Police Commrs: MCLL.

304.Calif.59. Goldman v Oakland Police Dept (ND Calif) Pls, 7 MD's, alleged interference by Def while Pls attempted to aid wounded during Oct 17 Oakland anti-draft demonstration. Pls asked TRO against further interference. DC denied; Defs advised to consult with Oakland officials.

And see Bardacke, 314.11.

304.Calif.60. Linthcome v San Francisco, Gerald Roberts (Super Ct, #606993) Mar 30, 1969: SF police apprehended black youth in record store after chase in suspected stolen car; youth shot and killed by policeman despite sister's pleas. Je 4: youth's mother filed $1 million claim with city; claim rejected. Aug 15: suit filed against city for $1 million; pending.

John L Brennan, Esq, 465 California St, San Francisco 94104.

304.Calif.61. California v Williams, Farrell (Oakland Muni Ct) Sept 12, 1968: Defs, 2 policemen, allegedly fired into Black Panthers headquarters bldg. Police chief fired Defs almost immediately, signed felony complaint against them: shooting into inhabited bldg. Sept 13: Defs arraigned. Oct 30: grand jury indicted Defs. Pending.

Lowell Jensen, District Attorney, Alameda Co Courthouse, Oakland 94612.

304.Calif.62. Smith v Solano Co (Solano Co Super Ct, #47038) Dec 29, 1967: Pl, lawfully present at Solano Co jail, advising juvenile member of his family who was being interrogated, arrested by Defs: disturbing the peace, resisting arrest, and investigation of battery on a police officer. Defs allegedly beat and kicked Pl, caused severe injury. Oct 8 1968: Pl sued for false arrest, false imprisonment, negligence; asked compensatory and exemplary damages; alleged Def police were agents of Co. Nov 7: Defs answer denied all allegations including agency. July 1969: Discovery in progress. Pending.

Robert K Winters, Esq, 177 East M Street, Benicia 94510.

Complaint, answer to complaint: MCLL.

304.Calif.63. Stribling v Mailliard (DCA, #1 Civil 26863) Nov 8, 1968: Pls filed complaint seeking injunctive and declaratory relief, in response to San Francisco Police Reg 7.11(.2) requiring off-duty policemen to carry revolvers, with 6 alleged causes of action: (1) nuisance, (2) taxpayer action to prevent waste of public funds, (3) unreasonableness of Reg, in violation of City Charter, (4) adoption of Reg in secret, without h'g, with deliberate effort to prevent public from examining Reg violative of due process clause, (5) discriminatory application resulting in threats to black people, (6) interpretation of "on duty." Jan 29, 1969: SF Super Ct sustained Defs' general demurrer without leave to amend. Feb 5: Super Ct entered order sustaining demurrer: complaint did not state cause of action, declaratory relief not necessary or appropriate; judgment entered for Defs. Je 9: Pl's appeal pending.

Sidney M Wolinsky, Michael D Nasatir, Esqs, 1095 Market St, Suite 302, San Francisco 94103.

Complaint (Super Ct); Appt's opening brief, reply brief (DCA): MCLL.

304.Calif.64. California v Fuller (San Francisco Muni Ct) Feb 9, 1969: White woman motorist (subsequently charged with drunk driving, driving without license) rammed Defs' parked car outside their home. Def black woman, concerned about accident liability involved, attempted to photograph motorist as she sat under arrest in patrol car. Police objected to photograph, ordered Def to leave scene; allegedly seized, shoved, handcuffed, kicked Def. Def called mother, sister: also shoved, manhandled, handcuffed. All 3 Defs placed in police van, allegedly sprayed with Mace. Though Defs handcuffed, inside police van when Mace sprayed in their faces, police claimed use of Mace in self defense only after Def Wayzel attempted to get out of van in order to kick police officer in groin. Defs charged: refusing to leave scene of accident, resisting arrest, interferring with police officer. Released, received emergency treatment for eye irritation, bruises at local hospital. Defs complained of brutality to Mayor Alioto; charges dropped at Mayor's behest. Mar 31: In 537 page report, police investigation captains found chemical Mace spraying justified.

Article: Sumner M Kalman, MD, Testimony on Mace in Calif v Camp, 28 Guild Practitioner 42.

304.Calif.65. Pastrano v Main (San Francisco Super Ct) Sept 9, 1968: Def, police officer, shot out of window at howling cat; bullet ricocheted, creased skull of Pl. Jan 29, 1969: Pl filed suit against Def, city, asked $100,000 general damages, $75,000 punitive damages. Pending.

Marvin E Lewis, Esq, 690 Market St, San Francisco 94104.

304.Calif.66. Vaughs v Gain, Madigan (Oakland) (ND Calif) Feb 13, 1969: Pl, black reporter, allegedly beaten, clubbed, prevented by police from recording during campus demonstration in Berkeley. Feb 18: Pl sued police chief, sheriff for restraining order to halt police attacks which deprived him of 1st Amdt rights of free speech, press. Pending.
304.Calif.67. Murray v Madigan (ND Calif), For events leading up to case, see Peoples Park, 55.Calif.32. Pls, prisoners incarcerated at Santa Rita Prison, alleged denial of counsel, bail, abuse by prison officials. May 24, 1969: sought TRO, injunction, under 42 USC §1983. Pending.

Peter Haberfeld, Esq, 197 Steiner, San Francisco 94117.

Complaint: MCLL.

And see Ackerman, 429.63.

304.Calif.67a. Kessel v Madigan (ND Calif, #51868) See Peoples Park, 55.Calif.32. May 1969: Berkeley residents sought TRO against sheriff, those under him, to restrain them from (1) assaulting with clubs or other means, (2) depriving Pls of counsel by intimidating them or their attys, (3) threatening physical injury. May: DC issued TRO.

Peter Haberfeld, Alan Koenig, Carol Silver, Don Kates, Jr, Esqs, 2229 Fourth St, Berkeley 94710.

Complaint in companion case, Kessel v Reagan: MCLL.

And see Halvonik, 55.Calif.32b.

304.Calif.68. Aday v Andrews (CD Calif) Mar 1961: Pls' book seized by Defs as obscene, later returned (see 10 DOCKET 7, 136; 52.33). Pls sued alleging deprivation of property without due process, financial losses due to
- 74 -

confiscation, including damage to books, asked $1 million damages. Nov 1967: DC ruled for Defs, police acted "in good faith and without malice."
304.Calif.69. Wilma Anderson v Los Angeles (LA Super Ct, #944 273) Dec 9, 1968: Pl, 15 year old girl, brought suit against LA Police Dept for false imprisonment, battery, after arrest during demonstration at high school. Pending.

Elsa Kievets, Esq, 9033 Wilshire, Beverly Hills 90211.

304.Calif.70. Konell v Los Angeles Chief of Police (CD Calif) Je 23, 1967: Pls dispersed by police from demonstration in Century City. Aug 31, 1967: suit filed under 42 USC §1983: LA Police Chief's order to disperse arbitary and infringed on Pls' constitutional rights of free speech and assembly. 1969: suit dismissed.

A L Wirin, Fred Okrand, Laurence R Sperber, Esqs, ACLU, 323 W 5th St, Los Angeles 90013.

304.Calif.70a. Bass v City of Los Angeles (LA Super Ct, #WE C 14031) Je 23, 1967: Pls allegedly injured in violent dispersal of 15,000 peace marchers by police in Century City. Apr 30, 1968: filed suit for damages challenging standards by which police can declare assembly unlawful and disperse marchers. Oct 1969: awaiting trial.

A L Wirin, Fred Okrand, Laurence Sperber, Esqs, 323 W 5th St, 90013; Charles Hackler, Esq, 1621 W 9th St, 90015; both of Los Angeles.

304.Calif.71. Delso v San Diego (San Diego Super Ct, #303765) Pls beaten by police officer after high speed chase in stolen car; filed suit for assault, battery. Dep't disciplined officer; he resigned from force. Case settled for nominal damages—$900.

Louis Katz, Esq, 1540 6th Ave, San Diego 92101; Mary Harvey, Esq, San Diego Savings and Trust Bldg, San Diego 92101.

304.Calif.72. Figueroa v Krupp (CA 9, #23931) Oct 21, 1967: Pl, Mexican-American active in civil rights, alleged he was in bowling alley beyond Blythe city limits when he was verbally abused and beaten by 2 off-duty Blythe police officers in plainclothes, then by 3 on-duty officers in area summoned to protect him, who arrested, imprisoned, booked Pl; no further criminal proceedings. Other police officers and officials would not let Pl sign criminal complaint against attackers, accept them as prisoners after Pl's attempted citizen's arrest or take disciplinary action; misinformed Pl about the law to prevent him pressing his demands. Oct 27: Pl released. Apr 22, 1968: Pl filed complaint against officers, City, DA, members of staff, Riverside Co: claimed federal jurisdiction under 14th Amdt, 28 USC §1343, 42 USC §§1981, 1983, 1985-1989; pleaded assault, derogation of duties, bad faith, conspiracy, violation of civil rights, false imprisonment; asked ct order of prosecutorial action against officers, and damages: $5,000 actual, $100,000 punitive. Dec 10: DC (CD Calif) granted Def's motion to dismiss. Je 3, 1969: appeal to CA 9.

Don B Kates, Jr, Esq, Don Juneau, Esq, California Rural Legal Assistance, 22 Martin St, Gilroy, Calif 95020.

Complaint; Appt's opening brief (CA 9): MCLL.

And see Figueroa v Mackey, 13 DOCKET 76.

304.Calif.73. Floyd v Los Angeles (Los Angeles Super Ct, #938952) Je-Oct, 1967: Pls, 2 black community leaders, sought Manual Arts High School administration and curriculum changes by conferences with black leaders and public school administrators, leaflet circulation, lawful picketing and demonstrations. Oct. 24: Def police officers arrested Pls during picketing: loitering near public school (which requires sex offender registration on conviction). Pls allege Defs knew the charge false, but intended arrests to disrupt picketing, intimidate other picketers, and stigmatize Pls as sex offenders. Sept 6, 1968: Pls filed complaint: false arrest and imprisonment, abuse of process, assault and battery; asked $1,005,977.75 compensatory, $1,000,000.00 punitive and exemplary damages, expungement of police records, photographs, fingerprints made during arrest process. Oct 14: Ct granted Pls' motion that each of 2 Pls put up only $100 for ct costs instead of $100 for each of 5 Defs (totalling $500 per Pl). Pending.

Adley Shulman, Esq, 9250 Wilshire Blvd, Beverly Hills 90212.

Complaint; motion to fix undertaking requirement at $200, memo of points and authorities: MCLL.

304.Calif.74. Hayes v McCree (Los Angeles) May 5, 1967: Defs, 2 police officers, stopped Pl's husband, shot him 4 times as he attempted to resist. Coroners' jury ruled justifiable homicide. 1968: Pl widow filed damage suit asking $1.25 million from officers, $1.25 million from Los Angeles, based on witnesses ready to contradict officers' testimony at inquest. Pending.

Henry William Sands, Esq, for ACLU, 3756 Santa Rosalia Dr, Los Angeles 90008.

304.Calif.75. Jimmie Rodgers v Los Angeles (LA Co Super Ct) Dec 1, 1967: Pl-singer driver stopped by offduty policeman, who summoned aid but made no arrest; Pl alleged 2 other officers falsely reported Pl "gone on arrival." Friend found Pl lying in his car, took Pl home. Dec 2, 1967: Pl hospitalized for serious head injuries. Jan 4, 1968: 3 officers suspended for 15 days: (1) failure to make arrest after detaining Pl for erratic driving, (2) deliberate falsification of records. Mar 6: Pl filed suit for assault and battery. Apr 9: 3 officers and police organization sued Pl for slander. Pending.

Daniel A Lipsig, Esq, 5967 W 3rd St, Los Angeles 90036.

304.Calif.76. California v Overfield (Los Angeles Muni Ct) Oct 30, 1967: Def arrestee, singled out of crowd of 250 when he slapped hand against unmarked police car, charged: failure to disperse. Jan 1968: Def filed complaint claiming $7500 personal damages. Two charges of resisting police officer added. Def claimed belated addition of resisting charges made only because Def pressed malpractice claim. Mar 19: damage claim denied by city council. Mar 23: one resisting charge dismissed: charge failed to name "victimized" police officer. Def acquitted on remaining 2 counts.

Ervin M Roeder, Esq, 8732 W Sunset Blvd, Los Angeles 90069; Laurence R Sperber, Esq, for ACLU, 323 W 5th St, Los Angeles 90013.

304.Calif.77. California v Martinez (Los Angeles Muni Ct) Dec 31, 1967: Defs, 2 brothers, arrested after report of jewelry store burglary. Def Robert (age 16) charged: assaulting police officer, battery. Mar 26: charges dismissed. Def Max charged: burglary, battery on police officer, resisting arrest, charges added. Defs' atty alleged this is frequent practice to "explain" bruises an arrestee might show. Ct dismissed burglary charge, found Def guilty of disturbing the peace.

Charles Hamel, Esq, for ACLU, 323 W 5th St, Los Angeles 90013.

304.Calif.78. Roygene Robinson v Los Angeles Police Dept (CD Calif, #68-1763R) 1968: 20 black Pls alleged 18 incidents of racial, political, or sexual abuse by police: unreasonable searches, questioning, beatings, mostly at gunpoint; no arrests or charges, trivial charges, or charges later dropped; no trials or convictions. Jy 27: Pl dragged from political rally, beaten, kneed thrice in groin. Aug 12: Pl shot at from direction of 6 officers on police station steps, who verbally abused Pl racially, refused to
- 75 -

call ambulance, doctor; Pl died at station. Aug 14: officers forced 1 Pl at gunpoint to say (falsely) he was Black Panther. Sept 5: 2 officers pinioned female Pl, causing her breasts to be exposed, called her "whore." Oct 12: 2 Pls beaten, repeatedly taunted sexually and asked if they were Black Panthers. Dec 10: 1st amended complaint filed against 32 Defs: class action based on 1st, 4th, 5th, 6th, 8th, 13th, and 14 Amendments; 28 USC §§1331, 1343; 42 USC §§1981, 1983, 1985, 1986, 1988; alleged systematic harassment under color of law; asked injunctions against, and for open hearings on, misconduct, and ordering removal from black ghettos of officers psychologically unfit to serve there; asked damages. Dec: Defs moved to dismiss, Pls filed memo in opposition. Jan 6, 1969: DC dismissed Pls' petition for open h'gs re police misconduct complaints. Oct 13: h'g on motion to dismiss; pending.

Charles E Jones, Gary Bellow, Stanley W Levy, Ralph M Segura, Michael Henry Shapiro, Esqs, % Western Center on Law and Poverty, USC Law Center, University Park, Los Angeles 90007; A L Wirin, Fred Okrand, Laurence Sperber, Esqs, % ACLU, 323 W 5th St, Los Angeles 90013; Edward I Halpern, Esq, % Los Angeles Neighborhood Legal Services Society, 1711 Pacific Ave, Venice 90291; Frank A Evans, Jr, Esq, 4306 Crenshaw Blvd, Los Angeles, 90008.

First amended complaint; memo in opposition to Def's motion to dismiss: MCLL.

304.Calif.79. California v O'Brien (San Francisco Super Ct) Nov 1968: Def-policeman shot and killed black man in melee arising from traffic accident. Facts in dispute, but Def did not identify himself as police officer. Def tried, acquitted of voluntary manslaughter, but fired from force for unofficerlike conduct. May 28, 1969: sued for reinstatement. Pending.
304.Calif.79a. Baskett v O'Brien (San Francisco Super Ct) March 1969: Widow of victim in 304.Calif.79 and others filed suits totalling $5,250,000 claiming negligence and wrongful death against O'Brien and two other officers involved in shooting; charged city with negligence for allowing Def to carry gun when he might get drunk, knowing him to be a racist with a violent temper. Pending.

Marvin Lewis, Esq, 690 Market St, San Francisco 94105.

304.Calif.80. Taliaferro v Cahill (DCA 1, #25698) Sept 7, 1967: NAACP filed complaint alleging San Francisco Police Dept planning to expend public funds on police dogs, cattle prods, in violation of due process. Cattle prod issue dropped when police denied they were going to purchase them. Police dogs alleged to lack capability to exercise judgment required by law re arrest and necessary force. Dec 18: Super Ct sustained demurrer, dismissed suit. Feb 5, 1968: Comp filed notice of appeal. DCA 1 dismissed appeal as moot, expenditures already made.

Garfield W Steward, Esq, 2006 Sutter St, San Francisco 94115.

Clerk's transcript on appeal, appt's opening brief, motion to dismiss appeal: MCLL.

304.Conn.1. Harris v Lee (DC Conn) Mar 12, 1968: Pls filed class action to enjoin Defs, Mayor, Chief of Police, Bd of Police Commrs, and newspaper publisher, from systematic intimidation of Negroes by beating and humiliation, discriminatory application of laws, malicious prosecution, furnishing newspapers with "misleading, inflammatary and highly prejudicial" statements: such activity allegedly intensified after Aug, 1967 riots. Mar 27, Apr 5: motions to dismiss. May 27: case dismissed as to Def newspaper. Pending.

Catherine G Roraback, Esq, 185 Church St, New Haven 06510; Samuel Gruber, Esq, 218 Bedford St, Stamford 06902.

Complaint, ruling on motion to dismiss: MCLL.

And see Rioters, 429.21, 13 DOCKET 131.

304.Conn.2. Connecticut v Smolen (USSC) (231 A2d 283; 232 A2d 339; cd 389 US 1044) Dec 17, 1966: 2 Conn State Troopers maintained roadblock checking for defective auto equipment, registration, license. Def failed to stop at Trooper's request, refused to back up car, failed to produce auto registration. Trooper cited Def: failure to obey officer, failure to carry registration. Jan 16, 1967: 12th Cir Ct judge convicted Def: $1 for failure to carry registration, $15 for failure to obey orders. May 29: Cit Ct, App Div affirmed: (1) driving is privilege subject to reasonable restrictions; (2) stopping of Def's car does not constitute arrest; (3) roadblock stopping for purpose of checking defects, registration, license is valid exercise of police power where, as here, in good faith; (3) Troopers did not violate Def's right of privacy by systematic check. Jy 20: Conn Sup Ct denied Def's petition for certification. Jan 15, 1968: USSC denied cert.

Karl Fleischman, Esq, 111 Lafayette St, Hartford, Conn 06106.

Petition for cert: MCLL.

304.Del.1. Fletcher v Peterson (CA 3) Apr 9, 1968: Gov Terry proclaimed state of emergency in Wilmington, called out Nat'l Guard to patrol black area. Jan 20, 1969: Pls, black residents, filed class suit in DC (Del): (1) to declare Del emergency law unconstitutional (violates 1st, 4th, 5th, 6th, 13th, 14th, 15th Amdts), (2) to invalidate arrests during and after Apr civil disturbances, (3) preliminary injunction to halt prosecution of such cases until suit is settled, (4) injunction to restrain Defs, Nat'l Guard, Del State Police, Wilmington police from conspiring to deprive Pls of constitutional rights. Jan 21: newly-elected Gov Peterson withdrew Nat'l Guard. DC, Latchum, J, ordered 3-judge ct convened. CA 3, Hastie, CJ, reversed: moot.

Ernest S Wilson, Esq, Farmer's Bank Bldg, Wilmington 19801; Robert F Van Lierop, Esq, 211 E 21st, NYC 10010; Dennis J Roberts, Esq, 2768 Shasta Rd, Berkeley, Calif 94708.

304.Ga.5. McPherson v Boutwell and Tamiami Trail Tours (CA 5) (383 F2d 527) Pl, Jamaican Negro student, alleged he was beaten on bus, sued city, company for assault and battery damages. DC held for Defs. Jy 6, 1967: CA 5 reversed, remanded for entry of judgment on issue of liability: bus driver failed to exercise reasonable degree of care for passenger when he failed to inform Negro passenger of reason for wanting him to move to rear of bus.

Donald Hollowell, Esq, 2840 Dale Creek Dr, Atlanta 30318; Howard Moore, Esq, 75 Piedmont Ave NE, Suite 1154, Atlanta 30303.

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. 1968: By agreement, City rejoined as party Def and police officers dismissed. Judgment against City entered for agreed amount.

Herbert Fisher, Esq, 69 W Washington St, Chicago 60602.

304.Ill.24. Kerr v Chicago (CA 7, #17345) June 19, 1963: 5:30 am: Def police came to house of Pl, 17 yr old black, without warrant, told Pl's father they wanted to question Pl in routine investigation though they didn't think he had committed any crime; Defs took Pl to police station, questioned him about fire and burglary; Pl alleged when he said he knew nothing, he was beaten, forced to submit to lie detector test without parents' consent, not allowed to eat, use washroom, or see parents, although he asked to do so, and Pl's mother was at 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 to nolle prosequi entered. Sept 1966: Pl sued city, police officers
- 76 -

for $100,000 general and $500,000 punitive damages. At trial DC refused instructions to jury offered by Pl, instructed with reading of (1) 42 USC §1983, (2) Ill statute requiring that person taken into custody be taken before magistrate without delay. Sept 27, 1968: Jury returned verdict for Defs. Mar 11, 1970: CA 7 affirmed in part: claim against City should be heard in state under Ill Rev Stat, chap 24 §1-4-5, Ill Rev Stat chap 85 §2-302; reversed, remanded in part: (1) DC improperly struck allegations concerning Pl's arrest, "the totality of all the circumstances" leading to confession, (2) DC improperly refused instructions offered by Pl relating to effect of relevant statutes, (3) atty's fees expended in criminal action are recoverable in civil rights action, even when expended by minor's parents in his behalf.

Elmer Gertz, Esq, 120 So LaSalle St, Chicago 60603.

Opinion (CA 7): MCLL.

304.Ill.29. Ries v Daley (ND Ill, #68C 2202) Aug 28, 1968: Pl cleryman beaten by police as he tried to wave crowd out of Chicago's Lincoln Park following police orders to disperse during 1968 Demo Convention. Nov 18: complaint filed pleading deprivation of civil rights, police brutality; jurisdiction under 28 USC §§1331(a), 1332, 1343, 42 USC §§1983, 1986; 1st, 4th, 5th, 14th Amdts. Pending.

Charles Pressman, David Long, Phillip W Moore, Esqs, Illinois ACLU; Jay Miller, Exec Dir, Illinois ACLU, 6 South Clark Street, Chicago 60603.

Complaint, amended complaint: MCLL.

304.Ill.30. Peck v Daley (ND Ill, #69-C-1794) Pl, representative of Nat'l Mobilization Comm to End the War in Vietnam, alleged he was assaulted, battered by Defs during 1968 Chicago Democratic convention; alleged Defs negligent in not first determining that Pl's conduct was not violent or unlawful before assaulting him, in permitting unreasonable and unnecessary use of dangerous instruments designed to inflict physical injury. Sought $100,000 actual, $100,000 punitive damages. DC held City not sueable under 42 USC §1983. Pl took nonsuit.

Herbert H Fisher, Esq, 69 W Washington St, Chicago 60602.

Complaint: brief in answer to Def-City's motion to dismiss; Def-City's reply memo: MCLL.

304.Ill.31. Schnell v Chicago (CA 7, #17147) (407 F2d 1084) Aug 28, 1968: newspapermen filed class action under 42 USC §1983 for injunction to prevent Chicago police from continuing forcibly to restrain them from reporting, photographing news events during Nat'l Democratic Convention in Chicago, confiscating film, beating reporters. DC dismissed on own motion: lack of jurisdiction, failure to state claim. Mar 17, 1969: CA 7 reversed and remanded: proper §1983 action, police proper parties, unknown police officers proper parties where no damages asked, Pls are proper under FRCP §23(a). Aug 29: DC dismissed suit; CA 7 granted TRO same day pending appeal. CA 7 reversed dismissal, remanded for trial. Pls then stipulated with Defs to dismiss without prejudice.

Edwin A Rothschild, Esq, 69 W Washington St, Chicago 60602; Willard J Lassers, Esq, 11 S LaSalle St, Chicago 60603; Stanley A Bass, Esq, 116 S Michigan Ave, Chicago 60603; David C Long, Esq, 6 S Clark St, Chicago 60603.

Complaint (ND Ill), Appts' brief (CA 7): MCLL.

304.Ill.32. Joseph v Rowlen (CA 7, #16650) Sept 5, 1963: Pl-salesman approached passersby on downtown street, attempted to make appointments for sales demonstration. Arrested, detained 2 hrs without warrant or probable cause: soliciting from house to house. Charge later dismissed. Pl sued police officer under 42 USC §1983 for depriving Pl of liberty without due process while acting under color of state law; DC directed verdict for Def: no flagrant violation or brutality. Oct 14, 1968: CA 7 reversed: arrest made without warrant or probable cause imposes liability on officer recoverable in fed'l ct; showing of flagrancy, malevolence not required.

Elmer Gertz, Esq, 120 S LaSalle St, Chicago 60603.

Opinion (CA 7): MCLL.

304.La.2. Tyson v Cazes (CA 5) (363 F2d 742, 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 dimissed for lack of evidence. Pl sued owner, mgr, 5 arresting officers for damages under 1964 Civil Rights Act, 42 USCA §2000a: conspiracy to deny civil rights and denial thereof, false arrest, malicious prosecution. Feb 26, 1965: DC dismissed: notwithstanding local ordinance forbidding service of alcohol to blacks and whites on same premises, §202 of Civil Rights Act does not require injunctive relief. Jy 25, 1966: CA 5 reversed, but since Def's action based solely on ordinance since repealed, action for injunction now moot.

Murphy Bell, Esq, 971 S 13th St, Baton Rouge 70802.

304.Md.4. Maryland v Mason (Salisbury) May 18, 1968: Def detective killed black deaf-and-dumb burglary arrestee at police headquarters. Three hours of looting, windowbreaking, and fires followed. Disturbance quelled by several hundred state troopers using dogs and tear gas; 6 arrests. May 19: Gov Agnew proclaimed state of emergency, alerted Nat'l Guard. May 19: Def charged: manslaughter; $1500 bond. Pending.

Alfred T Truitt, Jr, Esq, State Atty, Salisbury, Md.

304.Mich.11. Delude v Koch (Genesee Cir Ct, #11722) Jan 25, 1967: Pl stopped by police for speeding, given ticket, arrested: breach of peace, resisting arrest. Police then beat Pl, at place of arrest and at police station; Pl taken to hospital for treatment of injuries received. Pl sued officers for $50,000. 1970: trial ct found for Pl, awarded $10,300.

A Glenn Epps, Esq, 2501 N Saginaw St, Flint 48505.

Complaint, answer, answer and demand for jury trial, Pl's voir dire questions, motion for partial summary judgment, Def's brief in support of motion, Pl's brief in opposition to motion, final pretrial conference order, motion for summary judgment, affidavit, opinion re motion for summary judgment as to Def-Oglesbee, memo in support of Def-Pickell's motion to strike, answer to Def-Pickell's motion to strike, opinion re motion for summary judgment as to Def-Pickell: MCLL.

304.Mich.12. Michigan v August (Cir Ct Ingham Co, #A-20515) Jy 26, 1967: during Detroit civil disorders, Def, 3 other peace officers, were in Algiers Motel annex questioning several Negroes about sniper fire from the bldg; Def took Audrey Pollard into another room alone for questioning; Pollard shot and killed. Jan 15, 1969: indictment charging Def with murder. Trial moved from Detroit because of extensive publicity. Je 2-10, 1969: at trial, defense: Def fired only after Pollard lunged for Def's shotgun; all white jury acquitted Def.

Avery Weiswasser, Assistant Wayne Co prosecutor, 500 Police Hdqtrs Bldg, Detroit.

304.Mich.13. Blanding v US (ED Mich, S Div, #31108) During 1967 disorders, Pls and deceased were crouched on floor of apt; lit match for cigarette; Guardsmen thought match was gunfire and started shooting into
- 77 -

room, causing death of one and injuries to another. Apr 3 1968: Action filed for wrongful death and permanent injuries under 28 USC §§1346b, 2671. Pending.

George Bedrosian, William H Goodman, Esqs, 3200 Cadillac Tower, Detroit 48226.

Complaint, answer: MCLL.

304.Mich.14. Re 5 Detroit Policemen (Detroit Police Tr Bd) Nov 2, 1968: Negro youth attended church dance at same public bldg in which policemen were having off-duty beer bust. Policemen allegedly attacked, beat several Negro youth. Nov 15: arrest warrants issued against 2 policemen; 9 suspended. Mar 7: 5 policemen brought before Police Tr Bd: 1 fired; 2 demoted; 1 ordered to forfeit $5,000; 1 acquitted.
304.Mich.15. Rosario v Detroit Police Dep't (Mich Civil Rights Commn) Jy 1967: Comp, Negro gas station owner, alleged police assaulted and verbally abused him because of his race. Nov 1968: H'g commrs recommended that Commn: (1) find discrimination proven, (2) order Resp to cease and desist from unlawful acts, (3) require Resp to reimburse Comp and take disciplinary action. Pending.
304.Mich.16. Leverette v Gilmore (Genessee Co Cir Ct, #13149) Nov 15, 1966: 8 police officers demanded entry to Pl's apartment, rushed in when Pl opened door, searched Pl, apartment: no warrant. After 10 minutes, police apologized, left. Pl sued for invasion of privacy without due process. Settled: $1500.

A Glen Epps, Esq, 1200 N Saginaw St, Flint, Mich 48505.

Pl's complaint: MCLL.

304.Miss.5. Intl Bhd of Elec Workers v City of Jackson (SD Miss #3663-J-M) 1964: Organizers of Pl-Union distributed handbills at Zinsco Elec Prod Co; arrested for noncompliance with ordinance requiring permit for distribution of handbills. May, 1964: Pls attempted to organize Universal Mfg Corp; threats to organizers of injury, death if they did not leave town in 12 hours; attempts to get police protection failed; police stopped distribution of leaflets. Pls sued city, county and state officials: damages, injunction: violations of constitutional rights, Civil Rights Acts. Aug 17, 1967: DC declared ordinance unconstitutional; enjoined its enforcement; vacated criminal charges against Pls.

Dixon Piles, Esq, 507 E Pearl St, Jackson 39201; Sherman, Dunn, and Sickles, Esqs, 1200 15th St NW, Washington, DC 20005.

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. Apr 18: Defs filed motion to dismiss. Je 30, 1967: DC denied motion. Mar 31, 1969: Defs served interrogatories on each Pl; Pls not answering were dismissed. Je 9-10: trial of liability issue, verdict for Defs. Motions for judgment nothwithstanding the verdict and new trial pending.

Richard E Tuttle, John H Doyle, III, Denison Ray, Esqs, 233 N Farish St, Jackson 39201, Lawyers' Comm on Civil Rights Under Law.

And see cases at 411.

304.Miss.15. Roberts v Williams (SD Miss #GC6635K) Pl, black 14 year old boy, tried in city ct without counsel or prior youth ct h'g; sentenced: 90 days in Leflore Co Farm. While serving sentence, guard shot Pl in face for not responding to order; blinded for life. Je 27, 1967: Pl sued Trustee of Farm, others for $1,000,000. Jy 30, 1969: Pl awarded $85,000 damages.

Martha M Wood, Esq, 233 N Farish St, Jackson 39201.

304.Miss.17. Jackson v Martin (ND Miss) (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). Dec 19: DC denied Def's motion to dismiss: Pl's guilty plea does not bar action for use of excessive force. Feb 17, 1969: set for trial. Settled for $500.

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 39201.

Complaint, answer, amended complaint, amended answer, motion to dismiss, Def's interrogatories to Pl: MCLL.

304.Miss.18. Allen v Boyd (SD Miss, #CA 4106) Mar 3, 1967: 150 individual Pls filed damage suit (42 USC §1983) against Miss Highway Patrol, Claiborne Co Sheriff's Office, Alcorn A & M College: alleged conspiracy unlawfully to arrest Pls, subject them to subhuman jail facilities, inhuman treatment. DC enforced rule no discovery after 90 days after answer filed; writ of mandamus denied. Pending.

Martha M Wood, Esq, 233 N Farish St, Jackson 39201.

304.Miss.19. Cleveland v Martin (ND Miss, #GC6636 S) Jy 6, 1966: Pl filed complaint: Def policeman shot him for causing disturbance in cafe. Pl alleged shooting wilful, without cause. Sept 17, 1968: dismissed.

Denison Ray, Esq, 233 N Farish St; Jack H Young, R Jess Brown, Esqs, 115½ N Farish St, both of Jackson 39201.

304.Miss.20. Cunningham v Ingram (ND Miss, #WC 6630-K) Jy 9, 1966: class action filed to enjoin highway patrol, Grenada city and county police: to protect Negroes exercising 1st Amdt rights; from themselves interfering with exercise of such rights. DC granted preliminary injunction, heard motions for relief from harassment, bail bond practice; to cite some Defs for contempt. Aug 12: DC granted permanent injunction and Pls' motions. Oct 31: Pls filed further motions for injunctions. Pending.

Martha M Wood, Esq, 233 N Farish St, Jackson 39201.

304.Miss.21. Love v Smith (SD Miss, #4211-Civ) Defs, Holmes Co Sheriff, Constable, Tchula City Marshall, allegedly falsely arrested, imprisoned Pl, refused to protect him from assault, threats of violence. Oct 19, 1967: Pl filed civil suit. Dec 20, 1968: Pl filed motion to dismiss. DC granted, with prejudice.

William E Miller II, L Lackey Rowe, Jr, Esqs, 233 N Farish St, Jackson 39201.

304.Miss.22. Sanders v Halbert (SD Miss, #3949) Je 15, 1966: Pl, young Negro civil rights worker, filed damage suit (42 USC §1983) alleging illegal arrest, beating by highway patrolman and Madison Co constable. Dec 13, 1968: complaint amended: new illegal arrest, threats because of initial suit against highway patrolman. Pending.

Martha M Wood, Esq, 233 N Farish St, Jackson 39201.

304.Miss.23. Thompson v Fleming (CA 5, #25599) Je 28, 1966: Pl filed complaint alleging he was beaten by Def patrolman without legal cause, pleading brutality under 42 USC §1983. DC (SD Miss) dismissed complaint. Dec
- 78 -

26, 1967: Pl appealed; CA 5 affirmed, on ground of failure to prosecute.

Denison Ray, Esq, 233 North Farish St, Jackson 39201.

304.Miss.24. Smith v Smith (SD Miss, #CA 4206) Oct 11, 1967: class action filed to enjoin nearly all Holmes Co law enforcement officers from depriving persons' constitutional rights under color of law (42 USC ¢¢1982—3, 1985—6). Feb 18, 1969: set for trial, continued to Jackson Div ct term. Pending.

Martha M Wood, Esq, 233 N Farish St, Jackson 39201.

304.Miss.25. Wheeler v Lott (ND Miss, #CA WC 6814-K) Def Grenada Co constable allegedly killed Negro man. Apr 13, 1968: damage suit filed by widow, children (42 USC §1983). Oct: case tried; hung jury. Mar 7, 1969: set for retrial. Def lost attys for failure to pay. Case continued to Oct term. Pending.

Martha M Wood, Esq, 233 N Farish St, Jackson 39201.

304.Mo.2. Koen v Long (ED Mo, #68C429(1)) Dec 18, 1966: Pl-Green, Negro civil rights leader, stopped by police for alleged traffic violation, charged with 12 traffic violations, resisting arrest, general peace disturbance, assaulting officer: eventually acquitted of all 15 charges. Oct 6, 1967: Pl-Green, and others, demonstrated against discriminatory "society" celebration by asking permission to enter; police arrested 3: disturbing peace. Dec 13: arresting police did not appear for trial; continued at DA's request. Jan 23, 1968: nolle prosequi entered.

Dec 8, 1967: Pl-Allen, others carried signs supporting Senator McCarthy at place where Humphrey scheduled to appear: 7 arrested, held 3 hours, given "courtesy summonses" charging disturbing peace; no warrants issued.

Dec 8: Pl-Koch, "marshall" of anti-war demonstration, attempted to identify officer who allegedly called him obscene names; arrested: failure to obey reasonable command of officer, loitering. Apr 22, 1968: nolle prosequi entered. Numerous other harassing arrests took place through Sept 1968. Suit filed asking injunction against future police harassment; claimed jurisdicition under 42 USC §1983, 28 USC §§1343(3), (4). Pending.

Samuel H. Liberman, Esq, 722 Chestnut St, St Louis 63101; Robert B Curtis, Esq, 2847 Union Blvd, St Louis 63115.

Complaint: MCLL.

304.Nev.2. Elson v Bowen (Nev Sup Ct) (83 Nev 515, 436 P2d 12) 1962: FBI agents allegedly engaged in wiretapping of executive offices of Fremont Hotel in Las Vegas. Levinson, hotel sued FBI agents for invasion of privacy, violation of Nevada wiretapping statutes. State Dist Ct issued subpoenas to FBI agents to appear for depositions. Agents filed petition for writ of prohibition. Dec 20, 1967: Sup Ct denied petition, ordered agents to respond to subpoenas. Pending.

Jones and Jones, Esqs, 302 E Carson, Las Vegas 89101; Peter Taft, Esq, 839 17th NW, Washington, DC 20006; Thomas Wadden, Jr, Esq, 888 11th NW, Washington, DC 20001; Bryant Burton, Esq, 9601 Wilshire Blvd, Beverly Hills, Calif 90210.

See Fremont Hotel v Central Telephone Co, 304.Nev.1, 13 DOCKET 81.

304.NJ.3. Adams v Hughes (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. Jy 1969: Pretrial conference held, negotiations for settlement: Defs offered $6700, and injunction. Trial set for Dec or Jan if no settlement reached.

Frank Askin, Esq, ACLU, 45 Academy St, Newark 07102; Emerson Darnell, Esq, 219 High St, Mt Holly, NJ 08060; Solomon Golat, Esq, 786 Broad St, Newark 07102; George G Mutnick, Esq, 127 Watchung Ave, and William Wright, Jr, Esq, 201 East 5th St, Plainfield 07060; Morton Stavis, Esq, 744 Broad St, Newark 01-02; Leonard I Weinglass, Esq, 43 Bleeker St, Newark 07102.

Amicus Robert A Carter, Charles H Cottingham, Henry di Suvero, Alan McPherson, Esqs, ACLU, 45 Academy St, Newark 07102; John deJ Pemberton, Melvin Wulf, Esqs, ACLU, 156 Fifth Ave, NYC 10010; Arthur Kinoy, William Kunstler, Esqs, 588 9th Ave, NYC 10034; Robert I Carter, Esq, NAACP, 1790 Broadway, NYC 10019; Robert E Knowlton, Esq, 180 University Ave, Newark 07102; Carl Rachlin, Esq, Scholarship, Education and Defense Fund for Racial Eqaulity, 150 Nassau St, NYC 10038.

And see cases at 429.

Complaint (39 pp): MCLL.

304.NJ.5. Oberkehr v Kauffman (DC NJ, #794-67) Apr 15, 1967: Pls photographed in Camden by police officer while boarding bus for NYC for Spring Mobilization. Apr 19: Police photographed students picketing speech by US Army spokesman at Rutgers Univ (Camden). Jy 29: Suit filed for injunction, chilling effect on 1st Amdt rights. Nov 1968: Suit dismissed without prejudice on stipulation that police would cease practice.

Arthur Frakt, Esq, Camden Law School, Camden 08102; NJCLU, 45 Academy St, Newark 07102.

Stipulation: MCLL.

304.NJ.7. Anderson v Sills (NJ Super Ct, Chancery Div, Hudson Co, #C-215-68) 1969: Complaint filed alleging: instructions and forms used by police to investigate meetings, marches, protests, and their participants constitute overbroad and vague authorizations for police to investigate Pls and others; information so acquired has been publicly disseminated to intimidate and harass Pls; Defs thus invade privacy, inhibit free speech and association, deprive Pls of due process and equal protection, since those holding conventional political views are not so treated. Oct: Super Ct issued declaratory judgment, citing Dombrowski, 380 US 479, 245.16, that State Atty Genl rescind directive for investigations, destroy all information files developed under the program. State's appeal pending.

Stephen M Nagler, Frank Askin, Esqs, ACLUNJ, 45 Academy St, Newark 07102, and Morris Stern, Esq, 24 Commerce St, Newark 07102.

Melvin Wulf, Eleanor Norton, Esqs, ACLU, 156 5th Ave, NYC 10010; Arthur N D'Italia, Esq, 24 Journal Sq, Jersey City 07306; Leslie W Finch, Murial Finch, Esqs, 7 Tappan Ave, Belleville, NJ 07109.

Complaint, brief, opinion: MCLL.

304.NJ.8. Black Panther Party v Police Dept of Jersey City (Hudson Co Super Ct, #3153-68) Pl alleged Def had mounted program designed to deter, suppress its lawful activities ("declared war on Black Panther Party"): violence, threats of violence, bad faith enforcement of laws, particularly disorderly conduct statute. Pl sought injunction against racially, politically motivated police action: "chilling effect" on 1st Amdt. Ct ordered stay of bad faith criminal proceedings against member of Party; ordered briefs on propriety of other preliminary relief. Pending.

Frank Askin, Esq, ACLUNJ, 45 Academy St, Newark 07102. Wm J Bender, Edward C Broege, Arthur Kinoy, Esq, LCCR, 588 9th Ave, NYC 10034.

Seymour Goldstaub, Esq, 880 Bergen Ave, Jersey City 07306; Arthur D'Italia, Esq, 26 Journal Sq, Jersey City 07306.

Pl's brief in support of motion for preliminary injunctive relief: MCLL.

