Forty Years Defending the Constitution

Fred Okrand

Interviewed by Michael Balter

Completed under the auspices
of the
Oral History Program
University of California
Los Angeles

© 1984 The Regents of the University of California

Fred Okrand

Use Restrictions

This manuscript is hereby made available for research purposes only. All literary rights in the manuscript, including the right to publication, are reserved to the University Library of the University of California, Los Angeles. No part of the manuscript may be quoted for publication without the written permission of the University Librarian of the University of California, Los Angeles.


This interview was made possible in part by a grant to the UCLA Oral History Program from the John and LaRee Caughey Foundation.

Photograph of Fred Okrand, frontis, volume II, courtesy of Ramona Ripston.



Fred Okrand was born on July 8, 1917, in Los Angeles, California, the son of Sam and Mary Lankin Okrand. He grew up in Los Angeles where he attended schools in both the South Central and Boyle Heights districts. He graduated from UCLA in 1937 and then entered law school at the University of Southern California. While a law student, he was an editor of the Southern California Law Review.

In 1940, Mr. Okrand joined the law firm of Leo Gallagher and A. L. Wirin, where he immediately began working on cases for the American Civil Liberties Union (ACLU). His first assignments included work on two important free speech cases of that time: Bridges v. California and Times Mirror v. Superior Court. When Gallagher and Wirin dissolved their partnership in 1942, Mr. Okrand stayed with Wirin, who continued to serve as counsel for the Southern California affiliate of the ACLU. Wirin and Okrand unsuccessfully challenged the evacuation of West Coast Japanese into concentration camps. They also undertook the defense of several conscientious objectors.

Mr. Okrand was inducted into the United States Army in December 1942 and eventually served in the European

campaigns that followed the invasion of Normandy. When the war ended he rejoined the Wirin firm and became a full partner. He was immediately involved in a number of landmark cases upholding previously denied rights of Japanese resident-aliens to own land and engage in commercial fishing. He was also successful in persuading the courts to restore citizenship to many Japanese-Americans who had renounced their United States citizenship as a result of the coercive conditions that prevailed in the internment camps.

Over the next forty years, Mr. Okrand continued to serve as ACLU counsel on cases touching many aspects of civil liberties. During the McCarthy period he worked on legal challenges to the House Un-American Activities Committee (HUAC) investigations, as well as to state and local loyalty oath requirements. Okrand and Wirin were active in cases dealing with school desegregation, fair housing, immigration rights, capital punishment, nuclear-arms testing, obscenity and censorship, unlawful search and seizure, the defense of anti-Vietnam War protestors.

In 1972, the ACLU Foundation assembled an in-house legal staff and asked Mr. Okrand to be the Foundation's first legal director. His retirement from this position

is effective September 1, 1984, whereupon he will become legal director emeritus of the Foundation.

In the following pages, Fred Okrand describes his career as a civil liberties advocate, the details of many of the cases on which he served as counsel, and the history of the ACLU in Southern California over a forty-year span.


Interview History


Michael S. Balter, Interviewer/Editor, Oral History Program. BA, Biology, San Jose State University; MA, Biology, UCLA.

Time and Setting of Interview

Place: Home of Fred Okrand, Van Nuys, California.

Dates: February 4, 7, 10, 16, 26, March 6, 9, 13, 17, 20, July 24, 31, August 7, September 4, 11, October 9, 16, November 13, December 1, 1982.

Time of day, length of sessions, and total number of recording hours: All of the interview sessions were conducted during the daytime. Nineteen sessions were held. All sessions except the last were approximately one hour long. A little less than nineteen hours were recorded.

Persons present during interview: Balter and Okrand. Mrs. Okrand occasionally sat in.

Conduct of the Interview

During the period of time the interviews were conducted, the interviewer worked for the American Civil Liberties Union of Southern California as a paralegal and press officer.

The interviews were begun shortly after Mr. Okrand had suffered a heart attack and was resting at home while awaiting bypass surgery. The interview sessions were suspended for four months while he underwent and recovered from the surgery. There were no significant differences in the interview process when the interviews resumed.

The interview followed a basically chronological format. Mr Okrand was asked to describe his early life in Los Angeles and the background to his decision to pursue a career in civil liberties law. He then detailed the numerous cases he was involved in over several decades and discussed the history and internal politics of the ACLU.



The verbatim transcript was edited by Program staff editors Rick Harmon (Tapes 1-13) and Cheri Derby (Tapes 13-19). The manuscript was checked for accuracy and edited for punctuation, paragraphing, spelling, and verification of proper names. The final manuscript retains the same order as the taped material. Words or phrases introduced by the editors have been bracketed.

Mr. Okrand reviewed and approved the edited transcript, making minor corrections and deletions and supplying spellings of names not previously verified.

The index was prepared by Program Principal Editor Richard C. Smith. The introduction was written by Michael Balter. Front matter was assembled by Program staff.

Supporting Documents

The original tape recordings of the interviews are in the University Archives and are available under the conditions specified in the legal agreement covering this interview.

The noncurrent records of the Southern California affiliate of the American Civil Liberties Union are available to researchers at the Department of Special Collections, University Research Library (Collection 900, "ACLU of Southern California"). The collection includes many documents and materials pertinent to the contents of the Okrand oral history interview. Open Forum, the periodical of the Southern California affiliate of the ACLU, also is available at the University Research Library. Issues published between 1924 and 1964 are on microfilm (Microfilm JC15) at the Department of Special Collections; issues published after 1951 are located in the open stacks of the University Research Library.

Table of Contents


  • TAPE NUMBER: I, SIDE ONE (February 4, 1982)
  • Early life in Los Angeles--Mother, father, and other relatives--The Temple Street Jewish community--Childhood remembrances--Memories of mother and father--Experimenting with a crystal radio set--The Thirty-seventh Street neighborhood--Moving to the Watts area--Brother in the Los Angeles Junior Symphony Orchestra-Blacks in the Thirty-seventh Street neighborhood--Father's political beliefs and activities--Father's gasoline station in Boyle Heights.

  • TAPE NUMBER: I, SIDE TWO (February 4, 1982)
  • More childhood memories--Early years in school--Attending an opportunity room--Drug problems in Los Angeles high schools of the twenties--Feelings of differentness as a Jew--Relationship with brother--Attending Hollenbeck Junior High in Boyle Heights--Extracurricular activities at Hollenbeck--Early intellectual interests--Christmas vacation procrastination.

  • TAPE NUMBER: II, SIDE ONE (February 7, 1982)
  • Political atmosphere of the home--Parents' socialist political loyalties--Influence of parents on own political values--The Workmen's Circle--William Busick and socialist movement in Los Angeles--Attending Roosevelt High School in Boyle Heights--Extracurricular activities at Roosevelt--The Great Depression--High school academic activities--Acting in The Enemy.

  • TAPE NUMBER: II, SIDE TWO (February 7, 1982
  • Beginnings of social awareness--Graduation from high school and entrance into college at the University of California, Los Angeles (UCLA)--Plans to go to law school--Courses at UCLA--The Alpha Epsilon Club--The Veterans of Future Wars--Ideological ferment on the UCLA campus in the thirties--Initial contact with the American Civil Liberties Union--The UCLA campus in 1933--Entering University of Southern California law school--Experiences in law school.

  • TAPE NUMBER: III, SIDE ONE (February 7, 1982) 67
  • Operating the gasoline station and attending law school--First meeting with future wife, Mimi--Friendship with Mimi--Accounting in the gasoline business--Law school courses and professors--Working as an editor on the Southern California Law Review--Writing notes for the law review--Family finances--Standing in the USC law school class of 1940.

  • TAPE NUMBER: III, SIDE TWO (February 10, 1982)
  • Graduation from law school and preparation for the bar exam--Marriage and part-time jobs--First law job--Finding a job with Gallagher and Wirin--Early activity for Gallagher and Wirin--Pearl Harbor and the Japanese evacuation issue --Wirin and Okrand leave the firm after a Congress of Industrial Organizations ultimatum --Bridges v. California.

  • TAPE NUMBER: IV, SIDE ONE (February 10, 1982)
  • Bridges v. California (continued).

  • [Second Part] (February 16, 1982)

  • Bar exam study group--Graduation, marriage, and first apartment--Breaking into the law profession--Impressions of Al Wirin and Leo Gallagher--The Wirin social circle--The WirinGallagher relationship--Bridges v. California (resumed) and Times Mirror v. Superior Court.

  • TAPE NUMBER: IV, SIDE TWO (February 16, 1982)
  • The Times Mirror v. Superior Court case--The relevance of Bridges v. California and Times Mirror v. Superior Court for First Amendment rights--Role in the Bridges case--Role in the Japanese evacuation cases--The Wakayama lawsuit--Defending civil liberties during wartime--ACLU cases reported in the Open Forum.

  • TAPE NUMBER: V, SIDE ONE (February 26, 1982)
  • The ACLU position on Japanese evacuation and its repercussions--Defending the rights of Jehovah's Witnesses--Draft exemption cases--The ACLU position on conscientious objection--Induction into the army--Personal attitudes about war--Experiences as an inductee at Fort MacArthur.

  • TAPE NUMBER: V, SIDE TWO (February 26, 1982)
  • Experiences at Camp Howze, as an infantry private--Thoughts about World War II--Application to the Judge Advocate General's school--Basic training--Maneuvers in Texas and Louisiana--Ordered to Europe--Contacts with the ACLU while in the army--Landing in Britain.

  • TAPE NUMBER: VI, SIDE ONE (March 6, 1982)
  • Racial segregation at Camp Claibourne--Crossing the English Channel and landing at Omaha Beach--Combat experiences on the European continent--The Battle of the Bulge--War experiences in Germany--Army duties--Legal study and correspondence while in the army--Meeting the Russians in Germany.

  • TAPE NUMBER: VI, SIDE TWO (March 6, 1982)
  • Celebrating with the Russians on German soil--Postwar activities in Europe--Orders to return to the United States--Traveling across the United States with Mimi--Returning to Los Angeles to practice law with Al Wirin--Japanese evacuation and citizenship renunciation cases.

  • TAPE NUMBER: VII, SIDE ONE (March 9, 1982)
  • Japanese renunciant cases (continued)--Arguments by plaintiffs and defendants in the renunciant cases--The Hans Zimmerman case--Judge Delbert Metzger--Relationship of the Wirin and Okrand partnership to the ACLU--Westminster School District v. Mendez--Oyama v. California Alien Land Law case.

  • TAPE NUMBER: VII, SIDE TWO (March 9, 1982)
  • Supreme Court victory in the Oyama Alien Land Law case--Meeting Dean Acheson and Charles Horsky--First Supreme Court argument: the Delgadillo case--Importance of the Oyama case--Alien fishing rights cases--Glendora conscientious objector strike.

  • TAPE NUMBER: VIII, SIDE ONE (March 9, 1982)
  • Sentence of the Glendora conscientious objectors.

  • [Second Part] (March 13, 1982)

  • Japanese strandee cases--Traveling to Japan in preparation for cases--Japanese elections under the postwar administration of General Douglas MacArthur--Experiences in Japan.

  • TAPE NUMBER: VIII, SIDE TWO (March 13, 1982)
  • Terminal Island leasehold cases--Relationship between the ACLU and Wirin & Okrand as a private law firm--The Smith Act cases--Restrictive covenant cases--The importance of Shelley v. Kraemer and Barrows v. Jackson for ending restrictive covenant practices--Remembrances of Loren Miller.

  • TAPE NUMBER: IX, SIDE ONE (March 17, 1982)
  • Remembrances of Dr. Clinton J. Taft--Reverend Aaron A. Heist as the succeeding Southern California ACLU executive director--Roger Baldwin: "Mr. Civil Liberties"--ACLU Bill of Rights celebrations--Judge Leon Yankwich-Patrick Malin and the 1940 ACLU national resolution--Leo Gallagher and his reputed Communist Party affiliations--Postwar residences in Los Angeles--Birth of Marc Okrand.

  • TAPE NUMBER: IX, SIDE TWO (March 17, 1982)
  • A home in the San Fernando Valley and the birth of Dean Okrand--The Isador Edelman free speech case--Pershing Square and city fathers.

  • TAPE NUMBER: X, SIDE ONE (March 20, 1982)
  • Civil liberties in the McCarthy era--ACLU's position on House Committee to Investigate UnAmerican Activities (HUAC)--Erosion of First Amendment protections--Resort to Fifth Amendment protections--Los Angeles County loyalty oath cases--Danskin v. Board of Education of San Diego--The Los Angeles City Board of Education's attempt to restrict the use of its auditoriums for meetings--ACLU strategies for defending civil liberties in the late forties and the fifties--The loyalty oath of the University of California Regents--The public housing loyalty oath cases--Desegregation cases in the forties and fifties.

  • TAPE NUMBER: X, SIDE TWO (March 20, 1982)
  • Arguments in opposition to desegregation attempts--Extending the federal exclusionary rule to the state--Examples of exclusionary rule situations.


  • TAPE NUMBER: XI, SIDE ONE (July 24, 1982)
  • ACLU's legal battles against the House UnAmerican Activities Committee--Attempts to defend refusals to answer House committee questions--The Watkins decision--Loyalty oaths on the state level--Other civil liberties lawyers in the McCarthy era--The ACLU's image during the McCarthy era--The fight against obscenity laws--Litigation against the testing of atomic weapons--Trying to file a lawsuit in the Soviet Union--The ACLU's position on capital punishment.

  • TAPE NUMBER: XI, SIDE TWO (July 24, 1982)
  • Supreme Court rulings on capital punishment--The Chessman death penalty case--Meeting Caryl Chessman.

  • TAPE NUMBER: XII, SIDE ONE (July 31, 1982)
  • Atomic testing protests--The Five Spanish Sailors case--Public response to the Five Spanish Sailors case--Hugh Manes and his involvment with the firm--The machinists union right-to-work case--The Tropic of Cancer obscenity case--The composition and size of the ACLU board.

  • TAPE NUMBER: XII, SIDE TWO (July 31, 1982)
  • Defending Mickey Cohen against police harassment and charges of tax evasion--Testifying as a witness in a Mickey Cohen tax evasion case--Mickey Cohen's personality.

  • TAPE NUMBER: XIII, SIDE ONE (August 7, 1982)
  • ACLU involvement in fair housing protests--The Century City demonstration--The defense of arrested Century City demonstrators--ACLU involvement in the aftermath of the watts riots--Proposition 14 and the repeal of the Rumford Act--Fair housing cases in the aftermath of Proposition 14--California Supreme Court reluctance to block votes on initiative measures.

  • TAPE NUMBER: XIII, SIDE TWO (August 7, 1982)
  • Failure of effort to keep Proposition 14 off ballot--Prosecution of John Harris and Progressive Labor Party under Criminal Syndicalism Act--California courts refuse to block prosecution--Act declared unconstitutional by federal court panel (Harris v. Younger)--Arguments before United States Supreme Court--United States Supreme Court rules against ACLU on issue of comity-California Court of Appeal finally declares Act unconstitutional--Importance of United States Supreme Court decision to future civil rights cases.

  • TAPE NUMBER: XIV, SIDE ONE (September 4, 1982)
  • Eason Monroe loyalty oath case--Jackson v. Pasadena City School District--Origins of Crawford v. Board of Education of the City of Los Angeles (1963)--Crawford broadened to include Hispanic schools (1968)--Judge Alfred Gitelson finds Los Angeles school district intentionally segregated (1970)--School board appeals--Recruitment of original plaintiffs--Why the case took so long to bring to trial--Desegregation would have been easier in 1970--Five years for the appeal--Attorneys who worked on the case--California Court of Appeal reverses Gitelson--California Supreme Court finds intentional segregation (1976)--School board has duty to desegregate whether segregation is de jure or de facto.

  • TAPE NUMBER: XIV, SIDE TWO (September 4, 1982)
  • Crawford returned to superior court for implementation--ACLU solicits more involvement of minorities on legal team--Judge Gitelson defeated in election--Problems agreeing on a judge--Judge Paul Egly appointed to case-Hearings on school board desegregation plan (1977)--Egly rejects plan.

  • TAPE NUMBER: XV, SIDE ONE (September 11, 1982)
  • Relationship of desegregation case to broader civil rights activity in community--The legal question of intentional versus unintentional segregation--Bustop, BEST, UTLA, Integration Project, and Loveland and Keip become intervenors--Attorneys for the intervenors--The school board plan--The Citizen's Advisory Committee for School Integration (CACSI) plan--Judge Egly rejects school board plan--School board accepts Egly's decision--Growth of Bustop and election of an antidesegregation board--The viewpoints of CACSI, BEST, and Integration Project--Permits with transportation (PWT) program.

  • TAPE NUMBER: XV, SIDE TWO (September 11, 1982)
  • PWT (continued) and the ACLU's relationship with Integration Project--The role of the NAACP, the Los Angeles Center for Law Justice, and the ACLU in the Crawford case.

  • TAPE NUMBER: XVI, SIDE ONE (October 9, 1982)
  • Judge Egly's instructions to the school board (1977)--Possible motivation for board's plan--Plan 2 goes into effect (1978)--Why Plan 2 failed--School board's motivations in creating Plan 2--Bustop moves to stop plan--California Supreme Court and United States Supreme Court say plan to go forward--Motivation of Supreme Court justices in allowing plan--Hearings on constitutionality of Plan 2--Proposition 1 goes on ballot--Judge Egly comes up with his own plan--The need for a metropolitan plan.

  • TAPE NUMBER: XVI, SIDE TWO (October 9, 1982)
  • Judge Egly orders Plan 3--Board appeals Egly plan and gets concessions--ACLU and board both appeal Egly's decisions on motions stemming from Proposition 1--Appellate court holds Proposition 1 constitutional--California Supreme Court denies petition for hearing.

  • TAPE NUMBER: XVII, SIDE ONE (October 16, 1982)
  • California Supreme Court should properly have heard case--Effect of the decision on desegregation in Los Angeles--Motivation of California Supreme Court--Proposition 1 bad constitutional law--Board petitions to be relieved of Egly plan--Egly recuses self--Board dismantles Egly plan--Reasons for Egly's recusal--Egly's personality and performance on desegregation case.

  • TAPE NUMBER: XVII, SIDE TWO (October 16, 1982)
  • Judge Robert Lopez appointed to desegregation case--Alternatives left for minority-segregated schools after Proposition 1--Board presents plan for alleviating overcrowding--Lopez says plan satisfies 1970 mandate--Superior court gives up jurisdiction on desegregation case--Okrand's own perspective on effecting desegregation in Los Angeles.

  • TAPE NUMBER: XVIII, SIDE ONE (November 13, 1982)
  • Mrs. Egly's illness and Judge Egly's recusal--Decision to appeal to United States Supreme Court on constitutionality of Proposition 1--Supreme Court grants hearing--Preparation for trial--ACLU decides to have Laurence Tribe argue case before Supreme Court--Possible reasons for that decision--Okrand's heart attack and surgery--United States Supreme Court upholds Proposition 1--Negative effect of decision on desegregation in Los Angeles--The federal case (Los Angeles National Association for the Advancement of Colored People v. Board of Education of the City of Los Angeles) still pending--Reasons for Supreme Court's decision.

  • TAPE NUMBER: XVIII, SIDE TWO (November 13, 1982)
  • Whether federal case should have been brought--What is to be gained by continuing to keep Crawford alive--Two solutions to overcrowding in Hispanic schools--School board's constitutional duty to desegregate schools--If board doesn't desegregate, what recourse--Effects of Crawford decision on desegregation nationally--Attempts by Congress to limit power of federal courts in desegregation cases.

  • TAPE NUMBER: XIX, SIDE ONE (December 1, 1982)
  • Organizational changes at ACLU (1972)--Becoming legal director--Ramona Ripston succeeds Eason Monroe as executive director--The ACLU legal staff since 1972--Previous executive directors: Taft, Heist, Monroe--Monroe expands office, moves it, originates chapter idea--Ripston shares Monroe's view of ACLU--Founding of ACLU Foundation of Southern California--The ACLU as an institution in American life--Two civil liberties cases in the seventies: Nazis marching in Skokie, Illinois, and Ku Klux Klan organizing at.Camp Pendleton--Why these cases got national attention--Loss of membership over these cases and others--Issues ACLU may become involved in during coming decade.


Volume I

Tape Number: I, Side One
(February 4, 1982)


Fred, why don't we start off by dealing with your early history: when and where you were born. And tell me something about your family, your parents, and so on.


All right. I was born in Los Angeles, at the Angeles Hospital [July 8, 1917]. I'm not sure if it's still there. It was a few years ago. At one time it was the USC [University of Southern California] Medical Center, before they associated with the county. It's located, or was, on Washington Boulevard, a block or two east of Main Street.

The earliest that I can remember of my life, I was probably four. How old I was I don't remember, but we lived on Douglas Street just north of Temple Street. My house is no longer there; it's now run over by the Hollywood Freeway. But the little corner grocery store that used to be on the corner of Temple and Douglas is still there--that is, the building is still there. I go by it every once in a while. It's not a grocery store anymore; it's some kind of a little store, a very small store.

My family was, and is, a very small one. The only persons who came over from Europe that I know are my mother and father.


What were their names?


My father's name was Sam Okrand. That was his name in Russia or Poland. I never was able to really find out because before my dad came the boundary line was always changing between Russia and Poland, depending on somebody's conquest or other at the time. My mother's name was Mary Lankin. She came as a very little girl--ran away. She tells stories of how she was smuggled out of Russia. My uncle, Charlie, my father's brother, is still living. My father and mother are not. And my mother had a brother Abe, as I recall. And that was our family. I had one older brother, Alex, who is now not living any longer. And that was it.

We lived, as I say, on Douglas Street, in a house in back of another house. My father's brother married into a very, very large family, the Berkowitz family, quite a prominent Jewish family on Temple Street. They had, I think, a delicatessen in what was then a predominantly Jewish community in Los Angeles, the Temple Street community. As I say, my uncle, my father's brother, married into this very large family, and we lived in a house behind the house of one of the sisters, one of the older of the Berkowitz sisters, Goldie. I even remember her as a little boy. She was one of the first to die of that family. They're all gone now; everyone's gone. The only one left

is my uncle, I think, even of the ones who married into the family. No, there may be a couple of others.

They had a very large house on-- Beaudry [Avenue] sticks in my mind, but I'm not sure. I think Beaudry [Avenue] is closer to downtown. Anyway, it was close, about a block or two from where we lived. It was a very, very large house. The head of the family, Mr. Berkowitz, a venerable old gentleman, quite the patriarch, wore a beard all the time, I remember. He always had his glasses on top of his forehead and was forever looking for them; he never could find them. Everything took place at the Berkowitz house. I do remember those days when I was very, very small.

One incident sticks in my mind from when I was a kid--just about the only one, really, that I remember while we were still living on Douglas Street. My brother was seven or seven and a half years older than I was, and naturally, when I was three or four or five, or whatever it was, and he was ten or eleven or twelve, I was a pain in the neck to him. I always wanted to do what he wanted to do, and seven years at that age is a tremendous gap. He never wanted to have anything to do with me if he could help it. I remember one time, he was going to go to Echo Park, which is maybe a mile or two west of where we were living. (Echo Park is still there, as you know.) My

mother sort of insisted that he take me with him on that occasion. He was with some other friends. So we walked out of the house, went around from the back where we lived, out to the front, and my brother said, "Oh, gee, I forgot my sweater. Would you please go and get it for me, Freddie?" And sure, as long as I could go, I'd do anything. So I went back and got his sweater, and I came out and they were gone. I couldn't go to the park by myself because it was too far and I was too little. I was heartbroken. That really is just about-- Funny, that's the only incident I remember that happened while I was living there.

I remember the house; I remember the Beck family, which was the name of the family into which Goldie, the oldest sister, married. I remember their living there with-- They had two children, Eddie and Bertha. Eddie's now dead; Bertha's still living in Costa Mesa.

But that's the only incident that I can remember of that time. I remember vaguely going down to the little store on the corner. I know my brother went to the grammar school which is still there on Temple Street just across from Douglas. I don't remember the name of it, but it's a little grammar school that's right there on Temple and Douglas. He went to that school. I remember an old house across from the school; some people by the name of Goldsmith lived there.


Tell some things about your parents: what they were like and what they did, especially in those early days.


Of course, those particular days I don't remember; I don't even know what they did. My mother was a housewife all her life, except later on she participated in the gasoline station which we had. But in those days she was a housewife. Oh, I think my uncle, my Uncle Charlie, lived with us in that little house in the back for a while. What Dad did at that time I don't know. But the story that came down to us is, I think, he was in the junk business. I think he peddled rags, bottles, and sacks.

I hear tell how he used to have a horse, which he rented from the Philippe brothers. They had a stable down near Alameda Street. [The] Philippe brothers were the owners of what is now Philippe's Restaurant. I don't know whether they had the restaurant at the time, but they had the stable, and I sort of remember Dad going down in the morning. I don't remember, but [I remember] being told that he would go down in the morning, rent a horse from Philippe's, hitch it to a wagon, go out and peddle junk, and bring it back at night. Now, how he got home I have no idea.


Did your father die when you were young, or did your parents separate?


No, no. I don't know how many years ago my father died. He was in his seventies when he died after a heart attack. My mother died--she was seventy-nine, I think---about ten, fifteen years ago. No, they never separated; they were very happily married, hardworking.

Dad later on had a hot dog stand right on the corner of Western [Avenue]-- Well, I'm not sure just what it was; I don't remember it. I know the--what would you call it?--the legend in the family [was that he] had a hot dog stand drawn by a horse on the corner of Western and Sunset [Boulevard], which was then the William Fox studios. And I hear tell that he used to sell hot dogs to the stars of those days: Mabel Normand, Theda Bara, Douglas Fairbanks. And the story is that they wanted Dad to open a commissary in the studio. Of course, that was very early; that was in the early twenties. Dad just didn't want to do that. I don't know why.

My life would have been entirely different, I suppose, had he-- He left that hot dog business after a while. Later on, he went into the gasoline business, but that was some time--well, not too many years later, in '28. That I remember; I remember that date.