- 79 -

304.NM.1. Juan Valdez v Black (DC NM, #7242) Chicanos organized Alianza Federale de Mercedes to urge land reform to conform to 1848 Treaty of Guadalupe Hildago guaranteeing sanctity of Spanish and Mexican land grants throughout Southwest. May 27, 1967: Pls in Alianza announced that on June 3 they would hold nat'l conference at Coyote, NM, to reorganize as "Confederation of Free City States." Je 2: Def-DA announced all Alianza members risk arrest for unlawful assembly, extortion, if they met as planned. Pls alleged they were arrested in their homes, without valid warrants: unlawful assembly. Je 5: 40-50 Alianza members apprehended, searched, interrogated, in connection with earlier incident. Defs ascertained Pls not involved, but surrounded camp with state police, nat'l guard for 25 hours: "protective custody." Pls sued, alleged Defs conspired to deprive them of freedom of speech, assembly, right to petition gov't for redress of grievances, subject them to unreasonable searches and seizures, deprive them of due process, equal protection; sought damages. Pending.

Jonathan B Sutin, Esq, 800 Simms Bldg, PO Box 1945, Albuquerque 87103.

Amended complaint: MCLL.

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: Pl indigent, receiving public assistance. Je 12, 1968: judgment for Pl: $10,000.

Robert Polstein, 10 E 40th St, NYC 10016.

304.NY.26. New York 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. Jy 10: Police Commr issued order prohibiting interference with distribution of non-commercial literature; case settled.

Alan H Levine, Paul Chevigny, Esqs, NYCLU, 156 Fifth Ave, NYC 10010.

Order: MCLL.

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 DA. 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. DC denied motion for preliminary injunction. Aug 20, 1968: dismissed on consent: Police Commr issued order covering house searches under 4th Amdt.

Paul G Chevigny, Esq, NYCLU, 156 Fifth Ave, NYC 10010; John Mage, Esq, 225 W 86th St, NYC 10024.

Stipulation, order: MCLL.

304.NY.30. Bird v MacKenzie (SD NY) Jan 17, 1969: Police found Pl, 19 yr old student nurse and Black Panther, in disabled vehicle after alleged sniper attack on 2 policemen. She was allegedly detained incommunicado without charges for 25 hrs, beaten, tortured, threatened with death. Jan 18: Pl charged with felonious assault, attempted murder, conspiracy to commit murder. Panther who went to police to inquire about Pl, and owner of car in which Pl found, charged with same offenses. Bail set at $50,000 each, reduced to $20,000, then to $5,000 for Pl. Feb 16: charges against other 2 dismissed; both rearrested: armed robbery. Feb 17: Pl indicted on conspiracy charge; arrested: armed robbery; released on $5,000 bail. Feb: DA refused to bring charges against policemen; Pl filed suit against Defs, officers allegedly involved in beatings. Pending.

Gerald Lefcourt, Esq, 18 E 64th St, NYC 10021; Arthur Turco, Esq, 260 W 25th St, NYC 10001.

304.NY.31. New York v John Peter Dorak (Nassau Co Ct, #9245) Nov 30, 1939: Def convicted of arson on confession; committed to mental hospital as incompetent; spent 28 yrs there. Jy 19, 1967: Def released. Je 1968: Def appealed for vacation of conviction: alleged had not been represented by counsel, confession made under duress. Je 28: Co Ct vacated conviction. Def filed suit against Nassau Co for $5-million: false arrest, malicious prosecution and false imprisonment, confinement. Pending trial.

Harry Heller, Esq, 250 Broadway, NYC 10007.

304.NY.32. Robinson v New York City (NY Sup Ct) May 24, 1967: Sugar Ray Robinson's wife allegedly forced to disrobe, submit to search of person and clothing without warrant or notice of purpose. Je 4, 1968: Suit filed by Robinson and wife. Pending.

Martin J Machat, Esq, 1501 Broadway, NYC 10036.

304.NY.33. Jaekel v US (SD NY, #68Civ4753) Nov 9, 1966: Pl's daughter arrested: Fed'l narcotics violation; Pl's automobile seized in arrest under 49 USC §782; daughter told to contact atty to find out how to get it back. Nov 10: auto stored, appraised at $1,750. Nov 14: agents informed Pl of arrest, seizure, told Pl to contact atty re car. Nov 22, 29, Dec 6: notice of seizure, requirement of owner to post $250 bond by Dec 12 published in newspaper under 19 USC §1607. Dec 9: mortgagee filed petition for remission or mitigation of forfeiture. Dec 12: auto forfeited to US in summary administrative proceeding. Feb 20, 1967: mortgagee elected to have auto sold at auction. Mar 4: auto sold at public auction for $750: $645 remitted to mortgagee of which $500 credited to Pl. Nov 8, 1968: Pl sued in DC to declare forfeiture void, recover damages, recover auto. Sept 30, 1969: DC, Bonsal, J, held: (1) DC has jurisdiction under Tucker Act, 28 USC §1346(a)(2); (2) oral notice of seizure, instructions to contact lawyer, publication of notice of actual proceeding constitutionally inadequate where Defs had Pl's name, address and no additional inconvenience involved in personal notification (Mullane v Central Hanover Tr Co, 339 US 306). Forfeiture void; $1105 damages awarded.

Bruce J Ennis, Jr, Burt Neuborne, Edward F Hayes III, Esqs, NYCLU, 156 Fifth Ave, NYC 10010.

Opinion: MCLL.

304.NY.34. Re Garelik (NYC Police Dept Civilian Complaint Review Bd) Apr 27, 1968: Plainclothesmen allegedly used excessive force against participants in anti-war demonstration. Apr 29: NYCLU filed complaint with Rev Bd, sought to determine whether, if officer committing abuse is unidentifiable, his commander may be held accountable. Pending.

Paul G Chevigny, Esq, NYCLU, 156 Fifth Ave, NYC 10010.

- 80 -

304.NY.35. Fink v Leary (SD NY, 68 Civ 2674) 1968: Pls, members of press, others interested in recording activities at public demonstrations, filed complaint with NYC Civilian Complaint Review Bd, alleging police conduct infringed their 1st Amdt rights by preventing them from collecting information, arresting them if they took photographs or notes of police actions, making use of unidentifiable plainclothesmen at demonstrations, engaging in general pattern of harassment. Bd dismissed as unsubstantiated; Pls then sought injunction from DC. Feb 25, 1969: Def, Police Commr, ordered Dept to refrain from further interference with legitimate collection of news by those with or without official press credentials; DC subsequently issued consent order embodying Commr's order.

Paul G Chevigny, Esq, NYCLU, 156 Fifth Ave, NYC 10010.

Complaint, 10 affidavits, order to show cause, Police Commr's order, consent order: MCLL.

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. DC denied motions. Depositions taken; awaiting trial.

J LeVonne Chambers, Esq, 405½ E Trade St, Charlotte, NC 28202; Gabrielle Kirk, Michael Meltsner, Esqs, NAACP Inc Fund, 10 Columbus Circle, NYC 10019.

304.NC.3. Wheeler v Goodman (WD NC) (298 FSupp 935) Dec 1968-Jan 1969: Charlotte Police Dept made 14 unsolicited visits to local hippy house, some with and some without warrants. Ct later found warrants lacked support; no illegal activity uncovered, but Pls-occupants' belongings, persons searched, some possessions taken, threats of arrests made. Police aided landlord in evicting Pls, although rent paid, no ct order to assist. Pls finally arrested: vagrancy. Pls brought class action under 42 USC §1983. DC issued injunction ordering Charlotte police to, inter alia: (1) refrain from arresting or harassing Pls under color of vagrancy statute, (2) refrain from harassing Pls and their visitors, (3) return items taken from Pls' possession, (4) refrain from conducting illegal searches and seizures, (5) keep sealed from public and private view all records dealing with Pls' arrest under vagrancy statute.
304.Pa.3. Harrington v Tate (Pa Sup Ct, #187) 1965: Pl-police officers sued to enjoin Philadelphia Police Advisory Bd from functioning in alleged review bd capacity with h'gs. Issue: whether Mayor empowered under Home Rule Charter, §§3-917, 5-200, to establish Police Advisory Bd to make recommendations as to discipline of police officers. Mar 1967: Ct of Com Pleas held Bd illegal, "menace to law enforcement." Apr 2: City solicitor announced planned appeal. Je 27, 1969: Pa Sup Ct reversed.

Murray H Shusterman, 7th Fl, 1401 Walnut St; Jerome J Shestack, 1719 Packard Bldg; both of Philadelphia 19102.

Amicus brief for Phila Fellowship Commn, ACLU, Presbyterian Interracial Council, Phila Urban League, and Episcopal Diocese of Pa, by Peter Hearn, Esq, Fidelity Bldg, Philadelphia 19108.

Matthew Bullock, Esq, Deputy City Solicitor, Municipal Services Bldg, Philadelphia 19107.

Opinion, concurring, dissenting opinion: MCLL.

304.Pa.6. Taylor v Tate (ED Pa, #68-2018) Sept 9, 1968: Police kept Pls, persons displaying anti-Humphrey signs or insignia, away from Humphrey campaign rally. Pls sued to enjoin such interference. Oct 4: DC retained jurisdiction: right of dissenters to peaceably attend public meetings not to be infringed upon. Pending.

Julian Goldberg, Esq, 2028 Delancey Pl, Philadelphia 19103.

304.SC.1. Sellers v Pendarvis (DC SC, #68-313) May 8, 1968: Suit filed against state officials growing out of events at Orangeburg, see 590.42, to enjoin prosecution and to put police dept into receivership. Pending.

George Logan, Fred Moore, Esqs, NAACP Legal Defense and Education Fund, Inc, 10 Columbus Circle, NYC 10019.

And see US v Addy, 590.42.

304.Tex.3. Medrano v Allee (SD Tex, #CA 67-B-36) 1967: Pls, union farm workers and organizers, alleged efforts by police, Texas Rangers to break Pls' strike around Brownsville by harassment including spurious and frivolous arrests, arrests under laws already declared unconstitutional or unconstitutional per se. Je 12: complaint filed against police, Rangers: conspiracy to deprive Pls of civil rights; jurisdiction under 28 USC §§1343(3), 2201, 2202, 42 USC §§1983, 1985, and 1st, 14th Amdts; asked permanent injunctions against: (1) enforcement of specified Texas statutes, declaratory judgment that they are unconstitutional, (2) spurious and false arrests, (3) other harassment of Pls' peaceful union activities. Je 13: Defs filed motion to dismiss. Denied. Pending.

Chris Dixie, Esq, 505 Scanlan Bldg, Houston 77002; Jerome Cohen, Esq, 1511 Twelfth Ave, Delano, Calif 93215; Doran Williams, Esq, PO Box 54, Rio Grande City, Texas 78582.

Amended complaint: MCLL.

304.Wisc.1. Thornton v Buchmann (ED Wisc, #64-C-53) Jan 6, 1964: Gas station atendant 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 25: Pl sued under 28 USC §§1331, 1333, 42 USC §§1983, 1988. At conclusion of Pl's case, DC granted Def's motion for directed verdict: officers called by Pl gave testimony which was corroborated by Pl's testimony and established justification for arrest. Feb 5, 1968: CA 7 affirmed.

Sidney Podell, Esq, 606 W Wisconsin Ave, Milwaukee 53203.

Briefs for Appt, Appee; opinion: MCLL.

305. Police Line-up Procedures

305.4. Foster v California (USSC) (390 US 994, 394 US 440) Pet, 6' tall, arrested for robbery of Western Union, placed in lineup with 2 men under 5'6". Night manager, DA's only eyewitness, could not identify Pet from lineup. Police brought Pet into room for 1-to-1 confrontation with eyewitness. In second lineup in which he was only person who appeared in first lineup, eyewitness identified Pet. Pet charged: robbery. Convicted. Calif Sup Ct denied review. 1968: USSC granted cert, limited to question whether conduct of police lineup resulted in violation of Pet's constitutional rights. Apr 1, 1969: USSC reversed (5-4), Fortas, J: identification constitutionally inadmissible; lineup procedures unfair, so undermined reliability of eyewitness' identification as to violate due process. Black, J (White, Harlan, Stewart, JJ), diss.

Kenneth L Maddy, Esq, First Western Bank Bldg, Fresno, Calif 93721.

And see Whitmore, 353.29, Smart, 353.73.

- 81 -

310. INDICTMENTS/INFORMATIONS
311. Challenge to Grand Jury Composition (see also 510s)
And see Wynn, 429.44; Rios, 512.Calif.7.
311.3. New York v Shakur (NY Sup Ct, Ind #1848-69) May 1969: Def-Black Panther indicted for various crimes. Motion filed to conduct voir dire of grand jury: (1) NY Code of Crim Proc §§230, 232, 233, 234 giving Defs right to voir dire grand jury not limited to persons not yet indicted, (2) case law preventing persons already indicted from conducting voir dire for reasons of "administrative convenience" unconstitutionally unfair, (3) present application of law denied equal protection, due process; no rational basis for distinguishing between those who know they are to be indicted and those who do not, present operation therefore arbitrary, unreasonable, (4) rule denies right to effective counsel. Oct 5: voir dire conducted.

Gerald B Lefcourt, Frederick H Cohen, William Crain, Robert Projansky, Esqs, 37 Union Square West, NYC 10003; William Kunstler, Arthur Turco, Esqs, 588 9th Ave, NYC 10034; Sanford M Katz, Esq, 30 E 42 St, NYC 10017.

Motion, memo, research note, transcript of voir dire: MCLL.

Gerald Lefcourt, Voir dire of NY County grand jury. 28 Guild Practitioner 78.

And see New York v Shakur, 401.28.

312. Attacks on Character of Evidence

312.37. California v King (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. 1969: DCA reversed and remanded; USSC denied cert, dismissed on motion by DA.

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 90012.

312.41. California v Carol Beth Mahoney (Los Angeles Super Ct) Oct 13, 1967: Def arrested, convicted: Misdemeanor drunk driving. Dept of Motor Vehicles suspended her license because at time of booking she declined to take either blood, breath or urine test. Mar 6, 1968: Super Ct overturned suspension: Def too drunk to realize consequences of refusing to take one of required tests.
313. Charge of Entrapment
314. Charge of Conspiracy (and see 54)
And see Castro, 51.Calif.18; Dellinger, 54.32.

Brief: New York v Shakur (Panther 21), 401.28: MCLL.


314.11. California v Bardacke (Oakland 7) (Alameda Co Super Ct) Oct 16-21, 1967: Defs helped organize massive 5-day antiwar protest at Oakland Induction Center. Police detachments cleared thousands of demonstrators from sidewalks, streets five days in a row; 200 arrests. Dec: Alameda Co grand jury indicted Defs: conspiracy to commit misdemeanors of trespass, obstructing police, blocking traffic (Pen C §182.1). May 17: Super Ct denied motion to dismiss charges based on unconstitutionality of indictment under 1st Amdt. Jan 1969: In voir dire, defense counsel questioned jurors on attitude toward war, campus disorders: "Do you believe it is the duty of a citizen to resist illegal acts by the government?" "Do you believe in a citizen's right to self-defense, even against a police officer?" Feb 4: trial began; Ct held precedent of Nuremberg Tribunal inapplicable in civilian context, but allowed testimony on Defs' belief that war was illegal as relevant to their intent, motivation. Mar 29: jury acquitted all 7 Defs.

Charles Garry, Esq, 501 Fremont Bldg, 341 Market, San Francisco 94105; Malcolm Burnstein, Esq, 1440 Broadway, Oakland 94612; Richard Hodge, Esq, 228 McAllister, San Francisco 94102.

Movie for rent: Movement on Trial: The Oakland 7, 20 mins, $40; Am Documentary Films, 379 Bay St, San Francisco 94133; 336 W 84th St, NYC 10024.

See Burnstein, Trying a Political Case, 28 Guild Practitioner 33 (1969).

And see cases at 55.

314.12. Shaw v Garrison (USSC) (293 FSupp 937; 89 SCt 453) 1968: Def-DA charged Pl with conspiracy involving assassination of Pres Kennedy. Pl sought injunction from 3-judge ct (ED La): Def's prosecution chilled his 1st Amdt rights, prosecution designed to harass those who disagreed with Def's views about assassination. DC refused injunction: Pl's showing insufficient: must allege, prove Def brought charges not with good faith belief Pl violated La conspiracy statute, but in bad faith, knowing Pl innocent and without any expectation of obtaining conviction, to attack Warren Commn, harass Pl in his exercise of 1st Amdt rights; DC also held La conspiracy statute not constitutionally defective for failure to define "crime," as long as "crime" sufficiently defined in other parts of criminal code. Sept 27: Pl appealed to USSC: (1) would showing of bad faith, attack on Warren Commn entitle Def to injunction without showing 1st Amdt interference? (2) was Pl entitled to fed'l declaratory judgment conspiracy statute unconstitutional? Dec 9: USSC affirmed.

Edward F Wegmann, F Irvin Dymond, Esqs, 210 Baronne, 70112; Herne Racivitch, William J Wegmann, Salvatore Panzeca, Esqs, 200 Carondelet, 70130, all of New Orleans.

314.13. US v Gwyther, Morgan (DC Ore, #CR 69-13) Defs participated in disruptive but nonviolent demonstrations at local draft bds while bds in session. Defs indicted by fed'l grand jury: interference and hindrance by force and violence and otherwise with local bds, conspiracy to do same (50 USC App §462). Defs pleaded not guilty: unconstitutionality of §462 under 1st Amdt. Pending.

Prof Herbert W Titus, Univ of Ore School of Law, Eugene, Ore 97403; Nels Peterson, Esq, 1000 SW Third Ave, Portland 97204; G Bernhard Fedde, Esq, Failing Bldg, Portland 97204.

Indictment, Appt's brief: MCLL.

314.14. Alderman v US (USSC) (371 F2d 983, 389 US 834, 394 US 165) Pets convicted of conspiracy to transmit murder threats in interstate commerce. CA 10 affirmed. USSC denied cert. On petition for re-h'g, Pet alleged gov't used electronic surveillance devices in Pet's place of business. USSC granted cert over gov't's objection that nothing of overheard conversations relevant to prosecution. USSC, per curiam, vacated, remanded. US filed for modification of order to allow in camera inspection by trial judge who would turn over only relevant materials to Def. Mar 10, 1969: USSC denied motion, vacated, remanded, White, J: (1) co-conspirators and co-Defs
- 82 -

have no standing to urge suppression of product of 4th Amdt violation if not party to recorded conversations because only those whose rights were violated can object; (2) products of illegal electronic surveillance on Pet's premises including conversations of 3d parties are inadmissible against Pet as product of illegal search would be; (3) surveillance records to which any Pet has standing to object should be turned over to him subject to appropriate protective orders without in camera inspection by trial judge-matter of judgment too complex and margin for error too great to rely wholly on judgment of trial ct to identify records which might have contributed to gov't case; (4) need for adversary inquiry increased by complexity of issues; (5) DC in 1st instance must decide question of whether there was surveillance which violated Pet's 4th Amdt rights and if so whether any overheard conversations were relevant to his conviction. Harlan, J, conc in part, diss in part; also Fortas, J.

Edward Bennett Williams, Esq, 839 17th St NW, Washington, DC 20006.

315. Inspection of Pretrial Statements of Government Witnesses (Jencks Act)
List: State discovery statutes and decisions. 1 Civil Rights Handbook 69-69r, Nat'l Lawyers Guild, Box 673, Berkeley 94701.

See Boeckenhaupt, 333.28.

316. Inspection of Grand Jury Minutes
317. Other Discovery

317.1. Ruiz v California (DCA, 1st Dist) 1969: Prosecution in criminal case obtained discovery order from trial judge to Def: (1) that Def make available for inspection and copying statements of any witness other than Def to offense charged, (2) that he make available names, addresses, statements of any witness, other than Def, which he intended to call for affirmative defense. May 7: Def filed petition for writ of prohibition/mandamus: both parts of order violate 5th Amdt privilege against self-incrimination; Def need make no showing that information sought may be incriminating, as this is presumed from fact that prosecution is seeking it. Pending.

Paul Halvonik, Esq, for ACLU, 503 Market St, San Francisco 94105; Michael S Moore, Esq, 650 California St, San Francisco 94108.

ACLU brief (27 pp): MCLL.

320. DOUBLE JEOPARDY
321. In Federal Cases
322. In State Cases

322.17. Waller v Florida (USSC) (213 So2d 623; 89 SCt 2125) Dec 29, 1966: Pet, other Negroes, removed racially offensive mural from St Petersburg City Hall, carried it through streets until confronted by police, who recovered it after scuffle. St Petersburg Muni Ct convicted Pet: destruction of city property, breach of peace: 90 days each charge consecutively. While serving sentence, Pet charged, convicted in Co Cir Ct: grand larceny. Jy 6, 1967: after receipt of pre-sentence report, Cir Ct sentenced Pet: 6 mos - 5 yrs, statutory maximum, but did not allow discovery of report. Aug 28, 1968: Dist Ct of App affirmed. Fla Sup Ct denied cert: lack of jurisdiction. Je 23, 1969: USSC granted cert. Sept 1: Pet's brief argued: (1) double jeopardy provision of 5th Amdt binds states through 14th Amdt (Benton v Maryland, 395 US 784); Fla violated 14th Amdt by prosecuting Def on same course of conduct for which municipality had convicted him, (2) denial of access to presentence investigation report was denial of due process. Pending.

Leslie Harold Levinson, Esq, 2925 NW 12th Place, Gainesville 32601; Melvin L Wulf, Esq, 156 5th Ave, NYC 10010.

Pet's brief, petition for cert: MCLL.

322.18. Benton v Maryland (USSC) (232 A2d 541, 395 US 784) Aug 1965: Def tried for burglary, larceny; acquitted of larceny, guilty of burglary. Md Ct of App remanded case to trial ct in light of Schowgurow (240 Md 121); indictment, conviction set aside. Def re-indicted, retried on burglary, larceny counts; found guilty of both, sentenced concurrently. Def appealed: larceny indictment, conviction violation of double jeopardy protection. Md Ct of Special App affirmed. Md Ct of App denied review. Je 23, 1969: USSC reversed, Marshall, J: (1) concurrent sentences no jurisdictional bar to consideration of challenges to multiple convictions; (2) double jeopardy prohibition of 5th Amdt "fundamental ideal in our constitutional heritage"; applicable to states through due process clause of 14th Amdt; (3) Def's appeal on burglary conviction cannot be conditioned on waiver of right against double jeopardy on other charge; (4) defect in original indictment makes indictment voidable, not absolutely void; state cannot set earlier acquittal aside over Def's objection because of own error. Harlan, J (Stewart, J), diss.

M Michael Cramer, Esq, 1225 Connecticut Ave, Washington, DC 20036.

330. SELF-INCRIMINATION: CRIMINAL SANCTIONS FOR EXERCISING PRIVILEGE (see also 270)
331. Before Congressional Committees
332. Before State Committees
333. Before Grand Juries, Courts and Tribunals
COMMENT ON DEFENDANT'S FAILURE TO TESTIFY:
333.27. New York v Armstrong (Sup Ct, App Div) (298 NYS2d 630) 1965: Def-Negro arrested after robbery in white neighborhood. Nov 18, 1966: convicted after jury trial in which prosecutor made repeated allusions to the fact that Def did not take stand, did not explain what he was doing in white neighborhood. Apr 2, 1969: App Div reversed, citing Chapman v California (386 US 18, 13 DOCKET 87): to allow comment on Def's failure to testify, racial allusions, is not harmless, but substantial error requiring reversal.

Mary Johnson Lowe, Esq, NYC.

Opinion: MCLL.

333.28. Boeckenhaupt v US (CA 4) (392 F2d 24) Apr 1966: Appt, USAF sgt, observed meeting with Soviet Embassy employee. May: Appt warned to report all contacts with foreign nationals (USAF 205-57), placed under surveillance by USAF and FBI. Oct 24: USAF arrested Appt: violation of 205-57, gave Miranda warning. Appt consented to FBI interview, did not want lawyer, signed consent to
- 83 -

search, admitted contact with Soviet representative. Later Appt decided he did want counsel; military counsel promptly appointed. Oct 28: Appt, on counsel's advice, refused to answer several questions. Oct 31: Justice Dept charged Appt: violation of espionage statutes on basis of evidence found in home, admissions in interviews. DC (ED Va) convicted: 2 counts, 20, 10 yrs consecutively. On appeal, Appt alleged: (1) no probable cause for arrest, (2) on arrest, Appt entitled to appear before magistrate without delay under Rule 5, FRCrimP, evidence seized should be excluded under McNabb-Mallory rule, (3) prosecutor, judge violated 5th Amdt by informing jury that Appt remained silent, refused to answer in interview, (4) counts 1, 2 arise from same acts, cannot lawfully be pyramided into separate counts to allow consecutive sentences; (5) judge violated Jencks Act (18 USC §3500) by refusing Def's counsel access to certain summaries of reports. Mar 1, 1968: CA 4 affirmed: (1) meeting with Soviet employee was sufficient probable cause, (2) Rule 5, FRCrimP not applicable to arrest of military man for violation of military reg, (3) isolated errors of prosecutor, judge "harmless beyond a reasonable doubt," (4) Congress may break down aspects of espionage activity into separate offenses, (5) Jencks Act not violated. Haynsworth, CJ; Winter, Craven, JJ.

Plato Cacheris, Esq, 130 S Royal, Alexandria, Va 22314.

And see cases at 356.

333.29. In Re Seif (Suffolk Co Ct, Riverhead NY) Apr 29, 1969: DA charged Def, math instructor: refusal to answer questions before grand jury investigating use of narcotics on Stony Brook campus. Def contended question concerned his alleged commission of crime (drug use). After lengthy closed door hearing, judge ruled Def guilty of criminal contempt; sentenced: 10 days; fined: $100; ordered: 20 more days if failure to pay fine. Def served 8 days on Co work farm.

Jeremiah Gutman, Esq, 363 7th Ave, NYC 10001.

334. Grants of Immunity: Federal

334.10. US DC (ND Calif) v Carter, Crawford, Shead (CA 9, #24554) May 14, 1969: Defs refused to testify at fed'l grand jury inquiry into alleged "interstate travel to promote riots" and "interstate travel for purpose of teaching and making use of firearms and explosives." Defs held in contempt, imprisoned: failure to comply with compulsory testimony order after grant of immunity. Defs released on bail. Je 27, 1969: Defs appealed, challenging 1968 immunity statute (18 USC 2514.2). ACLU filed amicus brief arguing unconstitutionality of 1968 anti-riot act, 18 USC §§2101, 2102. Pending.

Alan Brotsky, Esq, 341 Market, San Francisco 94105; Paul N Halvonik, Esq, ACLUNC, 503 Market St, San Francisco 94105.

ACLU amicus brief (CA 9); brief in support of petition for writ of certiorari: MCLL.

And see 54.

335. Grants of Immunity: State

335.13. Gardner v Broderick (USSC) (279 NYS2d 150, 229 NE2d 184, 392 US 273) Aug 1965: Pl, NY policeman, questioned before grand jury investigating police corruption. After being advised of privilege against self-incrimination, Pl requested to sign "waiver of immunity" under threat of dismissal from job. Pl refused, dismissed. Pl petitioned Sup Ct for reinstatement. Ct dismissed; Ct of App affirmed. Je 10, 1968: USSC reversed (unanimous) Fortas, J: (1) Pl cannot be discharged for refusal to waive immunity to which he is entitled if he is requested to waive constitutional privilege; (2) purpose of grand jury investigation to obtain evidence to use in prosecuting Pl, not simply to secure accounting of his performance of public trust.

Ronald Podolsky, Esq, 15 Park Row, NYC 10038.

336. Criminal Registration Laws (see also 211)

336.9. Grosso v US; Marchetti v US (USSC) (352 F2d 848; 390 US 39) (358 F2d 154; 390 US 62) DCs convicted Defs, bookies, of willful failure to register, pay fed'l gambling tax. CA 2, CA 3 affirmed. Jan 1968: USSC reversed (7-1), Harlan, J: fed'l tax, registration statutes denied Defs 5th Amdt privilege; information readily available to aid in prosecution of gamblers; Defs knew registration or payment immediately branded them actual or potential criminals.

Jacob D Zeldes, Esq, 955 Main St, Bridgeport, Conn 06603; Charles A Wright, Esq, Austin, Texas.

336.11. Minor v US (USSC) (407 F2d 905, 90 SCt 284) Pet convicted of selling narcotics without written order of buyer on official form, §2 Harrison Narcotic Act, 26 USC §4705(a). Pet appealed, claiming requirement violated 5th Amdt right against self-incrimination. 1968: CA 2 affirmed. Dec 8, 1969: USSC affirmed (7-2), White, J: (1) No real, substantial possibility that §4705(a) order form requirement will in any way incriminate sellers because sellers will seldom, if ever, be confronted with unregistered purchaser willing, able to secure order form; (2) unlike Leary v US (395 US 6) situation where buyer could fully comply with order form requirement, but would thereby incriminate himself under other laws. Douglas, J (Black, J) diss: "The Gov't is punishing an individual for failing to do something the Gov't has made it impossible for him to do."

Phylis S Bamberger, Esq, NYC.

And see Buie v US, 90 SCt 284.

336.12. Jeremiah Kelley v US (USSC) (254 FSupp 9, 395 F2d 727, 393 US 963) Pet convicted in fed'l ct on 4 related violations of statutes re gambling including 2 for failure to register, pay tax. CA 2 reversed tax and register counts, affirmed 2 substantive counts. Nov 25, 1968: USSC denied cert; Warren, CJ, diss: (1) combining charges resulted in strengthening weak case by combining with strong case on offenses Ct has held constitutionally invalid and constitutes improper use of "other crimes" evidence; (2) charges of failing to register and pay tax constitutes comment on Pet's failure to incriminate himself under Marchetti v US, 336.9, 390 US 39.

Edward Bennett Williams, Esq, 839 17th St NW, Washington, DC 20006.

336.13. Leary v US (USSC) (383 F2d 851, 395 US 6) 1965: US border official found marijuana on floor of Def's car; arrested: (1) failure to pay marijuana transfer tax, (2) knowingly transporting illegally imported marijuana; Marijuana Tax Act, 26 USC §§4741-4753 provides that (1) purchasers must register, pay transfer tax, (2) possession creates presumption marijuana is imported, purchaser knew it was imported. DC convicted Def on both counts; CA 5 aff'd. May, 1969: USSC reversed, remanded (9-0), Harlan, J: (1) Tax provision violated 5th Amdt privilege as tax records available to narcotics officials; USSC struck down similar wagering tax in Marchetti, 336.9, (390 US 39); (2) presumption that marijuana user knew marijuana illegally imported violates due process; no rational connection between fact of possession and knowledge of importation.

Robert J Haft, Esq, 140 E 80th St, NYC 10021; Jonathan Sobeloff, Esq, 506 E St NW, Washington, DC 20001.

ACLU amicus brief in USSC: MCLL.

- 84 -

336.14. Belmar v Ulesky (NJ Sup Ct) Pl-town ordinance required anyone convicted of crime to register, be fingerprinted by local police within 24 hours of arrival in town; penalty: $200 or 90 days. Def, convicted of fraud 5 yrs before, failed to register with Pl's police. May 5, 1969: Sup Ct held all such ordinances invalid: state had preempted field of general criminal registration by passing narcotics registration statute, even tho state as yet had no general registration law; did not rule on 14th Amdt due process argument advanced by Def; did not declare ordinance unconstitutional.

ACLU, 45 Academy St, Newark 07102.

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: loitering, failure 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 argued: (1) prosecution must show "evil intent" in loitering charge, (2) if prosecution could prove all necessary elements of loitering charge — that Def had "evil intent," that officer had reasonable cause to suspect her of a crime — then requirement that she identify herself and account for her presence would violate privilege against self-incrimination. 1968: dismissed: prosecution could not show evil intent.

Marshall W Krause, Esq, ACLUNC, 503 Market St, San Francisco 94105.

Neil F Horton, Esq, 833 First Western Bldg, Oakland 94612.

Trial memo: MCLL.

337.2. Sizemore v US (CA 8) (393 F2d 656) Def convicted in DC: possession of unregistered sawed-off shotgun (26 USCA §§5851, 5841): 1 yr suspended sentence. May 1, 1968: CA 8 reversed, remanded with direction to dismiss: where elements of offense are possession, non-registration of sawed-off shotgun, registration of gun would involve violation of privilege against self-incrimination.

Melvin H Wolf, Esq, Marsh Place Bldg, Waterloo, Iowa 50703.

340. SELF-INCRIMINATION: CIVIL SANCTIONS FOR EXERCISING PRIVILEGE (see also 280)
341. Effect on Army Discharges (see also 253)
342. Effect on Employment—Public School Teachers (see also 24, 262, 267, 281, 571)

342.14. Matter of John Allen Johnson (San Francisco Super Ct, #57814) 1960: Pl invoked self-incrimination privilege at HUAC sub-committee h'g. 1967: Bd of Educ h'g officer recommended against granting permanent teaching credential: violation of Educ Code §12955, for invoking privilege. 1968: Pl sought writ of mandate requiring permanent credential. Jy 21: Ct issued writ of mandate; State did not appeal.

ACLUNC, 503 Market, San Francisco 94105.

And see Boikess, 343.8.

343. Effect on Employment—Other Public Officers (see also 261)

343.8. Matter of Boikess v Aspland (NY Ct of App, #530) Jan 1968: Def-Dist Atty subpoenaed Pet-faculty members of NY State Univ before grand jury; claimed NY statute denying right against self-incrimination to public officers of state applied to Pets although they were prospective Defs or targets of investigation. May 15: Pets sued in Co Ct (Suffolk Co) to quash subpoena; denied. Je 3: App Div Sup Ct, 2d Dept, affirmed on appeal. Nov 26: Pets appealed to Ct of App: subpoena of prospective Def before grand jury (1) denies 5th Amdt right against self-incrimination, (2) violates equal protection and due process. Pending.

Jeremiah S Gutman, Esq, 363 7th Ave, NYC 10001.

Pet's brief: MCLL.

And see Johnson, 342.14.

344. Effect on Employment—Private (see also 30, 268, 269)
345. Effect on Attorneys (see also 265, 373)

345.4. In re Stoalr (USSC) (39 USLW 3445) 1968: Pl, applicant for admission to bar, relied on 5th Amdt in refusing to answer Ohio Bar Exam's query whether he was or ever had been member of any group advocating violent overthrow of US gov't; for names, addresses of all organizations which he joined since registering as law student. Ohio Bar denied application. Pl sued to have application reinstated. Feb 27, 1969: Ohio Sup Ct upheld Bar's action. Mar 31: Pl filed for cert by USSC: (1) questions violated 1st, 14th Amdts rights to free speech, association, privacy; 14th Amdt Due Process clause; attys right to practice in fed'l cts. May 19: USSC denied cert.

Leonard B Boudin, David Rosenberg, Esqs, 30 E 42nd St, NYC 10017; William Boyland, Esq, 50 W Gay, Columbus, Ohio 43215.

346. Effect on Social Security, Unemployment Insurance (see also 263, 422)
- 85 -

350. DUE PROCESS
UN DECLARATION OF HUMAN RIGHTS: Arts 8, 11(1).

Practice tips: Habeas corpus petitions, by Morton Stavis. 2 Civil Rights Handbook 113-119, Box 673, Berkeley 94701.

351. In Arraignment (Delay) (and 353)

351.5. Michigan v Winegar (Mich Sup Ct) (145 NW2d 257; 380 Mich 719) Nov 1961: Def, standing mute at arraignment to charge of assault with intent to kill, later changed plea to guilty; sentenced to life. 1966: Mich Ct. of App reversed: 2d arraignment failed to comply with GCR 1963, 785.3, requiring judge to advise accused of right to counsel, nature of offense, consequences of plea, and to insure that plea freely made; Def, without counsel, equivocal on issue of plea ("I plead guilty, I guess. I don't know"), made no effective waiver of counsel, was not questioned on issue of influence in changing plea. Oct 28: state appealed. May 6, 1968: Mich Sup Ct reversed, affirmed conviction.

William MacKay, Esq, 1005 Stoddard Bldg, Lansing 48933.

ACLU amicus by Erwin Ellman, Norton J Cohen, Esqs, 808 Washington Blvd Bldg, Detroit 48226; Edward Wise, Esq, New York, of counsel.

Amicus brief (Sup Ct): MCLL.

351.6. In re Henderson Harris (Calif Sup Ct) Mar 4, 1968: Pet arrested: non-payment on sales contract, under Calif Code Civ Procedure §478-504 (detention of Def in civil suit if Pl-seller asserts Def likely to leave state or commit fraud); bail: $20,000. Mar 4 to Apr 10: Pet allegedly held without permission to see atty, or ct h'g on validity of charge or arrest. Apr 11: Public Defender secured release of Pet on $1000 bail. Apr 12: petition for writ of habeas corpus filed in DCA, 2d Dist. May 15: writ denied. Appeal to Sup Ct: statute allowing civil Def to be imprisoned for indefinite period without h'g, appearance in ct, or assistance by counsel violates due process. Pending.

Jane Brady, Esq, 445 S Figueroa, Los Angeles 90017.

Complaint (Super Ct); petition (Sup Ct): MCLL.

352. In Grand Jury Procedures (see also 311, 316, 512)
And see Newton, 512.Calif.6, Rios, 512.Calif.7.
352.5. Perla v New York (USSC) (289 NYS2d 957; 237 NE2d 215; 392 US 296) NY State Constitution (1938) provides for dismissal of any public official who refuses to waive immunity against subsequent prosecution when called to testify before grand jury about present or past public office. Mar 1966: Pet-Commr of Street Sanitation (Buffalo) refused to waive immunity when called to testify about former job as parking fee collector: held provision applied only to elected or high administrative officials. Dismissed from job. Sup Ct held for Pet. Apr 1968: NY Ct of App reversed: waiver required of all public officials; individual has right to claim privilege against self-incrimination, but state has concomitant right to fire him. Je 10: USSC reversed, per curiam.

Herald Price Fahringer, Esq, 1 Niagara Sq, Buffalo 14202; Eugene Gressman, Esq, 1730 K St NW, Washington, DC 20006.

352.6. California v Moschetti, Sismour (DCA, 4th Dist, 1st Div, #9910) Feb 18, 1969: DA filed complaint in San Diego Muni Ct charging Defs with felony violations of Health and Safety Code. Defs arraigned, pleaded guilty, preliminary h'g scheduled. Mar 25: Defs filed motions: to suppress illegally seized evidence, to traverse, for discovery. Mar 26: grand jury indicted Defs; DA decided to proceed via indictment rather than criminal complaint due to Def's motions. Apr 9: Muni Ct dismissed complaint on DA's motion; DA filed indictment in San Diego Super Ct. June 20: Super Ct stayed proceedings, remanded to Muni Ct for proceedings on traverse, preliminary h'g. Sept 2: on DA's motion, DCA issued peremptory writ of mandate compelling Super Ct to vacate order: Super Ct lacked jurisdiction due to grand jury indictment. Oct: Defs petitioned Sup Ct for h'g: (1) Calif Constitution Art I, Sec 8, confers Super Ct jurisdiction to order preliminary exam where indictment returned at time when proceedings pending on prior complaint, (2) 14th Amdt Art I, sec 13, cl 6, Calif Constitution require Super Ct protect Defs' due process rights by entering order providing for preliminary exam. Sup Ct denied h'g. Defs filed motion in Super Ct to quash indictment; Super Ct granted motion; so case never tried on issue of whether grand jury violated due process.

Gostin and Katz, Esqs, 1540 Sixth Ave, San Diego 92101; S B Haug, Esq, 1400 Fifth Ave, Suite 300, San Diego 92101.

Petition for h'g (Sup Ct): MCLL.

352.7. In re Fruchter, Grizzard, Kaplow (ND Ill, E Div) Feb 1969: Pets (Fruchter—film maker for Newsreel, Grizzard—organizer for Boston Draft Resistance, Kaplow-secretary to NLG, NY office) subpoenaed to appear before Chicago grand jury investigating disorders during Democratic Convention. Pets moved for order (1) to dismiss grand jury, (2) to quash subpoenas, (3) to permit counsel to accompany witnesses into grand jury room, or (4) to adjourn return date until attorney for Pets could inspect records of jury Commissioner with reference to selection of venires. Pets alleged grand jury being used as prosecutorial device, not legally selected, being used as device to discourage exercise of 1st Amdt rights. Motion denied. Witnesses refused before grand jury to give any information other than their names. US Attys then informed witnesses subpoenas were discharged.

Morton Stavis, Harriet van Tassel, Esqs, 744 Broad St, Newark 07102; Arthur Kinoy, William Kunstler, Esqs, 588 9th Ave, NYC 10034; John Flym, Esq, 148 State St, Boston 02109; Jonathan Lubell, Esq, 103 Park Ave, NYC 10017; Michael Tigar, Esq, UCLA School of Law, 405 Hilgard, Los Angeles 90024; Dennis Cunningham, Esq, 1841 N Dayton, Chicago 60614.

Deposition of Alicia Kaplow, draft of order to show cause, memo on grand jury procedures, on motion to quash: MCLL.

353. In Obtaining Confessions (and see 304, 371, 372)
And see Baker, 372.33; Kerr, 304.Ill.24; McMann, 452.16.
353.29. New York v Whitmore (Sup Ct, #1176 of 1964) Apr 24, 1964: Def arrested: attempted rape of practical nurse. 22 hours after arrest Def had confessed to alleged attempted rape, double murder, one other killing. Def, only black in lineup when identified by victim, later retracted all confessions. Another man (Roble, 301.25) subsequently indicted, convicted for double murder; other murder charge dropped for lack of evidence. Je: Def convicted: assault, attempted rape. Sup Ct, App Div set aside conviction: prejudice in jury. 1966: on retrial Def convicted 2nd time for attempted rape, assault. App Div reversed. Je 1967: Def convicted third time, prosecution sought to avoid reversible error by omitting reference to alleged confession and disputed identification in police station, required victim to identify Def in court. Jan 13, 1968: after being jailed for 3 years, won right to bail. Aug 25, 1968: appeal taken: trial ct improperly refused to permit defense to challenge Def's identification by victim in police station. Mar 27, 1969: App Div held conviction in abeyance pending lower ct h'g on legitimacy of Def identification in ct and from lineup where he was only black. (In addition to 4 trials Def was subject of several ct h'gs charging police brutality). Pending.

Arthur Miller, Esq, Myron Beldock, Esq, 385 Madison, NYC 10002; Samuel Neuberger, Esq, 30 Vesey St, NYC 10007.

- 86 -

353.58. California v Sanchez (Sup Ct) (423 P2d 800; 451 P2d 74) 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 "reprehensible conduct" of officers. 1968: Sup Ct recalled case: new evidence presented that Def attempted to exercise right to counsel, right to remain silent; ACLU filed amicus brief. 1969: Sup Ct reversed conviction.

Charles Voltz, Esq, 225 Bush St, San Francisco 94104; Prof Kenneth Graham, UCLA Law Faculty.

For ACLU, Paul Halvonik, Esq, 503 Market St, San Francisco 94105.

353.65. New York v Ruppert (Sup Ct, App Div 2nd Dept, #765 E) 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 2: jury found Def guilty on all counts. Je 13: Ct sentenced Def, 18 yrs old, to life at hard labor under NY Pen Law §§2183, 2184a on each murder count; 10-25 yrs on arson count, all sentences concurrent, (Dempsey, J, would have sentenced Def to reformatory sentence of no more than 5 yrs if Ct had discretion.) Je 30, 1969: App Div affirmed sentence (no opinion). Aug 5, 1969: Ct of App granted leave to appeal. Pending.

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

And see New York ex rel Ruppert, 461.16.

353.71. David v Strelecki (NJ Super Ct, #A-735-66) Def-Dir, Dept Motor Vehicles, revoked Pl's driver's license after Pl allegedly admitted, while under sedation, he had been drinking and speeding before accident resulting in 1 death. Oct 24, 1967: App Ct reversed: evidence obtained under sedation inadmissable.

Patrick McGahn, Jr, Esq, 1421 Atlantic Ave, Atlantic City 08401.

353.72. Myers v Frye (CA 7, #16289) Pet appealed from murder conviction, death sentence: (1) admission into evidence of confession to Illinois authorities given shortly after allegedly coerced confession to Texas authorities violated due process, (2) trial ct's refusal to require Pet's co-indictee to testify, after her plea of guilty to lesser offense, or to require production of correspondence from Pet violated 6th Amdt, (3) trial ct's refusal to grant Pet h'g on mitigation of sentence, as required by Ill statute, because of procedural fault violated 6th, 14th Amdts. Pending.

Joseph Cohn, Esq, 601 Murphy Bldg, E St Louis, Ill 62201.

Brief: MCLL.

353.73. Smart v Wilson (ND Calif, #43221) Oct 13, 1961: white woman allegedly raped, robbed by Negro. Oct 20: Pet, employed Negro laborer, arrested as prowler while walking home in own neighborhood. Oct 23: Pet interrogated re rape: denied involvement. Showup with 2 non-Negro prisoners ordered: victim identified Pet. Pet agreed to polygraph test, which allegedly indicated he lied about rape. Further interrogation: Pet claimed he was with family on 13th, denied involvement. Pet again given polygraph exam: affirmed previous account, was told he was lying. Under threatening interrogation, Pet admitted seeing victim on Oct 13 and having intercourse with her. Apr 18, 1962: LA Super Ct found Pet guilty of rape, robbery I, kidnapping: life imprisonment without parole. Only evidence was victim's testimony, Pet's admissions of Oct 23, 1964: Calif DCA affirmed. State Ct habeas corpus attempt unsuccessful. 1966: Fed'l habeas corpus filed: (1) admission of Pet psychologically coerced, untrue, its use at trial denial of due process, (2) denial of effective counsel violated 6th, 14th Amdts. Je 14, 1967: DC granted habeas corpus; convictions set aside: polygraph exams and interrogations as used to extract incrimminating statement were coercive, statement involuntary; counsel inadequately represented Pet. No further action taken by state.

Bernardus J Smith, 433 California St, San Francisco 94104.

Pet's memo, memo of decision (ND Calif): MCLL.

353.74. California v Menektos (San Mateo Co Super Ct, App Div, #AD 281) Sept 15, 1966: Def arrested: drunk driving (Calif Vehicle C §23102). After receiving Miranda warning, Def, in response to arresting officer's questions, answered that he had been drinking and that he was "too drunk to drive." Sept 26: Def, represented by counsel, appeared in ct and agreed to trial date of Nov 16. Nov 23: Def convicted after jury trial; ct overruled standing objection to admissibility of statements taken from Def. Def appealed: (1) Def denied right to speedy trial; Calif Pen C §1382 requires trial within 45 days after latest date Def has promised to appear, (2) Def could not have made voluntary and intelligent waiver of right to remain silent and to presence of counsel, due to intoxicated state. Dec 20, 1967: Super Ct, App Div reversed, remanded: statements made by person under influence of alcohol to such extent as to affect his judgment are involuntary; trial ct should hold independent h'g to determine, under the circumstances, whether Def was able to waive constitutional rights.

Leo Paoli, Esq.

Marshall Krause, Esq, ACLU, 503 Market, San Francisco 94105.

Appeal, opening brief: MCLL.

353.75. US ex rel Castro v LaVallee (SD NY, #67 CIV 2096) (19 NY2d 14; 282 FSupp 718) Aug 1959: Def, 17, confessed to homicide after 11 hour interrogation during which he was denied food, sleep, and toilet facilities; convicted by jury of murder. Sup Ct, App Div affirmed. Ct of App affirmed, holding that Def had no right to Jackson v Denno, 378 US 368, 9 DOCKET 97, voluntariness h'g, since he had waived it. May 15, 1967: USSC denied cert, Douglas, J diss. Dec 1967: DC granted h'g: Jackson h'g cannot be waived. Mar 1968: DC ordered conviction set aside: confession inherently involuntary; State must either retry or release. Apr: CA 2 dismissed state's appeal. May: Def pleaded guilty to manslaughter; released, having already served minimum time.

William P Callahan, Esq, 22 E 40th St 10016; Joseph V Kline, Randolph Jackson, Esqs, 20 Broad St 10005, all of NYC; Robert J Riordan, Esq, 44 Court St, Brooklyn 11201.

Memo on voluntariness of confession: MCLL.

353.76. Townsend, Terry v Henderson (CA 6) (405 F2d 324; 1 RRLS 142) 1958: Pls, Negroes, involved in prison escape, Fort Pillow Prison Farm, Tenn. Pl Terry, 19 yrs, illiterate, injured; placed in solitary confinement, made confession implicating Pl Townsend. Pls indicted: TCA §41-708. 1961: Tenn Sup Ct denied habeas writ. CA 6 ordered evidentiary h'g (Towsend v Bowmar, 331 F2d 19). 1965: CA 6 granted habeas: Pls denied effective counsel (351 F2d 499). Second trial: Pls convicted; sentenced: life. Tenn Sup Ct affirmed. DC (WD Tenn) denied habeas writ. Dec 26, 1968: CA 6 vacated: while no systematic exclusion of Negroes on Pls' juries found, confession extracted from Pl Terry inadmissible evidence; Pl Townsend had no effective right of cross examination as secured by 6th Amdt (Bruton v US, 391 US 123); held "this case . . . points up the dangers inherent in failing to safeguard the constitutional rights of those accused of crime": no good reason given why counsel
- 87 -

not appointed in time to investigate, prepare for initial indictment; Pl Terry's confession obtained in unconstitutional manner; remanded, allowing state reasonable time to retry.

B Percy Magness, Esq, First Nat'l Bank Bldg, Memphis 38103.

353.77. Cardinale v Henderson (USSC) (206 So2d 510; 394 US 437) Aug 10, 1965: arrest warrant issued for Pet in Louisiana: murder of woman. Pet fled to Ariz, went to police. After being warned of rights, Pet confessed prior La conviction for committing unnatural act with prostitute, desire to seek revenge by killing prosecutrix, but claimed he never found her, did not commit murder. At trial, under La Rev Stat §15:450 requiring confessions to be admitted in their entirety, details of earlier incident were given. Judicial Dist Ct (Plaquemines Parish) convicted Pet. La Sup Ct affirmed conviction, death penalty. 1969: on appeal to USSC Pet argued: (1) La law unconstitutional: requires description of crimes irrelevant to one at issue, (2) use of prior conviction merely to show disposition to commit crime violates due process, (3) rule of Witherspoon v Illinois (391 US 510) not followed. Apr 1: USSC denied cert, White, J: failure to raise constitutional issues in state ct precludes USSC jurisdiction over them.

Nathan Greenberg, Esq, 848 2d St, Gretna, La 70053.

353.78. Gross v US (CA DC) (393 F2d 667) Oct 16, 1967: Def appealed DC DC decision convicting him of 2nd degree murder, robbery. Nov 16: CA reversed, remanded: 4-hour lapse between time when Def became prime suspect and time when he was taken before magistrate rendered confession elicited in interviewing period inadmissible (violation of Rule 5a). Jan 30, 1968: Petition for reh'g en banc denied.

Edgar H Martin, Esq, 750 15th St NW 20005; J Patrick Hickey, Esq, 910 17th St NW 20006, both of Washington, DC.

353.79. Jenkins v Delaware (USSC) (240 A2d 146; 395 US 213) Mar 1965: Police arrested Def on suspicion of murder; interrogated him without warning of right to have atty; Def confessed. Jan 1966: Super Ct admitted confession; convicted Def. Je 1966: USSC decided Miranda. 1967: Dela Sup Ct reversed, remanded. Oct 1967: Super Ct convicted Def at second trial; again admitted confession; Sup Ct aff'd. Je, 1969: USSC affirmed (6-3), Warren, CJ: Miranda rule applies only to cases commenced before Je, 1966; commencement date is date of first trial. Black, J (Douglas, J) diss: see dissents in Linkletter, 381 US 618, Johnson, 384 US 719. Harlan, J, diss.

Henry N Herndon, Esq, Market Tower, Wilmington, Del.

353.80. Morales v New York (USSC) (280 NYS2d 520, 290 NYS2d 898, 90 SCt 291) Oct 4, 1964: Stabbing murder occurred in NY apt building. Oct 13: Pet apprehended at mother's apt, taken to police station, questioned 15 minutes, confessed. 1967: Pet convicted of murder, appealed. 1967: NY Sup Ct, App Div, affirmed. 1968: Pet appealed, raising for first time 4th Amdt issue-no probable cause for detention, confession inadmissible fruit of illegal detention. NY Ct of App affirmed. Dec 8, 1969: USSC vacated, remanded, per curiam: (1) ruling below, that "State may detain for custodial questioning on less than probable cause for traditional arrest," manifestly important, goes beyond decisions in Terry, 303.81, (392 US 1), Sibron, 303.80 (392 US 40), claimed by Pet to be at odds with Davis v Mississippi (394 US 721); (2) record not complete on matter of detention; remanded for determination of factual context in which issue of custodial questioning arises.

Richard T Farrell, Esq, 1368 85th St, Brooklyn 11228.

353.81. Cohen v US (USSC) (89 SCt 1274) 1963-5: IRS agents interviewed Def several times, audited, obtained records later used against him in criminal trial, all without warning Def of 5th, 6th Amdt rights. Def convicted: willful failure to file individual tax returns, knowingly filing false employer's quarterly tax returns. CA 8 affirmed: until Def taken into custody, IRS agents need not warn, so long as they do not coerce him or affirmatively mislead him as to rights. Apr 1, 1969: USSC denied cert.
353.82. Mathis v US (USSC) (376 F2d 595, 391 US 1) While Pet incarcerated in state jail for unrelated offense, IRS agents questioned him concerning income tax returns; agents did not give Pet warning required by Miranda, 353.41. Based on evidence obtained by agents, Pet charged: knowingly filing false claims for income tax refunds. DC (SD Fla) convicted. CA 5 affirmed. USSC reversed, remanded (5-3), Black, J: Requirements of Miranda applicable to tax investigation, not limited to instances where accused in custody in connection with every case under investigation; Pet entitled to warnings that any evidence he gave could be used against him, had a right to remain silent, to presence of counsel, either private or court appointed. White, J (Harlan, Stewart, JJ) diss.

Nicholas J Capuano, Esq, Biscayne Building, 19 W Flager St, Miami, Fla 33130.

353.83. Frazier v Cupp (USSC) (388 F2d 777, 394 US 731) 1964: Pet convicted of murder. Ore Sup Ct affirmed. 1966: Pet filed habeas petition in DC: writ granted. 1968: CA 9 reversed. Apr 22, 1969: USSC affirmed (8-0), Marshall, J: DA's inclusion in opening statement summary of testimony he expected to receive from Pet's co-Def, who then asserted privilege against self-incrimination at trial, refused to testify, did not place prejudicial evidence before jury which effectively denied Pet right to cross-examination: Judge's instruction to jury to disregard opening statement as evidence was sufficient to protect Pet's constitutional rights.

Howard M Feurstein, Esq, Yeon Bldg, Portland, Ore 97204.

354. In Press Releases and Newspaper Coverage
And see Baker, 372.33; Hamilton, 42.101.
354.20. Craemer v Superior Court (Calif DCA) 1968: Marin Co Super Ct ordered grand jury transcripts sealed to prevent prejudicial pretrial publicity. Pl-newspaper reporter brought mandamus action to compel release of transcripts. ACLU filed amicus brief arguing transcripts can be sealed where there is a factual finding that they contain prejudicial material. DCA held for Pl.

Marshall Krause, Esq, ACLUNC, 503 Market, San Francisco 94105.

354.21. New York v Branigan (NY Sup Ct) 1966: Def, former Asst US Atty, indicted: manslaughter of police officer. Feb 28, 1968: Sup Ct judge excluded press, public from pre-trial h'g on admissibility of statements allegedly made by Def at time of killing: publication of possibly inadmissible information may prevent fair trial.

Joseph E Brill, Esq, 233 Broadway, NYC 10007.

354.22. US v Cotton (ED Wisc, #68-CR-133) After fire in local draft bd in which 1-A draft files destroyed, Defs (Milwaukee 14) indicted, convicted in Wisc state ct: burglary, theft, arson. Oct 1968: Defs indicted in DC: conspiracy to destroy Gov't records, conspiracy to obstruct Selective Service System. Je 11, 1969: Fed'l indictment against 11 of "Milwaukee 14" (excluding 2 guilty pleas, 1 change of venue) dismissed: prejudicial pre-trial publicity. DC held dismissal the only remedy because (1) Defs refused to waive constitutional right to be tried in district in which event
- 88 -

occurred, by requesting change of venue, (2) all parties agreed on trial date 10 months after the event, and further delay to cure impact of broad, hostile news coverage would be a denial of Defs demand of constitutional right to speedy trial, (3) after 4 out of 5 of 142 jurors questioned had to be dismissed for apparent bias, trial judge concluded that the barrage of continuing hostile publicity over 9 months, including headlines, cartoons, editorials, coupled with adverse news of Defs' recent state ct convictions, created, sustained such intense public reaction that Defs could not be assured a fair, impartial jury; Ct found "incredible" that almost every single juror professed no personal opinion even though all knew of prior convictions and had heard opinions expressed; attributed this incongruity to the fact that most jurors were experienced, sophisticated in knowing what answers were expected. Feb 24, 1970: USSC dismissed Gov't appeal per curiam for failure to docket case within time prescribed by Rule 13, Douglas, J, diss.

In pro per at trial (Case prepared by Percy L Julian, Esq, Marc Strickgold, Esq, 726 Pallister Ave, Detroit 48202); USSC response by William Bender, Esq, LCCR, 588 9th Ave, NYC 10034.

Transcript of Proceedings: MCLL, 28 Guild Practitioner 101.

And see cases at 356.

354.23. Oxnard Press-Courier v Lewis (DCA Calif, 2d Dist) Jan 25, 1968: Def-Super Ct Judge ordered murder trial closed to press and public when jury not present: American Bar Assn code restricting information to press in criminal cases. Pl-newspaper sought writ of mandate to open proceedings to public. DCA reversed: (1) basic right to "speedy and public trial," (2) ABA proposals not law.

Michael Dillon, Esq, 458 S Spring St, Los Angeles 90013.

355. In Admitting Perjured Testimony (see also 312)
Book:

Henry T Hunt, The case of Thomas J Mooney and Warren K Billings, abstract and analysis of record before Gov Young of California. Published by Nat'l Mooney-Billings Committee, 1929. 445 pp. MCLL.


355.13. California ex rel Imbler v Warden (CD Calif) (57 C2d 711, 60 C2d 554, 278 FSupp 795) Reported at 9 DOCKET 15, 94; California v Imbler. 1961: Pet convicted of murder; Calif Sup Ct affirmed on automatic appeal. Sept 1962: Sup Ct stayed execution pending h'g on habeas corpus petition alleging new evidence of perjured testimony at trial. Nov 14: Sup Ct ordered h'g before referee on new evidence, with reference back to Sup Ct en banc. 1963: After h'g by referee, Ct set aside death penalty, upheld conviction: errors in trial "harmless." Sept 13, 1968: Pet filed habeas petition in DC. Apr 23, 1969: DC issued order that writ will issue if State does not institute retrial proceedings within 60 days. State's appeal to CA 9 pending.

Roger S Hanson, Esq, 6265 Lubao Ave, Woodland Hills, Calif 91364.

356. In Courts Martial, Military Administrative Decisions, Habeas (see also 124, 390)
Note: Only cases decided by US Supreme Court in 1968-1969 are reported here. For all reported opinions and many unreported opinions, see Selective Service Law Reporter, 1029 Vermont Ave NW, Washington, DC 20005.

Books:

Ann Fagan Ginger, New Draft Law, Representing members of armed forces in courts martial, pp 235:130-235:201, 5th Ed. 1970. Nat'l Lawyers Guild, Box 673, Berkeley, Calif 94701. $10. Kenneth Cloke, Military counseling manual, Nat'l Lawyers Guild, Los Angeles Regional Office, 3028 Wabash Ave, Los Angeles, Calif 90063. 157 pp. $10.

Articles:

Earl Warren, Bill of Rights and the military, 37 NYU 181-203.

Gordon Borrie, Courts-martial, civilians, civil liberties. 32 Modern L Rev 35-52.

Robert E Quinn, Comparisons: Courts-martial and civilian practice. 15 UCLA 1240-59.

Frederick B Wiener, Courts-martial, Bill of Rights. 72 Harvard 266-304.

Maj W K Suter, Judicial review of military administrative decisions. 6 Houston 55-84.

Delmar Karlen, Civilian and military justice at appellate level. 1968 Wisconsin 786-805.

Memos in Meiklejohn Civil Liberties Library:

Habeas corpus and the military. NECLC. 8 pp. MCLL.

Paul Harris, AWOL and desertion compared. 16 pp. MCLL.

Military justice. NECLC. Nov 1968. 2 pp. MCLL.

Eric Sietz, Exhaustion of military remedies. 25 pp. MCLL.

Material:

Edward Sherman, Basic resource materials on military law. 2d ed. 172 pp. CLRD, Rm 32, Langdell Hall, Harvard Law School, Cambridge, Mass 02138. $1.50.

Separation from the Army for homosexuality. CD, Vol 1, #10, pp. 4-6.

Comments:

UCMJ and right to counsel. 36 Cincinnati 472-86.

Military injustice. Case and Comment. Jy 1968. pp. 40-45.

Services:

Advocate, mthly newsletter for military defense counsel. US Army Judiciary, Defense Appellate Div, Washington, DC 20315.

Judge Advocate Legal Service. Semi-mthly. US Army, Judge Advocate General's School, Charlottesville, Va 22901.

Forms and procedures: Conscientious objection, civil disobedience in armed service, courts martial, 2 Civil Rights Handbook, 235:107-235:147 (National Lawyers Guild, Box 673, Berkeley 94701.)

And see Boeckenhaupt, 333.28; Washington v Mills, 604.28.


356.65. Locks v Commanding General, 6th Army (USSC) (89 SCt 31) Soldier-Pets alleged Def and other military officials infringed on their First Amdt rights, filed habeas petition for injunction, declaratory judgment. DC dismissed. CA denied relief. Oct 12, 1968: Douglas, J, held: (1) individual Justice has no power to dispose of case on merits, only to grant stays, arrange bail, provide other ancillary relief; (2) perhaps US Const, Art I, §9 (re habeas writ) could be shown to justify individual Justice issuing writ; denied motion without prejudice.

DC order: MCLL.

And see Levy cases, 126.14, 126.14a-d.

356.66. US v Anderson (17 USCMA 588; 1 SSLR 3175) Nov 3, 1964: Def went AWOL after 14 yrs service. Feb 10, 1967: Def surrendered to authorities. General court-martial convicted Def: desertion. Bd of Review reduced conviction to AWOL. Je 21, 1968: USCMA rejected peace-time statute of limitations defense of 2 yrs; held "in time of war" exception applies because of Vietnam conflict, relying on Gulf of Tonkin resolution.

Casenotes: 45 Denver 797-807; 37 Washington 609-14; 82 Harvard 483-9; 67 Michigan 841-53.

356.67. Kennedy v Commandant, US Disciplinary Barracks (CA 10) (258 FSupp 967) 1966: Pet sought habeas writ: special ct-martial denied his request for appointed, qualified lawyer;
- 89 -

neither prosecutor nor defense officer member of state bar or graduate of accredited law school. Military accused has right to civilian counsel "if provided by him" (Uniform Code of Military Justice, Art 38(b)). Pet claimed this amounted to discrimination in favor of the rich, violated 6th Amdt right to counsel; cited Stapley, 246 FSupp 316. Oct 14: DC (Kan) denied petition: Congress empowered to make rules for the military by Art I, Sec 8, cl 14, creating exception to 6th Amdt right. CA 10 affirmed.

L D McDonald, Jr, Esq, Home State Bank Bldg, Kansas City, Kan 66101; J Whitfield Moody, Esq, 408 E 11th St, Kansas City, Mo 64106.

And see 371.

356.68. Goldwasser v Brown (USSC) (417 F2d 1169, cd 90 SCt 918) Oct 1965: Appt, career civilian language instructor for US Air Force, assigned to Vietnam. Oct 19: relief requested due to family illness; denied. Congressman interceded for Appt; Air Force cancelled Vietnam tour. Jan 10, 1966: Appt's superior proposed removal of Appt due to controversial statements made in class. Jan 25: removal decision final; Appt appealed to Civil Service Commn, where evidence against Appt was solely by affidavit of superior, 4 employees directly responsible to him. Both Air Force, Civil Service Commn refused Appt's request to obtain reports from students actually present during alleged statements. Appt offered 2 statements by class members that alleged statements were never made. Appeals examiner upheld Air Force decision. Nov 9: Rev Bd affirmed. Je 27, 1967: Appt filed suit for reinstatement, back pay in DC DC. Jy 5, 1968: Summary judgment for Appee; complaint dismissed. May 19, 1969: Appt's brief filed in CA DC: (1) discharge on discussing controversial subjects in class violates 1st and 5th Amdts, (2) Air Force refusal to present witnesses under its control at Appt's request deprived Appt of fair h'g, (3) absence of standard for weighing evidence at h'g denial of due process, (4) h'g examiner's evidentiary conclusions were arbitrary, (5) Air Force may not discharge Appt for making statements prejudicial to interests of US without showing his actions affected "efficiency of the Service" (5 USC §652a), (6) Appee violated Air Force Reg 40-712 by considering offenses allegedly occurring over 3 yrs prior to discharging offense. CA DC affirmed. Oct 1969: Appt filed petition for cert to USSC. Feb 1970: USSC denied cert, Douglas, J, diss.

Lawrence Speiser, Victoria Popkin, Hope Eastman, Esqs, 1424 16th St NW; Michael Cramer, Esq, 1225 Connecticut Ave NW, all of Washington, DC 20036.

Appt's brief (CA DC); petition for cert, reply memo (USSC): MCLL.

356.69. US v Bowers (Fort Hood, Texas) 1969: Def-Pfc distributed antiwar literature on base. May 31: Army charged violation of base rules; instigated ct martial proceedings. Texas Coalition Against War, Atty Ben Levy distributed fact sheets, petitions to groups and individuals around state. Petitions sent to commanding officer, Ft. Hood; telephone calls made continuously; press coverage good. Je 3: Army dropped charges.

Ben Levy, Esq, 2900½ West Ave, Austin, Tex 78705.

356.70. Myers v US Army (Ft Dix, Summary Ct Martial) 1968: Pl-soldier allegedly distributed literature in violation of post Reg forbidding on-post distribution of literature without prior approval of Adjutant-General; arrested, charged. Pl sued to have Reg declared unconstitutional under 1st, 5th Amdts: vagueness, chilling effect. Sept 30: Pl acquitted at ct-martial. Mar 28: Pl allegedly put up stickers advertising anti-war demonstrations, again violating Reg; ct-martialed. Presiding officer granted Pl's motion to dismiss on grounds that post Reg superseded by Pentagon ruling of Feb 5. Pl argued Pentagon ruling allowed free dissemination unless "clear danger" to loyalty, discipline—hence prior approval of post commander unnecessary. Hours later Pl's commander over-ruled presiding officer, ordered Pl arrested to stand trial. Presiding officer then acquitted Pl on insufficient evidence. Supplemental complaint filed in affirmative suit; pending.

Michael Kunstler, Esq, Nat'l Emergency Civil Liberties Com, 25 E 26th St, NYC 10010.

And see 25.

356.71. Jones v Lemond (USSC) (90 SCt 20) Pet, 5 mths after enlistment in Navy, sought discharge as CO. Pet attempted for 37 days to file, process application for discharge, unable to make filing, obtain h'g. Pet left place of duty without authorization, then surrendered, still unable to obtain h'g on discharge request. Pet escaped Navy custody to obtain legal counsel, surrendered by counsel. Military arrested Pet: unauthorized absence; convicted. Ct of Mil App denied relief. Pet sued in DC for release by habeas, ancillary relief. CA DC denied relief. Sept 15, 1969: Douglas, Circuit J, held: issue whether improper processing of application for discharge as CO is defense to ct martial; ordered Pet confined in "open restricted barracks" rather than brig pending appeal. Pending.
356.72. Scaggs v Larsen (USSC) (90 SCt 5) Jan 1969: Pet, Army Reservist, directed to join unit of Ready Reserves. Pet made effort, but rejected since enlistment to expire 1969. Pet ordered to serve 17 mths byond end of enlistment contract. Pet filed habeas petition in DC alleging order to active duty punitive, unauthorized, taken without notice, opportunity to be heard. DC denied petition. CA agreed to review claim that 28 USC §2241 gave DC jurisdiction. Pet sought release from military custody pending review. Aug 6, 1969: Douglas, Circuit J, held: habeas appropriate for enlisted Reservist alleging lawless or unconstitutional action; ordered Pet released on own recognizance pending determination on merits in CA. Pending.
356.73. O'Callahan v Parker (USSC) (390 F2d 360, 395 US 258) 1956: Pet, Army sgt, assaulted woman in Honolulu while on leave; Ct-martialed: assault, attempted rape, housebreaking; 10 yrs. Pet filed habeas; alleged ct-martial without jurisdiction. DC (MD Pa) denied relief. 1968: CA 3 affirmed. Je 2, 1969: USSC reversed, Douglas, J: (1) "Civilian trial is held in an atmosphere conducive to the protection of individual rights, while the military trial is marked by the age-old manifest destiny of retributive justice"; (2) justification for military ct system must rest on recognized need of military to maintain discipline, in Constitution, Art I, #8, sec 14; 5th Amdt; (3) crime, to be under military jurisdiction, must be service-connected; (4) where crime committed off-base by soldier on leave, in civilian clothes, against civilian, military has no jurisdiction. Harlan, J (Stewart, White, JJ) diss.

Victor Rabinowitz, Esq, 30 E 42nd St, NYC 10017.

356.74. Morse v Boswell (USSC) (289 FSupp 812, 401 F2d 544, 393 US 1052) Pets, 113 reservists, enlisted in Army Reserve, agreed in contract to active duty "in time of war or of national emergency declared by Congress" (10 USC §672). Oct 15, 1966: Congress enacted Pub Law 89-687, authorizing Pres to activate reserve units. Apr 19, 1968: Pets' unit ordered to active duty. Pets filed habeas petitions, alleged clause "or as otherwise provided by law" of 10 USC §672 includes only law in force at time of agreement; Pub Law 89-687 passed after contract signed, void against Pets; law, as applied, unconstitutional denial of equal protection. Aug 6: DC dismissed: (1) clause of §672 has prospective meaning, includes laws enacted after date of enlistment, such as Pub Law 89-687; (2) difference in treatment between units, individuals has rational basis; not unequal protection. CA 4 affirmed. Jan 20, 1969: USSC denied cert; Douglas, J, diss: Clause of 10 USC §672 refers only to
- 90 -

existing law at time of enlistment; "(I)t does real violence to reason and morality to read §672 as an open end power to change any promise willy-nilly . . . we become an agency for helping to create an awesome credibility gap."

Fred Okrand, Esq, 257 S Spring St, LA 90012; Elsbeth Levy Bothe, Esq, 927 15 St NW, Washington, DC 20005.

357. In Naturalization Proceedings (see also 259)

357.7. Astrup v Immigration and Naturalization Service (CA 9, #23859) Nov 14, 1950: Pet, Danish immigrant, executed SSS Form 130 (exempted from military service as alien, made ineligible for US citizenship). 1951: Congress amended 1948 Selective Service Act, Pet no longer exempt from service as resident alien; reclassified I-A. Aug 1952: Pet reported for induction. Sept 1952: medical examiner found Pet not fit for military service. May 14, 1965: Pet filed naturalization petition. INS opposed petition: Immigration and Nationality Act §315(a) makes any alien who applies for and receives exemption from military service on ground of alienage permanently ineligible for citizenship. Jy 16, 1968: DC (ND Calif) held h'g on petition. Nov 15: DC, Sweigert, J, denied petition. Dec 13: appeal filed in CA 9: §315(a) requires that Pet actually receive (as well as apply for) exemption on ground of alienage to be ineligible, but Pet had received exemption on ground of health only, was otherwise willing to be inducted; denial therefore punishes Pet for physical disability, deprives him of citizenship for reasons unrelated to his ability to be a good citizen, in violation of 5th, 8th Amdt rights. Pending.

Paul Halvonik, Esq, for ACLUNC, 503 Market St, San Francisco 94105.

Brief (CA 9): MCLL.

357.8. Belle v Immigraiton and Naturalization Service (SD NY) Mar 1, 1969: Pet, Yugoslavian, challenged ruling denying him citizenship because he was bisexual. DC reversed: "private sexual practices with consenting adults" did not prevent him from being "of good moral character" under Immigration and Nationality Act. INS appeal pending.
358. In Expatriation, Denaturalization, Deportation, Relocation Proceedings (see also 258, 259)

358.62. Liadakis v Immigration and Naturalization Service (DC Md) Pet sued to prevent deportation: would be subject to religious persecution upon his return to Greece. INS agreed to allow Pet to make valid entry into US.

David E Birenbaum, 1700 K St, NW, Washington, DC 20006.

358.68. Kwong Hai Chew v Immigration and Naturalization Service (SD NY) (344 US 590; 257 F2d 606; 278 FSupp 44) 1941: Pet, Chinese seaman, entered US, served in Merchant Marine during WWII, married US citizen in 1946. 1948: given permanent resident status. 1951: INS ordered Pet excluded as undesirable alien, but refused h'g, notice of charges. 1953: USSC reversed, held Pet entitled to know charges-membership in Communist Party 1945-47. INS ordered Pet deported, but CA DC reversed. Pet arrested, charged with perjury for denying Party membership at deportation h'g. 1957: acquitted. 1965: Special inquiry officer ruled Pet not excludable from US; Pet filed new naturalization petition, withdrawing petition filed in 1950. Naturalization examiner found Pet entitled to citizenship, but regional Immigration comm'r reversed finding, recommended denial of citizenship. Oct 1967: Pet sought review in DC. Dec: DC granted naturalization, held Pet had established good moral character.

Ira Gollobin, Esq, 1441 Broadway, NYC 10018.

358.69. Immigration Service v Stanisic (USSC) (393 F2d 539, 395 US 62) Dec 1964: Resp, Yugoslav crewman on vessel docked in Oregon port, received temporary landing permit. Jan 6, 1965: Resp informed INS of fear of persecution on return to Yugoslavia, refused to return to ship. Dist Dir revoked permit. Jan 7: INS gave Resp opportunity to present evidence to support claim of persecution; Resp alleged insufficient time to prepare, demanded special inquiry officer (§242(b), Imm and Naturalization Act). Dist Dir ruled against Resp, ordered return to ship. Resp sought review; DC stayed deportation, referred back to Dist Dir for h'g. Jan 25: After h'g, Dist Dir found against Resp; DC affirmed. July: Resp unsuccessfully petitioned Congress for private bill. Je 21, 1966: INS ordered deportation. Je 22: Resp requested special inquiry officer. INS denied; DC affirmed. CA 9 reversed: issue not res judicata; Resp entitled to de novo h'g under §242(b). May 19, 1969: USSC reversed (6-3), Harlan, J: (1) act does not say who must hear request for asylum, under applicable regulations, Dist Dir is sufficient; (2) alien crewman may be deported under §252(b) even after ship sailed because requirement that alien be deported on same ship as arrived is modified by term "if practicable"; (3) alien crewman whose temporary landing permit is properly revoked under §252(b) not entitled to h'g by inquiry officer under §242(b) merely because he is not deported before ship left. Black, J (Douglas, Marshall, JJ) diss: (1) question is not simply who hears case but whether alien in Resp's situation entitled to procedural safeguards; (2) act and Regs ambiguous-do not specify which sections are in fact applicable-USSC should resolve in favor of full and fair h'g; (3) §252(b) summary procedure necessary only when need for speed is pressing, as when ship is about to leave port.

G Bernard Fedde, Esq, 618 SW Fifth, Portland, Oregon 97204. Edward J Ennis, Esq, 8 W 40th St, NYC 10018.

ACLU amicus brief: MCLL.

359. In Loyalty Hearings (see also 251, 268)
361. In Bar Proceedings re Lawyers (and 265, 345, 373)

361.3. Swanson v Florida Bar (381 F2d 730; cd 389 US 972) Apr 8, 1966: 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 comm of lawyers who acted as investigator, judge, and jury? Dec 4: USSC denied cert.

Will O Murrell, Esq, 846 N Highland, Orlando, Fla 32803.

Petition for cert: MCLL.

362. In Selective Service Proceedings (and 120s)
Note: Only cases decided by US Supreme Court in 1968-1969 are reported here. For all reported opinions and many unreported opinions, see Selective Service Law Reporter, 1029 Vermont Ave NW, Washington, DC 20005.

Book:

Ann Fagan Ginger, New Draft Law, assisting registrants during administrative process, pp 235: 16-235:92, 5th Ed. 1970. National Lawyers Guild, Box 673, Berkeley, Calif 94701. $10.

- 91 -

Articles:

Ann Fagan Ginger, Minimum due process standards in SSS cases. 19Hastings 1313-48.

Robert M O'Neil, SSS reclassification. 37 G Washington 536-63.

Charles Wilson, SSS: Administrative obstacle course. 54 California 2123-79.

John Aldock, SSS: Fairness, due process. 114 Pennsylvania 1-36.

Comments:

CA 9 on selective service. 10 Arizona 285-99.

SSS: Procedural fairness. 37 G Washington 564-88.

Procedure and objectives in SSS. 2 John Marshall 122-57.

Eliminating disparity in fed'l sentences. SF SSS Panel. 16 pp. MCLL.

Counterdraft Articles:

Graduate deferment. CD, Vol 1, #3, pp 7-8; #5, p 10.

Medical interview available after pre-induction physical. CD, Vol 1, #6, p 3.

Guidelines for I-S(C). CD, Vol 1, #6, pp 6-9.

Illinois memo on student deferments. CD, Vol 1, #7, pp 8-9.

Migration to Jamaica. CD, Vol 1, #8, pp 1-3.

Ministerial exemptions. CD, Vol 1, #8, pp 3-8.

Interrogation. CD, Vol 1, #2, Feb 1968, p 4.

Temporary physical rejection: I-Y. CD, Vol 1, #3, pp 8-9.

State Dir: power to speed up appeals. CD, Vol 1, #10, p 3.

Iowa state Bd memos. CD, Vol 1, #9, p 11.

Researching the classification record. CD, Vol 1, #10, pp 8-13.

Appeals procedure. CD, Vol 1, #3, pp 3-5.

CCCO Memos:

Student Deferment. CCCO Memo, Oct 15, 1968, 4 pp.

Divinity student and clergy (IV-D). CCCO Memo, Jan 1969, 3 pp.

IV-F and I-Y. CCCO Memo, Nov 1968, 6 pp.

Materials:

Short course in SSS. National Hdq SSS, 1724 F St NW, Washington, DC 20435.

Historical background and chronology of SS. 65 pp. 1965 ed, available from Nat'l Hdq SSS.

Student and SSS. General information Bull #49, Nat'l Hdq SSS.

Gov't Appeals Agent Manual. 20 pp. Calif SSS, 805 I St, Sacramento, Cal 95814. MCLL.


362.14. US v Marks (CA 9, #24,870) 1964-1966: Def twice attempted to enlist in armed forces, rejected for hypertension and excess weight. Apr 6, 1967: Def, under combined influence of frustration of strong desire to enter military and LSD, burned draft card in full view of employees in local board. Dec 8, 1967: Def "punitively reclassified," ordered to report for induction. Def again failed physical examination. Later in 1968 Def again attempted to enlist. Nov 20, 1968: Def indicted, tried, testified he thought burning card would hasten induction; convicted, sentenced under 50 USC App §462(b)(3), for burning draft card. Dec 12, 1969: Def filed appeal: (1) although DC found him legally sane under McNaughten cognitive, right-wrong test, at the time of his criminal act he lacked substantial capacity to conform his conduct to that required by law and was therefore mentally incompetent (criminally irresponsible) within the meaning of Model Pen C §4.01; Def urged CA 9 to adopt MPC formulation of test for legal insanity, (2) delay of 19 months before indictment deprived him of right to speedy trial. Pending.

Paul N Halvonik, Charles C Marson, Esqs, for Northern California ACLU, 503 Market St, San Francisco 94105.

Appt's opening brief (CA 9): MCLL.

362.100. DENIAL OF RIGHT TO COUNSEL (and 371.100)
Article: Harry F Peck, SSS: Right to counsel, due process, First Amdt. 51 Marquette 407-25.

Comments:

Right to counsel and Selective Service System. 10 William and Mary 721-38.

Due process and right to counsel in SSS proceedings. 3 USF 148-58.

Attack on constitutionality of SSS Reg 1624.1(b) excluding counsel from Bd hearings. NY ACLU, Jan 1966. 11 pp. Addendum Je 1966. 9 pp.

And see Kahn, 251.61.

363. In Government Employment (including Teaching) (and 250s, 260s)

363.1. Zugnoni v City of Albany (Super Ct, Alameda Co, Calif) Pl-police sgt ordered to test for latent fingerprints at scene of crime, refused: had no training or skills for the job. Police Chief suspended Pl for 2 weeks without pay. City Council refused Pl a h'g: city employee suspended for less than 30 days had no right to one under city charter. Pl sued, under 14th Amdt due process clause: suspended employee must be given chance to present evidence, confront adverse witnesses. Feb 2, 1968: Super Ct, Kroninger, J, held Pl's suspension illegal: power to suspend in city council, not chief of police; awarded $400 back pay; did not rule on questions of h'g, evidence.

ACLU, 503 Market St, San Francisco 94105.

363.2. Donovan v US (DC DC, #2307-68) Sept 25, 1967: Def hired Pl under probationary status; duties included rewrite of FAA manual. Pl received one hour's instruction on subject matter, no training on style of gov't reports. Def denied recommendation Pl be enrolled in writing course, provided no supervisory training. Jy 26, 1968: Pl discharged for unsatisfactory performance. Sept 12: Pl denied requests for h'gs, Pl filed suit, alleging Def did not give him proper training as its own rules required, thus deprived Pl of equal protection. Mar 4, 1969: DC ordered Pl reinstated with back pay: "If a discharge is effected without strict observance of applicable regulations, that discharge is unlawful." Apr 11: DC denied Def's motion to reconsider.

Donald H Dalton, Esq, Fed'l Bar Bldg West, 1819 H Street NW, Washington, DC 20006.

Memo order: MCLL.

365.. SPEEDY AND PUBLIC TRIAL (and 390s)

And see US v Cotton, 354.22.

365.17. Johnson v Gillis (Mich Ct of App) Sept 26, 1966: Pets. clerymen, 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 1st Amdt rights, (3) denial of equal protection by postponing right to appeal, (4) improperly used as punishment. By agreement, Pets sentenced: 1 yr probation. Mar 4, 1968: Recorder's ct denied motion for new trial. Je 13: Pets' appeal to Mich Ct of App argued: (1) public policy underlying Mich statutory actions for possession of real property
- 92 -

is to protect peaceable occupant in actual possession from sudden expulsion, (2) City-owner's conduct precluded use of criminal trespass statute to evict them. Pending.

Ernest Goodman, Esq, 3200 Cadillac Tower, and Feliciano Colista, Esq, 1763 Guardian Bldg, Detroit 48226.

370. RIGHT TO COUNSEL/ACCESS TO COURTS
From: Prayer for admission of non-resident attorneys. 1 Civil Rights Handbook 30a-30b.

Article: Ruth Roemer, Right to Counsel. 1 Civil Rights Handbook 57-67 (National Lawyers Guild, Box 673, Berkeley 94701.)

371. In Federal Cases (and 353)
See also Kennedy, 356.67.
371.17. Acuff v United Papermakers and Paperworkers, AFL-CIO (CA 5) (404 F2d 169; cd 89 SCt 1466) Nov 1966: unauthorized work stoppage occurred at Scott Paper Co; 63 employees discharged. Feb 8, 1967: unions filed complaint against Co seeking arbitration of grievances of discharged employees. Ct ordered arbitration, retained jurisdiction. Pets, certain discharged employees, moved for separate counsel; denied. Aug 17: award of reinstatement for all but 16 of grievants without back pay. Union did not seek review of award. Nov 14, 1967: certain members of both reinstated and non-reinstated employees filed motion to intervene in DC. Jan 31, 1968: DC (SD Ala) denied. Nov 27: CA 5 affirmed. Petition for cert filed: (1) Pets denied due process by denial of separate counsel since Union may have had conflicting interest (discipline) with Pets, (2) denial of intervention without taking evidence re adequacy of representation improper, (3) finding by CA of adequacy of representation unsupported by evidence. Apr 21, 1969: USSC denied cert, Black, J, diss.