How long we stayed at Douglas Street I don't know. As I say, I think [that at the time of] this incident that I mention, I was probably about four, because when I was five

I think we moved to Thirty-seventh Place. Yes, 1335 W. Thirty-seventh Place--I remember the address--which is between Normandie Avenue and Vermont [Avenue], what was then the southwest part of town. That's where I started grammar school; I went to Thirty-seventh Street School. I went to kindergarten, and I guess you go to kindergarten when you're five. You start school when you're six. So we must have moved from Douglas Street into this house, which was just-- I have lovely memories of that house: an old, big house with an upstairs and a downstairs and a basement. We used to heat by coal. The coal truck used to come and pour coal down some kind of a chute or something. I went to grammar school there.


Was the house rented or did your family buy the house?


How we originally took it I don't know, but eventually it was bought. I don't know how much they paid for it, but later on when it was sold, they sold it for $3,000. I remember that. Lord knows what it's worth now.

Just a venerable old place. It had an attic, a little, teeny room, which was mine. It was a tiny, tiny room in which my bed barely fit, although I think I also slept in another bedroom with my brother.

Those were the days when radio first came out. I remember my brother somehow or other got hold of a crystal

set, and God, the whole neighborhood came in, and we fiddled around with that little wire to get sounds.


Do you remember some of the programs you listened to back then?


No, I don't. But I do remember that my brother used to-- No, he didn't play the saxophone yet. But we went down to what was then KFI, which was maybe the first station in Los Angeles (one of the first), and actually saw an orchestra broadcast. That was a thrilling experience. I don't know if there were other radios than crystal sets then. There probably were, but we didn't know of it. We had this crystal set, and it was the most fascinating and yet frustrating experience because if you didn't have that-- You don't know anything about crystal sets, I don't imagine.


A bit.


If you didn't get that wire just in the right place, at the right time, in the right angle, [laughter] you got nothing. Besides, you only had earphones, and everybody said, "Let me listen, let me listen!"

In that house, those were memorable days. I was just a little kid: as I say, five--maybe we moved there when I was four. The street was a very well-kept-up street. We used to play out in front, raise a lot of Cain, make a lot of noise in playing, and the neighbors down the street

would tell us to stop and to get away. We would always answer back with, "It's a free country, and we have a right to be on the street if we want to play." And we would play. What games I don't know. I remember wrestling with a kid on the front lawn all the time.


What type of neighborhood was it, in terms of ethnic makeup and class background?


What class I don't know. But it was an all-white block. But there were a lot of blacks around. I remember the discussions in the house. That particular one block apparently held out, or whatever it was. I don't know how it happened, but it was just one. It was all white.


You mean, [it was a] mainly white block in a primarily black area?


Well, I can't say that it was primarily black. I don't remember that it was all black. No, it's not so, but there were lots of blacks around. But [it was] not primarily [black] yet. Of course, now I think it is entirely black and probably became so after we left.

My dad bought a gas station in Boyle Heights. We were there in '28 because I remember that's when the Model A Ford came out. We were there at that time. I guess we got there before that. What I'm remembering now is the early twenties. But we moved from Thirty-seventh [Place] to almost what is now Watts--the truck-garden area, Ninety-first

Street. I'll tell you a little story later on about the house, when we went back there.

I went to Manchester [Avenue Elementary] School, and that was quite a ways, as I remember. I had to walk there; of course, it's difficult. Now, Manchester, I don't know what street that is [661 W. Eighty-seventh St.], but it seemed to me like a heck of a long ways to walk to school for a little kid. I think I was there in the first grade, and so we must have moved there when I was six. It was virtually agriculture. We had a few houses on our block, and truck farming all the way around. What Dad did I don't know. I don't think he was a farmer.

At that time, I remember, my brother started to take the saxophone and the clarinet. Now, whether he had already taken the sax I don't know. But I remember he started to take the clarinet. Golly, my recollection is that he went to Jefferson High [School]. Anyway, I remember him with his first clarinet, practicing, and it was excruciating. I mean, he would play-- If you know how a clarinet sounds-- The squeak, and, oh, God, it was unbelievable. But he finally mastered it, and he played the sax. Later he played in something called the Los Angeles Junior Symphony Orchestra, with the saxophone, which is an unusual instrument in a symphony. That was quite a really

wonderful orchestra, I remember. I remember him and his clarinet practicing.

We didn't stay there very long; I think maybe a year or so. We owned the Thirty-seventh [Place] house then because we moved back to it. And it was shorly thereafter, sometime after-- It couldn't have been very much because I went to the Second Street [Elementary] School when I was in the second or third grade. So we must have got this gasoline station in Boyle Heights while I was still in the first or second grade.


Now, before we go on at this point, let me ask you a couple of questions about the things that we've already talked about. For one thing, what were the basic reasons behind moving over to the Watts area--


I don't know.


--and back again?


I don't know, just don't know.


Also, you mentioned that when you did live on Thirty-seventh [Place] there was some discussion in the house about the black people in the neighborhood. What type of discussion did you mean?


I remember just the impression of talk in the family about the neighborhood is becoming more and more--- that more and more black people are moving in. I remember that. That's all. I heard that there was discussion that

there were blacks coming around. Now, what that meant-- I don't know what they were talking about, but I do remember there were blacks coming into the neighborhood more and more. Now, what the significance of it was I don't know.


What was your parent's attitude towards it?


I don't think they were excited about the fact that blacks were moving in. I think they had the typical feeling that most whites at that time had. Now, how vehement they were I don't know. That's just sort of an impression that I did have. I think if there had been a crunch of some type, my dad would have come out on the right side. He was a socialist, a member of the Workmen's Circle, one of the founders--I don't know how prominent, but certainly one of those right at the beginning--of what is now the City of Hope. At that time it was a Duarte tuberculosis thing [Jewish Consumptive and Ex-Patients Relief Association of California], started in tents. I remember discussion about that. So, as I say, had there been a real crunch, he'd have been all right. But I think the sort of feeling was that they weren't too happy.


Tell me about your father's politics, his political life. To me that sounds very interesting.


Well, he, as I say, was a member of the Workmen's Circle, which is a socialist organization, which still is in existence. From discussions in later life--I don't

remember at that time--he was pretty much the way I am today, I think. I think he was certainly labor-oriented, just the name Workmen's Circle. He was quite active in it. I don't think he ever participated in politics from the standpoint of taking to the hustings. He was a supporter of [Eugene V.] Debs; I'm certain he voted for Debs every time he ran. I remember going to the Million Dollar Theatre--this was later, but while I was still very young--to hear a man named William Busick, who was a prominent socialist here in Los Angeles. Now, whether he was nationally I don't know. Also, he was a supporter, I recall very vividly, of Norman Thomas, when he ran for president. So his politics were, as I say, socialistic.

He was a free-enterpriser in the sense that he always worked for himself. I remember this being told, because I wasn't there, that when he came to this country, my dad and mother went to Boston and Dad worked in the shoe factories there. And the impression I get was that they were on strike more often than they were working; there was a lot of striking at that time. They lived in Chelsea, which I understand is not the best part, from the standpoint of some people [laughter] of Boston. So those were his political inclinations.


And your mother, do you have any recollections of what her feelings were at the time?


Oh, quite in accord, quite in accord. Their social life-- Well, aside from the recollection I have of the family participation with the Berkowitzes and in our own home on Douglas Street, when we lived on Thirty-seventh and Ninety-first, I don't remember too much about that. Things were pretty rough because when we moved back to Thirty-seventh and Dad had the station, that was a one-man operation, and the hours were from six in the morning till ten at night. Now, I don't remember that when he got it, but I do know that's what it was when we moved over there and later when I worked there.


About what year would this have been?


Well, it had to be before '28, and it might have been as early as '26, because I think I remember that Dad rented the station first and then bought it. I remember the mortgage; I remember in later years when it was finally paid off we had a big celebration.

And my mother, because the hours were long (six in the morning till ten at night) and Dad was the only one who operated it (it was very small, little, teeny thing at that time), used to take him his dinner on the streetcar. And as I say, it was a seven-day operation, six in the morning till ten at night, and so they really didn't have much time for any other kind of activity. Mom used to take him hot meals I think just once, but maybe twice, a day. But

certainly once a day she walked to Vermont, which was a good three-quarters of a mile, maybe a mile, take the streetcar, have to transfer to get to Boyle Heights, take the streetcar downtown (I don't know what ran on Vermont; I think the V car), transfer downtown to the P car, and take it to the station. Then she would generally wait with him till the end of the day, and then they'd come back together. I have a recollection that sometimes she would do that twice a day--take him lunch, too. He couldn't leave: you dasn't leave the station and close and say you went to lunch, because attitudes were different, at least in my Dad's view. You might lose a sale of two or three gallons, and gasoline, at that time, was selling for something like ten cents a gallon, including tax. So there wasn't much business, but he had to be there the whole time.

What he did to go to the bathroom is a good question, because later on I know there were no restrooms in that station. It was a station that was turned around "bass-ackwards"--the back of the station faced the corner, was up on a hill. One had to drive up in the most miserable way to get into the gas station. There were two pumps, with glass things on top. But I remember in later years when we remodeled the station and used the adjacent property, which was part of that land all the time but wasn't used, we put

in restrooms--men's and women's--and I remember that was such a big innovation. My dad always used to chafe at the fact that gas stations had to have restrooms, and people would come in and use the gas station after they went to a restaurant and ate. He always thought that the restaurants ought to furnish the restrooms rather than the gas stations.

Anyway, the exact year is difficult, but it must have been when I was in the second grade because I went to Second Street School, which is about two blocks away from where-- We rented a house across the street from the station so that Mom wouldn't have to do all of this traveling.


Tape Number: I, Side Two
(February 4, 1982)


What are some of your early memories of going to school in Los Angeles?


All right, that was after we moved back to Thirty-seventh [Place], and some of the early memories of school and of the house-- We had a great big pepper tree in the back of our house--a huge, gorgeous thing. I'm sure I didn't use that word in those days, but it was a big tree. My brother and I (the distance that I mentioned earlier didn't last, as you know) built a treehouse in that pepper tree, and it was a delightful place. All the kids in the neighborhood would come, and we would play and pretend whatever you pretend to be, in that treehouse.

Part of our yard had a fence at the back of it, and in the back of that was a big barn, quite a large barn--a real barn, not a garage. It was big enough for cars; we only had one car. Dad always had a Model T Ford, which we'd get used, although one year, I remember, he got a new one, a touring car, out at Nadeau's [Ford] on the south part of town. That was an event.

In front of that barn and behind the fence was a wide, empty space. One day, I remember, there were a bunch of kids, a big commotion, and I went back there. I was very

small. Two kids were having a bloody fight; they'd arranged to meet with each other, apparently, at school. They were older kids. I remember that one. I didn't participate in that, and I felt very, very unhappy about that. That was conduct that troubled me a good deal. [laughter] I just remember feeling so uncomfortable, although I wondered about myself, because everybody seemed to be enjoying himself so very much egging the two on. I don't know what happened finally. I suppose they finished.

In school--one of the fondest memories I have at Thirty-seventh--I became very good friends with a boy named John Seeman. We were very, very good friends. And I suppose the nicest part about that friendship was that his mother was a teacher at the school, and somehow or other--now, whether it was every afternoon or every day, I don't know--but from time to time, I remember, we were able to go into some place in the school and lie down and take a nap. I thought that was just fantastic. All the other kids were out there; I guess they were playing. I suppose it was just for a few minutes, but that seemed like such a wonderful thing. I felt so important, because I was Johnny Seeman's friend, and his mother was a teacher at the school, and we were able to take a nap when nobody else did. But we did that quite often. I have a picture someplace, still, of Johnny, and I often wonder what

happened to him. Did I go over to his house? I can't remember. But we were really fond of each other, and it's the only person that I remember from either school, Manchester or Thirty-seventh.


What type of education were they giving back then? Did you get along with your teachers?


I got along fine. In the kindergarten I remember sitting around in little circles. I remember, in kindergarten or it might have been in the second grade (because in the first grade I think I was at Manchester), the little rhyme so that you would know how many days there are in every month:

Thirty days has September, April, June, and November; all the rest have thirty-one, except February alone, which has twenty-eight in fine, and Leap Year gives it twenty-nine.

I learned that at Thirty-seventh Street School. I learned how to tell time at school--again, whether it was kindergarten or second grade I don't know. No, it wasn't at Manchester. At Manchester all I remember is walking back and forth to school--it was a long way; that I remember [laughter]--along, I think, McClintock [Avenue] or Compton Avenue.

Now, whether we had mathematics or what type-- The first recollection of mathematics is when I went to the Second Street School, but that was a little bit later. I

think I left Second Street School when I was in either third or fourth grade to go to another school, Lorena [Street School], which I will tell you about in a minute. Anyway, in answer to that particular question, those things I remember: time, how many days in every month, and I remember playing games and singing songs when I was in kindergarten, around in a circle. I don't even remember if we had any kind of table. I just remember sitting on the floor; that I remember.

Then, when I went to Second Street School, Second Street School was just about a block and a half away. It's still there--an overpopulated school, one hundred percent Hispanic now. There I remember starting mathematics: you know, multiplication tables and little bits about addition, subtraction, and division.

I didn't stay at Second Street too long because I think it was in the third grade, maybe the fourth, that I went to Lorena Street School in something called an opportunity room. Now, today, I think an opportunity room has a different connotation. I think an opportunity room today, in our L.A. city school system, means a place or a school where individuals go who are having difficulty, either disciplinary or scholastically or whatever it is. But in those days it was one room where kids came from all over the city; it was sort of a magnet concept. I think we'd

call it a magnet today, because even in the third grade or fourth (there were others in the higher grades, too), the kids in that room ran a school newspaper, we read Shakespeare, we did a lot of things which were far different from the rest of the kids.

I went to that room in that school. And in order to get there--in those days we didn't have buses--I took three street cars. I took the P car down to Evergreen [Avenue], which was two or three or four miles east; then I got a little shuttle that would take me to Whittier Boulevard, south; then I'd get on a streetcar on Whittier Boulevard and go to Lorena Street (the school is still there, also now one hundred percent Hispanic) and walk a block and a half south to the Lorena Street School.

Incidentally, when we moved back to Thirty-seventh, my brother transferred from Jefferson and went to Manual [Arts High School]. Something, when my brother was going to Manual, sticks in my mind. I remember the discussions about the terrible dope problem that there was in the schools of those days. You know, you keep hearing about that today, but I remember discussions about kids getting into dope, there was dope all over campus, how terrible it was, and so on. So things haven't changed a hell of a lot.


Who was the source of the discussion?


Well, it was in the neighborhood, and I heard my folks talk about it--that they'd heard about it and were very concerned about it. It was just there--that kind of discussion. Now, I don't think I read the newspapers when I was at Thirty-seventh.

So I took these streetcars to school. Oh, what got me off on that was my brother at that time was going to Roosevelt High. He drove a car. Most often he would come and pick me up, so I didn't have to take the three streetcars back. He'd pick me up after school most of the time, although on occasion I would have to take the three streetcars back also. And my mother participated in PTA at Lorena Street School, far, far away. Oh, I would say, in those days to go that distance would take me forty-five minutes to an hour to get to school, easily. My mother would come-- How she got there I don't know, because she never learned how to drive.


How did you come to go to the opportunity school?


Well, I just was told to go--or was asked, I suppose. I mean, I don't know how it worked. I was the only one from my class who went, that I can remember. That is, I don't know if I was the only one from Second Street School, but certainly the only one in my class. I was in a class in the third grade, I think. And I suppose there was that system at that time; I don't know if they still have

it. Now they have magnets but they try to get you to go. I suppose now they have something like that called gifted or something, although I'm sure they didn't call it that then.

I graduated from the Lorena Street School, from that class. There I remember playing soccer on the school grounds. In those days we did not have paved playgrounds; they were dirt. I still wonder why we have paved playgrounds today. I suppose somebody made a survey and figured out it's safer. We used to fall, and it hurt plenty; I can't imagine it hurt more than on asphalt, though. But I played soccer, baseball; I think I was a better soccer player than I was baseball. They must have been doing some construction or something at the school, because I remember we used to play king of the mountain: the one where some guy tries to get up on top, and you try to pull him down, and he pushes you away and so on.

I do remember a person, I think the only one-- My teacher's name might come to mind because I met her in later years, and I knew her husband, who became a lawyer. I can't think of it at the moment. But I met a kid there; his name was Leonard Ratner. I remember him. He was in this class also, I think a little ahead of me. I guess they ran the class like a little red schoolhouse, because we had more than one grade in it. One thing I remember:

he was learning, and I learned, Lincoln's Gettysburg Address. God, I thought that was magnificent. He learned that and would recite it to me, and I would help him until he learned it. And Leonard Ratner was the cousin of a Leonard Ratner who is now a professor of law at the USC law school. Same name. They happened to be cousins, and I met Professor Leonard Ratner years later. I remember him. That's the only name that I can remember--plus my teacher, something like Elson. Well, I don't know.


During the time when you were in elementary school, did you begin to develp any interests in any particular subjects or activities?


I don't think so, no. I had some experience, but not along the lines you mentioned. When I was in junior high, Christmas used to be a terrible time. I'll tell you why. But, no, I just went to school.

I do remember this: I used to take my lunch, and most everybody did there. We did not have a cafeteria, as I remember. It's not like today. Most schools have cafeterias. There was a little stand across the street where kids used to sneak-- I don't think we were allowed off the school grounds, as I remember. But I would hear that kids would sneak across and get something. But I would take my lunch, and most of the time my mother would give me sand-wiches made on rye bread. And the kids would make fun of

me. There weren't very many Jewish kids; I don't know if there were any, except Leonard, maybe, in that school, and our teacher might have been. But most of the kids were-- I'm sure there were some Hispanics; I don't recall any blacks; mostly white kids, for some reason. And they would make fun of me because they would be eating their sandwiches on white bread, on what we called kvachehdikeh, soft white bread. But my mother was a Jewish woman; she would go to the Varshehveh Bakery on Brooklyn Avenue and get good Jewish rye bread. And I remember feeling ashamed, somehow, that I was eating rye bread and the other kids weren't. And I was being made fun of, and I wondered why. I just didn't know why. But I did feel that feeling of differentness, simply because of that little incident. Otherwise, not; but during that time, during lunchtime, that would happen to me, and I remember that, for some reason.


Did you discuss it with anyone: your parents?


I don't remember discussing it at all. I just remember that feeling. I don't think I did discuss it with them. Maybe one time I said, "How come I get this black bread?" My mother said, "It's good for you." Yes, I do remember that. But I couldn't do anything about it. That's what came. Every once in a while I'd get another kind of bread, too, but most of the time it was rye bread, for a long time. [laughter] I'm sure that didn't last

forever, and I'm sure that the ridicule, if that's what it was--being made fun of, I suppose, is the same thing as being ridiculed--I don't know if it lasted that whole time or not. But I do remember that impression at that time, which is kind of interesting, because now rye bread is quite the thing. [laughter] That shows cultural advancement or assimilation, I'm not sure what.


Were there ever incidents where the other children referred specifically to your being Jewish, or was it just the bread?


I don't remember that. No, I don't remember. There could have been some element of that, you know. But that doesn't stick to me that way. The only thing is, I remember being ridiculed because I was having rye bread and the others weren't. [laughter]


You've mentioned your brother a number of times so far. What were your relationships with him like?


Well, when I was going to Lorena Street, they were wonderful. He was a little older. And they weren't bad even at Douglas Street, as I say. I mean, he wanted to be with his friends, and that's all. My relationship with him was very good; I used to look forward to him coming to pick me up in the afternoon. That was wonderful.

Of course, I suppose, in a way, it was something that I thought other [brothers] weren't doing. It could have

been. But obviously, because those kids in that class of mine came from all over-- Now, how far across the city they came I don't know; but they did come from not only the Lorena Street area. So they must have had some way of getting to school, too, I suppose, because even though you went to that school, it wasn't like it is today. If you go to a magnet school or a magnet program today, you are furnished transportation. It was like it was when we started our desegregation lawsuit: if you wanted to go out of your area, whether you were given the opportunity or whether you wanted to, for whatever reason, you had to get there yourself. You weren't furnished transportation. So I suppose that my experience was shared by others, but I didn't know it. So I thought it was just marvelous.

At that time, we had a-- How in the world did the family get in that car? It seems to me as if it were a coupe, a '23 Dodge, which is a wonderful car, just a great car. Anyway, he would come for me, and, as I say, our relationship was very good, although we weren't social buddies in the sense that I would go out-- At that time I didn't want to go out with his friends. It didn't make any difference. But our relationship was good in the house and elsewhere, too.


Tell me, now, when you graduated from elementary school, then where did you go? Did they have junior highs?


Yes, I went to Hollenbeck Junior High [School] which had just-- They must have had some grade change or something, because before it became Hollenbeck Junior High, it used to be called Boyle Heights Intermediate. Now, why they changed it to "Junior High" I don't know. I went to Hollenbeck Junior High, which is where it is today. I went by about a year [ago] and none of the buildings were there anymore from when I went to school. When I went there, the entrance to the school was on Soto Street. Now it's on the east-west street, whatever it is: the one to the north [Sixth Street]. But I went there--it was a brick building--for the three years.

My homeroom number was 216. [laughter] I don't know how I remember that. Mrs. [Louise] Vaughn was our homeroom teacher. I remember her: a gray-haired lady with pincenez glasses. In those days--I don't know what it's like now--there was quite a bit of competition between the homerooms. We'd have athletic competition. Now, were there girls in our homeroom? Boy, I don't remember that, don't remember. But I know that we played baseball, or whatever else there was, with other homerooms, and there was quite fierce, hard competition. You wanted to win for the homeroom; that was very important. I went there the full three years.


Right next to Hollenbeck, just to the east of it, separated by a high, wire fence, was a special school for incorrigibles. Kids who had trouble were being sent there. Now, I don't know whether it was a high school or whether it was a junior high also, but I recall we used to jeer at each other across that fence. We were the good guys, and they were the bad guys. They were the gangsters. [laughter]

Horseshoes was a very important part of our activities. We played a lot of horseshoes during the noon hour. There was a cafeteria there, I remember that. I don't think I took my lunch to Hollenbeck. At Hollenbeck the extracurricular activities were many. I remember we put on light operas--that is, the school did. I don't think I was ever in a play at Hollenbeck, but I did something in connection with participating in the plays. I remember one--what's the operetta?--"Give me some men who are stout-hearted men." [From the 1928 operetta The New Moon, by Sigmund Romberg] We put that one on. I thought it was great.

I recall the family nights that they had there--that was a very important evening--where the parents would come once a semester and talk to your teachers. That was a very important night. My mother would come all the time; my dad did not participate in the school activities virtually

at all. I don't think so. He was at the station, and, as I say, it was open until ten o'clock every day.

I was boys' commissioner, president of the boys' league, and I had something to do with safety. I used to think I was a big shot in regulating traffic in the hallways; you had to go in this way. And I was very strict: if you stepped out of line, I'd give it to you. I don't know what the penalty was. [laughter] I was a stickler for following rules, I remember that. You had to go down the right side of the aisle; you just had to do it. After school you couldn't go outside of the boundaries--or during school, I guess it was. I wore a badge and sort of a ribbon around my arm.


What school subjects or school activities began to interest you at this time?


Well, nothing in particular. Yes, there was one. I took biology from Mrs. [Blanche] Bobbitt, I remember that. She interested another friend of mine--Natie Wasserman I think was his name--to do some experiments on vitamins. And I would go to Nate's house because he had a place in the back where we could-- For some reason or other, there was a gas stove, and we would boil water, with vegetables or something, and see what residue there was and try to measure it. I don't know what the heck we were doing, but it had something to do with trying to figure out

what vitamins were in something, or what was left after you boiled things out. I did that. I recall that subject. It's the only one I remember.

Years later, after I had-- Was it after I'd graduated from UCLA? I don't know when. My brother and I used to go to the football games, the 'SC-UCLA football games. My brother's total college experience was that he went to 'SC undergraduate and 'SC dental school. He graduated from both. And I went to UCLA undergrad and USC law school. But we would get tickets together to go to the game--I don't remember just when it was--and on one occasion I was sitting on-- I guess my brother had the tickets, and it must have been an 'SC home game. You know, the way they work it is that one year 'SC is the home team, and the other year, UCLA. We were sitting on the 'SC side, and I was rooting for UCLA. Everybody around me was 'SC, and finally, whatever I was doing, this woman who was sitting in front of me turned around, very angry, and she says, "If you want to root for UCLA, why don't you go to the--" She looks around, and that was Mrs. Bobbitt. As I say, it must have been years and years later; she was very embarrassed. I remember that class, but I don't remember anything else. Nothing interested me in particular. [laughter] I was going to school.


Now, during that time, in junior high, I mentioned earlier that Christmastime was a terrible time for me--Christmas vacation, not Christmas itself. What would happen is that we would be given assignments to do over Christmas--some kind of an essay or whatever it was. I don't even know what class. I used to love to go down-- At the end of the street--at that time we lived on Pennsylvania Avenue; Pennsylvania Avenue ended at St. Louis [Street]--there was the Workmen's Circle, where my dad and mother belonged, and right next to it was the Grace Methodist Episcopal Church. That church had sort of a gymnasium where there was basketball and pingpong and the game where you shoot miniature pool, and I used to love to go there during Christmas vacation, or anytime, I guess, but [especially] during Christmas.

I remember I would go there, and I would put off writing this essay, and this happened three Christmases in a row. I would always get to it, because you had two weeks and the whole thing would probably take a day if you did it. It couldn't have been very long, but I would always put it off, and I would always have this little gnawing feeling. "Gee, I really should have been doing it. Well, I'll do it tommorrow." And sure enough, of course, December 30 or 31 would come along, the day or two days

before we had to go back to school, and I hadn't written that essay, and so I had to cram the whole day.

So Christmas vacation was a wonderful time, except that happened to me three years in a row. I just remember that so vividly. And I vowed never to put off doing things that had a deadline, and of course I have violated that principle ever since but not to the degree that I did in those days. That was just terrible.


Tape Number: II, Side One
(February 7, 1982)


Fred, before we proceed with the chronology, I'd like to go back to a couple of points: one is that we neglected to record your date of birth the first time.


Oh, July 8, 1917.


Also, I'd like to go back and have you tell me more about your parents' activities with the Workmen's Circle: your recollections of that and particularly what influence it may have had on your thinking, your view of things.


Well, what activities specifically they engaged in with the Workmen's Circle I really can't tell. I do know that when I was very young the political atmosphere of our home was predominated by the Workmen's Circle--the Workmen's Circle and the Socialist Party. Dad was never--how shall I put it?--a party functionary. He didn't participate that way, as I say, because he had these terribly long hours at the gas station. Now, what he did before we had the gas station, that I have no recollection of at all. It was after we had the gasoline station, which, as I say, must have been before 1928, probably '27 or '26, because I remember we had the station when the

Model A Ford came out, and they came out in 1928; so I know we had the station at that time.

It was just that I knew that he was a socialist; I didn't quite know what a socialist was. In the 1928 election, which was when Hoover ran against Al Smith--I don't know what grade I was in--I remember I was for Herbert Hoover. To the extent that I thought any person should win, I thought Herbert Hoover should win. I suppose it was the media; I don't know. [laughter] But I had no lengthy discussions, or any real discussions, with Dad about that; it's just that I knew that he was for-- At that time, in '28, probably Norman Thomas was running for president. I know he and my mom wanted Norman Thomas to be president although knowing that their vote wouldn't make it. But that was the atmosphere.

But, in answer to your question as to what they specifically did, I just don't know what they did to further their belief in the principles of the then Socialist Party, which is practically gone now, I guess. But the ideas of Eugene V. Debs and Norman Thomas, I know, predominated their political thinking. Obviously, it didn't influence me at the time. [laughter]


When did each of your parents die? [tape recorder turned off]


My father died probably around 1959 or 1960, and my mother in '66 or '67.


Now, did their socialist activities, or at least their belief in socialism, continue throughout their lives? Or how would you describe it?


Oh, yes. Oh, no question about it. They were socialists to the end. Now, what they did in '32, when Roosevelt ran during the Depression, I don't know. I know they were quite impressed with Roosevelt. I remember that. But I still think they probably voted Socialist, even at that time, although they weren't unhappy, of course, when Roosevelt was elected, and with the things that he started to do at the time of his election, after he was elected. But their views persisted until the very end; no question about it.


Did there come a time when their views did begin to have more influence on your own thinking?


Well, they obviously had a great deal of influence on me, because when I got to college, probably in one of my political science classes, I wrote a paper in which I advocated socialism as an acceptable, if not preferable, form of political organization in this country. And I think my ideas tended toward that, at least from the time I was in the second or third year in college. So, yes, I'm sure their views had a great deal to do with me. And I

suppose my own reading, too; I like to think I had some choice in the matter.


Can you tell me a little bit about the nature, the politics, of the Workmen's Circle organization? Do you recall?


Yes, now, the Workmen's Circle itself is a socialist organization, as I understand it, to the extent that its members are made up mostly, though not entirely, of persons who are socialists or who belong to the Socialist Party, although I don't think there's a test. But the gestalt, the atmosphere, that was around the Workmen's Circle was closely akin to the socialist idea itself. But the Workmen's Circle itself, as I understand it, was more a social organization and an insurance mechanism for members, for both health and life insurance.

Also, it conducted shulahs, schools, for the purpose of teaching Judaism. Now, while the Socialist Party, of course, was not a Jewish organization, the Workmen's Circle was. And I think it still is a Jewish organization, in the sense that they teach Jewish history and nonreligious Jewish values, which are-- It's hard to say nonreligious Jewish values, because whether one knows it or not, Jewish values come from the religion, even though one doesn't feel him- or herself to be a religious person. It obviously comes from the Judaic code and from the Mosaic laws.


So that's what it was, and I went to shulah even when I was in junior high. In fact, the experience that I related last time about how terrible Christmas vacation was for me-- I would go to shulah during those times, and I would go to shulah after school. I got a fair smattering understanding of Jewish history and Jewish values, again, in the theoretically nonreligious sense. We studied Jewish history, Jewish customs, Jewish holidays, all of which, as I say, you can't get away from the religious part of Judaism, and, I suppose, one shouldn't try.


Last time, when talking just a little bit after we had finished, you mentioned again William Busick, who was, I take it, a prominent figure in the Workmen's Circle.


Yes, here in Los Angeles.


You began telling me a story about him, which I wonder if you could repeat, about the way he was dressed.


Oh, well, I remember one time. It probably was during a campaign, because I can't imagine that my folks would take me to a meeting other than that. Anyway, William Busick spoke to a large audience at the Million Dollar Theatre, which was then, as it is now, located at Third and Broadway in Los Angeles. And I remember an impression I had: he was quite a dynamic speaker, very articulate, and carried himself very well. I don't remember what he said, but I remember that I was impressed by

the fact that his coat was very, very shabby. He was wearing a suit or slacks and a jacket, I don't know which. But his jacket was shabby, and I couldn't-- It impressed me: I wondered, why should he have a shabby jacket?

Of course, the answer was, as I discovered later on, that he and the Socialist Party and the whole movement were just broke. And he actually devoted his life, as I understand it, certainly at that time to that cause, and there wasn't any money for clothing. It was something that I remember very vividly, for no particular reason I suppose.


How closely associated was Busick with your parents? Did they know him personally?


I think they probably just met him. I don't recall him being in our home at all, but I'm sure they must have met him.


At this point why don't we continue again with the chronology. Tell me some things about your high school and your college experiences.


Well, let's see, I went to Roosevelt High School, in the east part of Los Angeles, in what is now and what was then Boyle Heights. I think I started there in 1930. It must have been 1930, yes. And I used to walk to school--it was quite far, I thought; I thought it was very far--until later on, it must have been my senior year, I suppose, I got a Model T Ford. In those days one could get

a driver's license at fourteen, and so probably at fourteen I got a driver's license and was able to drive.

When we had the gas station, I was quite small, even as I am today. But, I mean, in those days I was even smaller. I used to work at the gas station, and in those days cars had bumpers and running boards; and to put water in a car, it was on the outside of the car, not under the hood as it is today. But I couldn't reach it, and so I had to stand up on the bumper and open up the water pipe and put in the water (which is just an aside).

But I learned how to drive even before I had my license because we would move cars around; we had a lubrication rack when you changed oil. And so I learned how to drive--I don't know how old I was--long before I was fourteen. It's legal to drive on private property, and fortunately I didn't hurt anybody's cars; so everything went fine. As I say, I think it was probably in my senior year that I got a very old Model T Ford; so I would drive back and forth to school.

At high school I was reasonably active in extracurricular activities. I played varsity tennis. I don't know if there was any other than varsity; there was at college, but at high school, I can't remember. Anyway, I made a varsity tennis letter the three years that I played there. I was in the Thespians; we put on plays. I was

head yell leader during my time--two semesters, I think, but one anyway, maybe just one, during the track season; I guess I was an assistant during football season. I did reasonably well--quite well, actually--academically. I was active as a kid: I went to school, looked at the girls, and whatever else one does in high school.

At that time the high school leagues were a little different. I see in the paper something like 4-A and 4-B or something in the leagues; I don't know what they mean here today. But in those days we were quite forthright: they had what were called major leagues and minor leagues. The major leagues were the older schools: L.A. High, [John H. Francis] Poly[technical High School]. We were in the minor league: Roosevelt, Garfield [High School], Franklin [High School], I think, was in ours. We played Belmont [High School]; I don't know which one they were in. Fairfax [High School], I think, at that time was in the minor leagues. And we participated-- I thought it was terrible to have major and minor leagues in high school, kind of suggesting that some played better football than the others.


You felt that at the time?


Oh, yes. I thought that was terrible. I thought there ought to be leagues, and they ought to be

geographically located so you don't have to travel too far, except for an extraleague game. That would be fine.

But I participated in extracurricular academics very heavily. I won the Shakespearian contest one year. I had a sad experience; I guess it's sad. It certainly seemed sad to me at the time. One year, the year that I won the Shakespearian contest, my piece was a selection that Puck said in A Midsummer Night's Dream. Every spring at that time--I think they still do it--they had the California Interscholastic Tennis Championships at Ojai. I wasn't one; I was two or three on the team, and so the number one man, Raymond Kobata, and I got to go to Ojai to play in the California Interscholastic Tennis Championships. I thought that was just terrific.

I got up to Ojai on a Thursday, I think; the competition was maybe Friday, Saturday, and Sunday. The people around Ojai would put the kids up. I don't know whether the school paid anything or not, but everything was on the house. The very first night that I got up there, I got a telegram from [Thomas H.] Elson, I think his name was, the principal of our school, and it said-- Well, the punch-line was, "Come back immediately!"

I don't know if there was any reasoning in it or something; I can't remember that. So I had to go back, and

I had to forfeit whatever chance I had to play in the tennis tournament.

The problem was that I had won the Shakespearian contest, and if you win that, you go to the Southern California championships, whatever it's called, a competition at the University of Southern California, where all the kids from all over Southern California high schools come and compete in the Shakespearian contest. The teacher who sponsored the Thespians, that was the acting club--Mrs. [Annice C.] Moore I think it was--wanted me to continue to practice. I think the competition was about two weeks away, something like that. I didn't see anything wrong with going up Thursday, Friday, Saturday, and Sunday for the tennis thing and then come back and prepare, and I didn't tell Mrs. Moore I was going. I mean, it was no secret, but I made no connection.

Well, she was furious with me, absolutely furious that I had gone and hadn't told her. She thought I wasn't practicing--rehearsing, I guess, is what you would do. She said that she had decided that since I had missed those two days, or would have missed the two days, that I had to repeat the competition against the number two person to see whether or not I could go. Well, I didn't know that, because-- Yes, it was Thursday night that I got the telegram, and I got back and came to school on Friday. Well,

Friday was a very rainy day, and I was wearing tall boots for the rain. They were the kind that you lace up. So I came to school, and she says, "There's an assembly this morning"--she saw me early in the morning, during the morning sometime; in fact, she met me in the hall--"and you have to repeat the thing against Natie Landsberg," who was the second person, number two. I remember Nate--a nice guy. [laughter]

There wasn't anything else I could do, and so I participated and tried to repeat it. Well, I really wasn't in a good mood for that performance at the time. I certainly wasn't dressed for the part. Puck, you know, is very puckish (that's where the word came from), a tiny fellow who is supposed to be light on his feet when he's performing. Well, I couldn't be light on my feet; I had these huge boots on. And she said, "Well, you flunked."

So I didn't get to go to the Shakespearian contest, and I didn't get to play tennis at Ojai. [laughter] That was a devastating blow to me at that time, as a young kid. I don't know what would have happened had I-- I suppose had I spoken to her before I went, I probably could have gotten permission. I think the main thing was that she was sore that I hadn't, I guess; I really don't know. Maybe she really thought I couldn't practice in two weeks or whatever it was. [laughter] Anyway, Natie went on, and he got

honorable mention [laughter] in the Southern California contest.


Now, while you were going to school--this would be, I take it, the early thirties--


Well, from '30 to '33 I was at Roosevelt.


--and during this entire time, your family had the gas station, I suppose.


Oh, yes. And I worked there the whole time.


Now, this was the beginning of the Depression. What are your memories of how that affected your own family's life, the gas station, and so on?


I'm not sure that I was really aware of the Depression as I now am aware and as we know what happened. One of the earliest memories of that time was when Prohibition ended. I remember the first place you could get beer that was over the near-beer content level was a place on First Street, about two or three miles west of where our station was, down the hill, almost across the street from what was then the Los Angeles Soap Company. They made White King soap. In those days it stank terribly. Now they have a way of making soap so that it doesn't stink; but it was unbelievable, that putrid odor. You could tell when they were making soap, even where we were.

Anyway, I remember [Prohibition ending], and people thought that that was just a wonderful thing that was

happening. We just happened to drive by the first or second day that the sales were open, and the lines were long. It wasn't a very attractive store. I think the store had been closed; there wasn't anything in it. But they were selling beer, and lots of people bought.

But I don't recall that we suffered. We weren't wealthy; we weren't rich; I'm not even sure we were well off by any standard. But there was always food in the house. I know at that time, and later on when I started college and started taking care of the books at the station, we had a hard time paying bills. I remember from month to month we'd have the gasoline bill--it would be thousands of dollars--and where was the money coming from? But somehow or other, just before the tenth of the month it came in. So I can't say that I have any vivid memories of suffering, either by my family or me or those around me.


Did there, at this point, begin to be any academic subjects that were influencing you or interesting you, in preparation for college?


None in particular, except that I knew, I had intended, my family expected--that was the milieu in which we lived at that time; my brother had gone to college--that I was going to college. So I took what was called college-preparatory courses. Now, I took chemistry, I took whatever math you take, I took Spanish, English (that's where I

met Mrs. Moore [laughter] and became interested in the Thespians), but no subject in particular.

I remember we studied Emerson. I don't remember the specifics of it, but his essay "Compensation" impressed me a great deal. That was his idea-- Well, it's the same thing as in physics: for every action there's a reaction. The concept, as I remember it, was-- Well, it's exemplified by the proverg: it's an ill will that blows nobody any good. Also, that everything that happens bad, something good happens, and there's a reaction from it. He had, as I remember--I don't remember the illustrations--a number of illustrations to demonstrate that everything has a reaction to it: if it's good, something bad happens, and so on. I remember that.

I wrote a poem once called "Oh, White Dove," describing the gyrations of a pretty little bird flying over a big city like Los Angeles, and how people paid no attention and it was such a pretty thing. I remember that. But, from the standpoint of portending what I might be interested in later life, no. I went to school--

Of course, when I was yell leader, I'd go to all the meets and the games. I think, during the time that I was yell leader, we played-- Well, track was the main event and baseball. We had a very interesting experience one time: the Green Bay Packers came to town--there was a

professional football league even then--and Red Grange was on the team. Now, I don't know if you remember. You don't remember him, but Red Grange was quite a--


I've certainly heard the name.


There were other very prominent, important football players, and we arranged--I guess I was responsible, mainly; obviously not alone-- Somehow or other we got entree to talking to either the coach or the manager or whatever, and we got the whole Green Bay Packers team to come out to Roosevelt High School to help raise money for the baseball team, because the baseball team didn't make any money. We used to sell, you know, student tickets, and I'm sure even the number of tickets we sold for football didn't pay for it, but at least it was more. The threat was that baseball was going to go under, "unless you kids can raise some money for the equipment, for the uniforms," all that stuff. So the Green Bay Packers came to Roosevelt, and that was a very important day for the school. And I had a lot to do with that.

Also, one time, we put on a play called Dolly Madison. It was about Mrs. Madison, James Madison's wife, in the main. I don't know what bakery it was, but at that time they had a cupcake called Dolly Madison, and we got them to donate Dolly Madison cakes as a promotional scheme for that.


Did you play a part in the play?


No, I think I was the business manager for that one. I remember going up and down--I'm sure I broke the law at that time--Whittier Boulevard and First Street and Fourth and Brooklyn, tacking up posters announcing the showing of Dolly Madison.

I played in a play called The Enemy [by Channing Pollack]. This was not put on primarily by the school; it was put on by the alumni, in some way. But I played in it: I played a little kid, Kurt. It was a story of a British person who was stranded in Germany at the beginning of World War I, and the difficulties that went on, because here they were enemies at the time and yet they were friends, because he was visiting with a family and they loved each other before.


Tape Number: II, Side Two
(February 7, 1982)


This play, The Enemy, was a story of a British person who had been visiting with very, very close friends of his in Germany, a German family. World War I broke out and he was caught there. The story is about the schizophrenia that each of them had with each other, because they were very close and yet they were enemies and their countries were fighting.

I played the part of Kurt, a young boy--very young, four or five, maybe--and that part was a very young lad who, I'm sure, didn't understand what the war was all about, if anybody ever did. But he participated as sort of a young soldier, and he was given a drum. I remember there were some beautiful lines about the futility of war, when the war was over.

The last lines of the play were something to the effect--I was offstage beating the drum; no one saw me at that time--and the last lines or near the end, one of the German persons, either the wife or the husband, was talking about "no more war, no more shooting!" and then the other person says, "Yes, and the next generation is drilling in preparation."

I was very impressed with the play, I remember, even though, as I say, it was in high school. By that time I

was getting some social awareness, I think, although my descriptions of what I did there maybe don't show it. No, I have no doubt that that play, to the extent that any one thing can have influence, had a great deal to do with my feeling about war and the futility and the insanity and the obscenity of it. It certainly did. [tape recorder turned off]


Did you, around this time, have any thoughts of going into the theater, becoming an actor, or was it just more of an extracurricular--


No, it was just-- I played tennis, and there was this play. There were other clubs I belonged to, I'm sure, because I remember I had a string-- They give you a little pin each time, and I had a string of them, half a dozen or so. One club I did not get into, however, was the Key Club. That was a club, as I understand it, sponsored by the Kiwanis organization, and I tried to get in. Even if I say it myself, by all standards I should have gotten in, scholastically and with participation in extracurricular activities, but I didn't. And I never was able to find out why. As I reflect over the years, and as I try to reconstruct what kind of an organization the Key Club was, I now can remember that everyone who belonged, or it seemed that everyone who belonged, were what we would call WASPs it seems to me. It may have been that that was the reason

that I didn't get in, although there is just no way of making any concrete determination of that.

But that was one that I didn't get in; almost the only-- Gee, I think I was boys' vice-president, too. I don't remember now. I probably ran but didn't get it. [laughter] I think that's the only thing--except if I did run for this office and didn't get it--the only organization that I tried to get into at the high school and didn't. But that did happen to me.


Let's talk about college. You went to UCLA?


I graduated from Roosevelt in 1933 and went to UCLA [University of California, Los Angeles] beginning in September of 1933. At that time, I suppose, I did begin to think about what I was going to do in life, and my intention--I did discuss this with my dad--was eventually to go to law school. My brother had, by that time, in '33-- I'm not sure whether he'd finished dental school or not, but he went to undergraduate school at `SC [USC, University of Southern California] and dental school at `SC, and graduated and opened up his practice. I didn't want to become a dentist (my uncle was a dentist), but I wanted to go to law school. Because I saw how Dad struggled with that gasoline station, my idea was to go to law school for the purpose of acquiring the discipline and

knowledge of law and to go into business. That's really what I had in mind at the beginning, when I started UCLA.

So my major was political science. That's what I took in order to theoretically prepare for law school. About halfway during the four years there, there were some courses I wanted to take in sociology; and for some reason or other, one could not take those courses unless you were an economics major. I can't remember why it was. But I wanted to take those courses very badly, and so I switched my major to economics. So then I had to take other courses.

During that time I also had quite a devastating experience in my first semester, which was a good thing, I think. But at the time it floored me. As I think I indicated, I did quite well in high school. I made good grades; I don't know how close I was to the top, but very, very close. I did fine, without a great deal of effort, because I spent a lot of time at the gasoline station (I had to work there a lot) and all this other stuff that I was doing. Well, when I went to college, no one told me that college was anything different from high school, except that you didn't have to go to class if you didn't want to, and nobody paid any attention to you. Well, OK, but I went to class, and I thought I studied a little bit.


One of the courses I took in my very first year was, I think, Geology 3. It wasn't the beginning geology, the geology that one takes in order to satisfy a science requirement. That's why I took geology, in order to satisfy a science requirement. But I took this particular one because it had a lab, which I thought was very nice. The other one was simply a lecture course--the one that everybody took. So you go three days, and then you have one day of lab, which was fascinating. I just loved it; I'm not sorry at all that I took it. Anyway, the first test we had, however--it was the first test I had at college; it was about three or four weeks into the semester--I got a D! Well, I never had a D in my life; I don't even know if I had any Cs and very few Bs. It really floored the heck out of me. What was I doing wrong? And I inquired around, "How do you study? What is this all about?"

Well, I discovered two things: one, this course that I had taken was stupid because it was for those who were geology majors. That was their required course as a first-year student. They were the ones who were going to go on, and you didn't have to take it in your first year; you could take it later. So there were guys in there who were older. Plus the fact that I didn't have university study habits at the beginning. So I really had to buckle

down. I mean, I had to change my whole-- I started putting everything on cards and doing all kinds of things in order to study. And, as it turned out, by the end of the semester, I got a B in it. But, as I say, it was devastating, but probably a good thing to have happened to me.


Were you still working at the gas station at this time?


Yes, I worked at the gas station all the way through the university and law school. In fact, in law school, when we get to it, [I worked] even more so, because my dad had a heart attack.

We started a fraternity at UCLA, at the time. My brother had been an Alpha Epsilon Pi at the University of Southern California. There was no chapter at UCLA, and so my brother and the others wanted to start one there. So we started one with kids with whom I was familiar. At that time the fraternities were in bad shape financially: a lot of houses were going under; it was still during the Depression, '33 to '37. The university had put a freeze on recognition of new fraternities, and so we couldn't have a fraternity, as such, recognized. So we had what was called Alpha Epsilon Club, and we were sort of recognized as a club on the campus, but we weren't a fraternity. Now, as you look back, I don't know what difference it made; but at that time, we thought it was terrible. But we had a really

wonderful group of persons, and after I finished UCLA they subsequently did get recognized on the campus, and I think there's one now.

It was at that time I wrote this paper on socialism for my political science class. There was a considerable amount of turmoil on the campus at that time. What they called communist agitators were coming on. I didn't have any contact with them, but I joined something called the VFW, which was the initials for Veterans of Future Wars. And we all took a vow that never would we go to war. The football players and the ROTC guys were against us in that endeavor. Either the chairperson or the leading person in it was a person named Wally Bonaparte, really a nice fellow.

Well, the irony of it is, of course, that later on, when World War II came, we did go to war. I went to war, and Wally went to war, and Wally got killed in it. But we knew at that time that war was wrong, that we shouldn't have it. We said we wouldn't participate, but, like so many things, somehow or other you aren't able to carry out what you perhaps would like to.


What type of activities did the Veterans of Future Wars engage in? What did you do?


Well, it started at Princeton. This was a national movement, and it started at Princeton. We just

had meetings in which we said how terrible war was, and you shouldn't go to war, and be sure that you don't go to war, and everybody join with us in saying we won't. And that's all that we did.

Also, what they were calling communists would come on the campus. I don't know what they were trying to drum up, but they were criticized. There were meetings on the athletic field by the so-called jocks, whatever that means, and ROTC people. They would say, not so much to us but to those who were called communists, "Go back to Russia!" Of course, there was no going "back to"-- They were just kids on the campus too, [laughter] although, there were some who came from off the campus, and there was talk about outside agitators coming on, that sort of thing. There was a considerable amount of turmoil; I don't recall any sit-ins; I certainly don't recall anybody taking any buildings over, such as happened in the sixties. But there was a lot of ferment, and the Daily Bruin was full of that kind of give-and-take on the campus.


Do you remember the specific names of some of the organizations, particularly some of the communist or socialist organizations, in addition to your own?


No, but I remember the name of one person, who was a very, very charming young lady who went to USC and who came on the campus one day and spoke on the steps of Royce

Hall. Celeste Strack was her name. She was one of these outside "agitators" that those who were opposed to changing the status quo said should get out of here and so on.

I have a recollection of one or two of those meetings. They generally were either on the steps of Royce Hall or, a couple of times, on what was then the athletic field. (We didn't have a stadium or anything like they have now.) One or two times, I think, people tried to pull some speakers down, but there was nothing, really, that I remember of great physical magnitude.


Some of the jocks would try to interfere with the--


Yes, yes.


What about the campus administration? How did it deal with the agitation, so-called?


I don't remember. I guess the impression I have is that they weren't very happy with it. Now, there were two sets of persons who got suspended during that time. One of them, I think, were not for political reasons. One group went over to Hawaii for some purpose. (I can be all wrong on these because it's very fuzzy.) But I think in that group there were Johnny Burnside, who had been head yell leader; Tom Lambert, who may have been president of the school--quite an accomplished speaker--


Of the student body, you mean?


Yes. I think Charlie Wellman was one of them; [he] later went to law school with me. Maybe there were one or two others. Anyway, I think their sin was that they didn't come home when they were supposed to from Hawaii. I think it was a debating thing or something like that. So, that I remember, but, as I say, I may not have the right names.

Then some people, I think, were suspended for agitation. Now, who they were I don't know. It could have been one or two of these others. I don't think it was Johnny Burnside; Johnny Burnside would be with the Establishment. But it might have been Tom, and it might have been Charlie, for views that they expressed. But they got back on the campus afterwards. But there was one group who got disciplined for something having to do with their political activities of some kind.


When students were suspended, were there any campaigns to try to get them back on campus?


Well, yes, there was. I don't know that there was-- I can't remember any specific thing, but the paper carried stories and letters and things like that. The paper might have taken a stand, too; I don't remember.

For a very brief couple of weeks, I did something with the Daily Bruin. I thought I might like to have been a part of the Daily Bruin, and I went up there and did some

work for a very short time. It might have been in my freshman year. In my freshman year I went out for freshman tennis and made my letter, and I did participate. But I had to quit. I didn't go on to varsity because I just had to spend too much time at the station and do the schoolwork too. It was a little too much. The station was in Boyle Heights, UCLA was way out in Westwood, and while we did have a car pool in which we participated, many times it was not possible. The car pool didn't work conveniently for practice schedules late in the afternoon and on weekends. So I'd have to take a streetcar and bus, and that took a long time.

And on that bus hangs a tale for my later life, which I suppose I can tell you at this point.

Sometime when I was riding the bus to school--it was on a Saturday morning; it must have been in my freshman year because I was going out to play tennis in one of the meets--on a seat that I was sitting on, next to me, was a little pamphlet. It was an American Civil Liberties Union [ACLU] pamphlet describing what the organization was all about. And I thought that that was a pretty nice organization. I didn't make any effort to participate or join or go down or anything, but I remembered it quite vividly all these years until I got out of law school. That's one of the reasons I went to the law firm that I did go to (it

wasn't the only reason, but one of them), because I knew that both [Leo] Gallagher and [Abraham Lincoln (Al)] Wirin had been doing work for the ACLU. How I got that information I don't know. But that was my first contact with the American Civil Liberties Union, and it stuck with me. I was quite impressed.


You were not, at that time, familiar with the organization?


No, I didn't know anything about it, hadn't even heard about it. This was, as I say, probably 1933 or '34. It had to be '33 because my recollection is that I was going to school to play tennis, and it was a Saturday morning. That explains why I wasn't in the car pool, too. Now, why couldn't I take the car? I don't know, but I didn't. [laughter]


Well, let me interject one question here: you mentioned Royce Hall, and so I assume, obviously, the campus had moved to the Westwood location.


Yes, from Vermont Avenue just a couple of years before. During the time that I was there, the total student body was about 7,000--everybody. The only buildings there were Royce Hall, the library, the education building, I think there was a science building, the two physical education buildings were there, maybe one more. My last year there I think the building that housed the

offices was built, close to Hilgard Avenue. So there were about a half a dozen buildings there at the time. The engineering school was just beginning as I left.