Melvin Wulf, Eleanor Holmes Norton, Esqs, 156 5th Ave, NYC 10010; Reber Boult, Jr, Charles Morgan, Jr, Esqs, 5 Forsyth St, Atlanta 30303; Otto E Simon, Esq, 1010 Van Antwerp Bldg, Mobile 36602.

Petition for cert: MCLL.

371.18. Seale v Hoffman (CA 7) For background, see US v Dellinger, 54.32. Aug 27, 1969: Pl, one of 8 Defs in Dellinger, requested that trial be postponed until Nov due to illness of his atty, Charles Garry. DC, Def-Hoffman, J, denied. Sept 12: without notice to atty, Def-US Marshall removed Pl (in custody in San Francisco on other charges) to Chicago; kept Pl's whereabouts unknown during 6 day car trip; Pl never free to communicate and participate in preparation of his defense, thus unaware of disposition of his motion for continuance. Sept 23: USSC Justice Marshall denied Pl's motion for delay to protect right to counsel of choice. Sept 26: prior to final jury selection, Pl discharged attys who had filed notices of appearance on his behalf; Kunstler, atty for 3 co-Defs in Dellinger, acceded to discharge by Pl.

Trial of Dellinger: Def-US Atty Schultz and Attys Kunstler and Weinglass made opening statements. DC asked if any other opening statements for defense; Pl-Seale approached lectern, faced jury to make his opening statement. DC excused jury before he could speak. Sept 26-Oct 20: Pl made repeated attempts to conduct his own defense, to cross-examine witnesses. Oct 20: Pl filed motion asking (1) release on bail so he could prepare defense, (2) right to cross-examine, (3) right to make motions, act as own atty in absence of Atty Garry. DC denied motion. Oct 22: Atty Kunstler filed, argued motion to withdraw as Pl's lawyer. DC denied motion. Oct 30: Def-Schultz (Asst US Atty) accused Pl of inciting spectators in ctroom; Pl protested accusation; Def-Hoffman ordered Pl removed from ctroom, gagged; then had him returned, handcuffed, chained to chair.

During trial, Pl filed class action (ND Ill) against Defs Hoffman, J, (ND Ill), US Atty Genl, US Atty for ND Ill, Asst US Atty, Justice Dept Atty, Deputy Atty Genl, US Marshall; (1) Defs denied Pl his 5th, 6th Amdt rights to conduct his own defense, (2) in previous cases (US v Dennis, 341 US 494; US v Cotton, 354.22) white Defs were allowed to appear pro se; denial of this right to black Def violates 14th Amdt, (3) shackling, gagging of Pl is cruel and unusual punishment in violation of 8th Amdt, (4) treatment of Pl constitutes imposition of "badges and indicia of slavery" in violation of 13th, 14th Amdts, (5) treatment of Pl, his prosecution as chairman of a political party, violates 1st Amdt guarantees of speech, assembly, access to cts as forum for litigation of social problems. Suit asked for declaratory judgment of Pl's right to represent himself in Dellinger trial; for an injunction restraining all proceedings in Dellinger until Pl given this right; for Pl's release on bail to participate in his defense. Nov 5, 1969: DC, Robson, J, dismissed on own motion: failure to state cause of action; DC has no power to enjoin another DC judge. Appeal on CA 7 pending.

See list of attys at Dellinger, 54.32.

Complaint, memo: MCLL.

371.100. BEFORE ADMINISTRATIVE BOARDS (and 362.100)

371.101. Matter of American Chinchilla Corporation (FTC, #8774) 1969: American Chinchilla and several individual Resps charged with violation of Fed'l Trade Commn Act §5 (misrepresentation in advertising). None answered; default judgment entered. Resp John Green later wrote letter to FTC denying allegations, claiming he was too poor to hire atty. Examiner entered order for reh'g on default, allowing Green to appear. Green did not appear; default noted. Jan 1970: FTC dismissed charges against Green: (1) not reasonable to expect poor Resp to travel 700 miles to answer; (2) Green's letter should be treated as request for appointment of free counsel; (3) examiner's order was denial of that request; (4) indigent Resp entitled to free counsel in Commn h'gs.

Opinion of Commn: MCLL.

372. In State Cases (and 353)
And see Cager, 426.15; Puchalski, 463.3; Williams, 467.3; Snell, 421.NY.14; Turner, 421.NY.15; Soto, 421.NY.16; Bryant, 421.NY.20.
372.33. New Yorker v Baker (NY Ct of App) 1964: Defs, 6 Negro youths, arrested: murder of white Harlem shopkeeper, attempted murder of her husband. In NY, indigent Def is entitled to counsel, who is paid designated fee and given daily free copy of transcript. 4 Defs requested particular counsel be appointed; Sup Ct refused to appoint counsel of Def's choice, appointed others instead; dismissed petition for writ raising this issue. Jan 1965: Sup Ct granted Dist Atty's motion for blue ribbon jury. Trial: Defs convicted of 1st degree murder: life sentences. Appeal argued: (1) prejuice of inflammatory newspaper coverage, (2) Defs denied counsel of choice at trial, forced to take ct appointed counsel, (3) insufficient evidence. Je 27, 1967: Sup Ct, App Div reversed re Baker: statement by Def, voluntary, was made in ignorance of rights and against wishes of Def's atty; convictions of other 5 affirmed. Nov 27, 1968: Ct of App (4-3) ordered new trial: confessions obtained, used unconstitutionally. 2 Defs severed, to be tried individually. 1 convicted again. Other retrials pending.

Prof Harold Rothwax, Columbia University, NYC; William Kunstler, Esq, 588 9th Ave, NYC 10034; Conrad Lynn, Esq, 401

- 93 -

Broadway, NYC 10013; Mary Kaufman, Esq, 303 W 66th St, NYC 10023; Gene Condon, Esq, 15 Park Row, NYC 10038.

And see cases at 354.

372.69. Gilmore v Lynch (USSC) (400 F2d 228; 89 SCt 854) Sept 19, 1966: Def-Dept of Corrections issued new Regs limiting number of lawbooks in each prison to 11 books, penal codes, ct rules, and subscription to Calif Weekly (Law) Digest. Oct 27: Pls-prisoners sought to enjoin enforcement of Reg: removing lawbooks previously available deprives them of due process under 5th, 14th Amdts, of 1st Amdt rights. Jy 1967: DC (ND Calif), Wollenberg, J, granted TRO but denied motion for 3-judge ct: "no substantial fed'l question." Aug 1968: CA 9 reversed denial, remanded to DC. Oct 9: Def-Atty Gen'l petitioned USSC for cert, obtained stay of CA 9 mandate. Feb 24, 1969: USSC denied cert. Pending.

ACLUNC, 503 Market St, San Francisco, California 94105.

Amicus brief, opinion (CA 9): MCLL.

And see Harrell, 372.87.

372.77. Sawyer v District of Columbia (DC Ct of App) (238 A2d 314) 1967: Def, indigent, arrested: jay-walking (maximum sentence 10 days); not told of right to counsel, or assigned counsel. Muni Ct convicted: 60 days-unable to pay $150 fine (DC Code §16-706). Feb 19, 1968: Ct of App reversed: statute allows sentence greater than authorized where Def is able to pay fine but refuses; where Def indigent, cannot pay fine, sentence may not be greater than statute allows.

James F Fitzpatrick, Esq, 1229 19th St NW; Glenn A Mitchell, Esq, 1200 18th St NW; both of Washington, DC 20036.

Ralph J Temple, Esq, for amicus Nat'l Capital Area CLU, 1424 16th St NW, Suite 501, Washington, DC 20036.

Opinion: MCLL.

And see cases at 468.

372.87. Re H T Harrell (Calif Sup Ct, #13222) Mar 10, 1969: Prison officials entered Pet's cell, confiscated law books, legal material, typing paper, typewriter. Sept 23: ACLU brief in Sup Ct contends Pet has (1) right of reasonable access to legal materials, (2) right to assist other prisoners in preparing legal materials, (3) right to be free from penalties imposed because of exercise of those rights. Pending.

James T Fousekis, Esq, 111 Sutter, Suite 900, San Francisco 94104.

Paul Halvonik, Charles Marson, Esqs, for amicus ACLU, 503 Market St, San Francisco 94105.

Amicus brief: MCLL.

And see Gilmore, 372.69.

372.88. Williams v California Dept of Motor Vehicles (Pasadena Super Ct) 1967: Pl-bus driver pleaded guilty to charge of drunken driving (in private car); second offense in 4 yrs. Calif law makes suspension of license mandatory upon 2nd drunk-driving conviction in 7 yrs. Oct 22: Pl's license suspended. Pl petitioned Super Ct for writ of mandate to restore license: not fully advised of constitutional rights in 1st conviction. Jan 1968: Super Ct, Thompson, J, issued writ: ct docket showed Pl had been advised of rights, but did not show he made intelligent waiver of right to counsel.
372.89. California ex rel Major v Superior Court of San Francisco (Calif Sup Ct, #1 Civ 26349) 1968: Criminal action brought against Pet in San Francisco Super Ct. Super Ct declined to appoint, compensate expert or investigator for indigent Pet. Dec 2: petition for habeas filed: (1) where unfair trial may result, denial is abuse of discretion, (2) right to counsel means effective counsel: denied where expert assistance is needed but not provided, (3) equal protection denied where indigency causes loss of civil rights. DCA denied writ; Sup Ct affirmed.

Ephraim Margolin, Esq, 445 Sutter, San Francisco 94108.

Paul Halvonik, Esq, for ACLU, 503 Market St, San Francisco 94105.

ACLU brief: MCLL.

372.90. McGarrah v Dutton (CA 5) (389 F2d 829) 1955: Pet arrested: assault with intent to rape, 3 counts burglary; allegedly beaten and intimidated into a confession. Co ct gave maximum sentence for each count, to run consecutively. Pet never told of right to counsel. 1965: Pet wrote NAACP Legal Defense Fund, which referred case to local atty. Habeas petition filed in DC; denied; appealed to CA 5. CA 5 reversed, remanded to DC for h'g to determine if Pet had knowledge of right to counsel during arrest and trial process. DC held h'g, again denied petition; Pet again appealed to CA 5. Jy 24, 1968: CA 5 reversed and remanded with instructions: either new trial, or release: Pet had not been granted right to counsel at trial. Pending.

C B King, Esq, PO Box 1904, Albany, Ga 31702.

372.91. Jeffreys v Jeffreys (NY Sup Ct, App Div, Kings Co) (292 NYS2d 767) Pl asked City to pay publication fee (required in divorce proceedings where normal process service impossible; often over $300) on equal protection ground. Aug 1968: Sup Ct held fees to be paid by city in indigents' proceedings: ruling based on state laws waiving costs in forma pauperis, did not reach equal protection argument advanced by Pl. City asked for new trial. Dec: Ct held civil practice statutes did not require city to pay fees, but state and US Constitutions did: equal protection; cited Griffin v Illinois, 351 US 12, 1 DOCKET 100.

Mobilization for Youth Legal Services, Inc, 320 E 3d St, NYC 10009.

And see 426.

372.92. Smith v Smith (DC Ct of Gen Sess, Domestic Relations Branch; unfiled) 1968: Judge Joseph Ryan, Jr, refused to enter order granting or denying Pls' motion to proceed with divorce cases in forma pauperis, thus barring appeal. Pls filed class mandamus action to force entry of order or appellate review. See Smith v Ryan, 372.92a.

District of Columbia NLSP, 224 7th St SE, Washington, DC 20003.

And see 426.

372.92a. Smith v Ryan (DC Ct of App; #3910 Original) Pls in Smith v Smith, 372.92, filed class mandamus action requesting that Judge Ryan be directed to assume jurisdiction, enter an order; or that Ct of App exercise power of review. Sept 12, 1968: Ct of App dismissed petition: Judge Ryan answered that he was willing to act on all motions, under procedure started after Pls' 1st request-in forma pauperis motions to be filed with clerk, not judge.

District of Columbia NLSP, 224 7th St SE, Washington, DC 20003.

372.92b. Harris v Harris (CA DC, #Misc 3318) Je 28, 1968: DC Ct of Gen Sess, Domestic Relations Branch, refused Pls' motion to proceed with divorce cases, or to allow appeal of his decision, in forma pauperis; attacked Pls' counsel's accepting indigent divorce cases: "it is demeaning to the legal profession to attempt to break up the family and to stir up litigation for that purpose." DC Ct of
- 94 -

App affirmed: no abuse of Ct's discretion. Sept 5: Pl filed appeal to CA DC, which granted motion to proceed in that ct in forma pauperis. Pending.

District of Columbia NLSP, 666 11th St NW, Washington, DC 20001.

372.92c. Boddie v Connecticut, Horowitz (DC Conn) (286 FSupp 968; 89 SCt 2138) Pls, female welfare clients unable to file divorce actions for inability to pay fees, filed class action: state statutes requiring fees without provision for in forma pauperis infringe due process, equal protection, right to petition for redress, discriminate on basis of indigency. Jy 16, 1968: 3-judge fed'l ct, "with some hesitation," held state's failure to waive fees for indigents not unconstitutional; distinguished ordinary civil actions, like divorce, from others where state may be required to provide in forma pauperis. Je 23, 1969: USSC noted probable jurisdiction, granted leave to proceed in forma pauperis. Pending.

Arthur B LaFrance, Joseph M Shortall, Esqs, New Haven Legal Assistance Assn, 768 Grand Ave, New Haven 06511.

And see cases at 426.

372.92d. Suber v Suber; Suber v New Jersey (Super Ct Union Co NJ, M 2366-68) NJ provides for in forma pauperis divorces. Pl-indigent could not afford divorce publication costs, sought payment from Union Co Welfare Bd; denied. Pl sued claiming Union Co should pay publication costs based on equal protection, due process. Ct found for Pl on merits, also noted that adultery is moral desertion thus complying with Welfare Dept's rule stating relief available only in cases of desertion.

James D Coffee, Esq, Union Co Legal Services, E Jersey St, Union, NJ 07083.

372.93. Robertson v Greene (Ore Sup Ct) Je 14, 1968: Cir Ct held Oregon statutes (ORS 21.110, 21.112, 21.120, 21.130, 21.350) imposing $40 total filing fee in divorce cases infringed state, fed'l due process; found 1st Amdt guaranty of redress of grievances outweighs state interest in limiting litigation. Aug 23, 1968: appeal filed in Sup Ct. Pending.
372.94. Shirley Lee v Super Ct (Calif Sup Ct, #1 Civ 26714) Jan 1969: Pet convicted in Muni Ct: inciting to riot. Pet appealed to Super Ct, App Div (Alameda Co) and sought appointment of counsel to represent her on appeal on ground she was indigent. Super Ct denied request. ACLU filed brief on petition to DCA for writ of mandate and prohibition; DCA denied petition. Apr 17: petition filed in Sup Ct seeking appointment of counsel. Apr 30: writ denied; Sup Ct refused to determine whether indigent entitled to ct-appointed counsel on appeal from misdemeanor conviction.

Alvin Ziegler and John Kraetzer, Esqs, 1330 Broadway, Oakland 94612 for ACLU.

372.95. Michigan v Burl Williams (Mich Sup Ct, #51876) Aug 6, 1965: Calhoun Co Cir Ct convicted Def, indigent: assault with deadly weapon; sentenced: 1-4 yrs. Mar 28, 1967: Ct of App affirmed. Apr 21: Cir Ct denied petition for order continuing financial aid so Def could appeal to Mich Sup Ct. Def appealed denial by application for leave to appeal. Ct. of App denied application. Sept 27: Def filed appeal of conviction and denial of counsel with Sup Ct. Mich ACLU amicus brief argued: indigent Def entitled to appointment of counsel to appeal adverse decision of Ct of App to Sup Ct (6th, 14th Amdts). Dec 12: Sup Ct denied application for leave to appeal.

Charles A Robinson, Esq, 304 S Easton St, Albion, Mich 49224.

Norton J Cohen, Esq, Michigan ACLU, 808 Washington Blvd Bldg; Paul Green, Esq, Michigan ACLU, 1659 Guardian Bldg, both of Detroit 48226.

Amicus brief: MCLL.

372.96. Miami v James (CA 5) Apr 11, 1969: CA, Wisdom, J, reversed Defs' theft conviction: persons accused even of "petty" offenses are entitled to ct appointed attys, if conviction may result in loss of liberty, or moral turpitude attaches to the offense; rejected prosecution argument that 6 mths is minimum penalty for which 6th Amdt rights apply.
372.97. Zimmer v Kansas (USSC) (198 Kan 479; cd 389 US 933) Apr 1, 1965: Def convicted: (1) 1st degree murder, (2) kidnapping; sentenced to death on (2), life imprisonment on (1). Apr 8, 1967: Kansas Sup Ct affirmed. Aug: Def petitioned USSC for cert: issue whether Def had waived his 4th, 14th Amdt protections against illegal search and seizure; delay of trial ct in appointing counsel. Nov 6: USSC denied cert. State habeas petition now pending.

Melvin L Wulf, Esq, 156 5th Ave, NYC 10010; Elwaine F Pomeroy, Esq, Garlinghouse Bldg, Topeka 66612; Waldo B Wetmore, Esq, Bitting Bldg, Wichita 67202.

Petition for cert: MCLL.

372.98. New York ex rel Combs v LaVallee (NY Ct of App) (286 NYS2d 600; 22 NY2d 857) Dec 1965: Parole bd declared Rel-parolee delinquent; extradited and returned him to jail. Apr 1966: revocation h'g (under NY Correction Law §238): Rel ordered to remain in jail; parole bd refused Rel's former atty permission to represent Rel at h'g. Rel brought habeas corpus proceeding: detention illegal because of denial of right to counsel at h'g. Sup Ct denied application without h'g. Jan 11, 1968: Sup Ct, App Div reversed, ordered Rel released unless parole bd held new h'g at which Rel represented by counsel. Jy 1: Ct of App dismissed appeal of prison warden.

Albert S Pergam, Esq, 52 Wall St, NYC 10005.

Opinion (Ct of App): MCLL.

372.99. Arsenault v Massachusetts (USSC) (393 US 5) Feb 1955: Def arraigned, charged: homicide, attempted robbery. Def entered guilty plea at preliminary h'g, without atty. Affirmed on appeal. Sept 1968: USSC, per curiam, reversed conviction; preliminary hearing "critical stage of proceeding" in which Def entitled to counsel.

F Lee Bailey, Esq, 40 Court St, Boston, Mass 02174.

372.100. Johnson v Avery (USSC) (382 F2d 353, 393 US 483) Pl, prisoner in Tennessee State Penitentiary, helped fellow inmate prepare habeas petition. Def transferred Pl to maximum security: violating prison reg forbidding inmates to aid others in preparing legal papers. Pl filed motion for "law books and typewriter" in DC; DC treated motion as habeas petition; granted; ordered Pl removed from maximum security wing. CA 6 reversed. Feb 1969: USSC reversed (7-2), Fortas, J: prison reg which Pl violated effectively deprived illiterate prisoners of right to habeas corpus. White, Black, JJ, diss.

Karl P Warden, Esq, 4517 Harpeth Hills Dr, Nashville, Tenn 37215.

And see cases at 411.

372.101. Phillips v Cole (ND Ky, Greenville Div, #GC-6842-K) Sept 1968: Pls brought class action under 42 USC §1983 to enjoin Defs, officers of Police Ct and Youth Ct of Indianola, from holding h'gs of indigent juveniles charged with delinquency trying indigent Defs charged with misdemeanors, without first advising Defs of right
- 95 -

to counsel and appointing counsel unless waived, cited 6th, 14th Amdts. Oct 2: DC granted preliminary injunction. Je 3, 1969: DC granted permanent injunction; costs to Pls.

Lawrence A Aschenbrenner, Robert B Fitzpatrick, Esqs, 233 N Farish St, Jackson, Miss 39201.

And see 430.

And see Skinner v Louisiana, cd 393 US 473, Marshall, J (Warren, CJ, Douglas, J) diss.

373. Restrictions on Attorneys and Judges
(see 40, 265, 345)

And see Lefcourt, 25.42; Cockrel, 42.33; Benjamin Smith, 73.La.5; Hirschkop, 73.Va.3; Judge Crockett, this DOCKET, p vi.


373.20. Kinoy v District of Columbia (CA DC) (400 F2d 761) Aug 17, 1966: Pl, atty for witness Krebs, 271.52, subpoenaed by HUAC, vigorously argued his right to cross-examine HUAC witness testifying about his client. HUAC chairman ordered Pl to "sit down," Diminutive Pl seized by 3 US Marshalls, forcibly ejected from h'g room, arrested: disorderly conduct (DC Code §22-1107). Jy 29, 1968: CA reversed conviction, held: (1) HUAC disciplinary procedures not followed, (2) initial determination that criminal proceedings should be instituted ordinarily lies with Comm, not independent tribunal, (3) information filed did not charge an offense under DC Code. Issue in brief not discussed by ct: right of atty to represent his client under 6th Amdt.

A G Amsterdam, Esq, Stanford Univ, Palo Alto 94305; George Cooper, Walter Gellhorn, Louis Lusky, Albert Rosenthal, Esqs, 435 W 116th St, NYC 10027; Robert Drinan, SJ, Boston College Law School, Brighton, Mass 02135; Willard Heckel, Robert Knowlton, Esqs, 180 Plane St, Newark 07101; Philip Hirschkop, Esq, 110 N Royal St, Alexandria 22313; Beverly Axelrod, Esq, Rte 2, Box 5 Espanola, NM 87532; Frank Donner, Esq, 11 E 51st St, NYC 10022; Ira Gollobin, Esq, 1441 Broadway, NYC a10016; Jeremiah Gutman, Esq, 363 7th Ave, NYC 10001; William Kunstler, 588 9th Ave, NYC 10034; Morton Stavis, Esq, 744 Broad, Newark 07012; Thomas Sullivan, Esq, 135 S La Salle St, Chicago 60603.

Appt's brief; opinion (CA DC): MCLL.

And see Krebs, 271.52; Lenske, 13 DOCKET 10.

373.23. Sobol v Perez (ED La) Feb 1967: Def-DA prosecuted Pl, out-of-state lawyer (staff counsel, LCDC) for "unauthorized practice of law" in civil rights cases. Pl sought injunction against prosecution, declaratory judgment of unconstitutionality before 3-judge ct. Sept 19: US intervened for Pl, Louisana for Def. Jy 22, 1968: DC stopped proceedings against Pl, "unconstitutional harassment," Pl not in violation of La legal practice law; did not rule on constitutionality of La statute.

Lawyers Constitutional Defense Comm, 2208 Dryades St, New Orleans 70113.

Amici: Arnold and Porter, Esqs, for 30 firms; NAACP Legal Defense and Educational Fund, Lawyers' Comm for Civil Rights Under Law.

373.29. Michigan v Leo W Hoffman (Mich Sup Ct, #51959) Def-atty cited for contempt when he declined to serve as ct-appointed atty in appeal of murder conviction: thought sentence "more than just." Ct of App upheld contempt citation. Je 2, 1969: Mich Sup Ct reversed.

Leo W Hoffman, Esq, Lawyers Bldg, Allegan, Michigan 49010.

373.30. In re Bailey (NJ Sup Ct, #A161) Apr 24, 1968: Appt, Member of Mass Bar, appearing by permission as defense atty in NJ murder trial, sent letters to NJ Governor, NJ Atty Genl, US Atty, US Atty Genl, President of NJ Bar Assn, and members of Congress alleging that state's chief witness, with assistance of state officials, would offer perjured story, and requested h'g. Apr 30: NJ Sup Ct ordered revocation of permission unless Appt made showing of cause to the contrary satisfactory to Super Ct. May 3: Super Ct revoked permission after show cause h'g, refusing to try truth of Appt's charges. May 29: NJ Sup Ct affirmed order: (1) Appt's purpose in writing letter was to influence prospective jurors, (2) Appt's conduct violated state's and Def's interest in fair trial, (3) Appt's clients have no constitutional right to select atty not a member of NJ Bar, so long as NJ Bar able to provide effective counsel.

F Lee Bailey, Esq; Bruno Leopizzi, Esq; Leonard Garth, Esq; Joseph Afflitte, Esq.

Opinion (Sup Ct): MCLL.

373.31. In re Ruffalo (USSC) (249 FSupp 432, 370 F2d 447, 390 US 544) Ohio Bar Assn instituted disbarment proceedings against Pet, accused Pet of hiring RR worker to solicit FELA insurance claims. Pet, worker testified job involved investigating, not soliciting claims. Immediately after hearing this testimony, Bar Assn added charge of hiring worker to investigate his own employer. Ohio Sup Ct found Pet's conduct unethical. ND Ohio found no misconduct: Pet's disbarment in state cts not binding on fed'l cts. CA 6 reversed: Paying employee of RR to investigate claims contrary to interest of employer unethical. Apr 8, 1968: USSC reversed (8-0), Douglas, J: Pet denied due process: charge of hiring employee to investigate employer not known before proceedings commenced, hence Pet did not receive adequate notice; "Adversary proceedings become a trap when, after they are underway, the charges are amended on the basis of testimony of the accused."

Craig Spangenberg, Esq, Nat'l City Bank Bldg, Cleveland, Ohio 44114.

374. Opportunity for Appellate Review/Transcript
And see Munkelwitz, 426.11; Barker, 24.WVa.1.
374.39. Bryant v Lee (USSC) (cd 89 SCt 614) Pet, indigent woman, convicted: battery, assault, criminal damage to property; $1100, 5 mths. Pet moved for order for free transcript of trial proceedings. Cir Ct denied motion without h'g: Pet not sentenced to penitentiary, therefore not entitled to transcript under Sup Ct Rule #27(9)(b). Pet appealed. Dec 1, 1966: Ill Sup Ct granted Pet's motion to file for writ of mandamus. Pet argued §121-13(a), Ill Code of Crim Procedure gives right to free appellate transcript to anyone following imposition of any sentence in criminal case, that due process requires indigent Def be furnished with transcript of trial for purposes of appeal. Nov 29, 1967: Ill Sup Ct vacated leave to file writ. Jan 24, 1968: Ill Sup Ct ordered trial ct to grant free transcript if Pet indigent and report of proceedings available. Feb 23: trial ct ordered transcript provided. Mar 28: Ill Sup Ct vacated order of Jan 24, effectively denying request for free transcript. Aug 26: petition for writ of cert filed with USSC. Jan 13, 1969: USSC denied cert. Per agreement, charges vacated, appeal dismissed, Pet received minor fines; no resolution of transcript issue.

Dick Hamilton, Esq, 208 S LaSalle, Chicago 60604.

Robert E Neiman, Stephen M Slavin, Esqs, for ACLU, 231 S LaSalle St, Chicago 60604.

ACLU amicus brief (Ill SSup Ct): MCLL.

374.44. Collins v Florida (CA 5) (387 F2d 636) Fla state ct tried, convicted Def: 1st degree murder; life. Def filed no notice of appeal, filed motion
- 96 -

with trial ct to vacate sentence under Crim Proc Rule 1 FSA Ch 924 App of Fla Sup Ct. Trial ct denied motion, Fla Ct of App affirmed. Fla Sup Ct denied Def's petition for writ of habeas. Def filed petition for habeas in DC (SD Fla): appointed counsel incompetent for failure to remove for new trial, failure to prosecute direct appeal. DC denied petition without show-cause order, evidentiary h'g. Jan 12, 1968: CA reversed: Rule 1 motion not equivalent to appeal, Def entitled to evidentiary h'g.

James J Hogan, Esq, 420 Lincoln Rd, Miami, Fla 33139.

374.45. Herick v Municipal Court (DCA 2nd Dist, #2d Civ 34072) Appt convicted of disturbing peace (see Ridenour, 55.Calif.31). Oct 1968: appealed, asked for free transcript; denied. Appt filed petition for writ of mandate in App Dept of Super Ct, same ct where conviction on appeal; writ denied. Problem: to keep transcript appeal from becoming moot. Muni Ct granted successive orders extending time within which required to file transcript to the limit of its jurisdiction. App Dept granted some time, but not enough to prevent submission of case on merits. Jan 22, 1969: Resp in transcript appeal granted contested extension of time to Mar 10. App Dept set oral arguments on conviction for Feb 20. Feb 6: Appt asked DCA to order App Dept not to proceed until determination of transcript action by DCA; denied. Feb 20: Appt petitioned Calif Sup Ct for writ of mandate compelling above stay; same day App Dept heard oral arguments on appeal from conviction. Mar 5: Sup Ct denied writ. Apr 24: Appt filed reply brief in transcript action. Apr 29: App Dept vacated submission of criminal appeal on merits pending final determination by DCA in transcript case. Pending.

Barry Nakell, Esq, 3175 W 6th St, Los Angeles 90005.

In App Dept of Los Angeles Super Ct: Memo in support of application for extension of time; application for extension of time; Appt's opening brief; Resp's brief; Appt's reply brief; declaration of Nakell requesting stay; declaration of Nakell on status of case in DCA; order vacation submission on merits;

In DCA: Application for extension of time to file Resp's brief; objection to application for extension of time to file Resp's brief; Appt's petition for auxiliary writ in the nature of a writ of supersedeas or stay; memo in support of petition for auxiiary writ; memo in opposition to petition for auxiliary writ; declaration of Deputy City Atty; points and authorities (Resp); Appt's application for early h'g; Appt's opening brief; Resp's reply brief; Appt's reply brief; Appt's submission of additional authority;

In Sup Ct: Petition for writ of mandate; memo in support of petition; order denying alternative writ (no opinion): MCLL.

374.46. Magezis v Friedman (Calif Sup Ct, #1 Civ 27244) 1969: Pets found guilty of loitering about a school where children normally congregate, obscenity (Pen C §§415, 653(g)). Motions for acquittal, new trial, arrest of judgment filed; denied. Apr 15: Pets sentenced; notices of appeal filed. Apr 22: Pets filed statement of appeal giving notice of intention to file reporter's transcript of evidence, proceedings; filed motion for preparation of transcript at public expense. Je 3: motions argued. Je 19: Resp-Muni Ct judge denied motions. Jy 25: Pets applied to Super Ct for order to show cause why writ of mandate should not be issued compelling transcript to be furnished at public expense. Aug 13: h'g: Super Ct denied writ. State (real party in interest) asked for dismissal of Pet's appeal: failure diligently to prosecute appeal because no transcript filed. Sept 3: petition for writ of mandate re transcript filed in DCA. Oct 15: DCA denied petition without h'g. Oct 24: petition for h'g by Calif Sup Ct filed: (1) equal protection clause of 14th Amdt guarantees free transcript on appeal to indigent Def convicted of misdemeanor, (2) Calif cases guarantee indigent misdemeanant Defs free transcript whenever necessary for adequate, effective appellate review, (3) Resp-judge wrongfully distinguished this case from Williams v Oklahoma, 374.48, 395 US 458, (4) no adequate remedy at law. Pending.

Paul N Halvonik, Charles C Marson, Esqs, ACLUNC, 503 Market St, San Francisco 94105.

Statement on appeal, motion for preparation of transcript at county expense (Muni Ct); judgment (DCA); petition for h'g, reply to return to alternative writ (Sup Ct); MCLL.

374.47. Gardner v California (USSC) (393 US 367) Pet, indigent prisoner, filed habeas petition in Super Ct, denied; requested free transcript of evidentiary h'g to aid drafting of new habeas petition for higher ct, which required brief statement of prior habeas proceedings. Super Ct denied request; DCA, Cal Sup Ct denied h'g. Jan 20, 1969: USSC reversed (7-2), Douglas, J: (1) Although habeas proceedings in higher cts are not appeals, but de novo proceedings, effective presentation of case requires finding of Super Ct, evidence that it had been weighed, rejected; (2) since Pet carries burden of convincing app ct that lower ct h'g inadequate or conclusions erroneous, transcript necessary starting point; (3) denial of transcript to indigent same "invidious discrimination" held impermissable under 14th Amdt in Griffin v Illinois, 351 US 12. Harlan, J, Stewart, J, diss.

Charles E Rickershauser, Jr, Esq, 606 S Hill, LA 90014.

374.48. Williams v Oklahoma City (USSC) (439 P2d 965, 89 SCt 1818) Pet, indigent, convicted of drunk driving; 90 days. Pet without funds to pay for transcript for appeal. 1968: Okla Criminal Ct of App refused to order transcript for Pet at public expense. Je 9, 1969: USSC reversed, per curiam: where state provides criminal appellate review as matter of right, "these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the cts."

Jon F Gray, Esq, 1455 Westwood Ave, Oklahoma City 73108.

374.49. Morris v Florida (USSC) (206 So2d 286, 393 US 850) Def convicted. His atty filed appeal, but did not prosecute it. DA moved to dismiss; Def's atty did not notify Def. Appeal denied. Oct 14, 1968: USSC denied cert; Black, J (Douglas, J), diss: Def deprived of due process right to notice required before life, property can be taken; should be allowed to present appeal, not be forced to remedy of malpractice action against former atty.

Richard Kanner, Esq, PO Box 52 - 241, Miami, Fla 33152.

375. Group Legal Services/OEO Offices (and see 420s)
Articles: Green, Jerry and Ellen, Poverty and Law in England and US, 28 Guild Practictioner 56.

Green, Jerry and Ellen, The Legal Profession and the Process of Social Change, Legal Services in England and the US, Hastings LJ, vol 21, no 2, Jan 1970.


375.6. Re Defender Association of Philadelphia (Pa Sup Ct, #223) Apr 1934: Defender Assn organized as voluntary, private, non-profit assn to represent indigent defs. 1969: City, financial contributor since 1963, began attempts to assume control over management, personnel. Je: ACLU filed amicus brief opposing amdts to Assn's charter giving city more control: (1) criminal defs entitled to counsel free from conflicting loyalties, (2) counsel provided by proposed Assn would have conflicting loyalties as city employees, (3) Assn, employees would be
- 97 -

under direct control of city government. Ct of Common Pleas, Philadelphia Co, upheld amdts. Jan 1970: appeal filed on Sup Ct. Pending.

Julian E Goldberg, Esq, 2028 Delancey Pl, Philadelphia 19103; Judah Lebovitz, Esq, Packard Bldg, Philadelphia 19102, for ACLU.

ACLU amicus briefs (Ct of Common Pleas, Sup Ct): MCLL.

375.7. Stanislaus Co Bar Assn v California Rural Legal Assistance, Inc (Stanislaus Co Super Ct, #93302-Dept No 4) Oct 7, 1966: Pl filed suit to enjoin Defs from practicing law as, or on behalf of, corporation, employing persons to solicit legal business in guise of social workers; alleged violations of state law, professional ethics; Def's office in Los Angeles, hence their professional conduct not subject to local control, Economic Opportunity Act, 42 USC §34; Defs got Title 10 funds for aid to migrant farm workers, with intention to serve others than migrant farm workers; practice of law not among purposes enumerated in 10 USC §2861. Oct 13: Super Ct granted TRO to maintain status quo pending preliminary injunction h'g; potential clients could be hurt if Def office open—attorney-client relationships subject to summary termination by ct order; disqualified all Co Super Ct judges from case as Bar Assn members. Oct 20: TRO expired, Defs opened office, contempt of ct charges filed. Nov 3: judge appointed to hear argument disqualified at Pls' insistence. Dec 1-2: h'gs on injunction; contempt charges dropped. Defs' office open while case pending. 1969: dismissed.

James D Lorenz, Jr, Esq, California Rural Legal Assistance, Inc, 257 S Spring St, Los Angeles 90012.

376. Small Claimants' Problems (and see 424, 425)
377. Compensation for Assigned Counsel

377.4. Jennifer Gray Allen v San Mateo Co Super Ct (Calif Sup Ct) Jy 1968: Pet Allen pleaded guilty to Super Ct to possession of dangerous drugs; given suspended sentence and placed on probation, one condition of which was that she reimburse co for ct-appointed counsel. Ct of App denied habeas petition. Je 20, 1969: Sup Ct granted habeas petition: order of Super Ct unconstitutionally restricted exercise of 6th Amdt right to counsel.

Marshall Krause, Paul Halvonik, Esqs, for ACLU, 503 Market St, San Francisco 94105.

Pet's brief (Sup Ct): MCLL.

377.5. California v Barry (San Mateo Co Super Ct, #136128) Mar 19, 1968: Def, indigent, charged with manslaughter (on stipulated plea). Group of Def's friends hired counsel, rather than ct appointed. Def moved to have costs of defense paid by Co: private counsel entitled to public funds when defending indigent client. Ct orders granted costs for investigator, criminalist, pathologist, witnesses from out of state, daily transcript, costs for salary of police officer sent to Ohio to bring in recalcitrant witness for defense: total expended—nearly $15,000. After 40 days of trial, hung jury.

Ephraim Margolin, Esq, 445 Sutter, Suite 501, San Francisco 94108.

378. Bias and Prejudice of Judges
And see Hayes, 24.NY.15a; Grossner, 24.NY.15d.

And see Dellinger, 54.32.


378.1. Matter of Justice Culkin (Judiciary Relations Comm of App Div, Sup Ct, NYC) 1969: 2 attys for Harlem 6 (see Baker, 372.33) accused judge of racial slur: "These youngsters here, they wouldn't know a good lawyer from a good watermelon." Apr 23. Comm cleared judge: report stated that accusing attys apparently themselves exonerated judge in Comm h'gs.

Conrad Lynn, Esq, 401 Broadway 10013; William Kunstler, Esq, 588 9th Ave 10036; both of NYC.

380. CONFRONTATION
381. In Criminal Cases

381.17. California v Johnson (Calif Sup Ct) (441 P2d 111) Def accused of incest by wife and daughter's testimony before grand jury. At subsequent trial, witnesses changed testimony, but prior statements read into record under Calif Evidence C §1235 (1966). May 28, 1968: Calif Sup Ct granted new trial: §1235 violates 6th Amdt right of confrontation when applied to admit testimony in criminal proceeding. Sept 1969: charges dropped.

Robert J Nareau, 303 1st St, Woodland 95695.

381.18. Harrington v California (USSC) (256 CalApp2d 909; 395 US 250) Super Ct convicted Def of murder; admitted confession of co-Def placing Def at scene of crime although co-Def did not testify; two other co-Defs testified Def was at scene of crime. DCA aff'd. Je 1969: USSC affirmed (6-3), Douglas, J: denial of Def's constitutional right of confrontation was harmless error as other evidence against him was overwhelming.

Roger S Hanson, Esq, 6265 Lubao Ave, Woodland Hills, Calif 91364.

381.19. Smith v Illinois (USSC) (217 NE2d 546, 390 US 129) Pet arrested: sale of narcotics. During trial, judge sustained state's objections to questions on cross-examination asking real name, residence of state's chief witness. Pet convicted. Ill Ct of App affirmed. Jan 29, 1968: USSC reversed (8-1), Stewart, J: (1) 6th Amdt right to confront witnesses "fundamental right" made obligatory on states through 14th Amdt; (2) right of cross-examination included in right to confront witnesses; (3) where credibility at issue, starting point in "exposing falsehood and bringing out the truth" is to ask witness who he is, where he lives; denial of right to ask these questions, without justification, emasculation of right to cross-examination. White, J, Marshall, J, conc. Harlan, J, diss.

Gerald W Getty, Esq, Chicago.

382. In Civil Cases
383. In Administrative Hearings
And see Rios, 421.Tex.2, Quevedo, 423.Tex.1.
390. JURY TRIALS (see also 41, 42, 356, 360, 510)
UN DECLARATION OF HUMAN RIGHTS: Art 10.
391. Nature of Jury Trial
Article: The Jury as a Political Institution, Jon M Van Dyke, reprinted from The Center Magazine, Mar-Apr 1970: MCLL.

And see Halliwell, 25.NY.15c.


- 98 -

391.13. US v Jackson (USSC) (262 FSupp 716, 390 US 570) Sept 2, 1965: 3 men hijacked truck in Conn, took truck, driver to NJ; driver suffered only rope burns. Men arrested: fed'l kidnapping law; since driver injured, jury could impose death sentence. Jan 12, 1967: DC dismissed indictment, held law unconstitutional: restricts Def's right to trial by jury guaranteed by 6th Amdt; since only jury can recommend death penalty, Def must waive jury trial to protect against possible capital punishment. Apr 8, 1968: USSC reversed and remanded (6-2), Stewart, J: (1) although death penalty clause unconstitutional restriction of 5th Amdt right not to plead guilty and 6th Amdt right to jury trial, provision severable from statute; whole statute need not fall; (2) Def should stand trial under fed'l kidnapping act, but may not be put to death under its authority. White, Black, JJ, diss.

Ralph Spritzer, Esq, Washington, DC.

391.14. Duncan v Louisiana (USSC) (195 So2d 142, 391 US 145) Pet accused of simple battery, denied jury trial, convicted: 6 mths. Pet appealed, alleged denial of 6th Amdt right to jury trial applicable to state by 14th Amdt. La Sup Ct denied cert. May 20, 1968: USSC reversed (7-2), White, J: (1) test of 14th Amdt due process clause is whether contested right "fundamental to the American scheme of justice"; (2) "deep commitment of the nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the 14th Amdt, and must therefore be respected by the states"; (3) crime punishable by possible 2 yr imprisonment serious crime, not petty crime to which 6th Amdt jury requirement does not apply, even though only 6 mths sentence imposed. Black, J (Douglas, J) concur: (1) "The 14th Amdt made all of the provisions of the Bill of Rights applicable to the States"; (2) if due process were intended to mean that ct was free to determine at any particular time whether particular rule or judicial formulation immutable principle of free gov't, clause might as well have been written "no person shall be deprived of life, liberty, or property except by laws that the judges of the USSC shall find to be consistent with the immutable principles of free gov't." Harlan, J (Stewart, J) diss.