Now, tell me, during the time that you were at UCLA, did you ever waver from your decision to go to law school, or was that a pretty steady ambition?


No. It wasn't a big thing; I just assumed it, and that was it. No, I never wavered. But, as I say, up until really when I got out, or close to the end, my intention was to simply go to law school for the purpose of getting that education and using it for business.


Did you apply to any other law schools besides UCLA?


No, UCLA did not have a law school at that time.


Oh, I'm sorry.


No, the only law school I applied for was USC.


USC law school was where you went I see.


Yes, UCLA did not have a law school at the time; it had no graduate schools. As I say, the engineering school, which was also beginning undergraduate, was just beginning. They might have started a master's program just at the end. But while I was at UCLA it was totally a liberal arts, undergraduate school.


So then you applied to USC, and that was where you intended to go. That was your choice.


Well, yes, that was my choice. I guess now people apply to a lot of schools, I guess because they can't get in or whatnot. No, that was where I was going to go. Actually, of course, because of the expense, had UCLA had a law school, I would have gone there. We didn't have a lot of money, although we didn't starve, as I told you, during the Depression. But I certainly would have gone to UCLA. That's why I went there.

Now my brother went to `SC undergrad, my hunch is, because it was so difficult to get into dental school, and also for a Jewish person to get into dental school at that time. My hunch is that Alex went to `SC undergrad because he wanted to go to `SC dental school, which is a good dental school, and he thought that would give him a better opportunity to do it. So that's why whatever sacrifices had to be made for him to go to that school were made; that's why he went to `SC. I went to UCLA because it was cheaper. [laughter]


Do you remember what the tuition was at that time?


Oh, I think we paid something like $9, or $13.


Per semester?


Yes. There was no tuition, and this was just an incidental fee so you could go to the football game, for a student body card. But maybe you paid a little extra for that, and there was a little bit of a health benefit or

something. It was free; it was what the founders of the university envisaged. You don't have tuition in any California public school. That's a wish that's long gone, but that was the idea.


So then you began law school at USC. Now, this was quite a bit more expensive. Do you recall how much it was?


No, I don't know. But whatever was necessary, we paid it. I started 'SC in September of 1937; I had graduated in June of '36. I graduated with honors in economics, because I had changed over. Our freshman class at 'SC was, I think, about 150. 'SC law school today is about the same size as it was when I went there: something in the neighborhood of 350 or 400, I don't know. We graduated in '40 with 40 and so we had quite an attrition rate in our class. I went there for three years.


Tell me something about your law school experiences. Were there particular areas of the law that you became interested in?


Well, the first year in law school was really an eye opener; it was fascinating. Although I wanted to go to law school, I had no idea what it was about, and it was quite fascinating--all the subjects. Criminal law was extremely interesting to me.


I think also in the first year we took personal property. Now, in personal property I remember a pretty good professor. [Shelden] Elliott was his name; I think he's died. [He was a] very stern sort of a fellow. We had this class at two o'clock in the afternoon, and I remember he came in--we were all in a big class because everybody took that--he came in, maybe five seconds before two o'clock, and strode up to the podium in the front of the room: "The hour of two o'clock having arrived, we will begin our study of personal property." [laughter] I remember at the end of the course he said, "Does anybody have a definition of personal property?" I don't know, people gave definitions or whatnot, and he said, "Well, I have a definition of personal property. What is it? Manure. How is that a definition of personal property, gentlemen?"--and I think there were about two or three women in our class at that time; quite different from the way it is now--"There is nothing more personal that manure." [laughter] That was Elliott. Then he strode out of the room. Later, he went to Yale, and then he came back. And, as I say, I'm sure he died.

I think constitutional law impressed me, of course. I was fascinated with that. Criminal law did. Securities was terrible; I just didn't like that. It's the only

course I got a C in at law school; I remember that very well. [laughter]

Law school was an extremely enjoyable period. It was a hard period of my life because you really had to study. As difficult as the transition was for me from high school to college, it was even more at USC because you had to study all the time. My routine was something like this: while Dad was still working, I would go to class [at] eight o'clock in the morning and then come home and work in the station in the afternoon. But, in my last year at law school, my dad had a heart attack, and I had to run the station completely.


Tape Number: III

Side One
(February 7, 1982)


In the last year of law school, my father had a heart attack. He was completely unable to continue working at the station, and so I had to run it. My brother was, of course, away from home; he had already married and had a dental practice.

Incidentally, I mustn't forget, at the gasoline station my mother worked all the time. As I mentioned before, we had moved across the street from the station so we could be close, and Mom worked there just pumping gas and participating in the running of the station. We moved one time around the block, about a half a block away, on Pennsylvania Avenue, still close; and one time we moved about a whole block away, a longer block away, on Cummings [Street] and Pennsylvania. But we were always very close to the station. My mother always worked there, and when Dad died, of course, she continued to.

But I had to run it. My routine in that last year--and I'm sure that's why I got that C in securities, because I took that my last year--was the station would open at six, and I had to be there and open at six. Then I would leave if I had an eight o'clock class, and we generally did both at law school and at UCLA. I would

leave about seven-thirty, or sometimes I had to cut it even closer to get to law school.

We'd have our classes, generally, as I remember, in the morning. And I would stay and study at law school until about three-thirty, perhaps four, in order to get back for the rush hour, because in those days the gasoline business was quite different. You had two big times of day--in our station, anyway. It was in the morning when people were going to work and in the evening when they came home. So I'd have to be there for the rush hour, and then I would stay-- We had someone who helped us; there was a young man, Alvin Gillespie, just a wonderful person in my life, a real friend. He would finish and go home, and I would stay at the station till ten at night when we closed. Fortunately, there wasn't much business, so I was able to study. Then I'd go back home and study till midnight or one or two o'clock--every day. And then I'd get up in time to open the station. So I was tired by the end of that last year in law school.


This routine went on for about how long?


Well, that routine, the business of opening and closing, went on for almost a whole year, my whole senior year. During the first two years at law school, sometimes I would open and sometimes I would close, but not every day because Dad was around. But during that last year it was

total; as I remember, I was quite tired. Mimi [Fred Okrand's wife] was around too, and that was very psychologically difficult. [laughter]

Second Part (February 10, 1982)


Fred, when we left off last time, Mimi, your wife, had come into the picture. At this point, why don't you start off by telling me the story of how you and Mimi met and a little bit about those days.


OK. Let's see, the first time we met, I must have been-- Well, I hesitate to say this because she remembers earlier. I was going to say fourteen or fifteen. I had a car (as I mentioned before, I had this Model T Ford), and a friend of mine, Yank Rubin, with whom I was very friendly during high school, must have told me to come along with him. He'd been invited to some party on the other side of town. We lived in [Boyle] Heights. That was a kind of usual thing to do: one person would get invited and someone else would go. So I went, and I very vaguely remember that who I felt was a very pretty girl was there, Mimi, but I didn't have much to do with her except that I knew that she was there. And that was really that at that moment. The two of us, Yank and I, took a friend of hers home in our little Model T Ford (it was a coupe), and I don't think I saw her again for some time. Now, I can't remember whether I was still in high school. Well, if I was fifteen, I

was in college, because I'd gotten into college; if I was still fourteen, then I was still in high school.

In any event, some time later I belonged to a club called the Jasons, which, incidentally, is still in existence. I suppose today, under modern terminology, it probably would be called an eastside, Boyle Heights gang. We called it a social club, and there were a number of those clubs in the Heights at that time. We played athletics--basketball mainly and baseball--and there was a great deal of social activity. There was a party every week that we went to, in one way or another: either our club would give a party or some of the girls who knew the fellows would give a party. We were always going, one way or another, usually on Saturday night.

And one of these evenings I went to--also, I guess, with Yank; I'm not sure--a party at what was at that time the Los Angeles Yiddish Kultur Club, Los Angeles Jewish Culture Club, on Sunset Boulevard. Apparently, the children of the people who belonged to that club would give parties, and this was one of those. And I again met Mimi there that night, and we became very friendly. In fact, I came with another girl, it seems to me, in the same group. The group was kind of homogeneous, although this particular party was a little off the beaten track for me. It was a

new group. I don't remember whether I took Mimi home or not; but I remember, during the course of the evening, at one time we were singing "Tea for Two," a little song about "tea for two, and you for me and me for you, and a boy for you and a girl for me," and we were singing back and forth. I liked her very much, and from then on, I saw her quite regularly--so regularly that she virtually went through law school with me. And I saw her quite steadily during the time that I was going to college at UCLA.

It was rather difficult at times because in those days at the gas station we didn't have computers, and I had to take care of the books. It was a tedious task. Dad used to give credit, which was unusual in those days at a gas station--probably still is today. It is completely unusual today for an individual gas station to give credit. There were something called credit cards and scrip, but Dad gave credit to people on an individual basis, and it was my job to keep track of all the accounts. Since money was very tight, it was a matter of utmost importance that the statements showing the accounts and the amount due had to be gotten out right away on the first of the month because we needed the money by the tenth, hopefully, in order to pay our gasoline bill. I think I mentioned that we just about made the gas payment every month, which was the largest item of expense.


Was there a brand of gasoline that you sold?


Well, it varied. Over the years we handled what was then Associated Oil Company. Associated sold out some years ago, here on the West Coast--the Tide Water Associated Oil Company and it was called Associated Gasoline. [Tide Water Associated Oil Company was formed in 1926 as a holding company for what had previously been two companies, Associated Oil Company and Tide Water Oil Company. In 1956 the company became Tide Water Oil Company. It is owned by Getty Oil Company--Ed.] At one time we handled Richfield Oil Company, then, which later became Atlantic-Richfield, now ARCO. There was some independent gas we handled from time to time, and, as I mentioned, gasoline was about ten for a dollar, ten cents apiece, including tax, in those days.

Well, it was terribly important that I get the statements out on time, and the only time that I could see Mimi--certainly during the time that I was going to law school--was on weekends and then not too long a time. And, of course, the first of the month, on New Year's, always comes out on a holiday. And New Year's Eve is the evening just before the first, and young people like to go out or to celebrate or be together, but it was quite difficult for Mimi because I couldn't do that. I had to stay either at home or at the station, doing these statements. She would

come over and spend the New Year's with me while I was doing the statements--not very exciting. But that happened over a two- or three-year period.

Anyway, we really went together, certainly all during law school. Now, how steadily we went during my undergraduate-- It was pretty steady in the latter part of it, but not completely at the beginning. Then we sort of fell in love, as the saying goes, and we got married two days before I graduated law school.


What date would that be?


That was June 6, 1940. No trouble remembering that. Actually, three years later on June 6 was D-Day, in either June 1943 or 1944 [1944]. But, anyway, June 6 was D-Day in World War II in Europe. So I have a number of reasons for remembering that day quite well.


What is Mimi's given name?


Miriam. And her maiden name was Margolin. I suppose it can be said that, no question about it, she went through law school with me and shared with me the travails and the difficulties that that entails.


Was Mimi working during that time?


Oh, yes, yes, she was working. From time to time she worked at a five-and-ten-cent store on Sunset Boulevard near her home--also downtown. During the Christmastime when she worked, I would be one of these stage-door

Johnnies and wait for her to come out. She did not get very much pay. In those days it was quite, quite meager. But she did work. She had to. Her father died in 1936, which was a year before I graduated UCLA. She was going to, at that time it was Los Angeles Junior College; I think now it's called Los Angeles Community College [Los Angeles City College], on Vermont Avenue. And because her dad died, and the income in the family was very meager, she had to quit and go to work. So she did work.


Now, also last time we were discussing your various types of courses you took in law school. You mentioned that you had developed an interest in constitutional law, at least among other things. Can you tell me about some of the more important experiences, influences, professors, and so forth, during the period of time you went to law school?


Well, I think I already mentioned Professor Elliott and his almost wooden start of the season. He was a very proper gentleman. Of course, I remember the dean of the school, Dean [William Green] Hale, who also taught evidence. William [E.] Burby taught property. William Burby was an interesting fellow. If you saw Paper Chase--




--the story of the Harvard Law School, Burby was pretty much the kind of a fellow [John] Houseman

portrayed--very, very rough in class. A hail-fellow-well-met, however, outside of class. I mean, he was one of the boys, but in class he was very cruel, almost, on the students. If you hadn't studied your cases, he could spot that in a minute. He wouldn't let up on you. If you didn't know it, he'd keep after you. He taught real property. He taught something else, but I didn't take that. I took real property from him.

A person I remember quite fondly and well, of course, is the person who taught constitutional law. That was Professor Charles [E.] Carpenter. He was a venerable gentleman by that time, white hair--as was the dean, white haired--and was carrying on a controversy with Professor Harper of Harvard at the time over some part of torts. He taught torts and constitutional law; so I had him for both. I was quite impressed and intrigued with the subject, with constitutional law, much more than any other one in the curriculum, all through the three years.

Oh, we had everything else: criminal law, of course. Professor [Robert] Kingsley, who is now on the district court of appeal, taught criminal law. That was also one of the first-year courses that was quite fascinating. Professor Kingsley was also the--well, I'm not sure what his title was--but he was in charge of the Southern California Law Review, and I was an editor of the SC

[Southern California] Law Review, so I got to know him rather well. Indeed, Professor Kingsley, among all our professors, was probably closer to our class than any other one. As I told you, we started with 150, ended up with 40. Following World War II, we've held a reunion every five years. We're just about the only class that does that regularly. Every year one or two of us is no longer with us. From time to time Professor Kingsley has been invited, among all our professors, and has come; Justice Kingsley, I guess. Somehow or other, our class became close to him.

Others [were] Stanley Howell, who taught code pleading; Henry [E.] Springmeyer, who taught bibliography; [Joseph M.] Cormack, I think was his name, taught securities (the one tragedy that I had, as I mentioned); Professor [Paul W.] Jones, what did he teach? I remember him as quite a robust young fellow. I forgot what he taught. That's about it. Oh, yes, there was a most impressive blind professor, [George W.] Nix was his name. He was a practicing attorney. He wasn't a full-time professor there, but he taught us ethics. And, needless to say, I was absolutely flabbergasted at his acumen and his ability to remember things in cases. He had to have people read to him. But it was most amazing how he was able to grasp the law and teach it to us; he was very good. At the

moment that's all that comes to mind of my profs at law school.


You said that you became editor of the law review. How did that come about?


Well, I suppose, after your first year-- You're eligible to be on the law review in your second and third years. That's, you know, the way law school was then, and still is, normally a three-year period. After your first year, you're asked--I guess by Professor Kingsley [laughter]--to be on the law review. The purpose of that is to-- I suppose it's just academic standing; I don't know what the qualifications are. That was a very interesting experience, being on the law review. It taught you legal writing and research, and it gave you an extra discipline that you ordinarily don't have if you're not on the law review. I mean, you do that sort of theoretical writing, a brief or two, during your course, in what was then called practice court. Now they have moot court; it's a little different. Practice court then was trial work; we didn't have any appellate work. Now, I think they only have the moot court, which is appellate work rather that trial work. Maybe they have both, but certainly we did not have moot court.

So it was good, and I was thrilled. I don't know whether it was the first note I wrote or the second one,

but I wrote a note-- Oh, golly, I can't even remember the real specifics of it, something to do with sentencing of a defendant. I just don't remember what the issue was, but I remember I looked at every single case in the United States on that and footnoted it. I gathered every case there was on that issue and put it in the law review. Now, that was a good thing and a good use of the law review for other people, because other lawyers, if they ever had need to research this particular problem, didn't have to do a thing except turn to that note, and all the cases were there as of that particular date. So it would be a small matter for them to bring it up to date. I really felt very good about having done that.

But another note that I wrote involving a tax problem about which I knew nothing and, I must confess, still am quite unfamiliar with-- I think [Bayley E.] Kohlmeier was the person who had charge of whatever taxation courses were given then. He was also a practicing attorney downtown. Not being familiar with tax jargon, I used the phrase either "return of capital" or "return from capital," one or the other, in describing what the case was about or in trying to explain it. Well, was I called down by Kohlmeier! I had used absolutely the completely incorrect terminology, and he let me know it in no uncertain terms.


Anyway, when I got through with the note (of course, it was corrected) and it was published, I got the nicest letter from Judge Jenney. He was then a United States District Court judge here in Los Angeles. The note that I wrote on was a case that had been decided in his court, and when the note was written and published, and he wrote this letter to me-- He wrote it either to me or wrote it to Kingsley. In any event, he said the note was just great and he only wished that the attorney who had handled the case had been as thorough as I had--his task would have been much easier. That note made me feel very good, and I vowed that when I got out of law school I'd go meet him. For some reason or other, I never did meet him. I think he probably died. [laughter] But I never did meet him. I wanted to thank him for it.


Fred, one more question before we leave the law school period: you mentioned last time that, of course, it was very cheap to go to UCLA; but going to law school at USC was quite a bit more expensive. In your family, did your law school expenses come out of any specified monies? Did you have your own money that you earned as the result of the gas station? Did your father pay?


No, I had no money of my own. There wasn't any such thing in our family. Our only income was the station--that was the only thing. There wasn't any such

thing as an allowance; there were no specified monies for me, for my brother, for my mother, or for my father. We had something called the beitel, which is either a Hebrew or Yiddish word. And it was a little, gray money bag like you take money in to the bank. The monies from the station, after they were figured up at the end of the day, were kept in that beitel. I don't know what we had in mind, but I used to walk home every night (or my dad or whoever closed the station) with that beitel in my pocket. We never were robbed going home. We brought it home, and then of course we went to the bank during the day. After a while we had sort of a little safe at the station; but from time to time we would bring the beitel home--or monies from it--and it was just kept at home for anyone to take whatever one needed. We had no accounting at all.

My school expenses, both at UCLA and at 'SC, were paid from that beitel. I mean, it was the family finances and that's what it was. I mean, we paid by check too, obviously, but-- No, it was the family who paid. As I say, my brother worked there all during the time he went to school, and I worked there. My mother did too, as I say, and so it was the whole family. We never did have any accounting in our home about money. I never had to ask either my mother or father, when I got older. I mean, when I was a real young kid, of course [I had to ask]. But when

I was going to law school and at UCLA, if I wanted any money, I just went and took it, and that's all there was to it. There were no questions ever asked about that.


Now, when you did graduate from law school, do you recall where you were in your class--your class standing?


Yes, I was sixth. That's out of forty.


Tape Number: III, Side Two
(February 10, 1982)


Fred, why don't we pick up the chronology starting with your graduation from law school. What happened next?


Well, I graduated law school June 8, 1940, and I started studying for the bar. Now, in those days, as distinguished from today, the bar examination was given in October. So that was a horrendous time, because we graduated June 8--my last final was on Monday, which would have been June 3, 1940--and the bar examination wasn't until October, during the World Series. It always came during World Series time. So that was a period of four months, and I'm not sure whether it was given at the beginning of October or the middle or whatever. But, anyway, we had four months to prepare for the bar, and that really was too long. They give it now at the end of July; you just have two months. That's much, much better, much smarter. Well, I spent that whole four months, as much as I could, studying for the bar.

Now, I'm not sure exactly when it was, but sometime during that summer we sold the station. That is to say, we didn't sell the property--by that time, Dad had purchased the land, and we owned the property--but we leased the station. Dad, as I mentioned, had had a heart attack at the beginning of my last year. He was no longer able to

work, but I was finishing law school and I needed the money, so we kept it for that purpose. But we did have to get rid of the station some way; so sometime during the summer we leased it. That gave me more time to study.

We studied virtually every single day. When I say "we," there were four of us who studied: Ed Mosk, who's now practicing here in Los Angeles; Irv Roth, also practicing here in Los Angeles; and Leonard Kaufman, who hadn't been in our law school class, but somehow or other we became acquainted with him. And the four of us studied almost every day and almost all day long. It really got to be very tedious because of the length of time. However, we did try to make it as pleasant as possible. Most of the time, when we were able to, we'd go down to the beach down at Playa del Rey. [We'd go] down on the sand below the cliffs and stay on the sand, and that's where we studied. And it was most pleasant from that standpoint and warm--it was the summertime--but that was a long time.

I can't remember if all of us took the course, but I took a bar review course. It was at that time known as the Witkin-Horwin bar review, given by Bernie [Bernard E.] Witkin, who's still around--a professor, probably the leading essayist in California on California law. It was given here in Los Angeles by Leonard Horwin, who's a practicing attorney here in Los Angeles now. I just didn't

trust myself, having gone through law school and put in all that time and a great deal of money for us at that time. I wasn't going to take the chance of not spending whatever it was on the bar review course. Of course, that was very useful.

In the course of our study--I guess we must have all gone to the bar review course--we used whatever materials we got there. Then there was a book put out by Ballantine which had literally hundreds of questions similar to what bar examination questions would be like, and we went through that book, question by question, over and over and over again, till we were blue in the face, I'm sure. Reading these qustions, asking them, analyzing them, discussing them, and arguing at great length. It was, as I say, a tedious thing because we were ready by the end of July. [laughter] But we simply couldn't allow ourselves to relax during August and September because you psychologically couldn't do it.

The main thing, at least in those days, and I'm sure it is today-- But today they've also something called a multistate examination, sort of a true and false and maybe multiple choice; the bar examination in those days was entirely essay. The main point in the bar examination was not so much that you got the right answer, from the stand-point of stating what the final court said about a

particular problem, but that you recognize the problems that are included in the question. The theory was that if you can analyze a problem and spot the issues that are involved, the matter of going to the law books and finding what the cases say about them is much less difficult. Whereas, if you don't spot the problem, there's no place to go. So we understood that, I think, and studied in that way, and all four of us did pass the first time. As I remember, the total in the state was miserable that year; I don't know if I'm accurate, but it seems to me that something like only a third passed. There was a big hue and cry as to what was wrong with the law schools in allowing that.

Anyway, so that was what I did in the summer. Then, after I took the bar examination in October-- As I say, it was taken during the World Series, because you'd have-- I think it was a three-day examination, and you'd get there at whatever time it was in the morning, probably at eight o'clock, maybe nine, and write until noon; then you'd go out for lunch and come back in the afternoon again. It was given downtown in some building, maybe the city hall; I can't remember. But during noon hour we would all go on the lawn in front of the state building, and someone would have a radio and we'd listen to the World Series. That was our relaxation except for those who still had to cram. By

that time I wasn't doing any studying during the examination. I was finished studying. So that was our relaxation.

Well, after the examination I had to get a job. By that time we were married; Mimi was working. I don't know what she was making--maybe twenty-five dollars a week, I'm not sure. We had rent to pay and food and all the rest of it, and so I got a job at Sears Roebuck and Company, on Olympic Boulevard in Boyle Heights. I could only get a job for Friday night and all day Saturday. In those days Sears was open Saturday night also; so that's the job I had. I don't know when they started hiring, but I got a job at the post office during Christmas, or just before the Christmas-time that year, sorting mail. There, of course, you could work as long as you wanted to. The only difficulty was that one time I had a heck of a time because I was supposed to work at the post office and I was also supposed to be at Sears. I didn't know how to juggle that because I didn't want to lose the Sears job. It was terribly important in case I didn't--I guess it must have been before Thanksgiving that they started hiring because we learned of our bar results around Thanksgiving of 1940.

At that time you got sworn in at only one of two places: either in San Francisco or down here in Los Angeles in the supreme court room. Naturally, I couldn't

wait to get sworn in down here--and we wanted an excuse to go up anyway--so we went up to San Francisco, and I was sworn in on December 10, 1940, in the supreme court of California, at the state building up there. But I still kept on, during that season, with the post office job and with the Sears job. I was in the automotive department at Sears because I knew something about it, having been at the gas station.

Then I started looking for a job. I had no entree anywhere. I wrote letters to anybody I could think of, except--and I don't know why--I never did write any letter and made no contact (I'll tell you about it a little bit later) with Gallagher and Wirin, with whom I eventually came. But my first job was with a man named Harry Sadicof. I don't know if you could call it a job: I was given space, a little office, and the use of a secretary. Sadicof was a lone practitioner in the Roosevelt Building, which at that time was a very prestigious building. Sadicof was an excellent lawyer who was able to enjoy the luxury of having very few cases but charging tremendous fees, so that he was able not to work too hard when he didn't have cases. When he had a case he worked day and night; he was relentless in his pursuit of his adversary and, as I say, made huge fees.


I remember that one of the first things on my job was to carry his briefcase down to what was almost a perfunctory hearing on a divorce case involving the Reynolds of R. J. Reynolds Tobacco Company. I don't know whether he represented the husband or the wife, but I remember the work he did. Then afterwards we went to Little Joe's [Restaurant] for lunch. That afternoon he showed me the check he got from his client for the service performed: more than I made in three years of practice. [laughter] It was huge.

So that's where I was, and, as I say, he paid no salary. The reason I got that "Job," if that's what it is to be called, is a friend of mine, Sidney Kaplan--he was at law school but a couple of years ahead of me--had worked for him in the same manner. In the course of my going around from office to office, I met him. He was doing the same thing for Sadicof, and then he went off to work for the Immigration and Naturalization Service. So there was that opening, so to speak. Now, in return for that office space, I wasn't only supposed to carry his briefcase: I was supposed to do research for him and do other tasks.

Well, I wasn't really very happy there, not only because I wasn't making any money, which was OK because, if you start out on your own, you expect-- I got a couple of cases, now and then. Where they come from you don't know.

It's amazing how cases get to people. But I didn't like the kind of practice that I was associated with. He represented, in that instance, as I say, a very wealthy divorce case, which is fine. I mean, that was, and perhaps still is, almost the bread and butter of many lone practitioner offices, certainly. But he also represented corporations, and I simple was not happy, and I didn't know how to-- Oh, by that time, as you can gather, my idea of using my law for the purpose of going into business somehow disappeared, simply because I just had no way to go. I didn't have any business to go to. Our station was gone.

So one day I either looked up or ran into Ed Mosk, whose name I had mentioned, and I told him that I was unhappy. Now, just exactly how the name of Gallagher and Wirin came up I don't know. But I had this latent desire to get both into constitutional law and into labor law. I was interested in labor. I had taken some labor law courses. So I think Ed knew both Al [Abraham Lincoln] Wirin and Leo Gallagher, and I asked him to make an appointment for me to have an interview. I think I had it with Leo. Leo had a will matter, of all things, that he needed some help on, and would I do a little research for him, as sort of to see whether or not I fit into their office, because they had a general practice as well. I did it, and

apparently it was satisfactory because I did get a job with that firm.

Now, when I told Harry Sadicof that I was going to leave to go to Al Wirin and Leo Gallagher, he was very negative, not so much because he was losing somebody, because in those days, I'm sure, you could get all kinds of people like me, who had no connections at all, to do that sort of thing. And many people did it in those days; I don't know if that's a custom now. I'm sure not. Now a fellow out of law school starts in one of these law firms at $30,000 a year. I don't know what they get. But not in those days, although some of my friends did have some connections and got in right away--but not at those kinds of salaries. But he warned me: he said I was making a wrong move because that was a communist law firm and I was Jewish, and that combination was just no good; and I'd never really be able to get any place in the law. He recommended against it, and wouldn't I reconsider, and so on. But now I knew where I wanted to go, and I wasn't about to reconsider. The salary I was to get from Gallagher and Wirin was extremely modest. As I say, I think it was about twenty-five dollars a week.

And so I went. Now, at that time Gallagher and Wirin had an office in the Douglas Building on Third and Spring Street-sort of one room. They had one office, and they

shared a reception room and a secretary with the American Civil Liberties Union of Southern California. Clinton Taft was the executive director. And that was the staff of the ACLU of Southern California in those days: Taft the director, half a secretary, and Al as the lawyer. Now, I don't know whether at that time Al was getting any money for his ACLU work. I don't know.

But that firm also had an office in the CIO [Congress of Industrial Organizations] building, which was located at Slauson [Avenue] and Avalon [Boulevard]. They had a little suite, and there were about four lawyers there. They represented, for all intents and purposes, all of the CIO unions in Southern California. That's where they got their income. Well, for some reason or other, Al and I hit it off very well to begin with, and I was able to spend a lot of time on the work that Al was doing. I also did, believe it or not, some antitrust work at that time. There were state antitrust laws, the Cartwright [Anti-Trust] Act, and the firm also represented some employers, actually, in the cleaning and dyeing business. There were problems involving that statute, and I worked on that. Then, little by little, I got to work with Al on ACLU cases. Eventually the firm gave up the office in the Douglas Building, and we spent all our time at the CIO building, and I worked on ACLU cases.


I went to Sadicof in May of 1941, and I left in July; so I wasn't with him very long when I went to Gallagher and Wirin. That was July '41, and then, you may remember, December 7, 1941, was something called Pearl Harbor. Things became very exciting, very interesting, at that time.

In the spring of 1942 the Japanese evacuation orders were made, and that created a crisis in our office because the ACLU of Southern California had taken the position that the evacuation was unconstitutional and should be attacked and challenged. On the other hand, the CIO had taken the position right after Pearl Harbor renouncing the right to strike, saying that everything had to be done to win the war, anything that went counter to what the government was asking the people to do was wrong.

So that created difficulty in the office, until finally Slim Connelly, who was the executive director (or whatever the title was) of the CIO council, called Al in once and said he would have to make a choice: if he wanted to represent the CIO, stay with the firm, he simply couldn't continue with the ACLU and go about challenging the Japanese evacuation, because that was counter to what the war effort was about, and the war aims, and so he would just have to make the choice. Al, as one could guess, made his choice to go with the ACLU.


He may have made an arrangement at just the most modest compensation to go back and take this office that had been left in the Douglas Building. So he had to leave the firm, and he approached me and told me what he was going to do (at that time I think my salary had been raised over the year to about forty dollars a week), and he said he would like me to go with him. He didn't have the slightest idea how he was going to pay me, or him, but he couldn't in good conscience stay with the CIO if those were the terms. What did I think? Well, I didn't have to think at all. I knew what was right, or at least it seemed to me what was right, and so I said, well, I was leaving too. And that's how I went down and became Al's associate at that time. That was July of '42.


Can you tell me in a little bit more detail-- You said that there was a lot of conflict in the office and obviously conflict with the CIO leaders. Do you recall more about the individuals, both in your office and in the CIO office-- Who took which position and so on?


Well, I don't know who took what position in the CIO. I mean, that was the position of the CIO from-- Who was the national president at that time? [Philip] Murray, I guess. That was before-- The AFL [American Federation of Labor]-CIO didn't come till '48, till after the war. It must have been Murray. And the AF of L did the same thing,

I sort of remember. I'm not sure. But the CIO certainly did. So, who the personalities were in the CIO-- They just blur to me. I don't know. I remember Slim, and I remember Jim Burford, who's now on the ACLU board. He was a business agent for one of the unions. [I remember] William Elconin, who was a business agent for the electrical workers union. [There were] others whom I don't remember. One of the unions had organized the workers at a plant where Mimi worked. She was working for Berg Metals [Corporation]. So, as I say, I don't know what position the CIO people took.

When I say conflict, I mean it created this crisis in the office: What's going to happen to the office, when we knew that the CIO didn't like what al and I were intending to do. That was the conflict. I don't remember that we, in the office, individually, had any difficulty in taking the position that the evacuation was good or bad. We didn't have those kinds of fights in the office. I had fights with my family--not my immediate family but with my mishpocheh, so to speak, my aunts and uncles and cousins. Others in the office, if it's of any interest, were Milton Tyre, who's practicing here; Charles Litwin, who's a judge now down in Long Beach; Victor Kaplan, who's still practicing law here in Los Angeles. [Then there was] Larry Weinberg, who left Loeb and Loeb to come into our office

because he thought it would be an interesting practice, and then left again to go back to Loeb and Loeb; and who, coincidentally, was the first husband of Robert Rissman's wife. Robert Rissman became my partner later on. Not the first husband, my wife shakes her head.

Mrs. Okrand

Robert Rissman's step-brother.


Oh, step-brother. Oh, that's right. All right. So, anyway, in the office there was not that [kind of conflict]. The crisis was, what happens to our office? So we left, and Leo stayed on, of course. Then, later on, Charlie Katz, who is now practicing here in Los Angeles, went in with Leo Gallagher; then Ben Margolis, who had at that time been practicing in San Francisco, came down, and they formed a firm called Katz, Gallagher, and Margolis, and they sort of kept on representing the CIO.

We went down to the Douglas Building again and this one little office. We sort of shared offices at that time. We really didn't have a whole separate office between us, but we managed. The only client who stuck with us, who didn't let us go simply because we had betrayed--if that's the correct word--the labor movement, was the Amalgamated Clothing Workers of America. They stayed with us all the way through. But we had, really, no clients. That was July of 1942, and then I went away into the service. Gee,

I didn't go for a year after that; I didn't go until December of '43. Well, anyway, so we managed to survive.


What type of arguments did the CIO, and other people in labor in Los Angeles who argued in support of the evacuation of the Japanese, make?


Well, it was simply that this is war, and anything that the government feels is necessary in order to win the war simply must be done. Period. And of course their big argument was: we have given up our right to strike, which is the ultimate weapon that a labor union has (as, of course, it is), and if we've done that, then other people can make whatever sacrifice is necessary. Period. That was the end of it.


Did they seem to you to believe that the Japanese were really some sort of a threat? There was threat of internal subversion and so on?


I don't remember that kind of conversation around the building. As I say, with some of my family, yes: you couldn't trust them and all that sort of thing. But I don't remember that kind of talk around the building. I wouldn't be surprised if that occurred, but I don't remember it.

One of the things that I remember quite vividly, as a new practitioner among people I had not known but had heard about for many years, was the case of Bridges v. California.

Almost after I got into the office, when I moved out completely to the CIO building, the United States Supreme Court--well, I don't know whether it was after--but the United States Supreme Court had come down with the decision in Bridges v. California, which was an important immigration case, in saying you couldn't deport individuals arbitrarily. My job, since the case was won, was to try to--


Tape Number: IV

Side One
(February 10, 1982)


OK, I was indicating that the case of Bridges v. California had come down from the United States Supreme Court, an important case from the standpoint of immigration law, deportation law, and it had been won by Bridges. That was the-- Oh, excuse me, I am so wrong in describing the case! That case was one involving the First Amendment, involving contempt of court. That was one where Harry Bridges had sent a letter to Madame [Frances] Perkins--this was also during the war--protesting against a court order that had been issued by a California Superior Court restraining picketing by some longshoremen down at the harbor. He, in effect, said to Madame Perkins, in criticism of this court order, that they could do their own ship loading and unloading; he wasn't about to abide by that order. And he was held in contempt of court. [tape recorder turned off]

Second Part (February 16, 1982)


Fred, last time we had just begun to talk about Bridges v. California when we had to stop. Before we get back to that, I would like to go back and ask you several questions about things that we talked about earlier.




First of all, I was interested in hearing a little bit more about the people in the study group that you had when you prepared for the bar exam. You mentioned Ed Mosk, Irv Roth, an individual named Kaufman, and yourself. How did that study group get started, and what kind of relationships did you continue to have with them afterwards?


Oh, well, Irv and I had gone through certainly high school and undergraduate school at UCLA, and I may have even known him before that. He was a good friend of the family, and I knew him as a personal friend for a long, long time. Eddie Mosk I met probably at law school. I think it was at law school that I met him, and we became very close during law school, and we studied together at law school to the extent that we could. Golly, I wish I could think of Kaufman's first name. Just a really wonderful fellow. I can't recall how I met him. He was not in our law school class. Perhaps we met at the bar review course; I don't know. But, in any event, we became quite friendly and simply decided to study together that way. As seems apparent, I've lost track of Kaufman. I can't even remember his first name. We did have some contact for a little while after we took the bar and he passed it. I just have an impression that he went back East somewhere to practice, because I have not run into him

for years, and I certainly would have had he been around. Now I remember, it's Leonard Kaufman.

I've continued my relationship with Irv and Ed all through these years. They're both practicing here in Los Angeles. And, of course, if nothing else, although I do see them oftener than that, we have our class reunion every five years. I don't know whether I mentioned that.


Yes, you did, actually.


We continue to have that. I see Irv less often than I see Ed. Ed, up until this last year, was on the Board of Directors of the American Civil Liberties Union of Southern California, and his office has done a considerable amount of volunteer work for the ACLU. So I'm very close to Ed, I know his wife, and we see each other socially on occasion.


Another thing that we omitted that would be important for the chronology and so forth: after you and Mimi were married-- Up to that time were you still living with your family? And then where did you move?


Yes, I was living with my folks. My dad, as I mentioned, during the last year of law school was ill, and I stayed with my mother and father all during UCLA and 'SC. My brother got married and moved away, probably when he got out of dental school, which would have been about 1937, I would think.


We got married on Thursday, June 6, 1940, and I graduated on June 8, 1940. [For] our honeymoon, at that time, we went out to a motel here, way out in the San Fernando Valley, which is now around probably Laurel [Canyon Boulevard]. There was a gasoline station at the triangle where Laurel comes to Ventura Boulevard. I don't know what's there now, but there used to be a Ford dealership. But at that time there was a magnificent replica of an airplane; a big Texaco station was right there; and a block or two away there was a motel, I think, the Trocadero and the Hollywood. We went to one of them that Thursday night. Friday I had to be at the station at about one o'clock or two o'clock in the afternoon, and so that wasn't much of a honeymoon. And then graduation was Saturday. Saturday, after graduation, we went away to a little place called the Serrano Country Club out here near Corona for probably over the weekend. That's all, because, again, I had to get back to the station.

We got a place, a little place-- This might be of some interest, I suppose, to indicate the way things were, and perhaps still are. We had arranged for an apartment close to 'SC because I wanted to be close to 'SC while I was studying for the bar, even though I still had to keep worrying about the station. A charming little apartment, furnished, quite modern, I think. We brought Mimi's mother

with us just to show her where it was. That's all we did, just to show her where it was.

It so happened that the landlady who rented it to us was there in the vicinity, not in the apartment itself, and we started to talk. Well, Mimi's mother speaks with quite a heavy--did then and still does--foreign accent, a Jewish accent I guess it would be. We were just passing the time of day and so on, and either as we were leaving or later, we got a call (I don't remember just how it was). But, in any event, the landlady said she really didn't think the apartment was suitable for us. I mean, we'd made all the arrangements, and [laughter] we were supposed to move in a little bit later. We'd sent out announcements, or we were just about to send out announcements of where we were going to be. But she made it very clear that we were not welcome there anymore, and it was obviously because of the fact, I guess, that either we were Jewish or we had a mother-in-law who spoke with a Yiddish accent.

So we had to scurry around to find a place to live, and we did. I can't say that I'm sorry that we didn't get that apartment. I was very angry at the situation, but we got another place, on Wisconsin [Place], which is a block west of Vermont Avenue, just a half a block south of Exposition Boulevard. It was brand new--what I suppose novelists would call a California court. It was a little

arrangement where you have a center sidewalk and on either side little abodes. I think there were about six units, three on each side. In fact, the one right across from us wasn't even finished. We had the very last one--we were secluded from the street--and it consisted of a living room, a bedroom, a kitchen, and a bathroom. That was it. The living room was nine-by-twelve, and the reason I know it was nine-by-twelve was because we got a nine-by-twelve rug and we had wall-to-wall carpeting. [laughter] It was charming. It was brand, brand new, and it was really great.

We got a used refrigerator and a used stove someplace. I had an acquaintance who used to do business with us at the gas station who made unfinished furniture. So I ordered from him a bedroom set, sort of a Monterey-type couch, a chair, and bookcases, which he made. When I went to pick it up I had the amount ready; I knew exactly how much it was. It was supposed to be unfinished because that was his business, and I was going to finish it with shellac or whatever you put on. As a wedding present he had finished it all off for us, and it was very charming. As a matter of fact, in my garage I still have today a part of that bookcase that he gave us. We've of course gotten rid of the furniture.


The apartment across the way was empty, and so we put in a ping-pong table there. We had our first open house for our friends to come over and visit us, and we entertained in grand fashion because we had two places: we had our house, and we had the whole place across the way. We served refreshments there, and it was very nice. All right, that's what we did. And we stayed there on Wisconsin until after I passed the bar, and then we moved to another unfurnished place near Melrose and Fairfax [Avenues], where we lived until I went into the service in 1942.


Fred, last time you mentioned that after you had passed the bar exam, you had no entree, as you put it, straight into a legal job. You didn't have those connections. I was wondering why that was so and what was the situation for new attorneys back then? And why so in your particular case, do you think?


Well, I don't know why I didn't have any connections except that I didn't have them. [laughter] I didn't know anybody who either was a lawyer with a successful practice or was in a law firm that had an expanding practice. Because I had to work at the station, which took all of my hours, I hadn't been able to make some connections which a few of the fellows in our class were able to by getting jobs as clerks or so on in other law offices. I

just wasn't able to do it. I had to be at the station, and so I wasn't able to make those kind of contacts.

This was in 1940. I think we were still suffering from the Depression in a way. Yes, we were, and things were not good. Many lawyers, many of my friends, got similar arrangements to what I finally was able to do: space in exchange for services, or a very meager salary. For a while I did try with two friends of mine, Charlie Wellman (who later became president of Glendale Federal Savings) and Lew Wurtzel-- We talked about setting up an independent law practice, just opening up an office and striking out for ourselves. Charlie was absolutely brilliant as a lawyer and as an individual. He knew lots and lots of people. I theoretically was a student and was to do work in the office. And Lew had the connections--I mean, this was our thinking--in the movie industry. His uncle was a very prominent producer, and we had visions of getting into that line of business.


Do you recall the producer's name?


Wurtzel was his last name, and I forget what his first name was. [Sol Wurtzel] But he was one of the top persons in the industry. So we looked around, we went downtown, looked in office buildings. It was a lot of fun. There was lots of space, obviously. Things weren't good for business, I guess, because there was just oodles and

oodles of office space available in many buildings. We looked at floor plans and figured it all out.

But we just didn't do it. For one thing, I guess it was Charlie who had the most severe economic crunch. He had been married for a long time, and he had to get settled rather quickly. I don't know why I didn't think I had to. I think Mimi was only making about twenty-five dollars a week at that time--or forty maybe. But we seemed to be able to manage, and so I wasn't in any particular hurry, except the itch to get going after all these years. But Charlie really had to find a place. So he made a contact or saw an ad or whatever with a lawyer, quite an elderly lawyer out, I think, in Corona. He just had to go and so he went there, and Lew and I decided we wouldn't try it on our own.

Charlie only stayed at that place a short time, and then he gave up the practice of law entirely and went into Glendale Federal as some kind of person. As I say, later on he became president of it and unfortunately has died since then. He died just after Glendale Federal had opened their place out there right next to Bullock's Fashion Square--I guess it's called Glendale Plaza now--on Woodman [Avenue] and Riverside Drive. So he didn't practice law very long. Lew is still practicing here in Los Angeles. Occasionally I run across him, but almost invariably every

five years, of course, I see him at our reunion because he was in our class as well.


Tell me about your first impressions of Al Wirin and Leo Gallagher and the relationship they had with each other when you first went to work for them. What type of people were they?


Well, let's see. I think I may have just met Al Wirin just fleetingly when I came up there the first time to apply for the position and met Leo. Leo was, I think, sort of the office manager; at least he gave me that impression. So I really didn't meet Al until after I got into the office and started going out to Avalon Boulevard.

Leo was an intense individual, a very scholarly fellow. He insisted on people toeing the mark. He was quite a devout Catholic, although, as you may know, he had the reputation for being a communist. I think he had run on a ticket or something. He'd been one of the attorneys for the defendants in the Reichstag fire case in Berlin.

Al was quite a different sort. He was quite light in his attitude, in his contacts, but not in the practice of the law--very intense in that. [He was] not the academician, not the technician that Leo was. It didn't bother him if a particular pleading wasn't a model of perfection so long as the essential features are in it. I think I told you--or did I?--that one of the important things about

passing the bar examination is not so much that you get the right answer but that you understand what the questions are and that you can spot the problems. Well, that was kind of Al's feeling in the work he did. I remember, in talking about attitudes or impressions-- One time I had a carnation in my jacket. Why I was wearing a jacket in the office at that time I don't know. But Al, in a fit of playfulness, thought it was quite important. He grabbed this flower and threw it out the window. [laughter] I don't know why I remember that. "What did you do that for?" I don't know why he did it.

But he was, as I say, quite a little different from Leo. I didn't have too much social contact with Leo; I did with Al and his wife, Helen. Just by coincidence Mimi had met Al years and years before and knew him long before I did because she was acquainted with Al's first wife, who died, and she was over at their house. We have a picture of them quite young.


Do you recall her name?


His first wife's name?




No, I don't. I never met her. The Helen that I referred to was his second wife. We'd go up to Al's house on occasion. They would have parties, lots of dancing. After they moved out to Avalon, where they were when I met

them (but apparently it was a recent move), Al and Helen moved just down the block on Fifty-ninth or Sixtieth Street. Al could walk to the office, which was a good thing. They used to entertain quite a bit at their house.

The firm, just before I came there, had been known as Gallagher, Wirin, and Johnson. It broke up, apparently just before I got there, and Grover Johnson went down to practice in San Pedro, [where he] practiced until he died. Al and Leo stayed together. I guess those are my first impressions.


Who else was in the Wirin social circle? Do you recall any of the people who came to the parties and such events?


Oh, gosh, that's hard. One was a Doctor [Eugene] Ziskind, I remember. Gene, I think, was his first name. I believe he was a psychiatrist, a brother of a fraternity brother of mine, Dave Ziskind, who still practices law here in Los Angeles. Gee, I knew somebody by the name of Mayer, but I don't know. They were not our circle of friends. I don't know if they were a considerable bit older, but they were older than we were. I just don't remember any others.


Last time you mentioned, if I understood correctly, there was a point at which the firm gave up the Douglas Building, and everybody moved over to the CIO building. Then, evidently later, after the split between

Wirin and Gallagher, there was a return to the Douglas Building for a certain period of time. Why did the firm leave the Douglas Building at the point that it did?


Well, it wasn't much of a leaving. As I say, the offices were pretty not much. There were three rooms: an office for Clinton Taft, who was the executive director for the ACLU; an office for the firm; and then the reception room, which was shared by both. That office was kept down there just for purposes of convenience, actually, because it was close to the courthouse. Then I guess they felt it was just too much of a luxury to maintain the two offices, and they gave it up. Nobody actually stayed in the down-town office all the time. It was a place where people were able to come either to interview people or to do some work, and I guess they gave it up because of the finances. That's the only reason I can see: that it was just a luxury that didn't warrant keeping up.

Later on, of course, when we left the CIO building, then we had to have a place. Golly, my memory isn't clear, but it seems to me that when we went back to the Douglas Building, we went to the same place, in the northwest corner of the fifth floor. But we may have taken another office so that I could have a place and Al could have a permanent place, because that's where we stayed. Yes, we did have two rooms at that time, right up there in the

northwest corner. As I say, even then--this was 1942--lots of office space was available in lots of buildings. So we didn't have any trouble.


Did the split of the law firm over the Japanese evacuation cases cause any kind of falling out between Gallagher and Wirin? What was the situation between the two of them after that happened?


Oh, I don't think it caused a falling out in the sense of enmity or hatred or ill will at all. Leo understood Al and Al understood Leo. Oh, I'm sure there was a lot of ill-feeling in the sense of-- Not so much between Al and Leo; I never felt that. Although very shortly after that I went away to the service; so I don't know. I certainly never had any feeling of ill will toward Leo. He was a gentleman clear through--a very hard fighter who felt very strongly about things. But if there was any personal ill will between the two, I wasn't aware of it. And I would rather doubt that there would be because the split wasn't occasioned by any-- Well, there was a disagreement, I'm sure, between Al and Leo over what should be done. I don't know how Leo felt about the evacuation. I would have my doubt that he felt it was the right thing to do and that it was a violation of the Constitution; but in his judgment he felt that's what was necessary at the time. Period. Al and I felt quite differently and quite strongly about it.


We will talk more about the Japanese evacuation cases, I hope, shortly. But you were last time, at the end, starting to tell me about the Bridges v. California case.


OK. Well, the Bridges v. California must have been decided by the Supreme Court of the United States probably in June of 1941 [December 1941 (314 U.S. 252)] because when I came to the office in July of 1941, that was the first case that I had anything to do with. My job was to collect the costs that were awarded because of winning the case in the Supreme Court. Bridges v. California was a companion case to a case known as Times Mirror v. -- Gee, who's the defendant in the Times Mirror case? They were totally unrelated cases in one sense and, of course, absolutely the same in another sense. It's known as Bridges v. California simply because that's the case that's first listed in the reports. Times Mirror v. Superior Court is the second case.

The Times had written an editorial arising from this situation: some individuals had been convicted of murder-- obviously, it couldn't have been first-degree murder; it must have been some lesser degree of murder--rising out of a labor dispute. They'd been convicted and the time was coming for sentencing. The Times wrote an editorial in which they said, "By golly, these people are guilty and

they deserve the maximum punishment. Some people are saying that they ought to be treated with leniency, and they ought not to be. This judge, before whom they are coming for sentencing, better not treat them leniently or we'll--"


Tape Number: IV, Side Two
(February 16, 1982)


The Times had written an editorial condemning the individuals who had been found guilty and making it very clear that the judge before whom they were coming up for sentencing better not treat them leniently or the Times would see, in effect, that that judge would never be reelected when the time came. Well, the Times was cited for contempt of court because, the charge was, they were trying to influence justice and trying to put pressure on the judge. The judge shouldn't be subject to that kind of pressure, and it was contempt of court for people to try to do that. So they were found guilty of contempt of court by the superior court.

Just about the same time, a court had issued a restraining order against the longshoremen (of which Harry Bridges was the executive director or head--whatever the title was) restraining them from picketing down at the harbor. I don't know the exact details of who the plaintiffs were in that injunction suit, but obviously the United States government and the Department of Labor were involved because Bridges sent a telegram to Secretary of Labor Perkins and said, "There's this injunction against my union, but, by golly, we're not going to comply with that sort of an order. We have a right to picket freely in this

country." So Harry Bridges was cited for contempt of court for threatening to, or actually disobeying, a court order in the sense of making these statements, you see.

So Al got involved in the Bridges case, and also, later on, the ACLU filed a friend of the court brief in the United States Supreme Court on behalf of the Times which was an interesting companionship because there was no love lost between the ACLU and the Los Angeles Times at that time. The California Supreme Court sustained both contempt convictions. The prosecutor in the Times case was the L.A. [Los Angeles] Bar Association. They furnished counsel for the contempt proceedings against the Los Angeles Times and Judge Isaac Pacht, who is still living--a very wonderful libertarian--was one of the prosecutors for the Los Angeles Bar Association.


Any relation to Jerry Pacht?


His father, sure. He wasn't a judge at that time; I don't know whether he became a judge later. He probably became a judge later on.

Anyway, the Supreme Court of the United States reversed both convictions and wrote one of the most important opinions on free speech in the course of its history. It reemphasized and redefined the so-called clear-and-- present danger rule, which had first been enunciated by Justice [Oliver Wendell] Holmes in the Schenck case in the

early twenties. Namely, that one has a right to say anything one wants to say, can't be held guilty of contempt or put in jail or be disciplined, so long as there is not a clear and a present danger of something happening which society has the right to prevent. It has to be both clear and present. That means imminent, right now, that further speech couldn't combat the bad speech which you're trying to discipline an individual for. The clear and present danger rule, I think, describes the First Amendment concept, the free speech concept.

We don't use, the court doesn't use, that kind of language anymore, but they really do the same thing. Now we talk in terms of balancing concepts and so on, a concept which Mr. Justice [Hugo] Black would just turn over in his grave if he heard us talk that way, but that's what we do. But the idea is the same: it's often been said that free speech is not absolute, but it's only in the sense [when] it really is impossible for other words to combat the bad words which are sought to be punished. So the Bridges case was a terribly important case.

Well, I had just come into the office, and in the Supreme Court there are certain costs that you get: you get the costs of filing the case, you get the costs of preparing the record, and that sort of thing (you don't get the costs of printing the briefs). For a while it looked

as though the defendant--and it wasn't clear who the defendant was in our case-- It was called Bridges v. California because the contempt prosecution was prosecuted in the name of the People against Bridges. So we were trying to figure out where we were going to get our costs from. Who do we get them from? I started researching how you can attach a county typewriter or a desk or so on. It never did come to a conclusion. As it turned out, the costs were paid, and so we didn't have to file any attachments or anything against the county or against the state. But I thought that was a wonderful thing, to come into an office and have a chance to at least touch base with as important a case as Bridges was. That was my first civil liberties case. [laughter] My part had nothing to do with civil liberties. [laughter]


Now, from the record in the Open Forum and so on, it appears that you were involved, at least before your induction, to some extent in the Japanese evacuation cases at that time. What was going on with those early cases? What was your role in the early stages?