Richard B Sobol, Esq, 606 Common St, New Orleans 70130.

And see Baldwin, 391.17.

391.16. New York v Puryear (NY Sup Ct) Apr 10, 1968: Def, 19 yr old juvenile, arrested for 2 misdemeanors: possession of burglar's tools, criminal trespass. Sept 9: Crim Ct Judge ruled Def, all persons charged with misdemeanors, entitled to jury following Duncan, 391.14. Dec 30: NY Sup Ct sustained Crim Ct ruling as to juveniles charged with misdemeanor, overruled Crim Ct as to adult misdemeanants: youths may get 4 yrs in reformatory while adults are limited to 1 yr jail sentence; only juvenile offenders squarely under Duncan guidelines.

Harold J Rothwax, Esq, 320 E 3rd St, 10009; Nathan Z Dershowitz, Esq, 645 E 14th St 10009; Samuel Dawson, Esq; all of NYC.

And see 430.

391.17. Baldwin v New York (USSC, #188) (24 NY2d 207, 247 NE2d 260) Aug 1968: Pet arrested: pickpocketing. NYC Crim Ct refused to grant jury trial: no right to trial by jury where accused subject to maximum of 1 yr sentence for misdemeanor conviction. Convicted: 1 yr. Apr 4, 1969: Pet appealed to USSC; argued possible 1 year sentence comprises "serious offense" with respect to jury trials. Pending.

William E Hellerstein, Esq, 119 Fifth Ave, NYC 10003.

See also Duncan, 391.14.

392. Waiver of Jury
393. Improper Comment (and see 512)

393.4. Michigan v Brocato (Mich Ct of App, #3590) Apr 5, 1967: Def convicted by jury of statutory rape; appealed. Feb 23, 1968: ACLU filed amicus urging conviction be set aside: improper, prejudicial questions by prosecutor denied Def fair trial: (1) prosecutor insinuated Def did not believe in God, read communistic publications, taught such belief to oldest son (latter was alleged by Def's wife in divorce complaint which never went to trial on merits), (2) cross-examination of character reference for Def centered around his testimony in case against obscene book (ruled not obscene by USSC), his membership in ACLU, and suit brought by ACLU against city support of nativity scene in park; "guilt by association" innuendoes violate 1st Amdt rights; create chilling effect. Jy 9, 1969: Ct of App reversed, remanded for new trial.

Charles Wickett, Esq, 522 W Lovell St, Kalamazoo 49007.

For ACLU: Norton Cohen, Esq, 808 Washington Blvd Bldg, Detroit 48226.

Brief: MCLL.

393.5. California v Thompson (60 CalRptr 203; cd 392 US 930) May 19, 1965: Armed robbery in San Francisco house. Def claimed he afterward found apparently abandoned coat outside, put it on. In pockets were gun used in robbery, stolen articles. Def threw gun into bushes, hid. Arrested by police short time later, searched, beaten. Before trial, Def tried to plead guilty to lesser charges, but ct refused to accept. At his own request, advised nothing he said would be used against him, Def made highly incriminating statement to judge, who still refused to allow guilty plea. After all evidence introduced, judge, in charge to jury, stated opinion Def guilty. Def convicted, though no positive identification of him as robber, entire case against him circumstantial evidence. Je 28, 1967: DCA, 1st Dist, affirmed. Sup Ct denied h'g. Jan 24, 1968: Def petitioned USSC for cert: (1) 6th Amdt guarantee of trial by jury applies to state criminal proceedings, (2) statement of trial judge to jury that in his opinion accused is guilty beyond a reasonable doubt is deprivation of right to trial by jury, (3) such statement is deprivation of due process, (4) such statement cannot be considered harmless error. Je 17: USSC denied cert.

Paul Halvonik, Marshall Krause, Esqs, for ACLU, 503 Market St, San Francisco 94105.

Pet's brief (USSC): MCLL.

393.6. New Jersey v LeRoi Jones (NJ Sup Ct) Jan 1968: Def, black poet-playwright, 2 co-Defs charged with illegal possession of weapons during 1967 Newark racial riot. Defs denied accusations, charged frame-up. Dec 23: Sup Ct reversed Co Ct conviction: trial judge prejudiced jury by reading selections from Def's writings advocating violence against white community in charge to jury. Def acquitted on retrial.

Raymond A Brown, Esq, 26 Journal Sq, Jersey City 07306.

394. Scrupled Jurors (see also 411, 414, 461)
And see Boulden, 453.5.
394.1. Witherspoon v Illinois (USSC) (224 NE2d 259, 391 US 510) 1960: Pet convicted of murder, sentenced: death. Direct appeals, collateral attacks failed. Feb 1965: Pet filed petition in state ct requesting whatever form of remedy "provided for by Ill law," arguing constitutional rights violated when trial ct excused for cause prospective jurors having
- 99 -

scruples against death penalty. Trail ct dismissed. Ill Sup Ct affirmed. Je 3, 1968: USSC reversed (6-3), Stewart, J: (1) insufficient data to hold that "exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction"; (2) but jury here decided two issues: guilt or innocence, death or imprisonment; "it is self-evident that, in its role as arbiter of the punishment to be imposed, the jury fell woefully short of that impartiality to which the Pet was entitled under the 6th and 14th Amdts"; (3) state's justification for exclusion, that individuals with serious reservations about capital punishment (as contrasted with individuals who assert that they would under no circumstances impose death penalty) cannot be relied on to vote for it even when the law, instructions of ct make death proper penalty, inappropriate where issue of penalty left broadly to jury's discretion; in such case, either death or imprisonment "proper" penalties under law, instructions; (4) jury determining issue of penalty, to be impartial, must express conscience of community on "ultimate question of life or death. (Y)et, in a nation less than half of whose people believe in the death penalty, a jury composed exclusively of such people cannot speak for the community"; (5) holding retroactive. Douglas, J, conc: (1) Constitution prescribes impartial jury; such jury must be drawn from cross-section of community; (2) where whole class of persons excluded on basis of beliefs, attitudes, ct must assume some prejudice will result, even if unmeasurable; jury not representative cross-section; (3) both penalty, determination of guilt should be reversed. Black, J (Harlan, White, JJ) diss.

Albert E Jenner, Jr, Esq, 135 So LaSalle, Chicago 60603.

394.2. Adderly v Wainwright (MD Fla) (272 FSupp 530) Apr 13, 1967: Pets, all sentenced to be executed, brought class suit for (1) release of Pets or (2) new trials in manner consistent with requirements of Constitution; argued death sentence in Fla determined by juries required to be deathoriented: persons opposed to capital punishment disqualified from jury service; Def must waive 5th. 14th Amdt rights to attempt to secure mercy recommendation from jury; pressure on Def to plead guilty in order to waive jury trial; Pets not accorded full counsel rights. DC stayed all executions pending decision. Aug 9: DC held (1) Resp's motion to dismiss denied, class action habeas might be entertained, (2) Pets' 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. Dec 1968: DC called for briefs, responses; filed. Aug 1969: DC had not yet set date for argument. Pending.

Tobias Simon, Alfred Feinberg, Alfred Hopkins, Maurice Rosen, Esqs, ACLU, 502 Olympia Bldg, Miami 33131; NAACP Legal Defense and Educational Fund, Inc.

394.3. Hill v Nelson (ND Calif, #47318) Je 27, 1967: Class suit filed seeking habeas corpus, stay of execution, declaratory judgment for 58 men on death row. Pets claimed death sentences imposed without due process or equal protection because: (1) Pen C §§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) Pen C §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 h'g. Jy 10: CA 9 denied motion to vacate DC stay. Aug 24: DC rejected class aspect of suit, evacuated stays of all Pets not named individually, denied placing case before 3-judge ct, ordered Pets to exhaust state remedies. Pets Anderson, Saterfield filed habeas petitions in Calif Sup Ct: see Anderson, Saterfield, 394.4. 1969: case being held pending USSC decision in Maxwell v Bishop, 90 SCt 1578. [Maxwell decided on grounds of Witherspoon.]

Jerome B Falk, Jr, Esq, Hartford Bldg, 650 California St 94108; Roy Eisenhardt, Esq, 333 Pine St 94104; Gary D Berger, Esq, 1 Kearny St 94108; Richard Bancroft, Esq, 311 California St 94104; Garfield Steward, Esq, Center City Branch NAACP, 2006 Sutter St 194115; Harry J Kreamer, Esq, 1035 Russ Bldg 94104; all of San Francisco. Clinton White, Esq, 3300 Telegraph Ave, Oakland 94609; Prof Anthony Amsterdam, Stanford University Law School, Stanford 94305; Nathaniel Colley, Esq, NAACP, 1617 10th St, Sacramento 95814. NAACP Legal Defense and Educational Fund, Inc.

Memo in support of TRO, stay of execution: MCLL.

394.4. In re Anderson, In re Saterfield (Calif Sup Ct) (69 AC 638) Jury found Saterfield guilty of 1st degree murder of his common law wife, her daughter: death penalty. Jury found Anderson guilty of 1st degree murder of pawn shop dealer, 1st degree robbery, 3 attempted murders: death penalty. Judgments affirmed (64 C2d 633, cd 399 US 916; 65 C2d 752, cd 389 US 942, 964). Nov 11, 1967: Calif Sup Ct decided to hear Anderson, Saterfield petitions for writ of habeas corpus. Nov 14: Sup Ct issued stay of execution pending litigation. Dec: motion for evidentiary h'g denied. Mar 28, 1968: argument before Sup Ct: (1) exclusion of veniremen conscientiously opposed to death penalty improper, creates juries disposed to convict, (2) Pen C §§190, 190.1 unconstitutional: contain no standards for administering death penalty, (3) death penalty, per se and as applied, constitutes cruel, unusual punishment, (4) Pets denied right to counsel in post-state-appeal proceedings. Nov 18: Sup Ct remanded both Pets for retrial of penalty issue on basis of scrupled juror claims under Witherspoon, 391 US 510, 394.1; declared policy of providing counsel for indigent Defs in capital cases in certain post-appellate proceedings prior to execution; held death penalty, Pen C §§190 & 190.1 constitutional. Tobriner, Peters, Traynor, JJ, would have held imposition of death penalty in absence of prescribed standards violative of due process, equal protection under 14th Amdt.

Prof Anthony G Amsterdam, Stanford Law School, Stanford 94305; Jerome B Falk, Jr, Esq, 650 California St 94108; Roy Eisenhardt, Esq, 333 Pine St 94104; Harry J Kreamer, Esq, 100 Bush St 94104; Gary D Berger, Esq, 1 Kearny St 94108; Paul N Halvonik, Marshall W Krause, Esqs, ACLUNC, 503 Market St 94105; Richard Bancroft, Esq, 311 California St 94104; Garfield Steward, Esq, NAACP Legal Redress Comm, 2006 Sutter St 94115, all of San Francisco; Jack Greenberg, Leroy D Clark, Michael Meltsner, Charles S Ralston, Melvyn Zarr, Jack Himmelstein, Esqs, NAACP Inc Fund, 10 Columbus Circle, NYC 10019; Nathaniel Colley, Esq, NAACP, 1617 10th St, Sacramento 95814.

Pet's supplementary memo of law, excerpts from voir dire of trial jury: MCLL.

400. EXCESSIVE BAIL; PAROLE CONDITIONS
Forms: Application for release on own recognizance or bail. 1 Civil Rights Handbook 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. 1 Civil Rights Handbook 72p-72r.

401. Amount of Bail Set

401.28. New York v Shakur (NY Sup Ct, #1848-69) Apr 2, 1969: Indictments returned against 21 Black Panthers: conspiracy to bomb 5 stores, Bronx Botanical Gardens, railroad tracks. No bombs found at alleged targets. 14 taken into custody; bail set at $100,000 each; Defs diffused throughout NY jails, could not see counsel as group; Defs allegedly denied privileges of other prisoners. Apr-May: News media highly publicized events; made many statements allegedly untrue, prejudicial. Apr 10: habeas corpus denied. Apr
- 100 -

11: Bail reduction refused. Later bail for 2 minors reduced to $25,000, $10,000. May 5: Judgment on bail reduction motion reserved; 3 mth relay of trial due to pre-trial publicity denied. Je 12: Motions argued to reduce bail, suppress evidence from wire taps, improve jail conditions, dismiss case due to pre-trial publicity, disqualify NY Co justices for failure to rotate in criminal cases; on unconstitutionality of conspiracy statute. Request by Def's atty to confer with 14 Defs together at same time, place granted. Pending.

William Kunstler, Esq, 588 9th Ave, NYC 10034; Gerald Lefcourt, Esq, 25 E 26th, NYC 10010; Sanford M Katz, Esq, 30 E 42d, NYC 10017; Robert Projansky, Esq, 37 Union Sq W, NYC 10003.

And see New York v Shakur, 311.3.

402. Conditions Imposed
403. Denial of Bail
And see Cortez, 59.113.
403.17. Rap Brown v Fogel (USSC) (387 F2d 692, cd 390 US 1045) Governor of Md requested extradition of Pl; Governor of Va compiled and had Pl arrested. Pl filed habeas petition to test legality of Governor's determination; Pl denied bail during these proceedings. Sept 18, 1967: DC (ED Va) ordered bail with travel limited to NY area. Sept 27: DC denied Pet's motion for modification of bail conditions; Pl appealed; travel restriction denied 1st Amdt rights. Nov 28: CA 4, Haynsworth, J, affirmed DC restrictions. Pl appealed to USSC. Feb 1968: Pl violated bail by travelling to Calif; DC ordered bail forfeited and Pl arrested. Apr 11: CA 4 denied petition for bond and full habeas h'g. Apr 15: DC ordered Pl extradited to Md. Apr 29: USSC denied cert on travel restriction ruling.

Law Center for Constitutional Rights, 588 9th Ave, NYC 10034.

Petition for cert: MCLL.

And see Brown, 54.20, 54.20a, 54.21.

403.18. Brussel v US (USSC) (90 SCt 2) 1969: Fed'l grand jury ordered Def to produce corporate records; he refused under Fifth Amdt privilege. Oct 7: DC held Def in civil contempt; denied bail pending appeal. Oct 8: Def made emergency application for bail to CA 7. CA ordered US atty to respond by Oct 13. Oct 10: Marshall, Circuit Justice, granted bail; (1) Def not guaranteed immunity from prosecution, (2) Def not custodian of corporate records, (3) no reason to believe Def would not appear.
403.19. In re Newton (Calif Sup Ct) Jan 10, 1969: Pet, Def in Newton, 512.Calif.6, filed habeas petition after denial of bail pending appeal: (1) trial ct abused discretion by considering only issue of Pet's "threat" to community when primary purpose of bail is practical assurance Pet will attend ct when required, Pet made uncontroverted showing that he always had appeared when required; (2) Pet's character evidence, evidence of high regard of community for Pet would have overcome evidence of prior arrest record used to prove "threat" danger but for white judicial system's disrespect for black community and its leadership; (3) instantaneous removal from ctrm, prearrangements for transfer of Pet to state facility at close of bail h'g revealed ct made decision to deny prior to receipt of all evidence, arguments on motion for bail; (4) extraordinary circumstances-29,000 signatures on community petition of support, 12,000 votes for Congress-compel reconsideration of bail and question of "threat" criteria used to deny bail. Calif Sup Ct denied petition.

Charles Garry, Esq, 341 Market, San Francisco 94105; Fay Stender, Esq, 2905 Telegraph, Berkeley 94705.

And see Newton, 512.Calif.6.

403.20. Sellers v US (USSC) (89 SCt 2022) Negro Def arrested: refusal to submit to induction; bail: $1,000. Def attended student peace conference in Japan, returned. DC denied Gov't motion to cancel bail. With Gov't permission, Def went to Orangeburg, SC; arrested, indicted for inciting arson, property destruction, assault and battery, conspiracy; SC released him on bail. Def went to NY to see Dr; returned for DC trial; convicted; appeared 1 mth later for sentence: 5 yrs. DC denied bail pending appeal to CA on issue of systematic exclusion of blacks from SSS boards in SC; CA affirmed. Aug 17, 1968: Black, J: (1) Individual Justice must make independent determination re bail (F Rules Crim Proc 46(a) (2), 18 USC §§3146, 3148); (2) bail can be denied "only for the strongest of reasons," eg, Def will flee or pose danger to another person or to community; (3) SC granted bail and fed'l crime is not one of physical violence; held DC should fix bail between $2,500 and $5,000, required Def to report once every week or two. June 9, 1969: USSC denied cert; Douglas, Warren, Marshall, JJ, diss: Def raised issue of systematic exclusion by pre-induction suit; denied by DC, affirmed by CA; USSC should decide merits.
404. Miscellaneous Bail Problems
405. Fines (and see 468)
410. CRUEL AND UNUSUAL PUNISHMENT (and see 304, and 461)
UN DECLARATION OF HUMAN RIGHTS: Art 5.

And see Johnson, 51.Miss.10.

411. In Criminal Cases (and see 151, 394, 461, 557, 580, 590)
And see cases at 304; Harris, 430.37; Smith, 430.42; Moore, 580.25; Stockton, 51.Calif.20.
411.28b. Michigan v Hoy (Mich Sup Ct, #51563) (143 NW2d 577, 1966) Jy 31, 1964: Defchronic 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. 1968: Mich Sup Ct affirmed.

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.

411.28f. Powell v Texas (USSC) (392 US 514) Dec 1966: Def arrested: public drunkenness. Corporation Ct found Def guilty: $20. Def appealed. At trial de novo in Co Ct, Def's counsel urged Def "afflicted with the disease of chronic alcoholism which has destroyed the power of his will to resist the constant, excessive consumption of alcohol; his appearance in public in that condition is not of his own volition, but a compulsion symptomatic of the disease of chronic alcoholism"; criminal punishment would be cruel, unusual in violation of 8th, 14th Amdts. Ct's findings of fact supported part of Def's contention but ct ruled, as matter of law, that chronic alcoholism not constitutional defense; increased fine to $50. Je 17, 1968: USSC affirmed (5-4), Marshall, J (joined by Warren, CJ, Black, Harlan, JJ): trial ct findings failed to establish claim of cruel, unusual punishment; current state of medical knowledge inadequate to support contention that Def suffered from loss of control, inability to abstain from alcohol; defended criminal punishment
- 101 -

as form of treatment: jail (1) isolates potentially dangerous alcoholics from other people; (2) serves as deterrent to potential alcoholics; (3) may strengthen incentive to control frequency and location of drinking experiences; indicated civil commitment facilities "may not be any better than jails." Black, J (Harlan, J) conc. White, J, conc in result. Fortas, J (Douglas, Brennan, Stewart, JJ) diss: issues not decided by reference to medicine or penology; Def accused of being in condition he had no capacity to change or avoid; "a person may not be punished if the condition essential to constitute the defined crime is part of the pattern of his disease and is occasioned by a compulsion symptomatic of the disease"; punishment would be cruel, inhuman within prohibition of 8th Amdt.

Don L Davis, Esq, Austin Nat'l Bank Bldg, Austin, Tex; Peter Barton Hutt, Esq, 888 16th St NW, Washington, DC 20006, for ACLU amicus.

ACLU brief: MCLL.

And see Budd, 411.28h.

411.28g. Seattle v Hill (Sup Ct Washington #39050) May 4, 1966: Def-chronic alcoholic arrested; drunkenness (Seattle ord #16046). Convicted: 180 days. Def appealed to Washington Sup Ct: (1) conduct involuntary, (2) punishment for exhibiting disease symptom violates 8th Amdt. 1968: Sup Ct affirmed.

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.

411.28h. Budd v Madigan (USSC) (385 US 909 (1966)) Nov 23, 1964: Pet arrested: public drunkenness (Calif Penal Code §647f). Apr 2, 1965: Muni Ct, without jury, found Pet guilty, sentenced: $22 or 2 days. Oct 22, 1965: App Dept, Alameda Co Super Ct affirmed. DCA denied application for certification of appeal. June 6, 1966: Calif Sup Ct denied habeas petition. Oct 17: USSC denied petition for cert; Fortas, Douglas, JJ, diss. Je 21, 1968: DC denied habeas petition. Nov 12, 1969: CA 9 affirmed denial. Feb 3, 1970: Pet filed petition for cert to USSC, alleged: (1) record contained evidence bringing Pet within doctrine of Powell v Texas, 392 US 514, 411.28f, proscribing as cruel, unusual punishment conviction of alcoholic for public drunkenness where resisting drunkenness impossible, where avoiding public places when drunk impossible, (2) unconstitutional to prosecute Pet since "inability" of §647f may not be basis of criminal offense, void for vagueness as standard of criminal responsibility. Pending.

George Duke, Esq, 2527 Dwight Way, Berkeley 94704; ACLUNC, 503 Market St, San Francisco 94105.

Petition for cert: MCLL.

411.46. Richmond v Odell (Oxford) (ND Miss, #EC669K) 1966: Pl, black civil rights leader, sent to county prison farm for traffic violation, received severe beating. Mar 12, 1966: Filed action against Def, warden of prison farm: cruel and unusual punishment. Jury trial granted for Sept 19, 1968. Pending.

Dennison Ray, Jonathan Shapiro, Esqs, 233 N Farish, Jackson 39201.

411.47. Inmates of Cook Co Jail v Tierney (ND Ill, E Div, #68 C 504) Defs failed to maintain Cook Co Jail consonant with Constitution, fed'l regs: inadequate facilities, care, protection from other inmates. Apr 8, 1968: Pl filed class action seeking improvement. Defs filed motion to dismiss. Aug 22: DC, Hoffman, J, denied motion: (1) class action proper under FRCP 23, (2) fed'l question presented, (3) venue proper as to out-of-state Def-fed'l officials, (4) venue proper as to Def-state officials in charge of fed'l prisoners. Dismissed by agreement: substantial changes made in jail.

Stanley A Bass, Esq, 11 S LaSalle St; Charles Pressman, Esq, 134 N LaSalle St; Edward G Thompson, Esq, Commn Legal Counsel, 116 S Michigan Ave; David Long, Esq, ACLU, Ill Div, 6 S Clark St; all of Chicago 60603.

Dec 1967 Cook Co Grand Jury Report on Cook Co Jail; amended complaint; memo in opposition to motion to dismiss; transcript of proceedings: MCLL.

411.48. California v Melkonian (San Francisco Co Super Ct, #66898) Feb 1967: Police searched Def's home, charged him with selling marijuana, possession with intent to sell. Def convicted at jury trial, but filed motion in arrest of judgment arguing marijuana laws were cruel and unusual punishment, and denied equal protection. Prosecutor allowed Def to offer over 2000 affidavits in support of the motion, without exercising right to cross examine. Def also offered report prepared by Deputy Dir of HEW attacking fed'l drug policy, referring to marijuana as "clearly a recreational drug." Ct denied motion. Jy 1968: Def appealed.

Richard Cohen, Esq, 360 Industrial Center Bldg, Sausalito 94965.

411.49. Warren Wells v Madigan (Alameda Co Super Ct, #42287) Apr 8, 1969: Pet held in Co isolation cell, no toilet, only hole in floor flushed every 24 hrs, no washing facilities, during 5-day term only one shower, no clothes allowed, restricted diet, other privileges denied. Pet filed habeas petition. Super Ct ruled standards must meet Jordan v Fitzharris, 257 FSupp 674; granted injunction, ordered wash basins, drinking taps, toilets must be installed, towel or wash cloth provided, clothing must be permitted unless reasonable danger it would be used for self-harm; denied habeas.

Charles Garry, Esq, 341 Market St, San Francisco 94105.

Memo of decision: MCLL.

411.50. Jackson, Ernst, Mask v Bishop (CA 8) (268 FSupp 804, 404 F2d 571) Pls-Arkansas prisoners sued for injunction against use of bullhide strap as disciplinary measure (28 USC §§1343(3-4); 42 USC §1983). DC (ED Ark) enjoined use of strap except with "proper and adequate safeguards." Pls appealed. Dec 9, 1968: CA vacated DC judgment, remanded. Jan 1, 1969: DC issued mandate to abolish use of straps for discipline in Ark prisons.

Edward L Wright, Esq, 1600 Tower Bldg, Little Rock 72201; William S Arnold, Esq, PO Box 628, Crossett, Ark 71635.

411.50a. Arkansas v Bruton (Pine Bluff Cir Ct) Aug 1966: state police began investigation of state prison system. Bruton, asst sup't of Tucker Prison Farm, resigned. Gov Faubus dismissed 3 other guards at Tucker; did not release full report or file charges. 1967: Gov Rockefeller took office, released report. Bruton, 2 other guards, charged: inflicting excessive punishment by flogging and an electrical device. May 13, 1968: Smith, Cir J, dismissed: state law too vague in limitations on punishment to permit charge of inflicting excessive punishment.

And see Newton v Oakland, 512.Calif.6a.

411.51. Lane v Carberry (Calif Sup Ct) Jan 27, 1969: Pet, while incarcerated in San Francisco city prison, observed Negro man placed in cell next to his. Following morning, Pet and others observed that man had no blankets, took no breakfast, did not answer calls. After breakfast Pet noticed man in pool of blood from severe cut in neck, chest. Pet and others allegedly informed officers in charge repeatedly to no avail. Police told Pet about 11 am if Pet got man's name he could be sent to hospital; Pet complied. After lunch, injured man taken to San Francisco Gen'l Hospital. Feb: Pet and others similarly.
- 102 -

situated filed petition in Calif Sup Ct for alternative, peremptory writ of mandate to compel appointment of at least 1 physician to be available at all times at city jail, 1 to be available at all times at Co jail, that salaries be set, paid by City and Co: (1) Sup Ct has original jurisdiction where time is of essence, questions of great public importance raised, (2) Calif Pen C §4023 requires at least 1 licensed physician in attendance at all times at each city or Co jail with an average inmate population of 100 persons per day, (3) duty imposed by statute is for benefit of general public, which includes Pet, currently incarcerated, (4) if benefit is not for general public, it is at least for currently incarcerated prisoners, (5) mandamus will lie to compel performance of §4023, (6) Pet and others similarly situated, have made full demand on public officials, who have refused to perform duties under §4023. Pending.

Richard M Sims, Esq, 532 Natoma St, San Francisco 94103.

Petition, memo: MCLL.

411.52. Sostre v Rockefeller (SD NY, #4058) Shortly after arrival at Green Haven Prison, Pl-Black Panther sentenced to punitive segregation, kept there over 1 yr: lying to warden, refusal to discuss political affiliations. Pl filed suit against NY Governor, Commr of Corrections, 2 wardens; tried. Jan 1970: post trial memo filed: (1) Pl's punishment and its length disproportionate to alleged crime and constituted cruel, unusual punishment, (2) Pl denied due process in disciplinary h'g: no notice of charges, counsel, right to call witnesses, right to confrontation or cross-examination, written record, right to appeal, (3) unlawful censorship, interference with Pl's correspondence with cts, counsel violated 1st, 14th Amdts, (4) racially segregated prison facilities violated 13th, 14th Amdts. Pending.

Victor Rabinowitz, Kristin Booth Glen, Esqs, 30 E 42nd St, NYC 10017.

Post trial memo: MCLL.

512.Ala.5. Alabama v Swain (Talladega Co) (Ala Sup Ct) (380 US 202) Cir Ct convicted black Def of rape: sentenced: death. 1965: USSC denied petition for cert. Def filed coram nobis petition: discriminatory sentencing of blacks for rape; unfettered jury discretion in sentencing; cruel, unusual punishment. Jy 31, 1966: petition denied, execution date reset. Jan 14, 1969: arguments heard in Ala Sup Ct. Pending.

NAACP Inc Fund.

412. In Rendition, Extradition Cases

412.16. In re Seale (CA 9) May 22, 1969: Defs, 8 members of Black Panther Party, arrested, charged: kidnapping, murder, conspiracy to commit murder, kidnapping of party member Alex Rackley. Gov Dempsey (Conn) signed documents seeking rendition of Hithe, 412.16a, Def Seale. Gov Reagan (Calif) issued arrest warrant; Def held for rendition. Feb 16, 1970: Def filed habeas petition in Super Ct to block rendition: charges based on insufficient evidence obtained from coerced confession given by one of Defs in exchange for reduced plea. Ct denied without opinion. DCA affirmed without opinion. Calif Sup Ct denied petition without opinion. Mar 1970: Def filed suit in ND Calif to block rendition: denial of due process by Calif cts. DC dismissed without opinion. CA 9 dismissed appeal without opinion.

Charles Garry, Esq, 345 Market St, San Francisco 94105.

And see Seale v Hoffman, 371.18; Dellinger, 54.32.

412.16a. In re Rory Hithe (Denver Dist Ct) 1969: Upon issuance by Conn of documents seeking his rendition, Pet-Black Panther imprisoned in Denver co jail as fugitive. Oct: Pet filed habeas petition in Denver Dist Ct, alleging illegal detention: (1) Conn rendition documents fail to conform to Colo statutes, therefore illegal, (2) Pet not the person named by Conn documents, not in state of Conn during time in question, (3) Governor of Conn did not make substantial finding that Pet fugitive from justice, delegated to another the duty of passing on validity of requisition papers, (4) affidavits in support of rendition based on hearsay, (5) information and affidavits did not state a crime as having been committed in Conn. Pet further alleged (1) denial of access to publications, newspapers while in jail, (2) illegal detention in maximum security cell. Pending.

Leonard E Davies, Esq, 330 Majestic Bldg, Denver 80202.

Petition: MCLL.

412.17. Matter of James Jiles 1967: Jiles, black Philadelphia resident, arrested as result of family quarrel; during proceedings, it was found he had escaped from Georgia chain gang 24 yrs before. Ga Gov Maddox asked Pa Gov Shafer for extradition. Je 1969: attys submitted memo to Gov Shafer asking him to refuse arrest and extradition: substantial doubt of guilt on original charge, unlawful trial, clear evidence of rehabilitation in form of affidavits from union, church, employer, neighbors, and DA's office. Jy: Gov Shafer refused extradition (first such refusal in Pa): based on merits of Ga conviction.

David Kairys, Vincent J Ziccardi, Esqs, Defender Association of Philadelphia, 1 N 13th St, Philadelphia 19107; William Cortell, Esq, Counsel to Local 57, Laborers International Union of North America, AFL-CIO, 1328 Melon St, Philadelphia 19123.

Brief of Gov Shafer: MCLL.

413. In Civil Cases
414. Capital Punishment (and see 394, 411, 461)
And see Taylor, 512.Ala.17; Laws, 461.14; Massey, 512.Ga.24.
414.4. Georgia ex rel Abrams v Smith, Warden (Tattnall Super Ct, #5151) Pet convicted: rape: death. Je 1966: Ga Sup Ct sustained conviction. Je 1967: Pet filed habeas 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. Dec: Super Ct granted writ on grounds of jury discrimination. Pet pleaded guilty on retrial, sentenced: life.

Howard Moore, Jr, Esq, 1154 Citizens Trust Co Bank Bldg, 75 Piedmont Ave NE, Atlanta 30303.

NAACP Legal Defense and Educational Fund, Inc.

And see cases at 512.

414.10. Crawford v Bounds (CA 4) (395 F2d 297) 1963: Appt, 30 yr-old black man convicted in NC state ct of 1st degree murder during perpetration of rape of 8 yr old black girl. 1967: Appt's application for habeas corpus in ED NC denied. Appt filed appeal alleging several grounds for reversal including denial of right to trial by impartial jury because ct permitted DA to challenge for cause prospective jurors who expressed sentiments against capital punishment. Apr 11, 1968: CA found that the more than 40% of venire having conscientious or unexamined scruples against death penalty were summarily excluded, not interrogated to see if feelings on punishment had any bearing on ability to determine guilt or innocence, whereas juror who admitted he had "more or less" fixed opinion from reading newspapers but could "disabuse" his mind, "erase" opinion, was not dismissed for cause; also one of 13 jurors finally selected stated he believed in "eye for an eye," felt that it was his "duty" to sentence Def found guilty of murder to death. CA reversed,
- 103 -

remanded, held: under NC statute degree of punishment is jury question, hence, elimination of veniremen who felt duty not to impose capital punishment, while veniremen with converse duty are permitted to serve results in a jury strongly biased in favor of capital punishment, which denies Def due process; when judge not allowed by statute to decree sentence, Ct recommended two-phase trial system (used in Calif, NY): In 1st phase Def will be assured fairly representative cross-section of all jurors who are able to determine guilt or innocence impartially, regardless of their views against capital punishment; while in 2nd phase, state will be assured that jury called for sole purpose of determining Def's punishment, will be composed only of persons whose conscience will allow them to impose the whole gamut of punishments allowed by statute.

M C Burt, Jr, Esq, 1307 S Mangum, Durham, NC 27701; Prof William Van Alstyne, Duke Univ, Durham, NC 27706.

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, 262, 281, 342, 520s, 571

Rights of Incompetents, 440

Rights of Juveniles, 56, 230, 560

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, 531

Fines, 405, 468

OEO Legal Services Offices, 375

Small Claimants' Problems, 376

Suits for False Arrest, Police Practices, 304

Analysis: George Olshausen, Rich and poor in civil procedure. 1 Civil Rights Handbook 8a-8u. (Nat'l Lawyers Guild Publications, Box 673, Berkeley, Calif 94701.)

Analysis: The poor and angry. 3 Civil Rights Handbook 287-292e.

Bibliography: Due process/equal protection for the poor. 3 Civil Rights Handbook 287b.

Movie for rent: Welfare Rights, 30 mins, $40; Am Documentary Films, 379 Bay St, San Francisco 94133; 336 W 84th St, NYC 10024.

Periodical: Welfare Law Bulletin, Project on Social Welfare Law, NYC School of Law, NYC 10003.

421. Social Welfare Programs—Local; Local Administration of Federal Programs (and see 251, 254, 255, 261, 263, 346, 426)
Form: OEO lawyer letter to county welfare dept. 3 Civil Rights Handbook 288 (Nat'l Lawyers Guild Publications, Box 673, Berkeley, Calif 94701.)

Brief: Fed'l, state regulations on eligibility for AFDC. 3 Civil Rights Handbook 288d-288g.

And see Grey, 553.NY.6; Adams, 295.20.


421.Ala.1. King v Smith (USSC) (277 FSupp 31, 390 US 903, 392 US 309) Je 1954: Ala instituted reg requiring termination of AFDC payments to otherwise qualified children if mother had sexual relations with able-bodied man, married or single, considered "substitute father" more than two times a year in or outside her home; pregnancy or baby under 6 mths constituted prima facie evidence of substitute father. 1966: Pls brought class action seeking injunctive relief restraining Defs, state officials from enforcing reg. 1967: 3-judge fed'l ct (MD Ala) found reg inconsistent with Social Security Act, unconstitutional violation of equal protection clause. Je 17, 1968: USSC failed to reach constitutional issue, held (9-0) Warren, CJ: reg inconsistent with Social Security Act which makes protection of children paramount goal of AFDC, precludes states from denying AFDC assistance to dependent children on basis of mothers' alleged immorality or to discourage illegitimate births: "destitute children who are legally fatherless cannot be flatly denied federally funded assistance on the transparent fiction that they have a substitute father." Douglas, J, conc: reg unconstitutional: aimed at "punishing" mothers who have nonmarital sexual relations; denies needy children equal protection.

Martin Garbus, Esq, c/o Roger Baldwin Fund, 156 Fifth Ave, NYC 10010.

Appt's brief: MCLL.

421.Ariz.2. Dews v Henry (DC Ariz, #6417) Aug 10, 1967: Pl, welfare recipient, brought class suit for injunctive, 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. Aug 15: 3-judge ct convened. Sept 7: Defs filed motion to dismiss: jurisdiction, exhaustion, abstention, improper joinder. Denied. Mar 13, 1969: DC held statute violates equal protection, Social Security Act. State repealed statute, superseding it, for ADC only, with percentage reduction.

Gerald A Pollock, Esq, 45 W Jefferson St, Phoenix 85003; Edward Sparer, Stephen Wizner, Jonathan Weiss, Esqs, Center on Social Welfare Policy and Law, 401 W 117th St, NYC 10027; Robert M Cover, Columbia Law School '68, 10027.

421.Ariz.3. Allen v Graham (Ariz Ct of App, 2CA—Civ) Appt denied OAS by Def-Welfare Dept: Appt, with sister, jointly owned real estate valued at $8,442.00. Ariz law forbids OAS to those with "resource" of $8,000. Appt filed suit; trial ct dismissed since Ariz law excludes Dept decisions from judicial review. Appealed: administrative decisions on legal questions reviewable by cts; rulings to contrary denied constitutional rights of access to cts, due process, equal protection. Pending.

Anthony B Ching, Esq, Legal Aid Society of the Pima Co Bar Assn, Tucson.

421.Calif.14. Stallworth v California (ND Calif, #48393) 1967: Pl-AFDC recipient in good faith received, spent overpayment; Welfare Dept reduced later payments to cover. Dec 13: Pl filed class action to enjoin such reductions when recipients no longer hold the overpaid funds: violates HEW Regs, due process. Jan 22, 1968: HEW changed effective date of Reg covering payment reduction (Handbook of Public Assistance Administration, Part IV, §3120) from July 1967 to July 1968; changed text to allow reduction if overpayment result of recipients' willful acts. Pls filed Supplemental Claim for Relief (42 USC §§1983, 1985) alleging state, fed'l officials' conspiracy to make such changes. DC, Wollenberg, J, issued TRO, granted 3-judge ct. Pending.

Cherie A Gaines, Esq, Alameda Co Legal Aid Society, 1815 Telegraph, Oakland 94607.

- 104 -

421.Calif.19. Marshall v California (ND Calif, #47401) 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: failed to raise substantial fed'l question. Aug 18: CA 9 directed DC to hear case. 1968: Burns, 421.Calif.19a, filed on same issue, but dealing with all categories of fed'l welfare and with Co General Assistance as well. Apr 17, 1968: DC ordered stay in light of Burns. Pending.

Kenneth Hecht, Esq, San Francisco Neighborhood Legal Assistance, 1095 Market St, San Francisco 94103.

Order (DC): MCLL.

421.Calif.19a. Burns v Montgomery (USSC) (299 FSupp 1002, 89 SCt 1623) Pls moved to Calif, applied, variously, for AFDC, old age welfare; denied under Calif Welf and Insts Code §§12050(b), 11252, 17104, which require 1 yr residence for such funds. 1968: Pls brought class suit in DC (ND Calif) attacking Code §§: alleged violations of 14th Amdt equal protection, constitutional right to free interstate travel; asked preliminary injunction. Apr 17: DC granted preliminary injunction; approved suit as class action; found danger of imminent harm requisite for preliminary injunction. Apr 29: DC denied Def-Welfare Dept's motion for stay of injunction. May 3: USSC Justice Douglas granted stay. May 10: Douglas reversed self; vacated stay. Sept 26: Defs appealed to USSC. May 5, 1969: USSC per curiam granted permission to proceed in forma pauperis; affirmed DC action (Black, Harlan, JJ, diss). Pending on merits.

Kenneth Hecht, Esq, San Francisco Neighborhood Legal Assistance, 1095 Market St, San Francisco 94103.

Order (DC), motion for reconsideration of order granting stay (USSC): MCLL.

421.Calif.21. Diaz v Quitoriano (DCA, 3d Dist, #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. Sutter Co Super Ct dismissed: Pls had adequate appeal to Def-Dept of Welfare. Pls sought writ of mandate from DCA: irreparable harm would result to persons not informed of rights during time necessary to appeal Super Ct's ruling. DCA denied writ. Je 7, 1967: Sup Ct denied h'g. Pls appealed Super Ct's dismissal. Jan 15, 1969: DCA reversed, remanded: class action need not exhaust administrative remedies. Super Ct, on remand, held inquirors should be advised of rights to make written application, to fair h'g; Defs to determine urgency of need, respond with immediate assistance pursuant to Calif Welfare Code.

Myron Moskovitz, Esq, Calif Rural Legal Assistance, 116 7th St, Marysville 95901.

421.Calif.23a. Jenisch v Dept of Social Welfare (ND Calif, #46853) Oct 16, 1967: Pl-mother deserted by husband. Dec 28, 1967: Pl sought AFDC benefits; denied: not separated 3 mths, divorce proceedings not filed (Welfare and Institutions Code §§11250(b), 11254; Dept Manual of Policies and Procedures §c-161.20). Jan 2, 1968: Pl, Catholic, filed class suit for injunctive relief: constitutional right to religious freedom, marital happiness, due process. DC, Carter, J, ordered Def to pay AFDC benefits pending 3-judge ct consideration of constitutional question. Pending.

Robert L Gnaizda, Esq, Calif Rural Legal Assistance, 711 S Main St, Salinas 93901.

421.Calif.29. Alameda Co v Aberle (DCA, 1st Dist) (268 CA2d 424) Co moved for reimbursement of welfare payments to Def's indigent parent under Calif Welfare and Institutions Code §12100. Def claimed calculation based on whole income deprives wife of vested community property rights. Dec 23, 1968: DCA held statute not discriminatory: community property, except for wife's earnings, liable for all husband's debts.

Fred W Aberle in pro per.

421.Calif.30. In re Pierce (San Francisco Super Ct, Juv Ct, # #65-044,6 and 69-793) 1967: Welfare recipient sought return of 5 children from foster homes, where they were placed by ct proceeding at which she was not represented by counsel. Pet's counsel supoenaed Child Welfare Dept file, including psychiatric reports; Dept of Social Services objected: records "confidential," privileged "official information." Apr 22, 1968: petition granted: counsel must be permitted access to all such information.

Harvey M Freed, Esq, 2701 Folsom St, San Francisco 94110.

Order: MCLL.

421.Calif.31. Matter of Rudolpho Lara (Unemployment Insurance App Bd, #SJ-4160-045) 1968: Pets asked for h'g; alleged Dept of Employment, Farm Labor offices have (1) referred workers to employers who do not conform with fed'l, state, local health and sanitation laws, (2) discriminated against Mexican-Americans, referring them to farm labor regardless of history, allowing others to draw benefits without farm labor referrals. Pets requested such practices be terminated. Pending.