Well, my primary role in the early stages was to see if we could figure out a way of challenging the evacuation. By the time we left the CIO building--that was in July of 1942--the Japanese were already in camps. They may have already by July--I can't remember exactly--been moved

out of the so-called assembly centers. Santa Anita was the main one here.

While I was still at the CIO building, I had gone down to talk to people at the Santa Anita assembly center. It was quite a vivid experience. I can remember that part well. I went to Santa Anita I think in my 1932 Chevrolet which I'd bought from my dad for fifteen dollars just when we got married. There was barbed wire in front of the stadium, close to the perimeter of the area. Probably it was what is now the parking lot. Barbed-wire fences, guards all around the place, and lots of Japanese people inside. I didn't know anybody, and I really hadn't the slightest idea how I would make contact with anyone.

But I did see someone whom it turned out I did know; I had gone to school with him at UCLA. Johnny Yamazaki is his name. I hadn't seen him since I'd been to UCLA in '37. I don't remember whether he was in my class or ahead of me or behind me; I'm not sure. But I'd met him there first and knew him. But here he was, and he was a minister. He was wearing a white collar of a minister. I didn't even know he'd gone into the ministry. I just wanted to cry; it was just a horrible experience. I mean, it was bad enough to see people behind these barbed-wire fences, but when you saw someone you really knew, it drove it home even more.


I talked to Johnny, and I told him what I was there for--that we were anxious and willing to challenge the Japanese evacuation. We didn't know if there was anybody who might want to do that, and [I asked] if he could help us. Now, I don't know whether it was because of him or whether word got around, but in some way or another we were put in touch with a family who wanted to challenge the evacuation and who would be a suitable person for that end. His name--I don't know his first name--the gentleman's name was Wakayama.


Ernest [K.] Wakayama?


Ernest, that's right. Now, he was just a perfect plaintiff, if you talk in terms of that. He was, of course, an American citizen, born in this country, World War I veteran, decorated, American Legionnaire, and just a hundred percent person [laughter] from the standpoint of having appeal as not being a person who was disloyal to his country but was standing up for his constitutional rights. As I say, we were put in-- I don't remember how I met him: whether I met him there, whether I had come back later. But, in any event, I do recall we did file a lawsuit challenging the constitutionality of the evacuation. That was before I left. I don't know whether the Open Forum shows it or whether you got that far, but the lawsuit had to be dismissed at the request of the Wakayamas. But--


The record indicates that it was dismissed, but it doesn't really spell out the reason why.


Well, one time when I was in camp--not in a relocation center, a Japanese evacuation camp, but when I was in military camp--I got a letter from him, and he simply said that the family had decided that they didn't want to continue with the case. So, if they didn't want to continue with the case, why, then you couldn't continue with the case. So it was dismissed. Obviously it was dismissed after I was in the service; it had to be, because I remember getting this letter from them. I don't recall that I had anything else to do with the evacuation as such before I went away. We prepared the lawsuit; it was filed. Of course, the Wakayamas had been transferred already by that time to one of what euphemistically has been called relocation centers. I call them concentration camps because I think that's what they were. Actually, I didn't coin the word. Chief Judge--at that time they may have been called justices--[William] Denman, who wrote one of the later cases involving renunciation of citizenship by the Japanese, so described them. The court described them as that; so I feel perfectly comfortable in describing them that way because that's what they were. I don't think I had anything else to do with Japanese cases, aside from Wakayama--I can't recall any--till I came back.


But there's another interesting part of that period; I don't know if it's known or not. But at the same time that the Japanese were ordered en masse evacuated from their homes and businesses in California and put into camps, there also was an order that selectively picked out other individuals who the government felt posed a danger or were disloyal or whatever it was. In fact, there was a whole prosecution in the District of Columbia against a whole group of so-called fascists or Nazis for sedition and writing publications against the United States going into war and so on, and we were quite active in that. I participated in some way trying to get them not to be charged and not to have to be tried and so on.

I don't remember the name of the individual, his last name was Allen, but one person, who was a virulent anti-Semite, said things which were quite distasteful to me and to most people and was of course quite pro-Germany in the war, received one of these individual orders to leave California. Those persons were not put in camps; they were simply told, "By order of the military commander, you have to leave California within ten days." That's all. That's what those kind of orders were.

So one day I was in the office--Al was back East on some thing--and this person walked in quite shaken and quite excited and showed me the order that he had gotten

and wanted to know if there was anything the ACLU could do. Well, now, this individual just didn't like the ACLU, and I thought it was kind of funny. As I say, he was quite anti-Semitic, and here I was Jewish and he knew it. But, of course, I said I would do what I could. He didn't want to leave California. His daughter was going to high school here, and he wanted her to finish. She had no place to go, no place to stay, and she had to come with him if he left. He was really quite excited.

Well, this order said he could have a hearing, if he wanted to, in front of some military higher-up of some kind and he could bring someone with him, even if the person was a lawyer. But they could not speak on his behalf; they could just be there--an obvious denial of due process. In any event, I said, "Well, I don't know what I can do for you."

As I say, I was just shaking in my boots because I could see ahead of me a lawsuit by this gentleman against the government of the United States, against some [Lieutenant] General [John L.] DeWitt. [Commanding officer of the U.S. Army Western Defense Command during World War II] Anyway, I went down with him to his hearing, and of course it wasn't a hearing at all. I couldn't say anything.


The colonel or the general was there and said, "Well, what do you want to say?"

He said, "Why are you kicking me out? I haven't done anything. I'm no danger to anybody. I'm not doing anything. My daughter is in school here, and you're breaking up our whole lives. You're embarassing me."

Well, what does a person say under those circumstances? The fellow listened and said "Fine, OK, we'll let you know." Well, he was let known the next day [laughter] that he had to leave--and by that time there was only about a day left. Of course, there was an executive order which provided for this, and violation of the executive order was a crime.


A day left before he was supposed to go?


Right. So I said, "Well, you know, the easiest way legally to challenge this is for you not to go. You will be arrested, and then I can file a petition for writ of habeas corpus for you, and you get a very quick hearing. Whereas, if you go, and I file a civil lawsuit to try to get an injunction against them--or if I try to file it before you go--that's a very difficult thing. This is war, you know. We're at war, and it's a hard thing to do. It's not the best legal way to do it. But, obviously, you know, you're the one who's involved and you'll have to do it."


Well, he said, "No, I am not going to stay if there's no order allowing me to stay. I'm going to go, but I want you to file that lawsuit."

Well, I just didn't know what to do. By that time I'd been out of law school a year, been in practice a total-- Let's see, this was 1942 and so I was out of law school a year and a half, been in total practice a little over a year, never really on my own at all except for an unlawful detainer case or a little collection case or something like that. And here I was being asked by this very--I don't know what the word is--a person with whom I had no empathy personally but whose cause was absolutely correct, to file a lawsuit against the government of the United States and get a restraining order against the army in time of war. I don't know whether the rumors of shelling by the Japanese on the California shores had come or not.

Anyway, I really didn't know what to do. I tried to get ahold of Al, and he was en route someplace between Washington and New York. I finally got ahold of Arthur Garfield Hayes, who at that time was general counsel for the national ACLU. I told him what the order was, what the problem was, and he says, "Well, you've got to challenge that."

I said, "I know. We're certainly going to challenge it."


And he says, "Just tell him not to go, and file your petition for a writ of habeas corpus."

So I said, "Well, he won't do that. [laughter] He's not going to violate the order, and I don't know whether it's really worthwhile to file the lawsuit. I can't get an order ahead of time."

Anyway, he says, "Well, if he won't stay, then the only other thing you can do is file your lawsuit."

So I worked and I stayed up as long as it took--I don't know what it was--and filed the lawsuit. I filed it in federal court here, and I went down to see-oh, what a wonderful, really nice man--Chief Judge [Paul J.] McCormick. I tried to get, not much, simply an ex parte--that means without notice or hearing to the other side, because there wasn't time; I think he had another couple of hours or something--restraining order against the army of the United States in time of war to restrain them from effectuating this military order.

I went in and was able to get in to see Judge McCormick. He read the papers, and I described in as graphic terms as I could the fact that he was being absolutely denied due process. No charge of any kind had been given to him up to that point. He certainly didn't have a hearing and an opportunity to meet-- And the judge said to me, "Well, this is terrible. It does seem that

there's certainly some important due-process questions. But, Mr. Okrand, you're asking me to restrain the army at this time, the ex parte restraining order. I can't do that. I'll just have to deny your restraining order, and you'll have a hearing in court later on."

Well, that wasn't unexpected, but that was my first real lawsuit--the first one--and I lost it. [laughter] It was a skirmish, of course. God, I wish I could think of the name of that fellow. Anyway, he left. Obviously, he had to leave. The lawsuit I guess was still pending by the time I went. I'm sure he didn't get back until after the war was over. But there were things that were happening to other persons at that time which were denial of due process, as well as the Japanese, although, of course-- Although I never did know what they had against him except he was an anti-Semitic person who said virulent things, at least they theoretically did it individually, rather than take all Germans or all Italians. He was a German person, this guy.


I take it the lawsuit was eventually dropped at some point. It was not followed up.


It petered out. I don't know what happened to it actually. I mean, the main idea from his point of view was he wanted to get an order so he wouldn't have to go. After that I guess it didn't make too much difference.


Fred, in the August 8, 1942, Open Forum there's an article discussing the Ernest Wakayama case. The article also refers to a situation with a supposedly, or so-called, illegal meeting that Wakayama was involved in at Santa Anita. I don't know if you might recall that or not, but the article refers to "extended discussion" by the ACLU board before agreeing to take the Wakayama case. Do you recall that discussion in particular?


No, I don't. I don't recall the discussion. In my mind--and I don't know why I don't recall it; maybe I wasn't at the meeting or meetings--but in my mind there wasn't anything to discuss. The ACLU had taken the position very clearly; it was almost completely ostracized by everybody for having taken the position that the evacuation was unconstitutional. We had this individual who said he wanted to challenge it, and from the standpoint of my perspective as a lawyer, he was an ideal person to be a plaintiff because of his background and history.

I do remember something about a meeting he had. I don't think it had anything to do with the evacuation as such. I mean, it was something to do with conditions or something at the camp. I don't recall. I don't know whether there were regulations against holding meetings. There weren't many regulations at all at that time. Nobody knew really what the governance was going to be of those

camps. The people were just there in the stables at that time. But I do not recall-- I suppose your next question is, "Who said what and what did they say?" [laughter] I'm not a good historian from that standpoint. I simply don't recall any controversy at all about taking the case, although there may well have been.


There was another case before you were inducted into the army. It's not clear from the record to what extent you were involved in it, but it seems quite remarkable. This was around September of 1942. Evidently, one of the Japanese who had been evacuated into a concentration camp in the interior-- His former landlord at a downtown hotel in Los Angeles was attempting to enforce the lease even though the individual had been evacuated. Do you recall that case? It seems quite remarkable.


Was it the Edwards Hotel? Did it say which hotel?


I don't believe it did refer to the hotel name, no.


Well, I remember I did have an unlawful detainer case in which I represented the defendant, involving a Japanese, but I don't think it was an evacuee. This was before, because I think the plaintiff in the unlawful detainer case was also a Japanese person. So we must have been representing somebody who hadn't paid his rent or something. No, I don't recall that. Well, that's an

interesting legal question. [laughter] I don't know how they could-- I suppose theoretically the money is due, but it seems like kind of a harsh thing to do at the time.


It was resolved well, but-- [laughter]. Fred, another thing that you evidently got involved in, according to the record--this would be in 1941--I was wondering if you had some recollections of it. The November 8, 1941, Open Forum refers to a friend of the court brief which you were evidently involved in filing, around a situation in Pomona where Mexican people were not allowed to use the municipal swimming pools. Do you recall that situation?


Gee, I'm going to have to go back and read the Open Forum and refresh my memory. Well, obviously, there must have been a number of cases at the time. We were doing the same thing then that we're doing now. We certainly would take the position that Mexican persons ought to be allowed to use the swimming pool. That wouldn't have been a remarkable brief of any kind because that was consistent with our position. I suppose what was remarkable was that, in a place like Pomona, even at that time, in 1941, there should be that kind of discrimination against Mexican persons. I don't recall the case specifically, no.


Tape Number: V, Side One
(February 26, 1982)


Fred, I wanted to ask you one question about something you said last time. We were talking about the Japanese evacuation cases, and you mentioned that the ACLU was heavily ostracized by many other people for defending the Japanese. We've already talked somewhat about the feelings of people in labor, the CIO, and so on. Could you be more specific, though, about what you recall about the reactions of other groups or individuals towards the ACLU, as far as their position?


No, I can't. It's just a feeling that I had, just like you get a feeling when the ACLU takes a position on any case. You get reaction from people you talk to. I can't recall any specific-- If you're thinking of resolutions by organizations, either condemning the position taken by the ACLU or condemning the ACLU, I can't recall anything like that.


Do you recall any reaction towards the ACLU in the media, perhaps?


No, that's what I was saying. I don't know if I used the word ostracize the other day. We were alone, virtually. This I know. We were virtually alone in the position. Of course, the Friends, I recall, the Quakers--


American Friends Service Committee?


The American Friends Service Committee condemned the evacuation, but there was virtual applause for what was being done. Public officials were making statements. So, if I used the word ostracize, I don't know that we were any more ostracized for taking a position on that matter than anything else, except that, of course, it was a matter of utmost importance at the time; so it was a matter of great moment. But we were virtually alone, as I say. Aside from the Friends, maybe the Amalgamated Clothing Workers of America; I'm not sure about that. But aside from those two--and certainly the Friends did, as I say--I know of no other organization that either came to our support or supported our position. We were alone.


Was there any sort of working relationship with the American Friends Service Committee?


Not as such, no.


Fred, in reading the Open Forum throughout the year 1942, I see throughout the year a number of cases brought to the attention of the ACLU, in which you appear to have been involved, concerning persecution of the Jehovah's Witnesses, who were selling or distributing religious materials. The record refers to incidents of harassment taking place in Ontario, Newhall, Palm Springs, Huntington Park, Riverside, and other Southern California

cities. Can you tell me your recollections of the Jehovah's Witnesses cases and your participation in them.


Well, I don't remember all of those cities, but I do remember going to Newhall and I do remember going to Palm Springs. That was, of course, in 1941, which was significant not only because of the war situation but the development of the right to free speech was just beginning. A great deal of the work was being done by the general counsel of the Jehovah's Witnesses, Hayden Covington, who worked out of Brooklyn, New York. The right to distribute literature, in general, was not as well defined as hopefully it is today.

The Jehovah's Witnesses' position was generally an unpopular one becuase of their view about their inability to pledge allegiance to the flag and to salute the flag. So that would have made them unpopular at any time in our history, but particularly so, of course, at the time right after Pearl Harbor when we got into the war. Just as the CIO had given up its right to strike, people generally felt that one ought to support the war effort. I don't recall whether the Jehovah's Witnesses supported the war effort as such or argued against it. That I can't remember. But they, at all times, were very firm and staunch in their belief that they could not pledge allegiance to the flag,

they could not salute the flag. And wherever that came up, they took that position.

Well, that position apparently became well known to many parts of the public; so whenever they would distribute their literature, which for the most part, of course, had religious content and I'm sure didn't talk about the war (although it may very well have), they were subject to severe action of one kind or another, usually being arrested. I'm trying to recall if there were any physical assaults upon them. At the moment, I can't. I wouldn't be surprised, though, because I remember when I went up to Newhall particularly--and I don't remember what the case was; it probably was to either set bail or to transact some legal activity on behalf of those who were arrested there--I felt a tension among even court attaches where I went in. That was a very unpopular client at the time, which was not unusual for us in the ACLU. But, during war, and representing people who wouldn't salute the flag, there was a great deal of hostility, which, of course, rubbed off on anybody who said they had any rights.


On the question of physical assaults, I was wondering if you recall-- The July 4, 1942, Open Forum refers to a meeting with L.A. County district attorney, at that time, John F. Dockweiler, on the question of

vigilantism. Evidently there had been some assaults on people. Do you recall that meeting or participating in it?


No, I don't. I don't know if I participated in that. As I say, there may very well have been assaults upon them because the very fact that I mentioned it indicated that there's something in my not-too-good memory which suggests that. I do know that the feeling against them was very severe and very antagonistic, and so I wouldn't be surprised at there having been assaults. The fact that the Open Forum carried a notation that there was a meeting with the D.A. to try to calm things down indicates that there were.


I believe that you mentioned to me once, before we began our interviews, that you and Mimi had gone out to Palm Springs one time--


Yes, we went there--


--on a Jehovah's Witnesses case. Tell me that story.


Well, the story, again-- Boy, it's amazing to me how one's memory fails. It was simply a case in which Jehovah's Witnesses were arrested for distributing their literature. At that time there were lots of ordinances--and I have a hunch that they are still on the books in many cities throughout the state--which either flatly prohibited the distribution of literature or usually

prohibited it without permission from the police chief or the city council. Very often that was the legal basis for the actual arrests of them to try to halt them from trying to distribute their literature.

So I remember going to Palm Springs with Mimi. We stayed at the Palm Springs Hotel annex, I think, the one across the street from what's still called the Palm Springs Hotel. We didn't have a reservation, but, as I recall, it must have been during the off season. Very hot. But, again, the specific case I just don't recall.


Now, in the case of Ontario, California, the record shows that the judge there did issue a preliminary injunction against the police for stopping the sale of pamphlets. In the other cases, to your recollection, was it fairly easy to get such injunctions from the judges?


I think the other cases were probably defense of criminal charges. I don't know that this was easy. As I say, the state of the law at that time was quite not as developed as it is today. But most of the cases were criminal cases, and there were few in which we found it necessary to try to get an injunction. Apparently we did here in Ontario. Again, I don't remember that. It couldn't have been an Ontario judge. It may have occurred in Ontario, but it probably was a federal court judge who gave that injunction.


One last question before we leave this topic: the July 25, 1942, Open Forum refers to a case that the ACLU is evidently involved in concerning draft exemptions for Jehovah's Witnesses ministers. Do you recall any of that?


Well, we were involved in draft exemptions for not only Jehovah's Witnesses ministers but also for those who claimed conscientious objection, generally--not [just for] Jehovah's Witnesses reasons. I don't recall a specific case, but I recall a number we were involved in. I was personally involved in a number of cases seeking to convince the courts that those Jehovah's Witnesses who claimed they were entitled to the ministers' exemption from being drafted-- The situation with Jehovah's Witnesses was a little different from other conscientious objectors in that most of them would have been recognized as entitled to conscientious objector exemption--is that the word? I'm not sure: relief from being required to go into the army--because of their religious training and belief. But the Jehovah's Witnesses were--and, although I haven't had much contact with them of late years, probably still are--a very tenacious, strong-willed, and fervent type of person (the ones I met). They refused to, for the most part, accept the conscientious objector classification, which would not require them to go into the army, but they insisted on the ministerial exemption. I think the difference is that you

had to register as a conscientious objector, you had to first register, and I don't think you did as a minister. Now, that wasn't the difference that they were concerned about, namely, whether they had to register or not. But they claimed that each of them is a minister of the Gospel, that that is what Jehovah's Witness-ing is. Everyone, even though he or she may not be among the top persons--although they don't have a hierarchy--that's their function, so that everyone is a minister. That's what Jehovah's Witness-ing means. So they claimed the right to that classification as ministers.

Now, as I remember, as time went on their position sort of changed a little bit, in that-- Oh, I can't remember the title that was given, but there's a certain group of them who did agree--as I say, I don't know what their requirements are now--to devote at least twenty hours a week to their work, which in the main consisted of going house to house and distributing literature and talking to people if they would allow themselves to be talked to. Jehovah's Witness servants I think they called themselves. They pledged themselves to devote twenty hours a week, which is a considerable amount of time, and they sort of claimed the right to certainly be classified as ministers---without going into the total philosophy of Jehovah's Witnesses, namely, that everyone is a minister. And, as I

remember it, the Selective Service System finally did administratively agree that those who had this classification as--servants may not be the full title--would be recognized as ministers; so there was a considerable lessening of tension when that agreement finally came about.


You mentioned Hayden Covington as the national counsel for the Jehovah's Witnesses.




Did they have a local counsel with whom you coordinated this work?


No, they didn't. We did a considerable amount of work for them, not on any retainer basis. Most of my work with the Jehovah's Witnesses was simply as a part of the ACLU. Incidentally, Hayden Covington--I don't know if he's still living--was a remarkable lawyer, just a great lawyer actually. The rest of us are indebted to him for much of the free-speech law that is presently on the books as a result of the 1940 Jehovah's Witness cases that went to the Supreme Court.


Also during this period of time, shortly before you were inducted into the army, the record shows mention of another ministerial conscientious-objector case. This would be the case of Frank Carr, who was a minister with

the Humanist Society of Friends here in Los Angeles. Do you recall that one?


The name, again, I do not recall. But the ACLU has consistently over the years taken the position that in order to be religious and be recognized to the extent that the law does recognize one's religiosity, one doesn't have to be the orthodox type of person, belonging to what we would call the orthodox--I don't know if I want to use the word established--church with a brick building or a concrete building on Wilshire Boulevard and a chapel and so on. Religion is something that doesn't depend upon an edifice. Of course, the Jehovah's Witnesses situation was very much like that, although they do have what they call kingdom halls around.

I do recall that not only the Humanists but others were in sort of the same position: namely, what the Selective Service System was talking about when it said that one is entitled to conscientious objection status by reason of religious training and belief meant an inner feeling, a compelling drive of some kind, which compelled an individual to act in life the way one did because of a sincere belief that made him do it, even though one wouldn't say that it was because of some anthropomorphical individual out there somewhere, or up there, which was directing him or her to do that.


So, yes, we did take that position for the Humanists, and I remember-- I'm sure Herman won't mind my recalling that one of the other cases was that of Herman Berman, who presently has a jewelry shop here in Los Angeles on Vermont Avenue. He was a socialist, and it certainly was not the position of socialism that one was a conscientious objector. His belief in socialism was that war was wrong and that an individual could not permit himself, or herself (though we didn't talk that way in those days), to go out and kill another human being.

As it turned out, we lost Herman Berman's case, both in the trial court and in the court of appeals, and the United States Supreme Court denied a petition for writ of certiorari. But in later years the viewpoint that we had advanced--well, Herman Berman's viewpoint: his philosophy, his inner feelings, and the way he expressed them--became the law of the land, and the Supreme Court of the United States did recognize that one did not have to have this, what one might call, orthodox religious training or belief in order to be recognized as a conscientious objector under what was then the 1940 Selective Service Act.


Do you recall the specific name of that decision?


Sure. The Herman Berman case?


The Supreme Court decision that you're referring to.


Well, the Herman Berman case did no go to-- The Supreme Court did not take his case. No, I don't. The one that came along later, probably in the sixties. A series of cases came down later on. I mean, if I had some time to recollect, I'd probably think of them or I could find them; but two or three or four cases came down from the Supreme Court in one way or another advancing to that position, and that is the position that I think the Court would hold today.


Fred, in a December 1942 issue of the Open Forum, we read: "Attorney Fred Okrand inducted into U.S. Army." Tell me about the circumstances of your induction into the army and some things about your experiences.


I guess it was back in 1940 when the act was passed and everyone aged eighteen or over had to register. Obviously I was over eighteen, and so I registered. I abhor war. I did abhor war--then as well [as now]. And, as I told you, I had joined an organization called the Veterans of Future Wars, in which we vowed never to go to war. I probably didn't have the courage--that's probably the answer--to resist either at the time of registration. Let's see, I was married in 1940, and so for a while I was exempt, or deferred, or whatever the term was, from being required to report. So I got, I guess, as I remember it, a 3-A classification, which would be "married person." Then,

obviously, by some time in 1942, more person power was needed. I had a physical examination, and I recall that. I don't remember where it was, but I remember bending over and the whole business. [laughter] And then I got this call to go.

As I say, I recall having great difficulty with what I should do. I think it's a combination: probably I didn't have the courage, as I say, which-- You have to understand how difficult it was for an individual at that time to take a conscientious-objector position, even if he or she belonged to the so-called established peace churches, the Friends or the Amish or any of them. But [it was] especially [difficult] for one who was a little bit unorthodox. Now, I couldn't conscientiously say that I had religious training and belief over my life which would support a claim that entitled me to exemption from the service, although as I worked on Herman Berman's case, I felt great empathy, and I felt that maybe that's what I'm like. But I didn't do the studying, the thinking, the contemplating that Herman had certainly done. So I didn't think that I could conscientiously claim that, and, I guess, not having that feeling, I simply didn't take the position that I was a conscientious objector. But there's no question that I did not like the idea of going to war, because of the discombobulation of my life that it entailed and leaving

Mimi, leaving my family, leaving the practice of law, which I was enjoying immensely--the cases were, you know, terribly interesting at the time, as they still are, of couse--and because I didn't like the idea of going out and having to kill somebody, even though obviously I had no sympathy with our enemy. But I got the call, and I went.

Now, I was ordered to be inducted at Fort MacArthur. What day of the week I don't know; but I do remember that Mimi and I thought we'd have a final evening together and went down to the Biltmore Hotel. I had a little, teeny case. I had nothing to take with me, you know. When you go into the army you get clothing and everything else. I probably had a toothbrush, and I don't know what else, in a very small case. I put it down with the other baggage of other people who were coming in, and then I went to the desk. Somehow or other I have a remembrance that they wanted me to pay in advance, and they wanted to know if I had any luggage. I said, "Well, there it is over there." And, as I say, it was a little handbag, maybe ten inches wide. I guess I did pay in advance; I don't remember. I do know there was something about that. Anyway, we got a room at the Biltmore Hotel, which was a fine hotel then, as it is now; then, probably even-- Well, I don't know what the reputation is. A big room, very old; it was elegant, you know. And that's where we spent our night before I

went into the service, because Lord knows when we'd be together again.

I had sort of consciously, I thought, prevailed upon my immediate family--my father and mother and my brother and his wife, my sister-in-law--not to come down and try to see me off or anything. I was to take off at what was then the Pacific Electric Railway Station on Sixth and Main Street in Los Angeles. The Greyhound Bus comes in there now. They said OK. They wanted to have a little something before I went, but I said, "No, I'll just go." My brother-- I can't remember when he was crying, whether it was then or-- Anyway, the next morning, whenever it was--nine o'clock--I had to take the train or the streetcar--a big red car, in those days--at the Pacific Electric Railway Station. And there was my dad and mom and Ann and Alex, my brother, and we had a tearful farewell. My brother said, "I don't know if I'll ever see you again." It does bring tears to my eyes now. It was a touching moment. And off I went.

I went to Fort MacArthur, and it was just before Christmas, as I remember. We got up at five o'clock in the morning--we were all raw recruits--and did whatever drilling we could. I don't know whether I was told when I was leaving, but it became clear that by Christmas I was still going to be there. And Lord, I wanted to get out and

see my folks and Mimi on that Christmas Day. But somehow or other, the roster worked so that I thought I couldn't get a pass, and I didn't get a pass.

And on Christmas morning I was sweeping out something, either the barracks or, trying to think back now, a club of some kind. I was sweeping out, and there was nobody in camp. I mean, everyone got-- You know, we were all inductees; we didn't have any duties of any kind. There was nobody in camp at all except a few regulars--regular in the sense that they were all sergeants and corporals, something like that. And I importuned whomever was in charge at that time-- By two or three o'clock in the afternoon, I said, "I've done all the cleaning; there's nothing more to clean. Can't I get out, just for tonight?" And I got out. I got to see the folks, and that night we went, I think it was, to Grauman's Chinese Theatre or the Pantages--some theater on Hollywood Boulevard. I remember it must have been cold because I was wearing-- I'd been given clothing, you know. No insignias, no nothing, obviously. My overcoat was quite too large for me, and I felt very uncomfortable in the appearance that I must have given but wonderful in the fact that I was back with my folks for that night. And it was a very enjoyable evening, I'll tell you that.

I don't know whether the pass said I could be out all night or whether I had to be back that night. But, in any

event, shortly I was back, whatever the time was. I was very careful not to be late; I didn't want to be AWOL. Oh, God, I didn't know what the army was going to be like. It certainly wasn't according to my personality.

A day of two after that we took off for Camp Howze, Texas. It was no secret, I don't think, because they said Camp Howze. Nobody knew where it was except that it was someplace north of Dallas. That was a hectic experience. We were quite crowded, and, as I remember, certainly one berth (I think it was the lower berth)-- We had to sleep two--


Tape Number: V, Side Two
(February 26, 1982)


As I say, the lower berth, I'm sure, slept two. That was quite an experience. Now, here we were; I didn't know a soul. I had met one or two friends of mine at Fort MacArthur who were inductees at the same time. But here we were thrown, just thousands of us, on this train, not knowing anybody. And you're just told, "Here's where you go," and you go to bed [laughter] and sleep with somebody. So you have to kind of steel yourself a little bit.

It was an interesting experience to go through, and I enjoyed the trip back. It was uneventful. We were on this train. The food I don't recall. I think we stopped for food, for some reason or other, it seems to me. But, here I was, going across country. It hadn't been the first time that I'd gone across country. I went once before in '37, when I graduated UCLA. But I was going across and looking out the window and talking to people. I kept copious notes. Somehow, I don't know, I had a crazy idea I was going to write about my experiences. So I made lots of notes about what I'd seen outside. Not particularly much went on in the train. I mean, there was the usual whenever young people get together, shooting dice and playing cards and that sort of thing. I think once in a while, ostensibly because it was supposed to be done, someone would come

along and say, "You've got to cut out the dice shooting" or something like that, but nothing eventful that I remember.

We got into Camp Howze-- Now, how did we get into Camp Howze? Oh, yeah, the train went right into the camp in the middle of the night, probably one or two o'clock in the morning. I can't remember whether it was real cold or not. We did have overcoats. The first thing, of course, we got sent to a mess hall, and we were given something to eat. Now, I don't know why, but in the army my experience was that whenever you got to a new place--it didn't make any difference what time of the day or night it was--everyone thought you should have something to eat; so they would wait up for you. What we had was cold bologna that was quite tasteless and very cold, and I don't know whether I ate anything or not. But I do recall wondering, "Why the hell didn't they let us go to sleep instead of insisting that we go get something to eat." But that's what we did. And there I was, at Camp Howze, Texas, as an inductee and as a private in the infantry.


Now, Fred, just to go back a bit, you were saying that you felt that you didn't have the courage at the time to resist. But what were your feelings about the merits of the war with Japan and the war with Germany and Italy? Do you recall your feelings about whether the U.S. should have gone to war?


I was opposed to war simply because I just think that war is a demonstration of the breakdown of the human mind and it's just something that-- The word ought to be thrown out of our vocabulary so that we can't even think in those terms. But, as I reflect, I didn't fault anybody in my government for, after having what happened at Pearl Harbor, deciding to go to war.

My only feeling-- I remember, when I was in New Jersey just before I left, I sent a tape--I made a little record-- that I sent home. I don't know if I still have that around or not, but, I remember, on that record I said my only thought was to get back--I was writing this to Mimi--and get it over, get it over, get it over. That was even before I'd saw any combat, because after you see combat you have one more reason.

But I don't know that I really philosophically thought it out, which seems strange for me at the moment. I have no doubt that I thought we were right in the sense that you can't permit what was happening in Germany to happen, to the extent that you can stop it. But I don't know that I thought out the question as to whether going to war was the way that you stop it. That's what I mean when I have this ambivalence. I have no doubt about, there's no question about my feelings towards Hitler. That's not what I'm struggling with at the moment. It's whether or not I had

feelings that, somehow or another, this isn't the way you should go about the business of stopping that kind of a thing happening. I really don't remember having strong feelings about that.

I guess I was being a soldier, really, and, as a soldier-- You remember the poem: "Theirs is not to reason why, theirs is but to do or die." You do what you're told to do. Maybe I had just steeled myself to that point of view and said, "Well, I'm just going to do it," because I don't remember having a strong struggle with my inner self after I was in the service.


Also, nowadays--I don't know if it was called the same thing back then--the military has what I guess is called the adjutant general's office, the attorneys' legal department of the military. However, you went into the infantry. Was there an opportunity for you at that time to be a lawyer with the military?


Yes, I'll tell you about that. I was drafted. I didn't have any qualifications that I knew of for not being drafted. And I was in an infantry company. Very shortly after I'd got to this camp, obviously I decided that I would like to be with the-- The department you're thinking about is the judge advocate general's department. There is an adjutant general too, but the judge advocate general, that's the legal department. And it's still the same

thing, I'm sure, today. I don't know why I say I'm sure--I haven't studied their table of command--but, whatever, it was the judge advocate general's department.

I did make an application to go to the judge advocate general's school, which would have taken me out of the infantry, would have made me an officer, and so on. The only difficulty I had was that the requirements then--and I have no idea what they are now--were that you had to be twenty-five years old to be in the judge advocate general's school. So I wrote out a whole thing and said, "Well, gee whiz, here I am, just a top-notch graduate of the University of Southern California Law School, and I'm a great lawyer and you really should waive that requirement."

The way you do things in the army is that you make a request for whatever you ask for, and I asked for a Request for Waiver of Army Regulation blank-blank-blank and gave the reason. And then you go through the chain of command. Well, your first person is your company commander, and they do something that's called-- They make an endorsement of what you do; they either approve or disaprove. So Captain Abbott--I think was his name--writes down: "To Commander, Third Battalion--whatever battalion it was--335th Infantry, Eighty-fourth Division: Approved, Abbott." (I saw this thing as it came back, later on.) Then it goes to the battalion commander: "To Commanding General, 335th

Infantry: Approved." Then, from the 335th Infantry, it went to the division: "Commanding General, Eighty-fourth Division: Approved." Then it went to the corps; the corps was two divisions: "Approved." Then it went to the army, whatever army we were in. Then it went to someplace in Washington, and that was approved. Then it went to whomever was at the top of the, wherever you go in the army at that time to get these dispensations. So then it comes back, finally: "Disapproved. The army does not waive the age requirement for entrance into the judge advocate general's school."

Then it bucked back all the way down through this whole chain of command, forwarded: "To Commanding General So-and-so, Army; To Commanding General, Corps; To Commanding General, Eighty-fourth Division." (Oh, I guess the regiment didn't have a commanding general; the regiment was commanded by a colonel.) Then down to the battalion major; then to the company captain; and then it was handed to me by my lieutenant of my platoon: "Disapproved."

So that's why I didn't get into the judge advocate general's school. I did not make an application to officer's candidate school. I just didn't think I wanted to do that. So I remained an enlisted person, although I did get to be, not very long after, a master sergeant. And I came out as a warrant officer. I wasn't even in the army by the

time I came out, theoretically. But that was what happened on that.


Was any reason given for the disapproval?


No. Well the reason, sure. The reason was that, as a matter of policy, they do not waive the age requirement. Period. Now, I don't know whether they ever did. I never heard of anybody who was under twenty-five. I don't know whether they have that anymore. But, at that time, how old was I? I must have been twenty-two, I guess. Is that right?


What's your birthday again?


Nineteen seventeen. So, in 1942 I was twenty-five, right? I was twenty-six or twenty-five. So it must have been twenty-eight, and I must have been twenty-five at the time. So it was twenty-eight. And it just came back that they do not waive the age requirement.


Now, after you finished your infantry training, what next?


Well, let's see. When you say "finished infantry training"-- In the law, you know, we never finish; we're always practicing. And I don't know if we ever finished infantry training, [laughter] but I had thirteen weeks of basic, if that's what you mean. I had thirteen weeks of basic training, and by that time I think I was a corporal. Yes, I was a corporal.


Oh, I must tell you this one, for no particular reason. I did have a feeling that I didn't want to be a doughboy even though I was in the infantry. A doughboy in the sense of a walking soldier that sloshed around in the trenches. I knew I didn't want to be that, but I didn't know quite how to get of it except, of course, when I wanted to be a lawyer. This I had no difficulty with.

But I remember when I was at an auditorium at Fort MacArthur, and there was an American flag draped on the wall or something and it was backwards. I had read some-place in a manual--maybe when I was fooling around with Cub Scouts or when I was mascot of a Boy Scout troop--that the flag, when it's displayed, the star field has to be in the upper left-hand corner. This flag's stars were in the upper right-hand corner. You know, I didn't think much about it; but as I was thinking sometime along, I said, "Jiminy Christmas, there's something wrong with that--"

So I wrote a letter someplace, to an inspector general or to somebody, calling attention to this fact and saying, "Hey, you know, the American flag was wrong. You should do something about it."

I must confess that I didn't do it particularly because I was offended by that. My sense of tidiness indicated that it ought to be in the right place, but I didn't think it was a desecration of any kind. But

consciously, I think I thought, "By golly, if a kid who is just in the army writes a letter like that to somebody, they'll say, `Hey, there's somebody who ought to be picked up and done something with."' I really wrote the letter for that purpose, but nothing ever happened. [laughter] I don't know if anybody got the letter. Obviously, I didn't go through channels. Maybe if I'd have gone through channels, that might have been the way to do it. But I just wrote the letter. Did I send it by United States mail? I don't know.

Anyway, when I got through basic training I think I got a furlough. Yes, I did. I came back here. Before I went, Mimi and I had discussed whether she ought to try to follow me someplace--you know, get a job and be close by, because, who knows, sometimes you'd never be sent away. Some friends of mine got stuck out here at the Santa Ana [Air Force Base]--they called it the Country Club--for the duration. So I said, "No, my wife is not going to be a camp follower. None of that for my wife. I'm not going to have that." Because you read stories about what happens. Well, I don't know if I got my furlough right after basic training, but soon thereafter I wrote Mimi and said, in effect, "When are you coming?" I saw that all over the place wives had come and they were living close by, and the

guys would go home at night. So I thought, "What the heck, why not?"

So, I guess that it was after my furlough, Mimi came, and she drove our car across country. You were able to get stamps for that purpose. That was a patriotic for a wife to join a husband. Fortunately, there was a friend of ours who also was going to Texas and didn't have any way of getting there. Public transportation was impossible. You couldn't get stamps to go just because you wanted to go someplace for a trip. But she was going and he helped her drive, and she dropped him off someplace, Waco or someplace, and went the rest of the way herself.

So she joined me there, and at first she lived with a friend in Fort Worth, which is about seventy miles south, in a cockroach-infested apartment--quite an experience. She got a job working at the Nieman-Marcus department store. A bunch of us, whenever we could get off--usually every weekend; occasionally we were stuck in camp--we were able to go down to Dallas. Occasionally we'd go to Fort Worth too, but to Dallas is where we went. Usually we'd get off Saturday at noon, and we'd drive down-it would take an hour and a half or two--and we had to be back Monday morning. Theoretically you were supposed to be in at night, but they didn't really care as long as you

answered reveille, which was about five o'clock. We got up very early on Monday morning. So that's what we did.

Then, finally, this trek got to be irritating. So she came up, and we looked and found a place, at first in a little town-- Camp Howze was very close by to a town called Gainesville, Texas, and she got a place close by in a room. Mimi tells me she went in to look at the place and asked, "Do you have a bathroom?" She couldn't see it. She was told, "Yes, we have one. It's right down the hall." Well, all right. Then she tells me that after she moved in she had to go to the toilet and went into what she thought was the bathroom. It was a bathroom: there was a bathtub in it but no toilet. Inquiring about it, [she was told] "Well, that is outside." That was in an outhouse. [laughter] Well, she stayed there a little while, and then we were able to get a place. A bunch of us--I don't know how many; three or four of us--rented a brand-new house, and we shared all of the rooms.


All army people?


All army, yes. These were all wives of army people at Gainesville. And Mimi stayed there until-- I don't know when it was, but then I went off on maneuvers in Texas and Louisiana, at which point she joined a friend of hers in Overton, Texas. So then I went on maneuvers.


So this was your actual formal infantry training at this point, then.


Yes, we went on maneuvers in Texas and Louisiana. We went over the Sabine River--I think we captured it and lost it forty times--learning how to ford rivers and bivouac and do the whole thing. There are some pleasant things you remember about that. I remember watermelons were all over the place. I really don't know how, or whether, we paid for them. We were eating watermelon all the time. They were on the vine over the fields that we were training on, and so I assume the government had made some arrangement compensating the owners. I remember also sometimes it rained horribly in Texas and Louisiana. It didn't make any difference. It just would come down in buckets. At that time I was at battalion headquarters, and our battalion major would send out some privates, generally, to go get fried chicken. I guess the people around there were making fried chicken for the soldiers, which tasted much better, at least in our minds, than the army chow that we were getting. I really don't know whether it was better or not. But just the idea that on a rainy night you could go out and get this hot fried chicken. I'm sure this terrible white gravy that we had was an interesting thing to experience.


After the maneuvers in which, as I say, we had killed each other many, many times, had survived, had Red Cross training, first-aid training, and so on, we took up our position--my division, the Eighty-fourth--at Camp Claibourne, which is just outside of Alexandria, Louisiana. I guess I was still at battalion headquarters all during that. I was able to go home every night, and Mimi and I got a little room, a bedroom, a very tiny room, in which the bed took up virtually the whole room, in a shack in a little town. It wasn't in Alexandria; it was-- Mimi would remember the name of that place because there was one family that owned everything in town. There wasn't much to own. But the drugstore, the general store, the service station, and maybe one or two others, they owned everything in that town. Anyway, we got a little room in this place, and I was able to go home every night.

During that time I had some considerable difficulty with my nose. I wasn't able to breathe. I'd come home, and it was quite troublesome to me. Later, it turned out, when I had furlough back in Los Angeles, I had sinusitis. [So I had] drainage and all that stuff which they did to me. But it was sort of a nice experience. You were in the army, and, as I say, I was at battalion headquarters, so that most of the so-called drudgery wasn't there--although we kept in shape. We'd have to go on twenty-five mile

hikes, and, I must say, as much as one bitched about it, including myself, I was in good physical shape then. The training did do that for you. You can't take that away from whatever the training is. You'd think that just walking for twenty-five miles, what would that do for you? But it worked. We had full field packs and so on. I was in real good physical shape, except for my nose--that was something else.

Then, I guess it was in 1944, we got orders that we were going to Europe. Were we told Europe? Yes, I think we were going to Europe, but just where we didn't know. Mimi was still in this little place, and then Mimi had to go home. So we said good-bye, and then I went off on a train to some fort right outside where Rutgers is, in New Jersey. I can't think of the name of the city. It was an embarcation center.


Could it be Fort Dix?


It wasn't Dix. We came back to Dix. It was another. I can't think of it. It was there that I made this little record. My niece had just given birth to a baby girl. Oh, she was just about to give birth, and I wrote this record saying good-bye to Mimi and saying hello to the unnamed little one, whenever it was born. Then I took off for Europe.


Now, before you left for Europe, there was a period, then, of well over a year that you were in the United States.


Yes, let's see. I went into the service in December of 1942, and it probably was in 1943 that we went to Europe. It was not quite a year, I guess, when I had this training.


Now, before you went overseas, what kind of contact did you continue to have with Al Wirin and the folks at the ACLU back home?


Oh, just to go back a little bit, while I remember it, I thought it was kind of interesting-- Someone, after I'd gone into the army, sent me a little clipping from the Los Angeles Examiner. During the time that I was representing the Jehovah's Witnesses and other conscientious objectors, I became quite friendly with one of the reporters, whose name I can't remember now. But he wrote up a little story when I went into the service, and the headline was: "Conscientious Objectors' Defender Does Not Object" [laughter].

The contact I had with the ACLU was that I continued to get the Open Forum. The Lawyers Co-operative Publishing Company had a wonderful service for lawyers: they would send you free their advance sheets of the United States Supreme Court. So I was getting every week the decisions

of the United States Supreme Court. So I would write to Al all the time, telling him about cases that came down, as if he couldn't read them himself. But I did it, and he would write back to me. So I was actually doing law work while I was in the service. Actually, I did more when I was in Europe; but I did some over here, and I kept quite in touch with what was going on. Every once in a while I'd send back a note as to how I thought things ought to be done, as distinguished from the way they were being done.


OK, so tell me what happened after you arrived in Europe--something about your experiences.


Well, I remember we were in a ship--the ship was a British ship--and we were down in the hold, down far someplace. We weren't on the top deck, but not too bad. It was very, very crowded, extremely crowded. Almost every meal we had was cabbage, and the guys were bitching about that. But the British apparently eat a lot of cabbage, I don't know, and so we had it.

I remember the captain of our outfit, Captain Keller at that time, telling us, "Now, when we arrive we'll probably be greeted by a band, and they're going to try to make us feel at home. They're going to try to play American music." And he instructed us, "Now, don't make fun of them, because they're trying to do the best they can."


I said to myself, "Captain Keller, you don't know what you're talking about." You know, Great Britain had given us musicians and bands like Ray Noble and [Bert] Ambrose, just the greatest musicians and great music American style. And for him to tell us that--

But we arrived at night at Liverpool. I mean, I didn't know it at the moment. Of course, everything was very, very black. There was no band of any kind, and you had to move under the cover of darkness. That was not a pleasant experience, arriving that way, because you couldn't see where the heck you were. I can't recall whether we spent any time in Liverpool at all. We did not, I do know, have enough time to see what the town was like or go out on leave or anything like that.

But eventually we ended up near Windsor, near the Windsor Castle, where we lived in Quonset huts. And we were all by ourselves. We could go down to the pub; there was a pub nearby. But we were there just a short time. I'm trying to recall whether we had an opportunity to go to London. I can't remember. I don't remember whether we went to London once or twice. I know that when I came back I went. But I don't think so. I think we were there just a very, very short time, and, as I say, we lived in Quonset huts. The American bathroom was nowhere in sight. We Americans are supposed to be so meticulous about that.

There were separate buildings for the toilets but no running water. So every morning this great big truck would come by, and somebody would go and physically empty the refuse and dump it into the truck, like they used to collect garbage here in Los Angeles. And that was the way that was done.

Rumors were flying as to where we were going. I remember there was something called the Red Ball Express. We were going to be with a transportation company, somebody said. Whatever it was, we finally got on a boat and crossed the English Channel. I don't recall the passage.


Tape Number: VI, Side One
(March 6, 1982)


Fred, when we left off last time, you had just arrived in Europe. But before we go on, after we turned off the tape recorder last time, you mentioned an incident that took place at Camp Claibourne, concerning their system of segregation there. I was wondering if you could tell me that story.


Yes, well, one of the things that was very disconcerting about Claibourne, aside from the fact that one's experience in the army is generally disconcerting, was the fact that we were segregated. There were a large number of black troops in the camp and a large number of white troops. We were in a separate area, and they were in a separate area, and there really wasn't any contact at all between them. We had separate PXs, separate barracks, we trained separately. We had no contact at all between us, and that bothered Mimi and me to no end. But I didn't feel there was anything I could do about it. There it was.

Well, one Sunday Mimi and I wanted to go to the theater and see a particular movie. We had gone to the theater on camp on many occasions and never--I guess you just get inured to the system--looked at any other place than the theaters in the white areas of the camp where I was stationed. We looked in the--I don't know whether it

was the camp newspaper or a theater directory or whatever it was--for this movie. I had seen it someplace, and it registered in the back of my mind that it was playing on the base. So we looked for it, and there it was listed in a theater on a certain street in the camp. And so we went.

Of course, as soon as we got into the black area-- There were no physical barriers, they didn't stop anyone from going, but custom is very strong, and you just didn't go. But, anyway, so we went. I mean, we just went through, because we wanted to go to the movie, parked our car, walked up to the box office, took out our money, and handed it to the cashier, whoever it was. Everyone was black around there, and we were politely told that we would not be allowed to go into the theater, simply because that was the way things were. As I say, philosophically and by reason of my work with the Civil Liberties Union, my whole being had revolted at the segregation that was there. But it never struck me as hard as it did at that time, not because I was personally insulted, although you do feel humiliated-- You come up, and you're treated differently. But at that moment the shock of it struck me even more deeply than it had before. I was refused admittance because I was white, and I could just imagine the feeling that black people and Asians and Chicanos and others--I suppose Jews under certain circumstancess, although it

isn't color discrimination--feel at this very, very arbitrary custom that we had, and in some places, if some people had their way, probably would still have. I remember that very vividly. It's one of the things that's stuck with me out of my army experiences more than anything else. I didn't make any additional vows at that time. I'd already made whatever vows were necessary to try to eradicate all that sort of discrimination, but it was a stark experience which stands out in my memory.


Then, to continue with your experiences after you arrived in Europe, what are some of your major recollections?


Well, let's see. We arrived in Liverpool, as I say, in the middle of the night, and we were taken somewhere. We didn't know where, but it turned out that it was close to Windsor Castle. We lived in Quonset huts. The toilet facilities, as I mentioned, were not Crane fixtures, and every morning somebody with a truck would come and take the refuse away. There was a little pub in the town close by, and we would go to that. We had some training, but shortly thereafter we were sent to Europe over the English Channel. It was a small, small boat. It took overnight, which, as I think about it, seems amazing. But it did. It wasn't very far, but the boat didn't move very fast, I guess. We landed at Omaha Beach, which was one of the

beaches that was the scene of the storming of France on D-Day, June 6, 1944. I remember the date, June 6, because that's my wedding anniversary; so I'll never forget that.

We started going forward, and we were engaged in combat very shortly. Not to dwell on any details in too great a fashion, I guess the most noteworthy thing that happened to us very quickly thereafter--it seemed very quickly--was that we were transferred-- No, we weren't. We were under General [Bernard L.] Montgomery; we were under the British command. A couple of things stand out in my memory about that--the good old British soldiers. Every night, of course, we had a blackout, and you couldn't show any lights or anything. But, somehow or other, whenever we were relieved by the British soldiers, they would just come riding up in their jeeps with their lights ablazing. Here we were cowering in the dark, and there they would come. We had a hell of a time making them understand--I don't know why--that we were supposed to be blacked out.

Another thing that I remember was that teatime really means teatime to the British. Almost literally, not quite, when four o'clock in the afternoon came, everything stopped, even if you were in combat. As I say, not quite but almost. As many people as could be spared, they would stop doing whatever they were doing, and, by golly, they would have their tea, even in combat. It was interesting

to me because when we were-- I think I had about a one- or two-day leave when we were in England to go to London, and I was just looking for tea and crumpets. I mean, I had heard about tea and crumpets at four o'clock in the afternoon. Well, they were just not to be obtained, because of rationing or shortages or whatever it was. Even teatime in London didn't seem the big thing that I had heard it was, but it certainly was with the troops in the army.

We were also part of the Battle of the Bulge under [General George S.] Patton. General Patton was our commander-in-chief, I guess. I can't think of the name of the town--I thought I'd be able to remember it--but it was in Belgium. We would get the Stars and Stripes, which I thought was a really good newspaper. I thought it was well written and gave lots of news. And I thought they were accurate. But when I saw these particular editions, I knew they weren't because every day they would have a diagram of the front, of where the lines were and--maybe I'm being too harsh--where we were. Golly, what was the name of that town? Oh, I remember: Marche-en-Famenne. What they would do was, they would show where the American soldiers or the Allied soldiers were in white, and they they would show where the Germans were in black. And on this map which would be on the front page of the Stars and Stripes for day after day, there we were in this little town in white, and

all around us, completely around us, was black showing where the Germans were. But since they would come up once a day with rations--and mail every now and then, certainly not every day--they obviously had some way of getting through the lines because they weren't dropping stuff through the air.

The Battle of the Bulge was a memorable event--cold, slushy. The tanks would be going on these roads and very often slip off on the side, and after a snow-- I'd never been in snow before, and so it was kind of exiting to me. The trucks and the tanks would come, and, as I say, it was very dirty on the roads. There was the usual stuff. Whenever we stopped at night to bivouac, you had to try to dig a foxhole for yourself. Everyone had to be sure and do that. You had to stay as far apart as you could so that, if a bomb were to drop, not too many of us would get killed; while, if you're all together, the whole company can get wiped out--or a whole platoon or whatever. Many a night I was in a foxhole. It was raining, miserable.