Robert Gnaizda, Esq, California Rural Legal Assistance, 711 S Main St, Salinas 93901.

And see 427.

421.Calif.32. Gosney v California (Los Angeles Co Super Ct, #939378) Pls, Welfare recipients, dissatisfied with faulty computer administration of welfare disbursements, filed class action requiring alternative fail-safe method of disbursing AFDC payments in event of computer failure. Pending.

Charles E Jones, Michael H Shapire, Stanton J Price, Esqs, Western Center on Law and Poverty, USC Law School, University Park, Los Angeles 90007.

Valerie Vanaman, Esq, Legal Aid Foundation of Long Beach, 236 E 3d St, Long Beach 90812.

421.Calif.33. Baserra v Bond (San Luis Obispo Co Super Ct, #34829) Pls, predominantly Spanish speaking AFDC recipients, referred to menial work, not provided with training, English language education. Class suit filed alleging misuse of training, education funds by Defs, various co agencies; claiming $10,000 personal injury special damages on behalf of Pl-recipient for loss of dignity, loss of privacy, humiliation due to Defs' failure to provide training to get off welfare. Pending.

Carol Ruth Silver, Esq, Calif Rural Legal Assistance, 257 S Spring St, Los Angeles 90012.

421.Calif.34. Re Mooney (Calif Unemployment Insurance App Bd) Apr 29, 1969: Comp denied unemployment benefits: unkempt appearance precluded job referrals, work offers. H'g arranged on alleged violation of constitutional rights, denial of due process, equal protection; former employers testified for Comp. Jy 18: Comp awarded benefits retroactive to Apr 29.

Jay Allen Eisen, Esq, East Bayshore Neighborhood Legal Center, 1238 Willow Rd, Menlo Park 94025.

And see Spangler, 427.19; Schiffman, 427.20.

421.Calif.35. Kerr v Montgomery (ND Calif, #50520) Pl, mother of child between 16 and 18 yrs old, withdrew child from school when school threatened referral to Juvenile Probation Dept. AFDC grant terminated under Calif statutes, Regs ruling ineligible persons 16-18 yrs old not in
- 105 -

school, disabled. Pl filed class action: restrictive eligibility contrary to Social Security Act as interpreted in King v Smith, 392 US 309, 421.Ala.1, denial of equal protection. DC issued TRO pending 3-judge ct consideration. Pending.

Stephen Adrian, Peter Sitkin, Steve Antler, Esqs, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103.

421.Calif.36. McCullough v Terzian (DCA, 1st Dist, #1 Civ 25830) Mar 31, 1968: AFDC payments to Pl terminated: failure to provide essential evidence to investigator prior to termination. Apr 19: Pl filed class petition for writ of mandate and relief based on provisions of Welfare and Institutions Code, due process. Alameda Co Super Ct ordered Defs to reinstate AFDC payments effective Apr 1; declared State Dept of Social Welfare Public Social Services Manual invalid because lacked provision for h'g with procedural safeguards; required Defs to hold fair h'g within 20 days. Jy 10: DCA held Pl eligible for benefits, discontinuance not correct. Defs filed petition to remove to ND Calif, but case remanded back to Alameda Co Super Ct. Pending.

Legal Aid Society of Alameda Co, 1815 Telegraph, Oakland 94612.

Pls' brief (DCA): MCLL.

421.Calif.37. Re Paynes (Calif Dept of Social Welfare, #38-60-510632) Pet, alcoholic, requested Aid to Needy Disabled; denied. May 16, 1968: granted h'g. Pet claimed to be needy disabled person within meaning of Welfare and Institutions Code §13501; exclusion of alcoholics, welfare Reg 42-205.2 beyond authority of Dept, denies equal protection. Pending.

Phillip B Zeigler, Esq, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103.

Pet's memo: MCLL.

421.Calif.38. Little, Ochinero v Montgomery (San Francisco Super Ct, #592896) Jy 1968: Pets filed petition for writ of mandate to compel state to publish and keep current a digest of State Dept of Social Welfare Fair Hearing decisions: Resp has statutory duty to compile and distribute such a document (Calif Welfare and Institutions Code §10964); the 1965 digest is inadequate, not current, mandamus lies where purpose of writ is to secure performance of public duty, to correct abuse of discretion, where construction of statute is involved. Pending.

Steven J Antler, Esq, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103.

Petition, memo: MCLL.

421.Calif.39. Ivy v Montgomery (San Francisco Super Ct, #592705) Je 20, 1968: Pls, AFDC recipients, brought class action against Calif Dept of Social Welfare: present rent allowances (1) not adequate for safe, healthful housing as required by Calif Welfare and Institutions Code §11452, (2) not based on actual housing costs, (3) dictated without notice or h'g, violating due process. Pls sought declaratory relief, injunction, money difference between allowances and actual cost of healthful housing. Sept 11, 1969; Super Ct, Weinberger, J, held cost schedules invalid under §11452; ordered Dept to apply new schedules, immediately to pay Pls difference between their housing allowance and their actual rents pending adoption of new schedule.

Peter Sitkin, Steven Antler, Gilbert Graham, Esqs, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market, San Francisco 94103.

Complaint, judgment, findings of fact and conclusions of law: MCLL.

421.Calif.40. Kaiser v Montgomery (ND Calif, #Civ 49613) Jy 15, 1968: Pls filed class actions for unmet welfare needs from work-related expenses, average or large family size, under state laws setting maximum aid limitations scale with unequal increases for additional children unrelated to each child's need. Pls allege violations of equal protection, right to have work-related expenses considered under Social Security Act (42 USC §609), to have specified parts of earnings disregarded under 42 USC §§602(a)(8), 2981. Pending.

Alameda Co Legal Aid Society, 428 13th, Oakland 94607; San Francisco Neighborhood Legal Assistance Foundation, 1095 Market, San Francisco 94103.

421.Calif.41. James v Montgomery (San Francisco Super Ct) Pl, AFDC recipient, alleged Def-Dep't of Social Welfare should establish educational trust for children to receive support payments which were currently being deducted from Pl's AFDC payments, under Reg 44-113.243. Apr 16, 1968: Referee at administrative h'g decided for Pl, requiring Def-Dept of Social Welfare to place retroactive payments into fund. Super Ct issued writ of mandate against Def to show cause for noncompliance. Pending.

Peter Sitkin, Stephen Elias, Esqs, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103.

Pl's memo for h'g: MCLL.

421.Calif.42. Nuttall v Dept of Social Welfare (San Mateo Co Super Ct, #139983) 1968: Pl, ATD recipient, filed administrative mandamus action to obtain records of fair h'gs which she had attended: claimed records should be compiled at public expense as Pl financially incapable. Super Ct granted motion: ordered records to be produced within 2 weeks.

Robert Zweig, Esq, 916 Kearny, San Francisco 94133.

421.Calif.43. Ramos v Fare, Montgomery (SD Calif, #69-259-K) Pl, schoolchild, repeatedly missed school, was tardy. May 20, 1969: Juvenile ct removed Pl from home, placed her in care of relatives. Pl subsequently missed school, due to poor health and lack of transportation; Def-Deputy Probation Officer of San Diego Co advised Pl's mother that Pl would be placed in foster home. Pl not represented by counsel at any juvenile proceedings. Sept 2: Pl sued in DC: sought 3-judge ct, (1) alleged increased welfare benefits available for child care at foster home denial of equal protection, violation of fed'l law, (2) foster home placement for truancy denial of due process. Je 4, 1970: 3-judge ct granted Def's motion to dismiss on (1); did not discuss (2).

David H Getches, Robert S Pelcyger, Esqs, California Indian Legal Services, 332 S Juniper St, Escondido 92025.

Complaint, memo, opinion: MCLL.

And see 426.

421.Calif.44. Matter of H (Dept of Social Welfare, #38-30-339636) Pet, AFDC recipient, refused to sign county form to refer absent parent to DA. Mar 1968: AFDC payments discontinued for failure to cooperate. At h'g, referee awarded retroactive payment: State Regs did not require Pet to refer, only Co need sign, confusion among Dept's staff as to purpose of form, form out of conformity with State Regs.

Stephen Elias, Clifford Gould, Esqs, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103.

421.Calif.45. Matter of ES and JS (San Francisco Dept of Social Services) Dept terminated AFDC payments on discovering Pet was fully employed; claimed repayment of $3,000. Pet had arranged independent debt management
- 106 -

plan turning over entire earnings to discharge debts. At h'g, Pet claimed involuntary deduction of earnings from income left him eligible for AFDC pursuant to Public Social Services Manual §44-113.233. H'g referee found for Pet.

Stephen Adrian, John Smith, Esqs, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103.

421.Calif.46. Muniz v Montgomery (ND Calif, #49909) For facts and issues, see Muniz v Cohen, 422.17. Pl, in class action, sued Def-Director of State Welfare Dept; asked injunction to prohibit inclusion of income under MDTA in determining AFDC payments; asked retroactive payments equal to sums by which AFDC payments had been reduced. DC granted Def's motion for summary judgment; Pl appealed. Pending.

Peter Sitkin, Steven Antler, Sidney Wolinsky, Esqs, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market, San Francisco 94103.

Complaint: MCLL.

And see Muniz, 422.17.

421.Calif.47. Loredo v Sierra View Hospital (Tulare Co Super Ct, #67414) Pet, farm worker in need of surgery, sought admission to Resp-hospital. Resp refused to admit Pet on showing of Pet's Medi-Cal card. Nov 22, 1968: Pet filed class action, 1st of its kind in state, alleging Resps did not want beds filled with Medi-Cal patients; Resps had express policy of discrimination against Medi-Cal patients; relief sought under Calif Welf & Inst C, Chap 7, 8; Div 9, §14000. Jan 7, 1969: Super Ct issued peremptory writ for Pet, ordered Resps to show compliance within 10 days. Feb 5: Super Ct held "law is clear that Resp (hospital) is a gov'tal agency ... as such it may not discriminate between classes or groups of the public without substantial justification. No legally acceptable justification has been shown...."

Gary Bellow, Esq, Western Center on Law and Poverty, Law Center, Rm 400, Univ of S California, Los Angeles 90007.

Petition, memos, answer; writ, judgment, findings of law: MCLL.

421.Calif.48. Paulson v Finch (ND Calif) 1969: Pl-father employed full-time; earnings below subsistence level defined by Def-San Francisco Dept of Social Services. Def denied supplementary AFDC assistance. Pl filed for temporary injunctive relief; class action for 3-judge ct for permanent injunction, consideration of constitutional question of ineligibility of fully employed father earning below subsistence levels. Pending.

San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103.

Complaint: MCLL.

421.Calif.49. Lewis v Montgomery (USSC) (pin 90 SCt 237) Oct 1968: Pls filed class action seeking to enjoin enforcement of State Reg providing that "man assuming the role of spouse" (MARS) is "bound to support" the "wife's" children if his income is greater than a minimum poverty level. (Calif Welf and Inst C §11351). Pls claimed §11351 unconstitutional, inconsistent with HEW Reg providing that in determining benefits, income of a MARS is considered only if there is "proof of actual contribution" (45 CFR §203.1). Oct 31: DC issued TRO. Dec 19: 3-judge ct (ND Calif) found HEW Reg invalid, §11351 in conformity with Social Security Act provision that state agency shall take "into consideration any other income, resources of any child" (42 USC §602(a)(7); found Calif practice not prohibited by equal protection, due process clauses, or right to privacy, but prevented MARS from engaging in family life "while shifting cost to state"; Pl's claim dismissed. Mar 12, 1969: DC denied Pl's motion to vacate judgment, motion for reh'g. Oct: Pls filed jurisdictional statement with USSC, argued: (1) DC erred in finding HEW Reg (45 CFR §203.1) invalid, (2) DC erred in using its preference for §11351 as substitute for adjudication of validity of HEW Reg which appropriately, validly interprets Fed'l Social Security Act, (3) §11351 designed to reduce state expenditures by irrebuttably presuming receipt of non-existent child support, (4) "arbitrary and invidious discrimination" to presume receipt of support without proof from MARS or stepfather when same presumption is not made about children of absent natural father. Nov 10: USSC noted probable jurisdiction. Pending.

Carl McConnell, Esq, Legal Aid Society of San Mateo County, 221 Broadway, Redwood City 94063; Steven Antler, Peter Sitkin, Esqs, San Francisco Neighborhood Legal Assistance, 1095 Market St, San Francisco 94103; Carol Silver, Esq, Berkeley Neighborhood Legal Services, 2229 4th St, Berkeley 94710.

Memo opinion, order denying motion to vacate memo, TRO (DC); jurisdictional statement (USSC): MCLL.

421.Conn.4. Shapiro v Thompson (Conn); Washington v Legrant (DC); Reynolds v Smith (Penn) (USSC) (270 FSupp 331, 279 FSupp 22, 277 FSupp 65, 394 US 618) 1965-7: Pls denied state welfare aid solely because they failed to meet 1 yr waiting period required for new residents under state statutes. 1967: Pls filed suits; DCs found statutes unconstitutional. Apr 21, 1969: USSC affirmed (6-3), Brennan, J: (1) state interest in precluding influx of dependent poor into jurisdiction not constitutionally permitted; chilling effect on constitutional right to travel: nature of fed'l union, constitutional concepts of personal liberty require "all citizens be free to travel throughout length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden this movement"; (2) state interest in distinguishing old, new residents on basis of contribution to community through taxes not constitutionally permitted; apportionment of state services on such basis violates equal protection clause; (3) state interest in facilitating budget predictability, determining residency by efficient administrative rule of thumb, safeguarding against fraud, encouraging new residents to promptly enter labor force, either not served by waiting period requirement, not compelling state interest; (4) §402(b), 1935 Social Security Act as amended 42 USC §602(b) does not prescribe, approve waiting period requirement; would be unconstitutional if did. Stewart, J, conc. Warren, CJ, Black, Harlan, JJ, diss.

Archibald Cox, Solicitor General, Washington, DC.

421.Conn.5. McCall v Shapiro (CA 2) (292 FSupp 268) Pl, welfare recipient, received retroactive OASDI lump sum for daughter; Defs, Conn Welfare Dept, demanded OASDI sum be paid to them as reimbursement for AFDC payments made covering the same period; Pl refused; Def suspended AFDC grant until OASDI sum recovered; Pl requested fair h'g. Je 20, 1968: At h'g, Pl argued (1) OASDI payment made on behalf of a minor, exempt from Def's reimbursement requirement, (2) termination of AFDC payments without h'g denied due process. Jy 23: H'g decision in favor of Def. Oct 18: Pl sued in DC on same grounds. DC denied convening of 3-judge ct: constitutional question of due process insubstantial; dismissed. Pl appealed to CA 2: DC has jursidiction over claim that state is depriving Pl of rights secured by Social Security Act; DC had claimed 42 USC §1983 did not confer jurisdiction; Pl claimed jurisdiction conferred by 28 USC §1343(3) which DC did not consider. Pending.

Mary R Hennessey, Esq, Neighborhood Legal Services, Inc, 99 Main St. Hartford 06106.

Robert M Coner, Esq, Center on Social Welfare Policy and Law, 401 W 117th St, NYC 10027.

- 107 -

421.Conn.6. Solman v Shapiro (USSC) (300 FSupp 409, 90 SCt 25) Defs, Conn Welfare Dept, under Conn step-parent rules included stepparent's income as available in determination of AFDC eligibility where step-chilren involved. Oct 1, 1968: Pls denied AFDC. Pls, in class action, claimed Conn's stepparent rule contradicted: (1) constitutional definition of dependent child, 42 USC §606(a), (2) substitute parent rules, 45 CFR §203, (3) stepparent rule, HEW Handbook of Public Assistance Admr Part IV §3412(4); sought TRO, preliminary, permanent injunction against denial of AFDC benefits based on stepparent rule; relied on King v Smith, 421.Ala.1, 392 US 309 (1968). Oct 14: DC Conn issued TRO pending consideration of constitutional issues. Apr 10, 1969: 3-judge ct held Conn's stepparent rule invalid, issued permanent injunction. Je 17: Def appealed. Oct 13: USSC, per curiam, granted motion to affirm.

David Lesser, Esq, 605 Congress Ave, New Haven 06519.

Thomas J Solomon, Esq, Waterbury Legal Aid and Reference Service, Inc, 769 N Main, Waterbury 06704.

421.Conn.7. McClellan v Shapiro (DC Conn, #13267) Pls, AFDC recipients, denied benefits on reaching 19 yrs under Public Act 730, Conn Welfare Statute, §5. Class suit filed: violation of equal protection, Social Security Act. Apr 16, 1970: 3-judge ct dismissed on both counts.

Memo of decision: MCLL.

421.Conn.8. Wilczynski v Harder (DC Conn, #13,382) Def, Conn Welfare Dept, terminated Pl's medical payments. Pl, 75 yr old woman, filed class suit for temporary injunction. Sept 12, 1969: DC requested Def to show cause why injunction should not issue. Sept 18: DC reserved decision. Oct 1: Def halted all medical assistance terminations pending new state policy. Jan 27, 1970: Def issued new policy, Dept Bulletin #2408: Pl to lose payments effective May 31. Apr 20: Pl filed second amended complaint attacking new policy as unconstitutional, in violation of Social Security Act. Pending.

William H Clendenen, Jr, Steven P Floman, David M Lesser, Esqs, 185 Church St, Room 805, New Haven 06510.

Second amended complaint, memo: MCLL.

421.Conn.9. Doe v Shapiro (USSC) (302 FSupp 761, 90 SCt 641) Pl, AFDC eligible mother, denied aid: refused to give illegitimate child's father's name (Conn Handbook of Social Services Policy, Vol 1, Chap III §P-3460.1(2)(b)). Apr 21, 1969: Pl filed class action (42 USC §1983): Reg denies needy illegitimate children equal protection, denies mother's self-incrimination privilege: not given full immunity, disclosures may count against her under several Conn statutes; infringes fed'l, state welfare statutes. Aug 21: 3-judge ct convened; permanently enjoined Def. Def appealed to USSC. Jan 26, 1970: USSC per curiam granted motion to dismiss: failure to docket case within time prescribed by Rule 13. Black, Douglas, JJ, diss: case presents important fed'l question, USSC has jurisdiction; appeal should not be dismissed for minor infraction of rule. Mar 3: DC held Def in contempt. Mar 7: second motion for contempt, other relief. Mar 25: Def issued Dept Bulletin #2434 authorizing restoration to Mar 3.

David M Lesser, Allen Sims, William H Clendenen, Jr, Esqs, Waterbury Legal Aid and Reference Service, Inc, 185 Church St, New Haven 06510.

Motion for contempt and other relief, order to show cause: MCLL.

421.DC.3. Smith, Crowder v District of Columbia Bd of Commrs (CA DC) (380 F2d 632) Pls alleged Def-investigators, under authority of Def-Bd, 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 1st, 3d, 4th, 9th Amdts. Pls also challenged DC "substitute father" rule. DC DC denied relief. Je 23, 1967: CA DC affirmed: administrative remedies not exhausted. Welfare Dept h'g officer found home visits not required by HEW, recipients did not give legally meaningful consent to entry; recommended Director revise agency policy.

Peter Smith, Laurens Silver, Esqs, Neighborhood Legal Services Project, 3308 14th St, NW, Washington, DC 20010.

Opinion of h'g officer (80 pp) available from Clearinghouse Review, 25 W Chicago Ave, Suite 500, Chicago 60610.

421.DC.5. Robinson v District of Columbia 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 children required exclusion of family under "substitute father" rule. At 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 exparte 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. Nov 18, 1968: DC declared substitute father rule invalid under King v Smith, 421.Ala.1, 392 US 309.

Neighborhood Legal Services Project, 416 5th St NW, Washington, DC 20001.

421.DC.7. Barley v District of Columbia Bd of Commrs (DC DC) (279 FSupp 22) Pet spent 26 yrs in DC mental institution. Sept 15, 1965: Pet declared competent (DC Code 21-564); due to lack of funds unable to leave unless she received 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 institution as public charge does not count toward establishing residence) unconstitutional. Nov 2: 3-judge ct held residency requirement of DC Code §3-203(a)(b) (1967) unconstitutional as violation of equal protection, invalidated provisions of DC Regs preventing acquisition of residence during stay in public institutions.

Neighborhood Legal Services Project, 416 5th St NW, Washington, DC 20001.

421.DC.8. In re L P (DC Dept of Public Welfare, #C 48-833.0) Nov 24, 1967: welfare h'g officer held 19-yr-old unemployed mother finishing high school not to be denied AFDC under Dept policy of no aid to employable persons: some mothers mentally, physically able to work, but "functionally unemployable" for lack of education, training; Dept ought not to presume such mothers able to work, but consider education, grant aid with view to assisting them to reach maximum self-support capability, as per extant Dept Regs.

L H Silver, J Rabin, Esqs, Neighborhood Legal Services Project, 416 5th St NW, Washington, DC 20001.

421.DC.9. Matter of Guest (DC Dept of Public Welfare, #C 29-589.0) 1968: Pet claimed additional allowances for clothing, household furnishings, shelter;
- 108 -

denied. At h'g referee affirmed denial: Pet already receiving maximum allowance for clothing and shelter, Dept not authorized to give allowance for furnishings; but commented that existing maximum grants often inadequate, could lead to physical, mental impairment, that Pet's living quarters were below DC National Capital Housing Authority Standards.

Richard Duane, Martin Mendelsohn, Esqs, Neighborhood Legal Services Program, 416 5th St NW, Washington, DC 20001.

421.DC.10. Matter of Waldron (Dept of Public Welfare, #C 21-063.0) Nov 9, 1966: Pet, AFDC recipient, received Social Security lump sum, OASDI benefit for 1 of 3 children plus monthly benefit; legally bound to expend these benefits on specified child. Pet informed Dept of Pub Welfare. Nov 19: Dept informed Pet AFDC grant terminated per policy of resources available. Dec 15: Pet requested h'g: claimed Dept forced her to break the law by applying OASDI to whole family. Mar 21, 1967: h'g officer overruled suspension retroactively; Pet allowed to deposit OASDI benefits into education trust fund and receive AFDC for 3 children, or apply OASDI benefits to 1 child and receive AFDC for 2 other children. Mar 29: Pet received retroactive payments.

R Michael Frank, Esq, 1238A Carrollburg Place SW, Washington, DC 20024; Laurens H Silver, Esq, 416 5th St NW, Washington, DC 20001.

Pet's memo: MCLL.

421.DC.11. Stewart v Washington (DC DC, #432-68) 1968: Pls sought to enjoin Dept of Public Welfare Reg which provided that public assistance would be terminated if recipient refused to permit Dept investigator to enter home, view premises. Pls contended Reg illegal (1) on constitutional grounds as infringement of 4th Amdt, (2) on procedural grounds: Reg erroneously adopted by Dept of Pub Welfare, altho statute required that such Regs be adopted by Bd of Commrs. Mar: DC granted preliminary injunction against Reg. Je 14: in final order, DC granted motion for summary judgment declaring Reg illegal; granted permanent injunction against enforcement of Reg on classwide basis. Both preliminary injunction and final order based on procedural argument.

Neighborhood Legal Services Program, 416 5th St NW, Washington, DC 20001.

421.DC.12. Purvis v Washington (DC DC, Civ #722-68) 1961: DC Bd of Commrs reduced welfare to families with more than 3 children, as economy measure, tho previous grant level admittedly inadequate. Mar 21, 1968: Pls filed class action: 1961 order violates equal protection, discriminates against large families. May 2, 1969: DC stayed dismissal of case until Jan 2, 1970 (Local Rule 13). Pending.

Richard Duane, Laurens Silver, John Kirkwood White, Esqs, Neighborhood Legal Services Program, 416 5th St NW, Washington, DC 20001.

421.Fla.1. Cobb v Dept of Public Welfare (MD Fla, #68-13-Civ) Pl denied AFDC grant: dependent children did not meet Fla specified relative Reg. Pl claimed first cousin once removed relationship; Fla Regs include first cousins only (Fl Public Assistance Manual Ch 500 pp 13, 14, pusuant to Social Security Act specifications 42 USC §606(a); Fed'l Handbook Pt IV §3431-2). Pl obtained fair h'g; application denied. Jy 1968: Pl's atty asked HEW for ruling; received letter reply from Asst Gen'l Counsel stating specified relative may be determined by state. Pl brought class action for injunctive relief and compensatory damages equal to amount of AFDC payments denied. Pending.

Elizabeth DuFresne, Esq, South Fla Migrant Legal Services Program Inc, 395 NW First St, Miami 33128.

421.Fla.2. Smith v Dept of Public Welfare (MD Fla, #69-1-Civ FTM) Pl, suffering from obesity, hypertension, chronic heart failure, arthritis, applied for Aid to Disabled; denied: not permanently, totally disabled. Pl filed complaint: standard of permanency too stringent, violation of equal protection by physicians on public payroll operating segregated waiting rooms; claim under 42 USC §§1981, 1983, 1988. Pending.

T Michael Foster, Gerald Joseph Cassidy, Michael Kantor, Esqs, 2106 Ford St, Fort Myers, Fla 33901.

421.Fla.3. Blackmon v Dept of Public Welfare (SD Fla, #68-536-Civ-JE) May 8, 1968: Pls filed class action against $85/mth state welfare maximum; pleaded discrimination against big families violates equal protection, conflicts with Social Security Act's purpose: state welfare laws to strengthen family, give reasonable subsistence; failure to provide minimum survival means determined by Def-Dept's calculations denies life, liberty without due process; asked declaratory, injunctive relief. Defs announced would eliminate maximum by July 1, but simultaneously cut grants to 65% of actual need, mooting all Pls' demands but request that Dept be enjoined from across the board cuts. Jy 12: 3-judge ct dismissed.

Legal Services Program Inc, 395 NW First St, Miami 33128.

And see Robinson, 421.Tex.1; Lindsey, 421.Wash.1.

421.Ga.3. Anderson v Schaefer (ND Ga, #10433) May-Jy 1966: Pls-mothers notified benefits under AFDC terminated: seasonal, full-time employment available. 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. Pls sought 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 less than Def's established minimum, (2) actual purpose is to cut black (not white) mothers off welfare rolls to provide cheap source of black woman and child labor for domestic and agricultural work: vague standards allow Defs to rule domestic and field work `unsuitable' and `unavailable' for whites, (3) violation of due process to make arbitrary, across-the-board denials of applications and closing of cases whenever co welfare bds determine `seasonal' full-time employment is available, (4) 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. Apr 4, 1968: 3-judge ct held (1) if safeguards for AFDC mother, children (child care plans, etc) available, mother must accept work offered, (2) full-time income must be supplemented on same basis as part-time: to do otherwise violates equal protection, (3) unnecessary to consider state presumption that employment available during certain seasons because state reformed policy—no aid terminated without showing of bona fide job offer; mother to have chance to show good cause grounds for rejecting specific employment and for h'g.

C B King, Esq, PO Box 1024, Albany, Ga 31702; James T Graham, Martin Garbus, Edward V Sparer, Esqs, Columbia Center on Social Welfare Policy and Law, 409 W 117th St, NYC 10027; Jack Greenberg, Stephen Ralston, Charles Jones, Jr, Esqs, 10 Columbus Circle, NYC 10019.

421.Ga.4. Thomas v Burson (MD Ga, Civ #2381) Jy 29, 1968: Pls filed class action against $154 statutory AFDC limit for families of more than 3 children;
- 109 -

asked injunction against welfare dept's alleged failure to provide aid to match minimum survival needs: pleaded due process, equal protection violations. Pending.

Atlanta Legal Aid Society, Inc.

421.Ill.1. Robinson v Johnson (USSC) (296 FSupp 1165; 89 SCt 1622) 1967: Pls moved to Ill, denied public assistance: not resident for 1 yr. Brought class action against enforcement of Ill statutes requiring 1 yr residence for welfare eligibility: violation of commerce, equal protection clauses. Dec 11: Pls moved for preliminary injunction; Defs moved to dismiss. Dec 28: 3-judge ct (ND Ill) granted preliminary injunction; held suit proper as class action under FRCP 23, dismissed as to 1 Def. Feb 20, 1968: DC held residence requirement violated equal protection. Apr 29: Def appealed to USSC. May 5, 1969: USSC affirmed per curiam, 7-2, Black, Harlan, JJ, diss.
421.Ill.2. Alexander v Swank (ND Ill, #68 C 2134) Defs denied Pl's 18-yr-old son AFDC when he started jr college full time, though Ill statute held child 18-21 eligible if full-time at high, vocational, technical, training school (Ill Pub Aid Code, Art IV, §4-1.1). By Def's Reg, 18-20 yr olds in college not eligible (Ill Dept of Pub Aid Reg #150). Nov 8, 1968: Pls filed class action (42 USC §1983): Reg unconstitutional, violates Social Security Act: (1) classifies students without reasonable relation to salutory purposes of state, fed'l statutes, extension of benefits to those 18-21, (2) classifies college students as "available for full-time employment," deprives them of particular type of education without rational purpose. Mar 28, 1969: 3-judge ct convened. Pending.

Community Legal Counsel, Chicago Division.

421.Ill.3. Metcalf v Swank (ND Ill, Civ #68C 1226) Jy 1, 1968: Pls filed class action: attacked state $90 maximum housing allowance: too few exceptions, inequitably distributed, insufficient to provide adequate housing in many cases; pleaded violation of due process, equal protection, Social Security Act. Pending.

Legal Aid Bureau, United Charities of Chicago.

421.Ind.1. Grubb v Kelly (ND Ind, Civ #69F3) Pl AFDC mother had payments cut off by Ind "stepfather regulation" (Ind Pub Assistance Manual, Ch III, Sec C, Pt 3); brought class action to make law comply with fed'l Reg (45 CFR Pt 203): Ind law does not obligate stepfather to support stepchildren. Mar 17, 1969: Def stipulated would amend Ind code, declared Pl eligible for AFDC, made retroactive payments.

Ivan E Bodensteiner, Ralph Adams, Esqs, 821 Francis St, Fort Wayne 46803.

421.Ind.2. Hopkins v Cohen (USSC) (374 F2d 726, 390 US 530) Dec 1962: Def terminated Pl's disability payments under Social Security Act: Pl no longer "disabled." Pl exhausted administrative remedies, sued. DC reversed, ordered past-due payments to Pl and dependents, awarded attorney fee 25% of past-due benefits due to Pl alone, excluding amount due dependents. Pl atty appealed only issue of limitation of fee. CA 7 affirmed. April 2, 1968: USSC reversed (5-3), Douglas, J: (1) though §206(b)(1) of Act restricts attorney's fee to percentage of "past-due benefits to which claimant is entitled," Act recognizes intimate relationship between amounts due claimant and dependents; (2) proof of Pl's claim results in package of benefits to immediate family which inure to benefit of head of family who filed claim; (3) wife and child benefits dependent on amount of claimant's primary benefits; (4) 25% ceiling should be figured on total past-due benefits received by claimant and dependents. White, Warren, Brennan, JJ, diss.

Allen Sharp, Esq, 115 N Monroe, Williamsport, Ind 47993; Harold H Gearinger, Esq, Professional Bldg, Chattanooga, Tenn 37402.

421.Ia.2. Anderson v Black Hawk Co (DC Ia, #43596) 1968: Pa applied for AFDC; denied by Def in compliance with Employees Manual: Pl under 21 yrs old. Pl filed for declaratory action against statute, money judgment. Pending.

Robert C Oberbillig, Esq, 708 First National Bldg, Waterloo, Ia 50703.

421.La.1. New Orleans Welfare Rights Organization v Bonin (ED La, #69-801-D) Apr 11, 1969: Pls sought copy of State Dept of Public Welfare Policy Manual; Bd of Public Welfare refused. New Orleans Legal Assistance Corporation attys sought copy; refused. Pls sued Bd, sought 3-judge ct to declare non-disclosure unconstitutional, injunction to produce. Jy 18: Def filed answers to interrogatories. Case settled by stipulation and agreement: Def directed state, local welfare offices to provide immediate public access to manual.

Robert Glass, Esq, New Orleans Legal Assistance Corporation, 605 Carondelet Bldg, New Orleans 70130.

421.La.2. Lampton v Bonin (ED La, #68-2092) La Welfare Dept ordered 10% reduction in Aid to Dependent Children grants. Pl-Negroes, in class action, asked convening of 3-judge ct, declaratory judgment, temporary and permanent injunction against reduction: (1) reduction of grants to ADC while maintaining grants to blind, disabled, and aged denies equal protection: only difference among 4 programs is that 90% of ADC recipients are Negro, (2) reduction violates 42 USC §602a(23) which compels states to increase payments to ADC recipients after Jy 1, 1969. Nov 14, 1968: DC issued TRO prohibiting reduction. Jan 9, 1969: DC denied motion to dismiss under 11th Amdt. Apr 15: DC denied injunction, Comaskey, J: (1) La's 4 welfare programs not in fact 1 program with 4 groups of beneficiaries, (2) 10% reduction in ADC grants not utterly without rational basis, (3) 3 other welfare programs not "white" (48 to 61% Negro), (4) 42 USSC §602a(23) does not go into effect until Jy 1, 1969, La appropriations bill expires Je 30; cannot be basis of declaratory judgment. DC retained jurisdicition to rule on case after La should enact new welfare appropriations bill. Cassibry, J, diss: La under Congressional mandate to increase ADC payments, cannot reduce payments below level in effect when Congress enacted mandate; Jy 1 deadline to give states time to comply with Congressional intent, not to subvert it.

Jeffrey Schwartz, Richard Buckley, Robert Glass, Esqs, 605 Carondelet Bldg, New Orleans 70130.

Pretrial memo, memo in support of substantiality of questions raised, proposed findings of fact and conclusions of law, opinion: MCLL.

421.Me.1. Westberry v Fisher (SD Me, Civ #10-80) Apr 17, 1968: Pls filed class action against 2 Me welfare Regs: limiting family need to $300, and limiting welfare to $250. Me allows "unmet need" to be met from outside sources, but Regs impose effective $50/mth limit. Pls' 10-child family had $718/mth actual need, got only $162 welfare to supplement $138 Social Security. Pls pleaded discrimination against big families violates equal protection, conflicts with Social Security Act's purposes; financially undermines marriage institution and family integrity guaranteed in 3rd, 4th, 14th Amdts. Mar 21, 1969: 3-judge ct held Regs violate equal protection, had "substantial doubt" they conflict with Social Security
- 110 -

Act; held Pls damages to be decided later. State repealed maximum grant statute, superseding it, for ADC only, with percentage reductions.

Donald F Fontaine, Esq, 65 India St, Portland 04111; William L Robinson, Esq, 10 Columbus Circle, NYC 10019.

Pls' Brief, amended and supplemental complaint, memo in support of Pls' motions for TRO, for 3-judge ct; Defs' amended, supplemental answer; report of pre-trial conference, order: MCLL.

421.Md.1. McCullough v Gardner, HEW (DC Md, #19249) Pl-highway worker's unemployment compensation lasted through most of seasonal layoff, hence he was left out of AFDC-UP program even though entitled to extra $130 if eligible. Feb 28, 1968: Pl filed class suit for 3-judge ct; preliminary injunction that local welfare agency process his and similar applications regarding unemployment compensation only as regular income; declaratory judgment of unconstitutionality of pertinent state and fed'l laws; permanent injunction against their enforcement. Pending.

Carl Bassett, Arthur Elson Cohen, Esqs, Legal Aid East, 622 Asquith St, Baltimore 21202.

421.Md.2. Dandridge v Williams (USSC) (297 FSupp 450, 90 SCt 62) 1968: Pls, welfare recipients, sued in 3-judge ct (DC Md) to invalidate, as violation of equal protection, Md Dept of Public Welfare Regs setting $250 maximum limit on families' AFDC benefits, regardless of eligibility and need. Dec 13: DC held Regs in violation of equal protection: (1) fed'l jurisdiction proper under Civil Rights Act, (2) state may not be compelled to participate in AFDC program, but if it does so, it must submit plan consistent with Social Security Act, applicable HEW Regs, and may not classify persons on arbitrary or irrational grounds under that plan, (3) $250 limit here inconsistent with Social Security Act's purpose of preserving family unit; also arbitrary and irrational, denying equal protection—maximum family grant refuses, in effect, to recognize 7th or 8th child has as great need as 3rd or 4th. Defs moved (FRCP, 52(b) and 59) that DC amend findings of fact and judgment, grant new trial, or receive additional evidence and alter or amend judgment: maximum grants "approved" by HEW as consistent with Social Security Act. Feb 25, 1969: DC held (1) could not rule on whether Congress, HEW considered maximum grants in violation of Social Security Act, (2) did not need to because maximum grants clearly unconstitutional anyway as violation of equal protection.

Joseph A Matera, Gerald A Smith, David Packard, Esqs, Legal Aid East, 622 Asquith St, Baltimore 21202.

Order, opinion, supplemental opinion: MCLL.

421.Miss.3. Ward v Winstead (ND Miss, #GC 6829) Jy 12, 1968: Pls filed class action to attack state Regs imposing: (1) percentage reduction in all aid—only 27% of determined need paid, (2) reduction in aid for each subsequent child, (3) flat $90 maximum for each family over 7 children; alleged categories of recipients dealt with unequally, discrimination against Negroes. Pending.

Robert Fitzpatrick, Esqs, 233 N Farish St, Jackson 39202.

421.Miss.4. Kirkwood v Winstead (Hinds Co Cir Ct) Miss statute prohibits judicial review of Def-Miss Public Welfare Commn's decisions. 1969: Pet sued challenging constitutionality: public assistance h'g judicial in nature, therefore review by cts constitutional necessity. Pending.

North Miss Rural Legal Services, 108½ S Lamar, Oxford 38665.

421.NJ.6. Matter of Camille P; Matter of Mary C (NJ Dept of Institutions and Corrections, ##KC-3966, AC-1041) Je 7, 1968: welfare bd cut Camille P's funds. Je 12: bd cut Mary C's, both under NJ Categorical Assistance Budget Manual §706.2c: if ADC family made up of parent, children, person living with, but not married to, parent, need determined using incomes of all household members. Appeal Bd destored Camille P's aid: insufficient evidence of non-marital relationship. Affirmed denial of Mary C's.
421.NY.14. Snell v Wyman (USSC) (281 FSupp 853, aff'd 393 US 323) Recovery statutes (NY Soc Welf L §§104, 104A, 360) and "protective action policy" (NY Dept of Welfare Regs, Title 18, §§368.2, 369.2) obligate welfare recipients to repay state from present, future resources, to 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 that statutes and 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 sigling out welfare recipients from other needy persons, eg, public housing tenants, medicaid recipients, (4) one Pl denied counsel in processing application. Denial of counsel count dismissed on stipulation city, state welfare depts would let attys represent applicants and 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." 3-judge ct granted Def's motion for summary judgment; dismissed Pls' complaint; rejected Pls' argument that substantive due process being denied; held test of constitutionality—"minimum rationality"—satisfied: state welfare Regs did not edge into "irrationality or arbitrariness" needed for ct veto under 14th Amdt. Oct 14, 1968: USSC invited Solicitor Gen'l to file briefs. Jan 13, 1969: USSC affirmed per curiam; Douglas J, would note probable jurisdiction.

Martin Garbus, Esq, ACLU, 156 Fifth Ave, NYC 10010. James J Graham, Esq, Project on Social Welfare Law, NYU School of Law, 46 Washington Mews, NYC 10003.

421.NY.15. Turner v Barbaro (Nassau Co Sup Ct) Pet brought mandamus action to compel Def, Nassau Co Dept of Social Services, to allow her atty to examine Def's records to determine whether she was receiving all benefits to which she was entitled. Ct denied action; Pet appealed. Pending.

Nassau Co Law Services Comm, Inc.

421.NY.16. Soto v Wyman (NY Co Sup Ct, #5731/68) Pet, welfare recipient, mother of 2 sick children, requested telephone grant from Def, Dept of Welfare, to summon medical attention for children. Telephone co, with authorization from Def, installed phone. Def refused to reimburse Pet. At fair h'g, Def stated Pet had not requested phone, had not produced medical evidence of need. Atty for Pet requested access to records; denied. H'g ref found for Def. Commr of Social Services affirmed on basis of h'g record. Apr 29, 1968: Pet filed suit claiming Def's denial of access to records unconstitutional, rendering h'g decision invalid. Def granted retroactive payment; ct held case moot. Mootness appealed; dismissed without opinion.

Philip G Schrag, Charles Stephen Ralston, Esqs, Nat'l Office for Rights of the Indigent.

Henry Freedman, Gabe Kaimowitz, Esqs, Center on Social Welfare Policy and Law, 401 W117th St, NYC 10027.

421.NY.17. Bennet v Barbaro (Nassau Co Sup Ct, #10602) Pet-welfare recipient owned half-interest in house as tenant in common. Jy 1, 1968: co-owner
- 111 -

moved out, refused to make mortgage payments. Resp-Co Social Services Dept refused to make mortgage payments for Pet: such payments would inure to benefit of someone not on welfare. Sup Ct, Lynde, J, held: no provisions in Regs or statute (18 NYC RR 352.4c; Soc Serv Law 106, 306) prohibits Social Service Dept from paying carrying charges because Pet not sole owner of the property; restrictive interpretation placed by Resp-Commr unreasonable; Resp directed to make mortgage payments.

Allan Redlich, Esq, 150 Old Country Rd, Mineola, NY 11501; Carl Jay Nathanson, Esq, of counsel, 115 N Main St, Freeport, NY 11520.

421.NY.18. Catalano v NYC Dept of Hospitals (SD NY, #68 C 3014) On delivery at hospital, Defs opened mail of Pls, recipients of fed'l medical assistance. When mail contained benefit checks, Defs required Pls to negotiate checks to Defs. If Pls refused, Defs retained checks, intimidated Pls with threats of expulsion, threatened Pls' relatives with legal action. Jan 1969: Pls filed class action, invoking 28 USC §§1331, 1343(3) and (4), 1339; 38 USC §3101; 45 USC §2281(1); 5 USC §8346; 42 USC §406; 18 USC §§1701, 1702, 1703, 1768; 39 USC §4057; 39 CFR §154.6(a); 42 USC §§1396(2), 1396(a)(17) and (18), 1983. Pending.

Robert McGuire, Esq, Community Law Offices, 2050 2nd Ave, NYC 10029.

421.NY.19. Day v Wyman (SD NY, #69 Civ 1009) Pls moved from Miss to NY, found work, but had to quit for poor health; applied for ADC; denied: h'g, appeal found Pl came to NY to get ADC, hence was ineligible (NY Social Services Law §139a). Mar 12, 1969: Pl filed class action: §139a inconsistent with 14th Amdt due process, equal protection, privileges and immunities clauses, bill of attainder, commerce clauses, Social Security Act; asked TRO, preliminary injunction that welfare be continued. Apr 29: argument; TRO denied. Pending.

Mobilization for Youth Legal Services, Inc, 320 E 3rd, NYC 10009.

Harold J Rothwax, Esq, 759 10th Ave, NYC 10019.

421.NY.20. Bryant v Wyman (ED NY, #68 C 831) 1968: Pls filed for preliminary injunction to restrain Defs, NY and Nassau Co Social Services Depts, from applying statewide policy denying welfare applicants right to counsel at all eligibility meetings. Sept 3: denied: counsel had never been denied on any occasion when their presence might have been useful. Pl moved for reargument. Pending.

Rich and Flaster, Allen Redlich, Esqs, Nassau Co Law Services Committee, Inc, 150 Old Country Rd, Mineola, NY 11501.

421.NY.21. King v Kurtis (Westchester Co Sup Ct, #8347/68) Pl applied for temporary emergency assistance 1 yr after arrival in NY; received $27. Def, Westchester Co Social Services Dept, denied further assistance. Pl filed suit requiring Def to show cause why assistance should not be continued. Aug 5, 1968: Sup Ct, without opinion, ordered immediate payment of assistance in compliance with NY Social Services Law §139-a pending fair h'g.

Legal Aid Society of Westchester Co, NY.

421.NY.22. Royal v Wyman (SD NY, #3237) Aug 6, 1968: Pls, welfare recipients, filed class action to enjoin NY Dept of Social Services from implementing state's fair h'g procedures (NY Social Services Law §353; 18 NYC RR Parts 84, 358) alleging denial of due process guaranteed by Social Security Act 42 USC §302(a)(4), HEW Handbook of Public Assistance Part IV §6000 et seq. Pending.

Nassau Co Law Services Committee Inc.

421.NY.23. Kelly v Wyman; Sheafe v Wyman (Goldberg v Kelly on appeal)

(USSC) (294 FSupp 887, 893; 394 US 971) Pls' Home Relief Assistance, AFDC cut off without written notice under new, optional policy adopted by state at NYC's behest. Feb 29, 1968: Pls filed class action asking TRO, preliminary injunction, 3-judge ct. DC denied TRO; but aid restored to all but Sheafe. Def-NYC Commr of Social Services started new termination, suspension procedures; NY Social Welfare Dept adopted fair h'g rules. Pls argued new Regs unconstitutional—no provision for witness confrontation, cross examination, neutral h'g examiners; Sheafe's aid not restored; statutes unamended. DC held Defs' procedures unconstitutional. Def appealed. Apr 21, 1969: USSC noted probable jurisdiction, invited Solicitor Gen'l to file brief. Pending.

Harold J Rothwax, Esq, 320 E 3rd St 10009; Mary B Tarcher, Esq, 11 Park Pl 10007; Martin Garbus, Esq, 156 5th Ave 10010; Shyleur Barrack, Esq, 290 Lennox Ave 10027; all of NYC.

421.NY.24. James v Goldberg (SD NY, #69/2448) May 8, 1969: Pl, AFDC recipient, received letter requesting home appointment with caseworker. Pl replied she was willing to supply any reasonable information but unwilling to allow home visit. May 13: notice of intent to discontinue AFDC benefits sent. May 27: At h'g, Pl reitereated unwillingness to allow home visits; decision to terminate benefits upheld under Policies Governing Administration of Public Assistance §175. Je 3: DC ordered: (1) TRO preventing denial of assistance to welfare recipients disallowing home visits [28 USC §2284(3)], (2) 3-judge fed'l ct (28 USC §§2281,4), (3) class action proper under FRCP 23. Aug 18: permanent injunction granted: (1) 4th Amdt "right to privacy" applicable to states through 14th Amdt, (2) search of private dwelling without warrant presumptively unreasonable, (3) home visit by caseworker is "search" (Camara v Muni Ct, 387 US 523), (4) gratuitous benefit may not be denied because exercise of constitutional right impedes its administration, (5) public interest does not warrant exception to 4th Amdt where less odious alternative available to effect public need.

Lee A Albert, Nancy Duff Levy, Henry A Freedman, Esqs, Center on Social Welfare Policy and Law, 401 W 117th St, NYC 10027; David Gilman, Jonathan Weiss, Esqs, Mobilization for Youth Legal Services, 759 10th Ave, NYC 10019.

DC Opinion: MCLL.

421.NY.25. Matter of Magdelena M (NY State Dept of Social Services) Pl's husband refused to support stepchildren. Dept found his income greater than family's need, stopped Pl's aid when she would not sue him for support. At h'g, Pl argued against cut: (1) children lacking parental support, so met Social Security Act §406(a) (42 USC §606(a)); NY has no law making stepfathers support stepchildren, as per HEW regs (33 Fed Reg 9346), (2) Welfare Dept may consider only income actually available (Fed'l Handbook Pt IV, §§3131(7), 3120), (3) Dept has burden to sue (Fed'l Handbook Pt IV, §8120; NY Social Services Law §102), so could not penalize Pl for not suing, (4) to make stepfather support child he has not legally adopted is invalid class discrimination under equal protection clause. Je 29, 1968: referee affirmed cut: stepparents responsible for support of minor stepchildren (NY Social Services Law).

Mobilization for Youth, Inc, 320 East 3rd, NYC 10009.

421.Pa.3. Waggoner v Rosenn (USSC) (286 FSupp 275, 394 US 846) Jan 1967: Pl-welfare applicant sued in DC (MD Pa) to invalidate Pa 1-yr residency requirement. 3-judge ct convened; held for Def. May 5, 1969: USSC, per curiam, granted leave to proceed in forma pauperis; vacated and remanded to DC for consideration in light of Thompson, 394 US 618, 421.Conn.4.

Neighborhood Legal Services Assn, Plaza Bldg, Pittsburgh 15219.

- 112 -

421.Pa.4. In re Byrdsoll (Pa Dept of Public Welfare) Dept cut aid due to presence of stepfather who neither adopted child nor agreed to have his whole income applied to support. Pa law applies stepparents' income to fix child's support need, but does not impose actual support on stepfathers generally. Sept 11, 1968: h'g: Pl claimed laws invalid under King v Smith, 421.Ala.1, HEW Reg (45 CFR Pt 203, 33 Fed Reg 11290, Aug 8, 1968). Dept held for Pl.
421.Tex.1. Robinson v Hackney (SD Tex, Civ #68-H-294) Apr 2, 1968: Pls filed class action against $135/mth state welfare maximum: discrimination against big families violates equal protection, conflicts with purpose of Social Security Act, state welfare laws supposed to strengthen family, give reasonable subsistence; asked TRO, preliminary injunction. Dec 20: argument. Apr 11, 1969: Defs moved to dismiss, based on state's switch to percentage cuts in need payments. Je 17: DC dismissed, ordered Defs to draw judgment order specifying steps taken about maximum grant provision, state's policy for future use. Texas abolished maximum grant; DC held case moot. Jy 17: Pls moved to withhold judgment, for reh'g, to reopen consideration of merits: case not moot, new Texas plan had been enjoined, Pls entitled to retroactive payments. Pending.

Peter Navarro, Esq, Houston Legal Foundation, 6731 Harrisburg, Houston 77011.

Amicus: Lonnie Duke, Arthur Schiff, Esqs, Bexar Co Legal Aid Assn, 212 Bexar Co Cthouse, San Antonio 78204.

And see Lindsey, 421.Wash.1, Blackman, 421.Fla.3.

421.Tex.2. Rios v Hackney (ND Tex, #CA 3-1852) 1967: Appellate bd, state Public Welfare Dept, relied on hearsay statements made to caseworker that Pl co-habiting with a man to overrule Dept h'g officer, deny Pl public assistance by "substitute father" rule. DC reversed Dept, permanently enjoined it from denying Pl aid on basis of h'g record while Pl not able to crossexamine persons who made statements in caseworker's report.

Dallas Legal Aid Society, 708 Jackson, Dallas 75202.

421.Wash.1. Lindsey v Smith (WD Wash, #Civ 7636) Apr 4, 1968: Pls filed class action against $325/mth state welfare maximum: discrimination against big families violates equal protection, conflicts with Social Security Act's purpose, state welfare laws to strengthen family, give reasonable subsistence. DC denied 3-judge ct; Pls appealed. Jy 29: CA 9 reversed, remanded. Aug 23: 3-judge ct convened. Pending.

Sidney J Strong, Edmund J Wood, Esqs, Seattle Legal Services Center, 104½ Cherry St, Seattle 98104.

Amicus: Seattle Lawyers' Committee for Civil Rights under Law, 1700 Northern Life Tower, Seattle 98101.

And see Robinson, 421.Tex.1; Blackman, 421.Fla.3.

421.W. Va.1 McIntyre v Vincent (Kanawha Co Cir Ct, #8285) Pls-taxpayers, filed suit asking declaratory injunctive relief against administration of Work Experience, Training Incentive (WIN) program in Logan Co: claimed program did not effectively train, educate welfare recipients or reduce welfare rolls. Apr 15, 1969: Ct dismissed case: WIN program subject of contractual agreement with Secy of Labor; Secy not joined, no grounds for injunctive relief.

John L Boettner, Jr, Esq, Legal Aid Society of Charleston, 702½ Lee St, Charleston 25301.

421.W. Va.2 Powers v Vincent (SD W Va) Pl's Social Security benefits increased by $22.30 per mth, AFDC-UP benefits terminated. Pls filed complaint against maximum grant provisions, lack of prior h'g, under 42 USC §1983, 28 USC §1343(3)(4), 28 USC §§2201, 2202. Pending.

John Boettner, Jr, A Andrew MacQueen III, Donald Saxton, Jr, Esqs, Legal Aid Society of Charleston, 702½ Lee St, Charleston 25301.

422. Social Welfare Programs-Federal Problems (and see 251, 254, 255, 261, 263, 346)

422.9. Macias v Finch (ND Calif, #50956) Mar 14, 1969: Pls filed class action against Social Security Act, 42 USC §§606(a), 607, Calif Welfare and Institutions Code §11250: statutes do not regard actual need in denying welfare when father employed full time; violate due process, equal protection-discriminatorily reduce fully-employed father's income, discourage him from seeking employment, against law's intent. Mar 18: DC issued TRO: welfare dept not to cut named Pls' benefits. Mar 27: 3-judge ct convened. May 7: h'g; Pls moved for class TRO. Feb 1970: 3-judge ct dismissed on merits; Pls appealed. Pending.

California Rural Legal Assistance, 1212 Market St, San Francisco 94103; San Francisco Neighborhood Legal Assistance Foundation, 1095 Market, San Francisco 94103.

Complaint, TRO, memo in support of TRO and convening of 3-judge ct, preliminary injunction, order vacating TRO, motion for class TRO, memo in support of injunction and in opposition to Defs' motion to dismiss: MCLL.

422.10. Georgia v Cohen; Matter of Petition of Georgia (CA 5, #260-42) 1967: PL 90-248 (42 USC §603(d), Supp) 1968) froze fed'l AFDC matching funds, effective Je 30, 1968. Ga submitted plan to HEW: no new cases to be opened, waiting list to be set up when number of children reached maximum level of fed'l matching funds. HEW recommended states implement freeze by either bearing total costs for excess children themselves or using some device to spread available funds over entire group. Apr 2, 1968: HEW rejected Ga's plan for reconsideration of its proposed implementation of Section 208(b) of Public Law 90-248. Apr 25: Ga filed petition in CA 5 for review of HEW rejection: (1) PL 90-248 unconstitutional-unreasonably excludes from fed'l participation sub-category of eligibles without any rational relation to Social Security Act's purposes, (2) waiting list plan consistent with PL 90-248, best way to avoid forcing Ga either to violate its own AFDC-limiting laws or lower AFDC assistance levels, already below state minimum standards. Sept 18: Ct ordered proceedings held in abeyance, case remanded to HEW Sec'y, pending anticipated repeal of freeze.

Joel Cohen, Frances White, Esqs, Office of the Gen'l Counsel, HEW, 330 Independence Ave SW, Washington, DC 20201; US Atty Gen'l, US Dept of Justice; US Atty, PO Box 912, Atlanta 30303; Morton Hollander, Norman Knopf, Esqs, Dept of Justice, Washington, DC.

Petition (CA 5): MCLL.

422.11. Marquez v Hardin (ND Calif, #51446) Je 3, 1969: Pls filed suit to compel Def-Dept of Agriculture to provide free school lunches for all needy children: Only one in ten such children, intended beneficiaries of National School Lunch Program, receive lunches. Sept 5: DC denied Pl's request for preliminary injunction; denied Def's motion for summary judgment; held Def's motion to dismiss in abeyance for 60 days; remarked that program required all needy children to receive school lunch, and that vast majority did not.

Robert L Gnaizda, James A Kraus, Elisbeth E Lagomarsino, Lucy K McCabe, Esqs, 1212 Market St, San Francisco 94103; Burton D Fretz, Harry E Woolpert, Esqs, 109 E Cook St, Santa Maria, Calif 93454; Dennis Powell, Esq, 328 Cayuga St, Salinas 93901.

- 113 -

422.12. Perkins v HEW (ND Ia) Ia Welfare Dept ruling requires that disabled person must require assistance of another person in daily activities to be eligible for ATD. Jan 1969: Pl, in class action, filed suit to require Secy of HEW to determine whether Ia's definition of disabled persons complies with fed'l statutes prior to making fed'l disbursements, under 42 USC §§1351, 1983. Pending.

Robert C Oberbillig, Robert Herr, Esqs, 708 First National Bldg, Waterloo, Iowa 50703.

422.13. Peoples v US Dept of Agriculture (CA DC, Civ, #544-68) Mar 25, 1968: Pls, poor black residents of Ala, some in counties receiving no food program, some in Food Stamp Program, some in Commodity Distribution Program, filed class suit seeking declaratory, injunctive relief, review of agency determinations; differential levels of service alleged to be unconstitutional, denying equal protection; administrative procedures denied due process. DC DC denied injunction. Mar 29: CA DC denied Pls' plea for reversal, Def's plea for summary affirmance. Apr 15: Def announced initiation of food distribution to poor in Elmore Co, previously without program. Sept 9: DC dismissed case on Def's motion: (1) food programs not designed to assure nutritionally adequate diet, (2) purpose of §32 (49 Stat 774) to improve farm prices, income, (3) food distribution programs primarily intended to control surplus commodity stocks, (4) while Congress intended to help hungry would not alone assure adequate diet; Pls had no enforceable rights. Appeal to CA DC pending.

Edgar S Cahn, Esq, Citizens Advocate Center, Suite 24, 1500 Massachusetts Ave NW, Washington, DC 20005; Jean Comfer Cohen, Esq, 1308 19th St NW, Washington, DC 20036; Stephen Ralston, Esq, NAACP Inc Fund, 10 Columbus Circle, NYC 10019.

422.14. Gruenwald v Gardner (USSC) (390 F2d 591; cd 393 US 982) Oct 1965: Pet applied for old age assistance pursuant to Social Security Act, effective Dec 1965. After receiving award notice Pet (man) filed for reconsideration: sex discrimination between men, women age 62. Social Security h'g examiner, App Council denied. DC (ED NY) dismissed suit: lack of merit. Mar 6, 1968: CA 2 affirmed. Dec 9: USSC denied cert.

Edward Q Carr, Esq, Legal Aid Society, 11 Park Pl, NYC 10007.

CA 2 opinion, Petition for cert: MCLL.

422.15. Martinez v Gardner (CA 5, #23,794) 1967: Pl applied for disability insurance; Def-HEW denied. Exhausted administrative remedies, appealed to DC. DC found for Def: h'g examiner's findings supported by substantial evidence. Pl appealed to CA 5 alleging DC applied wrong standard: Pl not suitable for jobs simply because jobs were available for persons with Pl's malady; claimed additional consideration as 46-yr-old Mexican American with 3rd grade education. Pending.

Orville A Harlan, Esq, Houston Legal Services Program, Houston, Tex.

422.16. Berry v Hardin (ND Calif, #50917) Pl, grandmother caring for 7 minors, participated in Food Stamp program; under Calif Welfare rules, her total monthly income limited to $413. Feb 1969: Pl, with aid of Calif Dept of Social Services, established educational trust fund for grandchildren; payments made from portion of Social Security benefits, could be used only for educational needs. Def-Dept of Agriculture raised Pl's stamp purchase requirement, due to inclusion of trust fund payments in computing Adjusted Net Income; Pl unable to purchase increased requirement because of fixed ceiling on monthly income. Mar: Pl filed suit in DC, seeking declaratory judgment and injunction; DC, Zirpoli, J, granted preliminary injunction. Pending.

Steven J Antler, Peter E Sitkin, Sidney M Wolinsky, Esqs, SFNLAF, 1095 Market St, Suite 302, San Francisco 94103.

Complaint, memo; TRO, preliminary injunction: MCLL.

422.17. Muniz v Cohen (ND Calif, #49908) Sept 6, 1968: Pl-welfare recipient, enrolled in training program under Manpower Development and Training Act (MTDA), filed class action alleging Def-HEW's Reg of May 31 requiring states to include MTDA training incentive payments as income in determining welfare recipients' needs violated 42 USC §2583(1); asked injunction against enforcement of Reg, declaratory judgment that Reg invalid. DC denied preliminary injunction: jurisdiction found under Administrative Procedure Act allowing Pl to move for permanent injunction. Pending.

Peter Sitkin, Steven Antler, Sidney Wolinsky, Esqs, SFNLAF, 1095 Market St, San Francisco 94103.

Complaint: MCLL.

And see Muniz v Montgomery, 421.Calif.46.

422.18. Hernandez v Hardin (ND Calif, #50333) Nov 19, 1968: Pls, in class action, alleged refusal of 16 Cos in Calif to implement provisions of fed'l food programs, violating constitutional right not to go hungry, and equal protection; asked declaratory, injunctive relief to order Def-US Secy of Agriculture to make food stamps available to all regardless of Co of residence; asked formation of 3-judge ct. Dec 30: DC granted TRO against Def's failure to put into effect fed'l food programs in all Calif Cos: preliminary findings of violations of equal protection and 7 USC §2011 (Food Stamp program).

Robert Gnaizda, Martin Glick, Daniel Lowenstein, Lucy McCabe, Esqs, 1212 Market, San Francisco 94103; Don B Kates, Jr, Esq, 22 Martin St, Gilroy 95020.

Complaint, order to show cause, memo in support of motion for preliminary injunction, TRO, Pls' memo in response to Defs' supplementary memo, Pls' memo in support of deposition of Secy of Agriculture, Pls' interrogatories to Def, memo re applicability of Supreme Ct's one yr residency decision, contempt proceedings against Secy of Agriculture, application for order to show cause re contempt, order to show cause re contempt, answer to amended complaint and cross claim of Max Rafferty: MCLL.

423. Housing (and see 256, 530)
David Shagam, ed, Tenants Law Manual, Nat'l Lawyers Guild, 197 Steiner, San Francisco 94117. 1970. 171 pp.

And see Gallagher, 64.18; Colon, 531.26; Arrington, 533.Ala.1.


423.Ala.2. Lewis v Public Housing Authority of Talladega (CA 5, #25172) 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 (ND Ala) issued TRO, ordered Pls to pay rent pending outcome. Def withdrew eviction notices. Je 2: DC 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, reg still in effect. DC refused to vacate; Pls appealed to CA 5. After oral argument, Def notified
- 114 -

ct it had revoked illegitimacy rule; switched to reg that ongoing occupancy depended on tenant's being "desirable." Pls objected: desirability defined too generally; vague, overbroad. Je 26, 1968: CA reversed, remanded for Pls to conform pleadings to new circumstances, for DC to consider newly raised constitutional issues. Pending.

Orzell Billingsley, Jr, and Peter Hall, Esqs, 1630 4th Ave N, Birmingham 35203; NAACP Legal and Educational Defense Fund, Inc, 10 Columbus Circle, NYC 10019.

423.Calif.2. Tyree v Pleasanton Housing Authority (DCA, 1st Dist, Div 4, 1 Civ #26391) 1954: Def bought "temporary" project from fed'l govt under Title VI of Lanham Act. Jy 1, 1967: 10% rent raise effective. Jy 12: Pls-tenants sought injunction against raise, declaration that Def may not operate project at profit: project has been profitable since acquisition; Def has raised rent 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 and Safety C §35489, 42 USC §§1401, 1412. Aug 2: Pl obtained preliminary injunction against rent increases. Jy 30, 1968: after 4½ day trial, Super Ct, Emerson, J, held: (1) Def operated under Health and Safety C §§35450—35546 (Temporary Housing Projects Law) rather than §§34200—34380 (Housing Authority Law), Def not subject to non-profit requirement of §34321, (2) construed §35489 to mean projects should be operated in business-like manner, profitable operation implicit, (3) Ct unable to say Def acted arbitrarily, (4) Def could properly pay profits to City under §35545, (5) Ct denied relief, dissolved injunction, ordered Pl to pay debt for rent before bond released. Sept 27: Pls filed notice of appeal in DCA. Mar 25, 1969: in opening brief, Pl argued Ct should prohibit Def from consciously operating at profit, from donating profits to city, from increasing rents. Aug 31: Pls submitted reply brief. Pending.

Daniel Prince, Esq, Alameda Co Legal Aid Society, 4600 E 14th St, Oakland 94601.

Pl's trial memo, trial opinion (Super Ct); opening brief, reply brief (DCA): MCLL.

423.Calif.4. Western Addition Community Organization v Weaver (ND Calif) (294 FSupp 433) 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 Proposition 14 (struck down in Mulkey, 387 US 369, 13 DOCKET 163), repealing Calif 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. Je 1967: interim relocation plan submitted; HUD disapproved, suspended fed'l financing. Aug 9, 1967: Pl-WACO filed complaint with HUD Secy Weaver asking h'g of charges that Agency's relocation plan (1) planned inadequate substitute housing without easy access to employment places, (2) violated fed'l statutes, regs: approved substandard relocation houses similar to those demolished, forced residents to move despite condition of new dwellings and without prior relocation assistance, (3) did not justify level of demolition or make intelligent decisions on rehabilitation versus demolition, contra Urban Renewal Manual (URM) §10-1, 42 USC §1460, (4) demolished Negro, Japanese dwellings almost exclusively, violating URM §10-1: that urban renewal boundaries be set without regard to race, national origin. Aug 15: 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 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 in DC DC (#3180-67) for injunctive and declaratory relief against Secy 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; 5th Amdt due process clause violated, hence project violates 42 USC §§1441 et seq, 1455(c) (1—2), and HUD Regs, (2) FHA mortgage programs under 12 USC §1715K-L require "workable program for community improvement" approved by Supervisors and certified by Secy 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. 1968: Defs moved to dismiss. Mar 27: suit transferred to ND Calif without ruling on issues. Je 26: DC ordered Def to produce administrative record. Jy 29: Def approved plan of Aug 15, 1967, subject to contingencies: (1) additional funding from Congress, (2) Supervisors' resolution specifying how much previously appropriated money to be expended on relocation, (3) new §221(d)(3) housing in project area, (4) "appropriate and satisfactory phasing of relocation." Dec 16: preliminary injunction granted; DC, Sweigert, J, found Agency plan unfeasible—inadequate relocation plans (42 USC §1455(c)); enjoined more forced moves until Agency submitted relocation plan satisfactory to HUD and Ct; enjoined HUD Secy from giving more funds to Agency until plan filed; denied Def's motion to dismiss: (1) final Agency action is subject to judicial review unless clearly against Congressional intent (Abbot v Gardner, 387 US 136), (2) Pls did have standing to sue, contra Johnson v Redevelopment Agency of Oakland, 317 F2d 872, following Norwalk CORE v Norwalk Redevelopment Agency, 395 F2d 920, 535.15. Mar 5, 1969: injunction dissolved, HUD certified workable program as satisfying requirements.

Gil Graham, Stafford Smith, Peter Sitkin, Isadoor Bornstein, Esqs, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103.

Complaint (DC DC), memo of opinion (ND Calif): MCLL.

423.Calif.18. Alger v Municipal Ct (Riverside Co Super Ct, #11447) Pet undertook repairs of rented property; withheld rent to cover costs (CCP §1942). Muni Ct issued writ of possession for landlord under CCP §1166a. Pet obtained alternative writ of prohibition against Muni Ct. Landlord dismissed first action; obtained second writ of possession; evicted Pet. Pet filed for original writ of prohibition to be amended to class writ prohibiting all muni, justice cts from issuing writs of possession under CCP §1166a, cited due process, supremacy clauses. Je 14, 1968: Super Ct. issued amended writ of prohibition; h'g held on peremptory writ. Pending.

William Eley, Esq, Legal Aid Society of Riverside Co.

423.Calif.19. Zaragoza v Skyway Realty (DCA, #203209) Pls alleged serious injuries from defective water-heater explosion, falling ceilings, gas leaks; accumulated mental, physical suffering from Def's refusals to raise housing to code levels; Pls at Def's mercy for lack of decent, low-cost housing amounts to intentional infliction of emotional distress. Feb 1968: Pls sued in Super Ct for $23,000 general damages, medical, legal expenses. Super Ct sustained Def's demurrers. Feb 28: Pls filed appeal; appeal allowed to lapse.

Harvey M Freed, Marvin S Kayne, Isidoor Bornstein, Esqs, 2701 Folsom St, San Francisco 94110.

Complaint, Petition for appointment of guardian ad litem, in forma pauperis declaration: MCLL.

423.Calif.20. Silas v Smith (San Francisco Muni Ct, #606381) Pl-tenant took possession of dwelling on understanding Def-landlord would undertake certain maintenance, repair work. Def failed to do so. Aug 9, 1968: Pl sued Def in tort, contract; sought damages. Ct accepted Pl's
- 115 -

complaint, overruled demurrer claiming Pl's sole remedy to make repairs, deduct costs from rent paid. Pending.

Marvin S Kayne, Norman S Nayfach, Esqs, 2701 Folsom St, San Francisco 94110.

Amended complaint for damages: MCLL.

423.Calif.21. South of Market Residents Assn v San Francisco Redevelopment Agency (ND Calif) 1961: San Francisco Bd of Supervisors declared Yerba Buena Area a "blighted area," subject to provisions of Calif Community Redevelopment Law, Resolution #782-61; Def-Agency contracted to plan urban renewal project. 1966: Bd of Supervisors approved Plan D-1; Def-Agency signed loan and grant contract with HUD, under 42 USC §1452(d). Pls, residents of project area, alleged: (1) Defs had not found safe, sanitary housing for residents of redevelopment area, (2) housing claimed to be available is not near cheap restaurants, shops, etc, necessary for low standard of living, violating 42 USC §1455c, (3) redevelopment breaking up well integrated area, forcing residents to move to segregated areas, (4) inspection of the SMRA bldgs for condemnation consisted of condition ratings which were basically appraisals rather than evaluations of bldg structure as required by §10-1 of Urban Renewal Manual. Jan 29, 1968: Pls, in class action, requested cease and desist order until Defs complied with fed'l requirements. Apr 1970: DC granted preliminary injunction, appointed ex-Gov Brown special master to arbitrate dispute. May: Brown decided: (1) Def-Agency required to build 2000 more low cost housing units; (2) residents of redevelopment area must not be relocated until required number of housing units are completed; (3) no resident of area to be relocated into any housing costing more than 25% of his gross income.

Stafford Smith, Gilbert Graham, Peter Sitkin, Isidoor Bornstein, Esqs, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103.

Complaint: MCLL.

423.Calif.22. Simons v Dorchester Hotel (San Francisco Muni Ct) May 13, 1968: Def-hotel keeper locked Pl-tenant out of room, seized Pl's personal property pursuant to innkeeper's lien law (Calif Civ C §1861). Jy 17: Pl sued for claim and delivery: loss of use of property and loss of employment, mental and emotional suffering. Pending.

Marvin S Kayne, Isidoor Bornstein, Norman S Nayfach, Esqs, San Francisco Neighborhood Legal Assistance Foundation, 2701 Folsom, San Francisco 94110.

Declaration for claim and delivery, complaint to recover possession: MCLL.

423.Calif.23. Earle v Lachelli (San Francisco Muni Ct, #598854) Jan 1968: Def-tenant (under 2-yr lease expiring Sept 1968) demanded Pl-landlord repair defective gas line; no response. Def hired plumber on installment contract, each payment equal to 1 mth's rent, which Def withheld from Pl. Pl brought unlawful detainer. Feb 21: Def answered, alleging partial eviction, breach of implied warranty of fitness and habitability, breach of covenant of quiet enjoyment, counterclaiming for rent paid during existence of defect. 1969: settled: 1 mth rent paid to landlord, 3 mths rent used for repairs, Def moved out.

Marvin S Kayne, Hector N Ortiz, Norman S Nayfach, Esqs, San Francisco Neighborhood Legal Assistance Foundation, 2701 Folsom St, San Francisco 94110.

Complaint for unlawful detainer, answer and counter-claim: MCLL.

423.Calif.24. Mendoza v Gonzalez (Santa Clara Co Super Ct, #217161) Pl alleged acute housing shortage necessitated renting Def's house, prevented moving from it; Def took advantage of situation by renting premises despite dilapidated, unlawful conditions. Nov 6, 1968: Bldgs inspector of Gilroy condemned house. Jan 30, 1969: Pl filed complaint in tort, for damages: intentional infliction of mental pain and suffering. Pending.

Peter Coppelman, Esq, California Rural Legal Assistance, Inc, 22 Martin St, Gilroy 95020; John Thorne, Esq, 510 N 3rd St, San Jose 95112. Nat'l Housing Law Project, Berkeley.

Complaint: MCLL.

423.Calif.25. Banks v Housing Authority of Oakland (Alameda Co Super Ct, #375792) Dec 22, 1967: Pls, tenants of bldgs leased by Def from private owners, then rented to low-income families, filed class action: though by leases between owners and Authority, owners agree to make repairs, Authority agrees to repair at owners' expense if owners fail to repair, neither has fulfilled duties; owners and Authority violated Calif Health and Safety C §34326 (housing projects must comply with local regs), Calif Civil C §1941 (lessor of bldg for human habitation must make it fit for such), §23 Leased Housing, 42 USC §1421h (Authority must provide housing "decent, safe, and sanitary," complying with local law); Pls have right to sue as third party beneficiaries of Annual Contributions contract between Authority and US Public Housing Administration. Pending.

Oakland Legal Aid Society, 1815 Telegraph, Oakland 94612.

423.Calif.26. Oakland Housing Tenants Union v Housing Authority of Oakland (Alameda Co Super Ct, #376509) Nov 13, 1967: Def raised minimum rents 50 to 60%. Jan 23, 1968: Pls filed suit: there are reasonable alternatives to increase which by law must get preference; Def violated statutory duties, not providing adequate housing within reach of lowest income groups, not weighing factors affecting ability to pay rent, not giving families with most urgent housing needs preference; Pls also sued as third party beneficiaries of Annual Contributions Contract between Def and US Public Housing Administration. Pls withheld service on Def to give time to adjust rents. Mar 11: Def revoked increase, ordered rent decrease. Suit pending HUD review of decrease.
423.Calif.27. Ford v San Francisco Housing Authority (ND Calif, #47921) Defs charged higher rent for tenants receiving more than 50% of income from AFDC. Pl-tenants, AFDC recipients, sought injunction, declaratory judgment that higher rent violates 14th Amdt, 42 USC §1983. Defs contended lower rents for non-welfare recipients reflects numerous work-related expenses, which AFDC recipients do not have. Both parties moved for summary judgment. Feb 20, 1969: DC denied both motions; ordered h'g; stated: (1) rental classification based on source of income alone is unreasonable, arbitrary on its face, (2) ambiguous whether Defs' rent schedule based on work-related expenses or source of income: non-AFDC recipients have work-related expenses (eg, alimony recipients), but they would pay the lower rents, (3) Def should rewrite rent schedule to make clear rent differentials reflect work expenses only.

Peter Sitkin, Gilbert Graham, Esqs, San Francisco Neighborhood Legal Assistance, 1095 Market St, San Francisco 94103.

Pl's memo, Pl's reply memo, decision: MCLL.

423.Conn.1. Jensen v Salisbury (Cir Ct, 12th Cir, #12-6806-1934) Pls-landlords filed suit for summary eviction of Defs-tenants: non-payment of rent. In answer, Defs claimed rental contract invalid: executed in violation of Vernon Housing Code, contrary to Housing Inspector's request that housing be brought up to Conn standards prior to occupancy. Sept 9, 1968: Ct held for Defs.
423.Conn.2. Simmons v Housing Authority of West Haven (USSC) (250 A2d 527; 89 SCt 1311) Pets lost eviction action on merits; trial ct refused to waive Conn requirement of surety bond
- 116 -

to cover rent accruing during appeal. Pet appealed: requirement unconstitutional. Mar 1, 1968: Conn Cir Ct held trial on merits satisfies due process, thereafter bond constitutional. Je 25: Conn Sup Ct denied h'g. Pet appealed to USSC. Apr 7, 1969: USSC granted leave to proceed in forma pauperis, noted probable jurisdiction. Pending.

Francis X Dineen, Esq, 244 Edwards, New Haven 06511.

Amici: National Legal Aid and Defender Assn, Center on Social Welfare Policy and Law.

423.DC.1. Edwards v Habib (USSC) (227 A2d 388, 366 F2d 628, 397 F2d 687, cd 89 SCt 618) 1965: Def-tenant notified DC Inspection Dept of housing code violation; Dept found 44, ordered Pl-landlord to repair. Pl sued to evict Def, got default judgment. Landlord-tenant Ct set aside judgment: Def's non-appearance excusable neglect; Def had right to complain of code violations. At trial, Ct of Gen Sess excluded evidence of retaliation, found for Pl. Dec 3: CA DC stayed judgment pending appeal. 1967: DC Ct of App affirmed: ct enforcement of retaliatory eviction not state action against free speech, petition; distinguished Def's case as involving statutes specifically protecting petition right; noted pendency of HR 257, §201 (90th Cong, 1st Sess), setting up such protection in DC landlord-tenant cases. May 17, 1968: CA DC reversed, remanded: retaliatory eviction defies legislative intent whereby tenants have right to complain of code violations; may also violate free speech, but ct did not attempt to decide free speech issue. Jan 13, 1969: USSC denied cert.

Brian M Olmstead, Esq, Neighborhood Legal Services Project, 3308 14th St NW, Washington, DC 20010.

Opinion (Landlord-Tenant Branch): 3 Civil Rights Handbook 290L.

423.DC.3. District of Columbia v First National Realty Corp (DC Ct of Gen Sess) Jan 26, 1968: Ct imposed maximum sentence (60 days) on owner of apartment bldg with many uncorrected housing code violations; maximum fine ($5,000) for bldg's corporate managers. Agreeing with new policy of vigorous prosecution for uncorrected code violations, ct imposed penalties though property sold, slated for renovation (policy had been to drop charges under such conditions); regretted that maximum fine small compared to renovation costs, hence not real deterrent.
423.DC.4. Knox Hill Tenant Council v Washington (DC DC, #1943-68) Aug 1, 1968: Pls filed suit for declaratory, injunctive relief to obtain proper housing maintenance, alleged violation of (1) due process: not allowed administrative h'gs on charges of nonpayment of rent prior to eviction, (2) equal protection: different treatment of private, National Capital Housing Authority projects. Pending.

Neighborhood Legal Services Project, 416 5th St, Washington, DC 20001.

423.DC.5. Diamond Housing v Robinson (DC Ct of Gen Sess, #LT 62391-68) Pl-landlord filed for possession, damages for trespass from Def-tenant, for non-payment of rent. Oct 16, 1968: Ct held Def still tenant, lease voided by housing code violations at time of execution; stated landlord's claim for possession should not be upheld until he showed clean hands (corrected housing code violations); held landlord need not have notification of violations from Dept of Licenses, Inspections: sufficient to have constructive knowledge.
423.DC.6. Southall v Brown (USSC) (237 A2d 834, cd 89 SCt 621) 1967: Pl-landlord sought to evict Def-tenant in default of rent. Ct of Gen Sess held for Pl; Def evicted. Feb 7, 1968: CA DC held landlord's knowledge of uncorrected housing code violations when lease signed made it illegal contract, cts will not aid rent collection under such a lease. Pl, unrepresented on appeal, filed petition for allowance of appeal from CA. Jy 16: CA denied petition. Jan 13, 1969: USSC denied cert.

Florence W Roisman, Esq, Neighborhood Legal Servies Program, 416 5th St NW, Washington, DC 20001; Thomas E Willging, Univ of Toledo College of Law, Toledo, Ohio 43606.

423.Fla.1. Williams v Everglades (SD Fla, #68 1190 Civ) Def-landlord threatened Pl-tenant with eviction if Pl sought safe, sanitary conditions in dwelling. Oct 16, 1968: Pl filed suit citing Edwards, 423.DC.1; further claimed denial of constitutional right to be secure in home, violating 4th Amdt. Pending.

South Florida Migrant Legal Services Program, Inc, 395 NW First St, Miami 33128.

423.Fla.2. Holloway v HUD (SD Fla, #68-683-Civ-CA) Pl's mth-to-mth lease obligated her to pay, when billed, for damage to premises. Pl refused to pay a bill: not liable for the specific damage; filed class action to enjoin threatened eviction, to enjoin Def from assessing any class member damages without notice, h'g; asked declaratory judgment that damage clause violates 14th Amdt, order that Defs refund all damage payments made without h'g. Je 20, 1968: Pl moved to proceed as insolvent. DC reviewed jurisdiction, held Pl alleged contract rather than constitutional claim; dismissed. Appeal pending.

Legal Services Program, Inc, Miami.

423.Ga.3. Sanks v Sanks (Fulton Co Civ Ct, Warrant #63610) Pls-landlords filed possessory action against Defs-tenants. Ga laws (1) require bond to defend ex parte dispossessory action by landlord, (2) provide double-rent forfeit if defense loses, (3) authorize ct to dispossess tenants not filing bond (Ga Code Ann §§61-303, -305, -306). Mar 29, 1968: Defs moved for rule nisi to arrest dispossession, to declare Ga laws violative of due process, equal protection, redress of grievances. Pending.

Atlanta Legal Aid Society.

423.Ga.4. Tory v Auerbach (ND Ga, Civ #11828) Mar 20, 1968: Pls filed class action against (1) private landlords and Atlanta Public Housing Authority, who had caused issuance of dispossessory warrants against Pls, (2) public officials authorized to dispossess tenants, asked injunction against evictions, declaration Ga bond provisions (see Sanks, 423.Ga.3) violate due process, equal protection. 3-judge ct convened, granted relief to named Pls, not to class; held evictions in abeyance pending Thorpe, 423.NC.1, on condition Pls pay into ct rent due each mth.

Robert B Newman, John W Brent, Esqs, 64-65 Georgia Ave SE, Atlanta 30312; P Andrew Patterson, Esq, 1070 Washington St NW, Atlanta 30315.

423.Ill.4. Gautreaux v Chicago Housing Authority Now at 531.24.
423.Ill.6. Watkins v Chicago Housing Authority (CA 7, #16678) Pls, mth-to-mth tenants in fed'lly aided housing, evicted with no reasons stated in eviction notice or complaint; filed suit in DC for preliminary injunction, declaratory judgment that lease allowing summary eviction on 15 days' notice violates due process, state, fed'l laws; for mandatory injunction to make Def adopt lease with permanent tenancy terminable only for proper cause, under explicit standards, after h'g. Feb 1967: HUD circular issued (see Thorpe, 423.NC.1); Def notified Pls they were not to be evicted. Oct 6: DC dismissed: mootness. Nov 24: Pls filed appeal notice in CA: not moot-Pls still subject to
- 117 -

illegal eviction under leases, Def's policy unchanged by HUD circular. Feb 5, 1969: CA affirmed.

Marshall Patner, Gordon Scott, Esqs, 123 W Madison, Chicago 60602.

423.Ill.7. Stewart v Chicago Housing Authority (USSC) (237 NE2d 463; 393 US 482) Mar 1967: Def ended Pl's mth-to-mth lease, gave no reason in response to Pl's request or in ejectment complaint. May 29, 1968: Sup Ct rejected Pl's argument that due process required Def give reasons, like any other landlord; held HUD circular (see Thorpe, 423.NC.1) had no legal effect, rather "a mere department policy adopted in the interest of good public relations." Jan 27, 1969: USSC per curiam vacated and remanded to Ill Sup Ct for further consideration in light of Thorpe, 393 US 268.

Marshall Patner, Esq, 123 W Madison, Chicago 60602.

423.Md.2. Waddell v Mazer (Baltimore City Cir Ct, #69W-458) Sept 27, 1968: Pl-tenant filed suit challenging alleged retaliatory eviction resulting from Pl's utilization of Md's Rent Escrow Statute allowing tenants to report code violations. Pl claimed Defs attempted to repossess arbitrarily, unreasonably denying Pl's rights in violation of 14th Amdt, Declaration of Rights of Md Constitution Art 23. Pending.

Legal Aid East, 620 Asquith St, Baltimore 21202.

And see Edwards, 423.DC.1.

423.Mich.4. Apartments Limited, Inc v Katz (Washtenaw Co Cir Ct, #4112) Defs, student tenants union, led withholding of rents in strike. Apr 23, 1969: Pls, apartment management firms, filed suit charging conspiracy to encourage tenants to break contracts; sought individual, exemplary damages, injunction. Ct ordered Defs to show cause why injunction should not be issued. May 7: motion for dismissal. Oct 7: Defs filed application for leave to appeal. Pending.

Lafferty, Reosti, Jabara, and Papakhian, Esqs, 726 Pallister, Detroit 48202.

423.Mich.5. Goodloe v Goodman (Wayne Co Cir Ct, #109864) Pls, tenants union, undertook rent strike protesting substandard conditions in Def's bldgs. Defs evicted Pls for nonpayment of rent. Pls sued for injunction against evictions; sought order to pay rent into ct pending h'g. Ct granted injunction; ordered rent payment into ct. Attys advised Pls to seek jury trials individually; resulted in delayed decisions, caused landlord to negotiate with union: tenants took over apartment management and reimbursed 25% net profits to landlord.

Neighborhood Legal Service Centers, 3546 Trumbull Ave, Detroit 48208.

423.Mich.6. Watts v Lyles (Wayne Co Cir Commr's Ct, #1049286) Pl-landlord sought to have Def-tenant evicted: Def had reported code violations. Def, in defense, cited Edwards, 423.DC.1; claimed retaliatory eviction violated constitutional rights. Feb 28, 1968: Ct dismissed Pl's motion on merits: retaliatory eviction infringed rights of tenant; did not specify which rights.

William A Segesta, Esq, 1112 Guardian Bldg, 500 Griswold, Detroit 48226.

423.NJ.1. Epperson v Housing Authority of Newark (Dept of HUD) Dec 19, 1967: Complaints filed with HUD against 2 applications by Def to allocate 150 acres of Newark ghetto land to proposed NJ College of Medicine and Dentistry, even though college would need only 36 acres, would not greatly contribute to area's medical needs, would reduce space for urgently needed new housing. Mar 14, 1968: agreement: college to get 57.9 acres, rest of land to be promptly developed, rehabilitated for housing; college to spend $2.5 million for renovation, improvement of city hospital, one third of workmen, half of apprentices at construction site to be minority members.

Nat'l Office for Rights of Indigent, 10 Columbus Circle, NYC 10019.

423.NY.6. Holmes v NY Housing Authority (CA 2) (398 F2d 262) 1958-66: Pls filed applications for public housing; Def's only response was form letters that Def "unable to be of help at this time." Sept 9, 1966: Pls filed class action (42 USC §1983) in DC to require Def to inform applicants of eligibility procedures, criteria; pleaded denial of due process, equal protection: no basis for appeal provided, no priority based on order of application assigned. May 1967: after argument, DC denied Def's motion to dismiss, allowed interlocutory appeal (28 USC §1292b). Jy 18, 1968: CA 2 affirmed denial (2-1): constitutional claim stated, lack of selection standards "an intolerable invitation to abuse." In meantime Def changed policy, issued new admission standards, set forth procedures to process applications, determine eligibility.

Nancy E LeBlanc, Harold Rothwax, Esqs, Mobilization for Youth, 320 E 3rd St, NYC 10009.

423.NY.9. Stanter Realty v Vargus (NYC Cir Ct, #52915/67) Je 7, 1967: Pls-tenants withheld rent; sought orders permitting payment into ct, application of rent to repairs, heat, hot water (NY Real Property Actions and Proceedings Law §755). Ct granted order. Def-landlord counterclaimed for ½ rent for 5 mths: failure of consideration. Ct released money for required repairs under §755.

Nancy E LeBlanc, Esq, Mobilization for Youth, 320 E 3rd St, NYC 10009.

423.NY.12. Escalera v NYC Housing Authority (CA 2) Def served notices to Pls to vacate: non-desirability, breach of regs (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. Nov 1, 1968: DC found for Defs. Jan 31, 1969: appeal pending.
423.NY.14. Portnoy v Hill (Binghamton City Ct) (57 Misc 1097, 294 NYS2d 278) Def allegedly tried to evict Pls in retaliation for rent strike. Oct 10, 1968: City Ct held retaliation a defense to eviction action: answer in summary proceeding "may contain any legal or equitable defense or counterclaim" (NY Real Property Actions and Proceedings Law §743); but to seek equity, Pls must pay back rent in full, except for time premises did not comply with housing code.

Rosefsky and D'Esti, Esqs, 96 Hawley St, Binghamton, NY 13901.

423.NY.15. Vinson v Greenburgh Housing Authority (Sup Ct, App Div, 2nd Dept) Def gave Pl 30-day notice to vacate; Pl asked annulment of determination to evict: denied due process of law. Aug 15, 1966: Westchester Co Sup Ct granted annulment. Mar 11, 1968: App Div affirmed: (1) Def imposed terms of contract rather than negotiating them, (2) public housing differs from private in purpose: providing permanent residence for tenants complying with requirements; must have reason for evicting tenants (Rudder v US, 226 F2d 51), (3) state supported and controlled administrative agencies subject to same due process requirements as state judicial and quasi-judicial bodies.

Levine and Frost, Esqs, 32 Broadway, NYC 10004; Rudolph Raiford, Esq, NYC.

Opinion: MCLL.

423.NY.16. Grissett v Wyman (NY Ct of App, #402) Pls-welfare recipients forced to move and unable to locate housing at cost within limits set by Def-
- 118 -

Commr of Social Services, proposed housing at $10-20 higher rent. Def denied proposal; placed Pls in motels, allowing 1 room per family, at a cost to the Co of $1,000 per mth board and room. Nov 22, 1967: Pls requested administrative review of decision. Dec: Pls, in class action, asked (1) injunctive and declaratory relief, alleging Def breached duty to exercise discretion in emergency to provide decent housing for Pls, (2) TRO permitting 1 Pl to move into housing at $10 above permitted rent; housing would be lost before administrative review could be obtained. Feb 2, 1968: Sup Ct dismissed complaint: (1) no cause of action, (2) class action improper, (3) failure to exhaust administrative remedies. Apr 11: Administrative commn reversed Def's ruling, but desired housing had already been rented. Apr 28: Pls appealed. Jan 20, 1969: App Div affirmed dismissal. Apr 16: Ct of App granted Def's motion to dismiss; no substantial constitutional question.

Allen Redlich, Carl Nathanson, Esqs, 166 N Main St, Freeport, NY 11520.

Pl's brief (App Div): MCLL.

423.NY.17. Hosey v Club van Cortland (SD NY, #4498) 1969: Pl-tenant organized other tenants to protest housing conditions; Def-landlord ordered Pl's eviction. NY Sup Ct refused to issue TRO: Pl's claim of retaliatory action not legal defense under NY Real Property Actions Law §743. Pl filed DC suit under §1983 claiming retaliation violated 14th Amdt; sought injunction against eviction. Mar 1969: DC refused injunction: since NY law not settled on question of retaliatory motive defense, threat of constitutional violation not sufficiently strong; Pl would not suffer harm because stay of eviction would automatically hold pending appeal in higher state ct. Pending.

Lester Evans, Michael B Rosen, Jonathan Weiss, Esqs, Mobilization for Youth Legal Services, Inc, 320 E 3rd St, NYC 10009.

423.NY.18. Humphrey v NYC Housing Authority (SD NY, #4236-67) Pl-tenant arrested on narcotics charge away from housing project; Pl's wife's brother committed nuisances on project (he did not live with Pl, was not invited). Defs ordered eviction of Pls. Oct 31, 1967: Pls filed suit for declaratory judgment, injunctive relief: claimed policies, practices of Def illegal, unconstitutional, denying due process, equal protection; attacked eviction, fining procedures. Oct 31, 1968: DC dismissed case along with several similar cases: declined to impose tenant desirability standards; found eviction procedures satisfied constitutional requirements, no grounds for class action; declined jurisdiction because order to vacate reviewable by state cts. Appeal pending.

Shyleur Barrack, Esq, NY Legal Aid Society, 11 Park Place 10007; Brian Glick, Esq, 323 W 101st St, 10025; Henry A Freedman, Esq, 150 W 96th St, 10025; and Richard Kwasnik, all of NYC.

423.NY.19. Nagler v James Meredith (Bronx Crim Ct) Pls, poor elderly whites, charged Def, black owner of apartment bldg, with harassment, interruption of basic services. Mar 10, 1969: Housing, Development Admr responded by ordering rent reductions. Def did not respond; harassment continued. May 13: Ct issued summons charging Def to respond by May 21 or arrest summons would be issued. Pending.

Lewis Friedman, Esq, 1350 Shakespeare Ave, Bronx, NY 10452.

423.NY.20. English v Huntington (ED NY, #69C144) Black, Puerto Rican Pls filed class action to enjoin Defs from removing Pls from present dwellings without providing adequate relocation housing in violation of Pls' rights under 13th, 14th Amdts, 42 USC §2000(d); asked Defs be required to construct sufficient number of low-rent units to meet Pls' needs; use 2 parcels of land within urban renewal area for construction of such housing; declare zoning code void, unconstitutional to extent code prevents construction of low-rent multiple dwellings or inexpensive family dwellings; Pls sought HUD, Urban Dev review of Defs' administrative decisions under 5 USC §701. Pending.

Sam R Raskin, Esq, 34 Dewey St, Huntington, NY 11743; NAACP Inc Fund.

Complaint: MCLL.

423.NC.1. Thorpe v Housing Authority of Durham (USSC) (148 SE2d 290, vac & rem 386 US 670; 157 SE2d 147, rev'd & rem 393 US 268) 1964: Pl commenced tenancy in housing project. Aug 10, 1965: Pl became pres of Tenants' Assn. Aug 11: Def notified Pl it would not renew lease. Sept: Def sued for summary eviction; Justice of Peace granted. Super Ct affirmed; Sup Ct affirmed. Dec 5, 1966: USSC granted cert. Feb 1967: HUD issued circular directing that tenant be told reason before eviction and given opportunity to reply. USSC vacated and remanded to NC Sup Ct. Sup Ct refused to apply HUD directive retroactively. Jan 1969: USSC reversed (9-0), Warren, CJ: (1) HUD intended its circular to be mandatory, (2) HUD's directive did not impair contract between Def and HUD, (3) directive should be applied retroactively, (4) no decision on whether h'g required by due process. Black, J, conc.

James M Nabritt III, Esq, 215 Park Row, NYC 10038.

And see Watkins, 423.Ill.6; Stewart, 423.Ill.7.

423.NC.2. Richardson v Housing Authority of New Bern (ED NC, Civ #678) Pls, Negro women with illegitimate children, denied admittance to or evicted from public housing by Defs. Pls filed class action (28 USC §§1983, 1343(3,4), 2201; 42 USC §1401 et seq; 1964 Civil Rights Act §601) for declaratory judgment, to enjoin Defs from: (1) enforcing certain lease provisions, failing to renegotiate leases in line with Constitution, statutes, (2) evicting and threatening to evict tenants without fair h'g or because of illegitimate children, (3) denying admission to housing because children illegitimate or under 2 yrs old, (4) racially segregating housing projects, (5) not complying with fed'l regs on fed'lly funded housing, (6) charging higher rents to Negro tenants than to white tenants. DC issued TRO. May 13, 1968: consent order ended case: Def agreed to drop illegitimate children rule, adopt eviction procedures in line with current HUD policies.

Conrad O Pearson, Esq, 203½ E Chapel Hill St, Durham 27701; J LeVonne Chambers, Esq, 216 W 10th St, Charlotte 28202; NAACP Legal and Educational Defense Fund Inc, 10 Columbus Circle, NYC 10019.

423.Pa.2. Morrison v Hibbs (Philadelphia Co Ct of Common Pleas, #1188) Pl occupied dwelling under lease, alleged to be voided by existing code violations. Jy 17, 1968: Pl filed suit: sought restitution of rent plus interest; punitive damages for trespass by Def-landlord (who allegedly cut off gas, electricity to intimidate Pl into leaving premises without legal process) and for breach of quiet enjoyment. Ct granted injunction to restore services, desist from acts of intimidation. Pending.

Community Legal Services, Inc, 682 N Broad St, Philadelphia 19146.

423.Tenn.1. Hayes v Moore (Shelby Co Chancery Ct, #71786-2RD) Pl-tenant suffered housing code violations amounting to partial constructive eviction, breach of warrant of inhabitability, contract illegality. Pl sought injunction against eviction for nonpayment of rent; to compel Def-landlord to comply with codes; damages. Jan 21, 1969: parties agreed: Def would repair dwelling, dismiss eviction proceeding; Pl would pay rent into ct until violations corrected, drop charges against Def. Ct maintained jurisdiction to Feb 1969 when agreement fulfilled; proceedings dismissed.

Otis Higgs, Jr, Esq, Commerce Title Bldg, Memphis 38103.

- 119 -

423.Tex.1. Quevedo v Collins (ND Tex, #CA-3-2626-C) Def-Housing Authority only gave notice that some unverified complaints filed against Pl, mth-to-mth tenant, maintained Def need give no reasons to evict, got possession judgment. Pl filed class action to enjoin eviction unless prior h'g with notice of standard for continued occupancy, specific charges against Pl; chance to cross-examine unfavorable witnesses, compel presence of favorable; written record of h'g. Jy 12, 1968: DC issued preliminary injunction: Def's practices unconstitutional; any action by Def against Pl suspended pending final h'g.

Dallas Legal Services Project, 301 N Market, Dallas 75202.

423.Wisc.1. Junker v Housing Authority of Milwaukee (ED Wisc, #68-C-303) Pl applied for tenancy of Def's housing, denied: Pl owed rent from previous tenancy. Oct 16, 1968: Pl filed suit: challenged eligibility criteria, procedures; alleged deprivation of due process, equal protection; sought injunction, declaratory relief: previous tenancy when married; since divorced, previous husband, head of household, responsible for debts. Pending.

Bettie Jean McJunkin, James Walrath, Esqs, Milwaukee Plan Legal Services, 1322 S 16th St, Milwaukee 53204.

423.Wisc.2. Lewis v Housing Authority of Milwaukee (ED Wisc, #67-C-355) 1967: Pl, housing authority tenant since 1958, evicted shortly after birth of 2nd illegitimate child. Pl filed class action attacking policy of evicting mothers of more than 1 illegtimate child; asserted sole criterion for eviction under fed'l (Housing Act of 1937, 42 USC §1401), Wisc (Wisc Housing Authorities Law, §66.40, 1965) statutes is income level; claimed unwritten policy violated equal protection. Pending.

Michael J Spector, Esq, 735 N Water St, Milwaukee 53202; Bettie McJunkin, Esq, Milwaukee Plan Legal Services, 1322 S 16th St, Milwaukee 53204.

And see Fitzgerald, 423.Wisc.2a.

423.Wisc.2a. Fitzgerald v Housing Authority of Milwaukee (ED Wisc, #68-C-297) Pl, previous housing authority tenant, excluded by Defs from housing projects; application denied without h'g: Pl had more than 1 illegitimate child. Pl filed suit: sought injunctive relief; claimed violation of due process, equal protection under 42 USC §§1401-1436. Attys joined with Lewis, 423.Wisc.2, to try constitutionality of 2 illegitimate children rule. Pending.

Michael Spector, David Peterson, Esqs, 735 N Water St, Milwaukee 53202.

And see Lewis, 423.Wisc.2.

424. Credit Problems (and see 376)
And see Wolfin, 604.17.
424.13. Rodriguez v Winters Pontiac (San Mateo Co Super Ct, #133090) During automobile sale negotiations Def-car dealer allegedly told Pls no substantial down-payment required. Def executed 2 contracts, one on household furniture, one on auto; required Pls to sign. Pls filed suit: Def fraudulently induced Pls into 2 separate contracts, loan repayment schedules in violation of Civ C §2982(a); Pls entitled to recover amounts paid pursuant to Civ C §2983; all documents void under Civ C §2984.2 because Pls were caused to include personal property other than auto as security. Pending.

Hector N Ortiz, Esq, San Francisco Neighborhood Legal Assistance Foundation, 2701 Folsom St, San Francisco 94110.

424.14. M A M Inc v Garcia (DC Colo) Time Price Differential in Colo statute provides for higher interest charges on older motor vehicles than for newer ones. 1969: Def-purchaser contended statute worked unreasonable hardship on poor as they consequently paid higher prices for credit; claimed that statute denied equal protection. Pending.

Howard I Rosenberg, Richard F Hennessey, James R Rode, Esqs, Legal Aid Society of Denver, 1375 Delaware, Denver 80204; Charles E Butter, Esq, Pueblo Co Legal Services, Bon Durant Bldg, Pueblo, Colo 81003.

424.15. Clark v Pan American Motors (San Francisco Muni Ct, #597248) Pl, man of minimal education with little experience in business, financial affairs, purchased automobile. Pl filed suit seeking to rescind purchase contract: Def, car dealer, took unfair advantage of Pl's weak, pliable mind to negotiate excessive price (Civ C §1575(2)); breach of implied warranty under Commercial C §2314. Pending.

Hector N Ortiz, Esq, San Francisco Neighborhood Legal Assistance Foundation, 2701 Folsom St, San Francisco 94110.

424.16. Vanslayke v Williams (San Mateo Co Super Ct, #146654) Pls purchased automobiles using dealer financing, negotiated terms with Defs, car dealers, for monthly rate satisfactory to Pls. On presentation of contract, rates had been increased due to unforeseen costs. Pls protested, but having paid deposits, agreed to sign contracts. Jy 28, 1969: Pls filed class suit: to restrain Def's allegedly fraudulent practices; for damages. Jy 30: Def filed answer, cross-complaint: denied Pl's charges; sought damages for willful, malicious injuries arising from Pl's suit. Pending.

D'Army Bailey, Michael L Woods, Michael S Zola, Esqs, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103.

Pl's first amended complaint; Def's demurrer, answer, cross-complaint: MCLL.

424.17. Perez v Williams Ford (San Francisco Muni Ct, #599173) Def, credit disability insurer, failed to pay Pl's car payments when Pl became disabled; Pl allowed repossession of car. Pl filed suit for damages alleging contract violation, dual agency, violation of Calif Insurance Code, conversion. Pending.

Robert Bartlett, Esq, San Francisco Neighborhood Legal Assistance Foundation, 2701 Folsom St, San Francisco 94110.

424.18. Laurentide Finance Corp v Creed (Salinas Muni Ct, #24285) Pl allegedly encouraged Def to file incomplete financial statement during loan transaction, intending to deny Def protection of Fed'l Bankruptcy Act because of fraudulent statement. Pl filed suit alleging fraud by Def. Counterclaim contended Pl fraudulently filed complaint for fraud against Def; asked for punitive damages. Suit settled with no damages; Pl dropped action.

Robert L Gnaizda, Esq, California Rural Legal Assistance, 328 Cayuga, Salinas 93901.

424.19. Miller v Retail Adjustment Bureau (DC DC, #900-69) Pls filed class suit for relief against debt collection tactics employed by Defs: alleged tortious harassment, public nuisance; requested injunctive relief, punitive damages; alleged Defs practiced blackmail, unauthorized practice of law. DC granted TRO. Pending.

Glenn E Carr, Esq, VISTA Project, 324 C St SE, Washington, DC 20003. Maribeth Halloran, Jessica L Magne, Caroline Nickerson, J Kirkwood White, Esqs, Neighborhood Legal Services Program, 1219 Good Hope Road SE, Washington, DC 20020.

- 120 -

424.20. Star Credit Corporation v Price (NY Sup Ct, App Div, 2nd Dept) Je 28, 1967: Nassau Co Dist Ct directed Def to pay $257.70 to Pl by monthly installments of $25 commencing Jy 10. Def failed, was ordered to show cause. Dist Ct held moving papers properly served; reinstated commitment order disallowing ct investigation of ability to pay. Jan 23, 1968: Def arrested, imprisoned: Def served notice of appeal, was ordered to show cause, moved for stay of imprisonment pending determination. Dist Ct granted stay; Def appealed to App Div. Questions: (1) may Ct consider claim of inability to pay prior to commitment? (2) may involuntary financial inability to pay cause commitment? (3) does imprisonment for nonpayment of fine violate due process, equal protection? Pending.

Allen Redlich, Carl Jay Nathanson, Esqs, 166 N Main St, Freeport, NY 11520.

Def's brief: MCLL.

424.21. Jones v Star Credit Corp (Nassau Co Sup Ct, NY, #S-3978) Pl-welfare recipient contracted to purchase freezer, retail value $300, for $1,235 from door to door salesman. Mar 18, 1969: Pl filed suit, having paid half contract amount. Ct found contract unconscionable under Uniform Commercial C §2-302; held amount paid gave Def ample compensation, reformed contract accordingly.

George Nager, Esq, Nassau Dept of Social Services, Office for Legal Services, Mineola, NY 11501.

424.22. W T Grant Co v Walsh (DC NJ) (36 Law Week 2626) Pl, retail store, issued coupon book worth $200 of merchandise to Def in return for promise to pay $10/mth for 24 mths. Def believed contract was for charge account where only goods received paid for. Pl filed suit to enforce conditions. DC held contract unenforceable: fraudulent, unconscionable, violation of public policy.
424.23. Lawson v Mantell (Albany Co Sup Ct, NY, #5194-69) Aug 20, 1969: Pls filed suit for injunctive relief, declaratory judgment to void NY statute permitting repossession of personal property without h'g: statute violated due process, equal protection. Ct issued TRO pending settlement of main issues. Pending.

Lawrence F Klepper, Esq, Legal Aid Society of Albany, 79 N Pearl St, Albany 12207.

424.24. McCallop v Universal Acceptance Corp (San Francisco Super Ct, #605038) May 20, 1969: Def-finance corp filed suit in Muni Ct to recover $638.37 from Pl. Def filed order for levy of attachment with sheriff, who through Pl's employer retained $96.87 without h'g. Je 19: Pl filed class complaint, sought relief from attachment, consideration of constitutionality of attachment without h'g. Jy 11: Super Ct ordered sheriff to release all monies held as attachments, restrained sheriff from further attachments: violation of 14th Amdt due process.

Sidney M Wolinsky, Michael D Nasatir, Steven J Antler, Kenneth Hecht, Esqs, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103.

Complaint, affidavit, motion for permanent injunction, order: MCLL.

And see Sniadach, 424.25.

424.25. Saniadach v Family Finance Corporation of Bay View (USSC) (37 Wisc2d 163; 154 NW2d 259; 395 US 339) Pl-Finance Corp froze ½ Def's $63 wages for $420 claim under Wisc statute which allows freezing of wages pending h'g in garnishment suit. Def moved to dismiss suit: statute denied due process. Co Ct denied; Cir Ct affirmed; Sup Ct affirmed. Je 1969: USSC reversed (8-1), Douglas, J: "a prejudgment garnishment of the Wisconsin type may as a practical matter drive a wage-earning family to the wall"; absent notice and prior h'g, this procedure involves taking of property (wages) without procedural due process. Harlan, J, conc. Black, J, diss.

Jack Greenberg, Esq, 10 Columbus Circle, NYC 10019.

And see McCallop, 424.24.

424.26. Beltran v Cohen (ND Calif, #49250) Internal Revenue Service levied 100% of Pl's wages (26 USC §6331). May 14, 1968: Pl, mother, separated from husband, filed class suit, sought declaratory judgment, injunction, claiming violation of 5th, 13th Amdts: total garnishment of wages would eventually result in discharge from relatively desirable position and unemployment; §304, Consumer Credit Protection Act, 82 Stat 146 (May 29, 1968) prohibits discharge from job for garnishment of wages for any one indebtedness, but §305, Consumer Credit Protection Act, does not limit levies for state, federal taxes. Pending.

California Rural Legal Assistance, 328 Cayuga, Salinas 93901.

424.27. Hebing v Household Finance Corp (Onondaga Co Sup Ct, NY) Pl, widow employed by Def-Atlantic Seafood Co, purportedly signed wage assignment to secure loan from Def-Household Finance Corp. Pl in suit claimed no debt to HFC; attacked constitutionality of NY Personal Property Law on wage assignments: lack of notice, h'g prior to wage assignment deductions denied due process. Ct issued TRO; ordered Def-HFC to show cause why permanent injunction should not issue, statute should not be declared unconstitutional. Pending.

Barbara B Gregg, Esq, Onondaga Neighborhood Legal Services Inc, 227 Gifford St, Syracuse 13202.

424.28. Budget Finance Plan v Franklin (San Francisco Muni Ct, #604833) May 1966: Defs signed auto sales agreement, loan contract. May 15, 1968: Pls, auto dealer financing agency, filed suit alleging failure to pay. Defs' answer claimed loan contract pledging auto, plus household goods, furniture as security violated Calif Civil C §2982 (Reese-Levering Act); Commercial C §9204(4)(b). Sept 1969: pending.

Marvin Kayne, Esq, San Francisco Neighborhood Legal Assistance Foundation, 2701 Folsom St, San Francisco 94110.

Defs' answer: MCLL.

424.29. American Plan Loan Co v Legal Aid Society of Alameda Co (Alameda Co Super Ct) 1968: Def exposed Pl's misleading advertising practices; Pl subsequently obligated to add explanatory material to ad. Pl sued Def for damages resulting from Def's interference with Pl's conduct of business. ACLUNC filed amicus brief: free speech bars damage action against Def's complaints about misleading business practices. Pending.

Marshall Krause, Esq, ACLUNC, 503 Market St, San Francisco 94105.

424.100. BANKRUPTCY

424.107. Robinson v Blount (ND Calif, #51194) Pl, sub-clerk in post office, fired for failure to meet 2 debts despite application under Wage Earners Plan, Bankruptcy Act. Apr 23, 1969: Pl filed suit: post office's act arbitrary, in excess of statutory authorization, in conflict with Chap 13, Bankruptcy Act; postal reg covering employers' action unconstitutionally vague, indefinite; sought restoration with full back pay. Pending.

Thomas L Fike, Thomas Schneider, Esqs, Legal Aid Society of Alameda Co, 1815 Telegraph, Oakland 94612.

424.108. Matter of Cayer (ND Me, #BK-67-262-ND) Pet, bankrupt Maine resident, signed loan note with creditor stipulating Kentucky law should govern,
- 121 -

incorporating interest rate in excess of that permitted by Me Small Loan Act, 9 MRSA §3001 (1967). In suit by creditor to share in bankrupt's estate, DC held: Maine law governed under Uniform Commercial C §9-201, 11 MRSA; note invalid because of interest rate irregularity; rejected creditor's claim to estate.
424.109. In the Matter of Ostrer (CA 2) (216 FSupp 133; 393 F2d 646) 1964: Appt filed bankruptcy petition; adjudicated bankrupt; challenged by creditor: false statement of financial condition barred Appt from discharge under §14c(3) of Bankruptcy Act. Referee found for Appt: no indication of intent to defraud. DC (ED NY) reversed: Referee erred as matter of law in his interpretation of §14c(3), question of intent irrelevant; ct did not review facts. Apr 19, 1968: CA reversed, Kaufman, J: where financial statement, although erroneous, published without intent to deceive or defraud, statement not "materially false" within provision of Bankruptcy Act.

Joseph Lewis Simon, Esq, 521 5th Ave, NYC 10017.

424.200. UNINSURED MOTORISTS

424.201. Orr v San Francisco Super Ct, Alvarado, et al— Real Parties in Interest (formerly Alvarado v Orr, 424.103)

(Calif Sup Ct) (73 CR 830, reh'g den 77 CR 816) Pl-Alvarado, uninsured indigent motorist involved in accident, forced to surrender license in lieu of security bond (Calif Vehicle C §§16080, 16100). Pl filed class suit in Super Ct against Def-Dept of Motor Vehicles, seeking 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 h'g on culpability. Jy 1968: Super Ct denied motion for summary judgment, but held Pls entitled to h'g on culpability, citing Escobedo, 35 C2d 870. Dec 10: DCA, 1st Dist, held (1) Dept of Motor Vehicles must find "reasonable possibility" that judgment will be recovered against Pls before it can demand security, suspend license; this finding subject to judicial review, (2) procedural due process does not require pre-suspension administrative h'g on probable culpability. Def-Dept of Motor Vehicles, as Pet, petitioned Sup Ct for h'g; original Pl, in answer to Def's petition, asked Sup Ct to find pre-suspension h'g required for due process. 1969: Sup Ct affirmed DCA; remanded to Dept of Motor Vehicles for culpability determination; denied Atty Genl's petition for reh'g.

Norman S Nayfach, Esq, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103.

Amicus: Robert Bell, California Rural Legal Assistance, 1049 4th St, Santa Rosa 95404.

Answer to petition (Sup Ct): MCLL.

425. Warranties, Service (and see 376)
Bibliography: Misrepresentation and warranty, rights of vendor and purchaser. 3 Civil Rights Handbook 291n-291o. (Nat'l Lawyers Guild Publications, Box 673, Berkeley, Calif 94701).
425.6. Granizo v Matthews Television and Appliance (San Francisco Super Co, #590204) Pl contracted with Def for new TV; allegedly received repossessed TV. Aug 8, 1968: Pl sought injunction against fraudulent sales by Def to indigents. Pl obtained substantial settlement out of ct, assurance that Def would desist from activities complained of.

Harvey M Freed, Esq, San Francisco Neighborhood Legal Assistance Foundation, 2701 Folsom St, San Francisco 94110.

425.7. Lopez v Daly City Toyota (San Mateo Muni Ct, #18888) Pls purchased used automobile following oral negotiation and agreement with Def-car dealer. Def persuaded Pls to sign purchase order containing "as -is" clause limiting Def's liability for condition of car, which Def knew to be defective. Later, Pls requested Def to repair car; Def refused. Pls filed suit: alleged Def took unfair advantage of Pls' inability to read English, fraudulently induced Pl to sign contract; sought damages to cover costs of repair. Pending.

Hector N Ortiz, Esq, San Francisco Neighborhood Legal Assistance Foundation, 2701 Folsom St, San Francisco 94110.

Complaint: MCLL.

425.8. Williams v Rank and Son Buick (Wisc Sup Ct, #147) Mar 1968: Pl purchased used automobile represented by Def-car dealer as having factory equipped air conditioning; later found car had no air conditioning. Pl filed suit; ct awarded damages for fraud. Wisc Sup Ct reversed: in accordance with caveat emptor doctrine, purchaser had opportunity to determine whether car was as represented.
425.9. Austin v Atlas Subsidiaries (Miss Sup Ct, #45352) Appts signed contract for installation of aluminum siding; work not completed; siding co sold contract, note, deed of trust to Defs. When Appts refused payment for incomplete work, Defs filed suit to recover outstanding payments. Ct found for Def: purchase of siding co made in good faith, for value, before maturity, without notice of infirmity; note complete, regular on its face. 1969: Sup Ct affirmed, finding no incriminating degree of circumstances against Defs.

William P Joyner, Esq, N Mississippi Rural Legal Services, 108½ S Lamar, Oxford 38655.

425.100. UNEQUAL SERVICES (and 556)
And see Hawkins, 556.Miss.2; Harris, 556.Miss.3; Dry Creek Rancheria, 604.31; Whiterock, 604.32.
425.101. Nunemaker v Pacific Telephone and Telegraph Co (formerly 425.5)

(Calif Sup Ct) Jy 14, 1967: Def applied to Public Utilities Commn for authorization to require $25 security deposit of new telephone customers not meeting specified credit requirements. Aug 8: application granted. Dec 14: Comps, for class of persons required to post deposit or unable to do so, sought rescission from Commn of authorizing resolution, declaration that such requirement is unlawful: (1) telephone service is necessity of life, 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. Commn dismissed. Comps sought review in Calif Sup Ct; granted. Pending.

Gilbert T Graham, Stafford Smith, Peter Sitkin, Isidoor Bornstein, Esqs, San Francisco Neighborhood Legal Assistance Foundation, 1095 Market St, San Francisco 94103.

Opinion of Commn: MCLL.

425.102. Lewis v Washington Gas Light Co (DC Pub Service Commn) Feb 29, 1968: Pet, in class action, requested investigation of alleged arbitrary, discriminatory policies of Def toward poor: (1) deposits required ranged from $30 to $150, depending on street of residence, (2) amount of deposit not related to previous record of consumer in paying gas, light bills, (3) some consumers must pay previous tenant's bill, (4) deposits not applied to unpaid bills, nor ever returned. Pending.

Paul Cohen, Susan Shapiro, Esqs, Neighborhood Legal Services Project, 1411 9th St NW, Washington, DC 20001.

Complaint: MCLL.

- 122 -

426. Family Problems (and see 372, 421, 560s)
Analysis: Jacobus ten Broeck, Dual system of family law. 3 Civil Rights Handbook 292-292e. (Nat'l Lawyers Guild Publications, Box 673, Berkeley, Calif 94701).

See also Brennan, 24.NY.13; Jeffreys, 372.91; Smith, 372.92; Boddie, 372.92c; Harris, 372.92b; Suber, 372.92d; Ramos, 421. Calif.43.


426.9. Levy v Louisiana (USSC) (192 So2d 193, 250 La 25, 391 US 68) Pls, minor illegitimate children, sued for wrongful death of mother. Trial ct dismissed: no cause of action. Ct of App affirmed: La Art 2315 creating cause of action for wrongful death in "child" means "legitimate child." La Sup Ct refused h'g. May 20, 1968: USSC reversed (6-3), Douglas, J: "illegitimate children are not `non-persons' ... they are clearly `persons' within the meaning of the Equal Protection Clause of the 14th Amdt"; (2) legitimacy or illegitimacy of birth unrelated to nature of wrong allegedly inflicted on mother; invidious to discriminate against illegitimate children when no action of theirs relevant to harm done mother. Harlan, J (Black, Stewart, JJ) diss.

Norman Dorson, Esq, Arthur Garfield Hays Foundation, NYU, NYC 10003.

Appt's brief: MCLL.

426.11. Munkelwitz v Hennepin Co Welfare Dept (USSC) (150 NW2d 24; cd 392 US 918) At instance of Resp-Welfare Dept, trial ct permanently severed Pet-indigent mother's parental rights over 7 children. On appeal, Minn Sup Ct refused to furnish transcript of trial proceedings. 1967: Pet petitioned USSC for cert: refusal to furnish transcript for appeal denies equal protection to indigent, citing Griffin v Illinois, 351 US 12 (1956). Je 5, 1968: Minn Sup Ct reversed: Pet entitled to free transcript under due process. Je 14: USSC dismissed petition for cert under Rule 60.

Harlan E Smith, Bernard P Becker, James J Kreiger, Esqs, Legal Aid Assn, Minneapolis.

And see cases at 374.

426.15. Re Cager (Md Ct of App) (248 A2d 384) Mothers had reported more than one illegitimate child on welfare applications. May 24, 1967: State sought to take custody of 9 children: neglected under 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 neglect proceedings in juvenile ct naming children only as Resps. Circ Ct denied mothers' motions for intervention, appointment of counsel for mothers, stay for legal consultation; found children neglected. Nov 1968: Ct of App held other illegitimate children not alone indications of unstable moral environment or neglect; in juvenile ct proceedings, mothers of Resps-children not entitled to ct-appointed counsel when children well represented by guardian: state may use welfare information only for purposes for which it was furnished or in direct connection with welfare agency.

Frank Kratovil, Esq, 4063 Main St, Upper Marlboro, Md 20870; Project on Social Welfare Law, NYU School of Law; ACLU, 156 5th Ave, NYC 10010; NAACP Legal Defense Fund Inc, 10 Columbus Circle, NYC 10019.

Appt's brief (Ct of App): MCLL.

426.16. Williams v Essex Co Welfare Bd (USSC) (238 A2d 474, cd 89 SCt 185) Wife, separated from Pet, bore illegitimate child, claimed ADC for herself, child. NJ- law holds husband generally has no obligation for support of "adulterous, abandoning wife"; NJ Poor Law authorizes Director of Welfare to bring nonsupport charges in name of recipient against certain financially able relatives including husband. Husband was sued: Super Ct ordered him to contribute $10/week to wife's support. App Div affirmed; NJ Sup Ct denied cert. Husband petitioned USSC for cert: he, other husbands similarly situated, bear unequal burden of support for welfare program. Oct 14, 1968: USSC denied cert.

Newark Legal Services, 449 Center Ave, Newark 07109.

426.17. Re V (Bronx Co Family Ct, #2938-40/67) Mother, father working, left 3 children alone in house 2 hrs each afternoon. Boy, girl (aged 10, 8) in house; girl bled from vagina; mother returned, took her to hospital; doctor's examination revealed no evidence of rape. Case worker initiated neglect proceeding. Ct concluded: leaving children alone for 2 hr period not neglect; parents' refusal to consent to examination of children by ct psychiatrist not sufficient reason for proceeding.
426.18. Matter of Blaine (Queens Co Family Ct) (54 Misc2d 248) 1967: Pl sought custody of his 2 children, alleging mother's alcoholism, adultery violated order placing custody in both parents, Ct ordered psychiatric examination of both parents. Jy 28: objections to introduction of psychiatric reports. Ct allowed introduction of (1) all factual data, (2) tenor of diagnosis, in absence of parties' stipulation, (3) remainder, unless contrary to therapeutic or other policies. Ct discharged children to custody of both parents: mother unlikely true alcoholic, father's home presence not detrimental.
426.19. James v Barbaro (Nassau Co Family Ct) Def, Nassau Co Dept of Social Services, in neglect proceeding, allegedly based decision to remove children from Pet's care on information in welfare files. Pet requested access to files; denied. 1968: Pet filed suit for access under due process, equal protection. Pending.

Allen Redlich, Esq, Nassau Co Law Services Comm Inc, 7 Marvin Ave, Hempstead, NY 11550.

426.20. James v McLinden (DC Conn, #13127) Pl, 50 yr old welfare recipient, took charge of child when mother jailed. Mother, on release, gave custody to Pl, never returned. Welfare Dept filed petition of neglect, alleged child abandoned. Pl received no notice of petition, h'g. Juvenile Ct refused to allow Pl to attend h'g. Ct held child neglected; ordered Welfare Dept custody. Pl appealed; denied. May 23, 1969: DC held for Pl: found violation of 14th Amdt; under Conn law person having control of child entitled to h'g, has same rights as legal, natural parent.

William H Clendenen, Jr, William D Goodrich, Esqs, 795 Grand Ave, New Haven 06511.

426.21. Boone v Wyman (USSC) (295 FSupp 1143; 412 F2d 857; cd 90 SCt 600) Mother placed illegitimate child in custody of Def, NY Commn of Social Services, under NY Social Services Law §384(c). Pl-father, 17 yrs, sought custody; denied. Pl filed suit: denial of custody without h'g, merely because child illegitimate, contrary to intent of AFDC provision of Social Security Act (42 USC §601), Child Welfare Provision (42 USC §§701, 728); violation of due process. DC found against Pl: constitutional issues insubstantial; habeas corpus may be invoked. Jy 25, 1969: CA 2 affirmed. Jan 12, 1970: USSC denied cert.

Harold J Rothwax, Jonathan Weiss, Esqs, Mobilization for Youth Legal Services Inc, 759 10th Ave, NYC 10019; John DeWitt Gregory, Oscar G Chase, John C Gray, Jr, Esqs, Community Action for Legal Services Inc, 80 William St, NYC 10038.

- 123 -

426.22. Whitehead v Whitehead (Hawaii Family Ct, #5505) Hawaii requires 1 yr residence before divorce can be granted. Pl filed suit claiming requirement violated equal protection for no compelling state interest, restricted interstate travel. Pending.

Steven K Christensen, Esq, Legal Aid Society of Hawaii, 180 Kinoole St, Hilo, Hawaii 96720.

427. Employment Problems (and 263, 346, 570s)
And see Lara, 421.Calif.31.
427.15. Mixon v Schultz (ND Calif, #51177) 1969: Pres Nixon announced intention of closing 57 Job Corps centers. Apr 22: Pls, Job Corps enrollees, filed class suit: for declaration of rights under Economic Opportunity Act, enforcement of contractual rights, preliminary and permanent injunctions restraining Defs from discontinuing Job Corps program. Pending.

Thomas L Fike, Thomas Schneider, Ronald Watts, Gregory R Dallaine, Daniel Prince, Esqs, Legal Aid Society of Alameda Co, 1815 Telegraph Ave, Oakland 94612.

427.16. Cole v Heidtman (SD Fla, #68-245) Black migrant laborers brought to US from British West Indies to work in sugar fields complained to employers of low pay rates, threatened to stop work. Employers ordered workers to assemble to receive pay; Palm Beach Co Sheriff declared assembly illegal, ordered workers to disperse or board buses; those on buses immediately deported or detained and then deported. Workers not advised of rights; legal assistance attys harassed while attempting to contact workers. Feb 29, 1968: Pls-workers filed class action (under 42 USC §§1981, 1983, 1985(3), 1988; 18 USC §242) alleging Sheriff conspired with employers, labor organization under color of law to discriminate against Pls, deprive Pls of constitutional rights; also contended employers breached contractual arrangements in violation of fed'l law. Pls sought compensation, punitive damages and injunction restraining Defs from violating rights, mandatory injunction ordering reinstatement with back pay or rescission and reimbursement of money illegally collected, order that Defs not blacklist Pls. DC issued protective order for Pls requiring Defs to take depositions in Jamaica at own expense. Pending.

South Fla Migrant Legal Service Program, 110 NW 5th Ave, Del Rey Beach, Florida 33444.

And see 580.

427.17. Local Union 300 v McCulloch (ED La, #68-1380) Pls, tractor drivers employed on sugar plantations, filed suit attacking their exclusion as agricultural workers from National Labor Relations Act, 29 USC §141: claimed they were not such agricultural workers because exclusion refers only to unskilled small farm laborers; exclusion denied equal protection, due process. NLRB denied relief; Pls sought 3-judge ct. Pending.

Richard Sobol, Esq, for Roger Baldwin Foundation of ACLU, 606 Common, New Orleans 70130; James Youngdahl, Esq, 711 W 3rd, Litt