At that time I was with battalion headquarters, and part of my duty was to keep communications with whomever we were communicating with, to get instructions. Many times our lines would run out, and I'd be just this far-- Although we had a communications section too, I was the headquarters, and so I had to-- That was my job. I'd be in

a foxhole with a telephone, and we didn't have enough wire. The next post, or the commanding officer, was fifty or a hundred yards away--no way to get to him; so to get a communication to him you had to get out of the foxhole and crawl to him. War was hell. But we survived.

One incident I remember with great regret. We took a town, a German town. Finally we got out of France and into Belgium and Holland, and we went forward to the east, towards Berlin. We took a little town, and we had to look for a place to sleep. You just slept anyplace. You'd go into any building with your company or your platoon or your squad, whatever it may be that you were with. You'd have bedrolls. That was a lot of fun, finding your bedroll when they came up at night. Anyway, you'd take your bedroll and just bed down on the floor anyplace.

This one building that we went into was really a beautiful bank, and unfortunately my colleagues, for reasons which may be understandable to psychologists or students of war, absolutely demolished the whole thing, just demolished it. They would take their rifles--there were sort of glass partitions between the customers and the tellers behind--and they would just ruin them. They turned over the desks, did all sorts of things for which I saw no reason at all. As I say, there were many pleasant things

that I remember, but somehow the unpleasant things kind of stick in your mind. That bothered me.

From time to time we would take up living quarters. There were apartments in the towns, and the Germans who were there had to leave. They would go and crowd in, live with one another on upper floors, three or four families together. We just ousted them and took their places over. I remember with great envy-- It was cold as the dickens, and each apartment would have a coal stove, and we would go down in the basement and bring up coal. Well, most of the people in my outfit had never used coal. They used gas or whatever it is. I had never used coal, although my parents did when we lived on Thirty-seventh Street. You remember, I mentioned we used coal. But I never had participated in keeping a fire going. Well, we used oodles and oodles of coal in order to keep ourselves warm while we were indoors, and the Germans were rationed to a bucket a day. That's all they had. We would watch them when they went down to the basement to get the buckets and accompany them up to their--that wasn't my job, but other soldiers--apartments. Somehow or other, our areas were always cold, the stove was always going out, we could never keep it lit, and you'd go up into one of the Germans' apartments--and they only had one bucket a day--and it was warm. They, somehow or other, knew how to nurse that coal all day long and cook as well. I tell you, it just was amazing.


Our contact with the civilians was very cordial. I personally, and our outfit, didn't have any trouble with the civilians. That means nothing, I suppose: we were soldiers, we were armed; they were civilians, they weren't armed. But on more than one occasion I would strike up a conversation with them, and it was very friendly conversation. Invariably, of course, the ones you talked to would swear they knew nothing about what had been happening in Germany, knew nothing about the concentration camps. (Oh, I'll tell you something about a concentration camp too.) They knew nothing about it, were very apologetic, believed what we had told them, or what the newspapers had been telling them.

I remember one event. Where was this? It might have been in Kassel. We'd gotten that far. I'm skipping a little bit, but I remember this. [After the war] a friend of mine and I wanted to go to the opera which was in town--I don't know whether it was a local company or not--and we just decided to go one evening. And we went. We were obviously dressed in uniform. So we go close to the box office, and we see a lot of German people there--people coming up, trying to buy tickets. No tickets. Well, we stood in line like everybody else and got up to the box office and asked if there were any tickets. "Oh, absolutely!" They gave us two tickets; we

were right in the front row. We were American soldiers, and we got that kind of treatment from the native population. I'm sure it wasn't out of respect or friendship, [laughter] it was just that that kind of discrimination took place.

I mentioned a concentration camp. We went due east, heading towards Berlin, and our outfit liberated one of the concentration camps. It wasn't a very big one, and I don't even know the name of it. It was an unbelievable sight, unbelievable! The striped uniforms that you see in the movies that the inmates wore was true. The little caps were even striped. Some without. Most of the people were absolutely horrible to look at--thin, emaciated, sores all over them. As I say, this was a very small place, and I think I was with the battalion still.


Was this a camp for Jews?


Yes, these were all Jews, and they had the numbers on their wrists. My commanding officer--I don't know whether it was the battalion commander or who it was--knew that I was Jewish and asked me if I could speak German. I said I couldn't speak German, but I could speak Yiddish. I said, "There's a similarity and I'll try." Well, there is a similarity--when you listen to some people speak German, you catch an occasional word--but I could not converse with them. I mean, I just didn't know enough words to really

converse, and so we had to do whatever we had to do by sign language and gesture and so on. But the concentration camps were real, and, as I say, this was a tiny one in the sense that it maybe was an acre. I don't know; it was small. But the people were hungry, and it was a terrible, terrible sight.

Then, when we were in combat there was the usual capturing of prisoners. As it happened, we would capture them--I don't think any of our outfit were captured--and the Germans would all be lined up with their hands on their heads, and we could be marching them back to the rear, wherever we kept them. We had a lot of casualties. We had casualties when I was in B-Company, which was the company I was with of the 335th, originally. Many good friends that I had, some of the very ones I used to go down to Dallas and Fort Worth with, got killed. There were daily details where someone would have to go out and pick up the dead bodies and get them back to where they were taken care of. Airplanes would come and strafe us, and we'd have to run and get under cover as best we could. The depiction that you see in movies of what war is like is pretty accurate.


Were you personally involved in the shooting so to speak?


Well, as I say, I was with B-Company, originally. I don't remember what platoon I was with. But then I went

to company headquarters and then to battalion headquarters, so that my duty was not to shoot anybody, but I always had to carry a carbine. The doughboys, the people whose job it was to shoot to kill, carried M-1 rifles. I don't know, they're up to M-21 by now. But they had bigger weapons. We carried a little carbine, which is maybe three feet long, quite light, but we always had to carry it. And I would be expected to shoot if it were necessary. I never had to. I never shot at anybody, although I almost killed somebody when we were [laughter] going through a-- What do you call those courses?


Obstacle courses?


Obstacle course. We were shooting at targets that would spring up in all areas and all spots, and one time I thought-- Some guy was ahead of me, either I was too slow or he was too fast. You know, you were supposed to go together when you go through these things. This was live ammunition, and I shot darn close to him. I was shaking all over the place. That's as close as I got to having one of my bullets hit another human being. If I had had to do it, I suppose I would have done it. I mean, there we were. You do what you do. But that wasn't part of my duty. I was in communications; I was a sergeant major; I took care of morning reports; I kept liason between one unit and another and that sort of thing.


Did your unit, as you were going east through Germany and taking the towns, hit heavy resistance at times?


Oh, yes. We had lots of casualties. Heavy resistance, indeed, although by that time we were moving pretty well. Oh, yes, the cannons would thunder to the right and to the left and overhead. Yes, we had plenty of opposition.


Now, you mentioned earlier that you spent more time doing ACLU or legal work once you were in Europe than actually when you were still back in the States.


Well, that may--


Now, what kind of cases were you working on?


--have been a little bit of an exaggeration. I'm not sure I mentioned it before, but the Lawyers Co-operative Publishing Company did what I thought was a wonderful thing for lawyers who were in the service. They would send them the advance sheets of the [United States] Supreme Court Reports, Lawyers' Edition. So I would get, whenever the mail came up, a copy of the advance sheet of the Supreme Court when they were in session. And they were in session much of the time I was in Europe. You know, they go from October to June. At that time they got through in the middle of June. Now they don't get through sometimes until well into July.


I would brief cases that I thought were of civil liberties interest and send them back to Al Wirin in the States; and every once in a while he'd write me a note and say, "What do you think about this? Do you have any ideas?" I couldn't keep the books. I mean, I tried to keep them, but you just can't do it. So I'd have two or three with me, and I'd try to make notes. I'd do the best I could. I'd be in a foxhole from time to time, and I'd write notes back--although much of the time, of course, we were in buildings that we had taken in towns. So I kept up to date. I'd get letters from Al and others about what was happening. Occasionally a newspaper clipping about some case. But I tried to keep Al abreast of the Supreme Court decisions [laughter] while I was there.


Do you recall any particular case that you might have done some work on during that period of time?


I do believe that the--this was after the war--Japanese evacuation cases came down while I was still in Europe. I'm sure, in 1945. I was just madder than the dickens. These were the cases--Korematsu, Hirabayashi, and Endo--which sustained the validity of the Japanese evacuation. I was really heartbroken at the fact that they had done that. In the Endo case, they did do one thing. Endo was one where a woman was in one of our concentration camps and said, "You can't keep me here. There's just no reason

for keeping me." The United States Supreme Court said that she was right; that's true. While they would sustain the authority of the army to kick the Japanese out of California and the West Coast--Oregon and Washington--for military purposes, they would not sustain the right of the government to keep people incarcerated when there was no evidence, or substantial evidence, of disloyalty or subversiveness or whatever the term you want to use. So that was one bright spot. Those three cases all came down the same day. Those cases I remember vividly. I was really quite, quite sore. I had thought the government had done a wrong thing and that the Supreme Court would say no. But it didn't.

I don't know if I can remember any other specific cases. I will say this: towards the end--I'm not sure just when it was--during the time that I was there, I think the Nuremberg trials were just beginning. I tried to get down there for them, but I never was able to make it. I did want to see that. You'll remember that Justice [Robert H.] Jackson was chief prosecutor for the United States in that and was quite good, I thought, in that role. [He was] a great disappointment to both Al and me later on in the Oyama case, which is a case involving the constitutionality of the California Alien Land Law, which kept Japanese, as well as other Asians, out of ownership of land.


Which we'll get to a little later.


Yes, but I'll mention it now. We surely thought that Justice Jackson, after what he had seen and gone through at Nuremberg, would have had his fill of racial legislation, and we counted on him as a vote on our side, but we did't get it. We won the case, but that was a great disappointment for me and Al, although I have great admiration for Jackson. Try to figure out why he didn't vote for us on that. I don't know.

Anyway, I never did make it to Nuremberg, which was a disappointment to me. We got as far as the Elbe River, and there we stopped. At that time the resistance of the Germans was very weak--no resistance at all. We had to stop. They wouldn't let us go any further. Why not? Well, apparently we had to sit and wait for the Russians to come to meet us. There was some agreement high up somewhere. Of course, we didn't have any views--I don't think; maybe some others did--particularly, about the political implications of that decision, namely, that the Americans had agreed to go only so far and no further. We wanted to go to Berlin! That's where we wanted to go--I suppose for psychological reasons but also just because we wanted to go to Berlin--and here we weren't able to because we had to wait for those damn Russians to come. Well, it was interesting when they did come; we had quite a celebration.


Tape Number: VI, Side Two
(March 6, 1982)


OK, so we had to stop at the Elbe River and wait for the Russians to come. The Russians, as you'll remember, were the ones who entered Berlin, and then they kept on going to meet the Americans. I don't know where the French were or where the British were. I think we were back under Montgomery again after the Battle of the Bulge. I think I was back under Montgomery. But of course our unit, the Eighty-fourth Division, was intact.

Anyway, the Russians came, and of course it was just wonderful. You grabbed each other and you danced around. It was quite exciting. And I don't know where they got it, but the Russians had lots of vodka. I mean they had lots of it. Their vodka is not the same as ours. Ours is, as I understand it, eighty proof; theirs is forty, or something much milder than ours. So you drink it by the glass--I mean literally by the glass. You don't take a little shot, or you don't mix it with tonic or anything, you just drink it. Well, you can imagine. There wasn't a sober soldier, I don't think, in our area that first night. It was really quite interesting.

We didn't stay very long after that. I just don't exactly remember how it happened. Let's see, V-J Day was in [August], I think, of 1945, wasn't it? I think so.

That's when the atomic bomb was dropped. Shortly thereafter the war was over, and soldiers were allowed to return to the United States.

Well, I don't know if I mentioned it, but I had been made a warrant officer sometime along the way. As a warrant officer, I was an officer. Well, a warrant officer was kind of an in-between, bastard sort of a person. I don't know why they even had it. Originally, the warrant officer was a civilian employee of the army who was brought in, because of his or her expertise, as a civilian employee. Well, I wasn't that; I was a warrant officer in the Army of the United States, which was the component I was in, as distinguished from the United States Army, which is the regular army. The draftees were in the Army of the United States. Warrant officers were warrant officers. They were saluted by soldiers, and you had to salute back. You wore a different kind of uniform. You had little short jackets and perky cap and the whole thing that goes with it.

So, in order to go back to the United States, if you were an enlisted man and you had so many points, based upon how long you'd been in the service, how many combat days you'd seen, what campaigns you'd participated in-- Whatever the criteria were, if you had that many points, you'd be allowed to go back to the United States. Otherwise, you

had to wait until you accumulated enough points to go back. If you were an officer, you needed more points, for, I suppose, proper reasons, whatever it was. Well, I was an officer, and so I didn't have enough points because I hadn't been an officer long enough or whatever it was. So I had to stay over quite a while.

Pretty soon--I really don't remember the transition--I think the Eighty-fourth, as such, was sent back to the United States. What they would do was they would-- The Eighty-fourth was just a name, a division was just a name by that time, and the soldiers who had sufficient points who were in another outfit would be transferred into the Eighty-fourth Division. Those who didn't have enough points would be transferred out, and then the Eighty-fourth Division went home consisting of all the sufficient soldiers who had a sufficient number of points. So the Eighty-fourth went home, my outfit was gone, and I was transferred to the Third Division, to division headquarters, where I was-- I was not a sergeant major anymore because I was an officer--whatever I was--and I was at division headquarters.

By that time we stayed at a most beautiful town in Germany, on the side of a hill: Bad Wildungen is the name of it. It was a resort town. Bad means "bath." By that time winter had come and there was snow, and it was just a

beautiful, beautiful place. We stayed at a hotel that was lovely. The elevator was broken, and they never did fix it while I was there, and so we had to walk up, I think, to the third floor. But I had a great big room all to myself. Our soldiers had done lots of looting, and there was a radio that some American had taken from somebody that was in the room. It was a Telefunken, as I remember--a good radio. We got the Armed Forces Radio Service program, which had very good programming I thought. We ate in the hotel dining room. I can't remember if the baths were going or not. But I remember that a haircut was one German mark, which at that time was ten cents, which was very nice. I took a haircut every day--not literally but figuratively. It was almost an idyllic existence for a while.


What were your particular duties during that time?


I really haven't the slightest idea what we were doing there. I mean, we were there, and we were occupying. I'm not sure what our mission was. We had contact with the civilians of the town, we patronized the stores, with German currency (marks). By that time I really forget what my job was at division headquarters--obviously, some administrative work of some kind.

Then, finally--I guess it was in June of 1946--the orders came for me to go home. During that time I had kept

contact with a friend of mine who had been in the 335th who went up to, I guess, the European headquarters in Berlin (the American part of Berlin). I visited with him one day. A lot of kids were getting discharged from there, which you could do if you wanted to, and I thought I might do that if Mimi could come with me. So I, on one or two occasions, I called home: one call cost twenty-eight dollars. That's something that's come down. You had to wait days until the connection was made. So I called and talked to her a couple of times, wrote her letters--we wrote back and forth--asking that she come. She could have made some arrangements to come, and in the meantime I was going to get discharged and get some kind of job over there. It was just for the fact I was young--it was 1946 by then, and so I was twenty-nine-- I could have gotten a job with the [judge advocate] general's office by that time. [laughter]

Just by way of an aside: as people were being sent home-- No, this happened later; I'll keep it. If I don't mention it, remind me to say something about the reserves after I get back to the United States. Shall I say it now?


Go ahead, sure.


Well, after I got back to the United States and I was being discharged--as everyone was being discharged at Fort Dix, New Jersey, which is close by to Rutgers, the state university as it's known--there was a great push to

get everyone to join the reserves. Some did. But there were no reserves for warrant officers. You couldn't go in the enlisted men's reserves; you couldn't go in the officer's reserves. You weren't a lieutenant or more. I remember, whoever discharged me was so apologetic: "I'm so sorry that there's no way that we can get you into reserves." I said, "You don't have to apologize at all; that's just fine." [laughter] So I never was in the reserves. Where was I? I've forgotten.


You were thinking about--


Oh, yes, about staying over there. I wanted to do that just because, well, I'd never been to Europe. It just seemed like a good idea. Mimi had never been to Europe. The life was quite easy for the American soldiers over there: a lot of fraternizing, very easy hours. George Dalfrees, this friend of mine, at least one of his jobs was to keep track of barges going up and down the Rhine. I remember, in the couple of days that I stayed with him in his very nice apartment in West Berlin, he had to make about two calls a day just to see where the barges were, and that was it. [laughter] After a while I suppose it got a little bit boring.

Anyway, I wanted to do that. Finally, arrangements were made, or virtually made, for Mimi to come over. She also wanted to get a job, and there was some technical

problem: we both couldn't work at the same time. I don't remember why. But, anyway, she was going to come, and I called her the last time to make the final arrangements. Mimi talked to me and said, "What a minute, your folks want to talk to you." Dad and Mom got on the phone, separately of course, and started to cry: they wanted me to come home, they hadn't seen me for four years, they were getting old, they may never see me again. The pressure was terrific, and so we decided that we'd stay. So I came home, and of course my folks lived for many years after that. But it's interesting, as I look back. I don't know that I would accede to that, but that was what did happen. And so we came home.

We came home on a liberty ship--very crowded, really crowded. It was much more corwded even than, it seems to me, as I remember, when we went over on a-- This was a sister ship of one of the ships that had been sunk in the war which we went over on. Then, as I say, I came back home. Mimi came to meet me in New York. She couldn't get a reservation in a normal hotel but got one in a flea bag. But that was just fine. You can imagine the joy when I knocked on the door and she opened it.

It took us six weeks to get back to Los Angeles. That was really the only honeymoon we ever had, because, as I told you, I got married two days before I graduated and my

bar exam was four months later; so we never really had a honeymoon. So we took six weeks to come back to Los Angeles, and that was a delightful experience. That was the first time either of us had really seen some of the United States. We took a train to Washington, and that was the first time either one of us had been there as a tourist. We stayed in a hotel room just a block away from Union Station, which was in full operation at that time, not like it is now. We took sightseeing tours of the Capitol. We went to Niagara Falls, as honeymooners do. We took the Maid of the Mist--is that the name of the boat that goes under the Falls?--through the spray. We took a boat that goes down--I don't know whether it's a river or down the lakes--to Detroit. We had a cousin there. [Inaudible] Actually, Mimi got the flu in Chicago and never got out of the hotel room until we left for Yellowstone. The doctor gave her a long-lasting penicillin shot. The accommodations in Yellowstone were absolutely tremendous: great big wooden motels, one more picturesque than the other--just a great place.

Then we took the train back. Oh, I was going to say we came back to L.A., but no, we took the train to San Francisco. I met a friend of mine from the army--we met in San Francisco--Grover Magnin, and we stayed at his folks' place. His folks were away somewhere, and so we had a

place to stay in San Francisco. We'd met him and his wife Margie in-- Grover I'd met at Camp Howze, and Margie and Mimi had lived together in Dallas. [inaudible] So we stayed there in San Francisco some time, and then we took the train back to Los Angeles. [inaudible] I had a few more days--whatever it was--and soon again I began practicing law.


Now, when you left to go into the army, had it been fairly well understood between you and Al Wirin that you would come back to the firm when you came back?


There was no question that I would come back. I was not in the firm at that time. Remember, when we got kicked out of the CIO--or however you want to term it, the termination of our relationship--I went to work for Al. I'd been working for the firm of Gallagher and Wirin before. Yes, it was absolutely understood that when I came back I would go back with him. Then, when I came back from the service, we decided to form a partnership. That arrangement was made afterwards, but the idea of my coming back and practicing law with him and for the Civil Liberties Union was understood always. And that's what I did.

Al was in the same building, the Douglas Building, on Third and Spring Street, in a different suite by this time. He was on the fourth floor and was practicing with J. B. Tietz,

who's still here, and with John [Y.] Maeno, who, I believe, is still living and practicing law. And Frank [F.] Chuman, with whom I went to UCLA, was working with him. I'm not sure if Saburo Kido was still with Al or not. Saburo Kido was the wartime president of the Japanese American Citizens League and had some personal experiences all his own which are of significance, I think. But, when I came back, Maeno soon left. Tietz stayed on for a little while and soon left, but Al and I remained--and Frank Chuman remained for some time. After that, Frank left and we took on other associates. [tape recorder turned off]

As I say, I came back and began practicing law on the fourth floor, and I had a little bit of an office. The times were very interesting. I think I mentioned that when we left the CIO, the only labor client who sort of stuck with us was the Amalgamated Clothing Workers of America, and they were still with us when I came back. Much of the work that I engaged in shortly after that involved the Japanese--very interesting litigation, on two fronts. During the war, as you know, a large number of Japanese who were in concentration camps had renounced their American citizenship--those who were at Tule Lake [Relocation Center] for the most part--and there was a considerable amount of litigation over the validity of that renunciation. Many of the Japanese who had renounced came to

us, and we represented them. I did a lot of trial work on behalf of individual Japanese to get their United States citizenship back, and that was a very, very gratifying experience.

I always laugh at Perry Mason because he never loses a case. I can't say that I never lost one of those cases, but I can say, I think, that, with the possibility of one or two exceptions--and I represented literally hundreds-- not a single one who renounced his or her citizenship was required to leave the United States. We either won their case in court or by reason of administrative procedures which we had pushed for were able to keep all of those Japanese here in the United States. As I say, it was very gratifying because that renunciation was something that-- I don't know if the public at large knows much about it; I doubt that they do. But obviously the United States government--or some of the people in the United States Government--felt quite awkwardly about what was happening to the Japanese. Indeed, the head of the Alien Enemy Control Unit in the Department of Justice was Edward Ennis, who was a--I don't know if he was at that time but certainly later--member of the board of the American Civil Liberties Union nationally and became its president. So he was very sympathetic to the concept of civil liberties.

But he was in government service at the time, I guess under [Francis] Biddle.

Anyway, somebody conceived this idea of weeding out the so-called disloyals from the rest of the Japanese. There had been some outcry from the ACLU and others that the evacuation itself was unconstitutional, immoral, and wrong. So, as I say, someone in the government conceived the idea of trying to weed out the loyal from the disloyal. So they had a big campaign to try to do that, and one of the ways that they hit upon was a certain questionnaire, with which they asked every Japanese person in concentration camps certain questions. As I remember now, the numbers were 27 and 28. Those were the significant questions. If you hold on for a minute, I'll go and get them so that I can recount a little story about them.




I've found it. I was looking for the book The Spoilage by Thomas and Nishimoto [University of California Press, 1946.] which is a remarkably good story about the evacuation itself, and they later wrote another book about what happened to the Japanese afterwards. In this questionnaire--I was right--questions 27 and 28 are the significant questions. They appear on pages 57 and 58 of the book called The Spoilage. The male citizens were asked in question 27 (I'm quoting now): "Are you willing to serve

in the armed forces of the United States on combat duty wherever ordered?" Then question 28 was: "Will you swear unqualified allegiance to the United States of America and faithfully defend the United States from any and all attack by foreign or domestic forces and forswear any form of allegiance or obedience to the Japanese emperor or any other foreign government power or organization?" Now, that was for all male citizens.

You can see the difficulties that would be entailed in the mind of a conscientious person who's sensitive to what life is all about and what is happening to him when he's asked, on pain of being told that he's disloyal if he answers it wrong, "Are you willing to serve in the armed forces of the United States on combat duty wherever ordered?" That's a difficult question for someone who's under military control behind barbed wire, with guns looking down upon you all the time. And then the next question, when he's asked, "Will you forswear any form of allegiance or obedience to the Japanese emperor or any other foreign government power or organization?" Here you are asking an American citizen, who was born here, who had never had any allegiance to any foreign government including the Japanese, to forswear allegiance to--

Well, that was for the citizens. So much for the citizens. Now, the aliens and the women were asked in

question 27: "If the opportunity presents itself and you are found qualified, would you be willing to volunteer for the Army Nurse Corps or the WAC [Women's Army Corps]?" And question 28 again: "Will you swear unqualified allegiance to the United States and forswear any form of allegiance," and so on. Well, this last one, of course, for the alien Japanese was an impossible question for him to answer because if he said he forswore-- We told him for dozens of years that you cannot become a United States citizen. We will not let you become a United States citizen. So you're an alien because we have forced you to be one. Now we're asking you to forswear allegiance to the emperor and the government of Japan, which is the only citizenship you have. So we're asking you to do the impossible, really.

Well, the upshot of the answers to these two questions was that our government decided that those who answered no to both of those questions were to be considered disloyal. They were known as the "no-no's," and they were transferred by and large to Tule Lake Relocation Center in California. [At this time the name was changed to Tule Lake Segregation Center --Ed.] At Tule Lake, because all of these people we had labeled now as disloyal were all in one place, you can imagine the ferment that went on in that camp. There was a tremendous push on the part of a number of persons to say, "Well, the hell with you, Mr. United States, we want out.

We don't want to be United States citizens"--those who were citizens. And the aliens said, "We want to get back somehow." There was great importuning upon the government to allow the American citizens to renounce their citizenship in protest or in anger or whatever it may be.

Well, when the Department of Justice, particularly the Alien Enemy Control Unit, got ahold of all these requests, or demands, for being allowed to renounce their citizenship, they convinced the Congress to pass a law which enabled them to do that. Up to that time you couldn't just voluntarily give up your United States citizenship. They expected--and I've talked to Ed Ennis about this because he's, in a way, one of the parties involved in creating the ability for this to happen--just a handful of people. They thought they were just grumbling out there. They couldn't imagine that anybody really wanted to do it, and they expected a handful of people to take advantage, if you want to use that term, of the ability to renounce their United States citizenship. But they got over 5,000 requests for that, and they were simply aghast. Ed told me--and he's said this publicly--he tried to figure out ways of putting impedimenta in the way of the Japanese who now wanted to renounce [their citizenship] so that it wouldn't happen, so that people would calm down. All kinds of things happened at Tule Lake and other places

in which I was not personally involved. So they had a long, drawn-out hearing procedure, with lots of questionnaires and lots of forms to fill out. They tried to make it as difficult as they could. But over 5,000--or about 5,000 actually--renounced their citizenship.

So, when I came back this already was a fait accompli. Here were thousands of Japanese, many if not most of them who had been--well, all of those that we were representing--American citizens. By that time the war was over, the Japanese had been sort of welcomed back, or permitted to come back, to California--although the first ones who came back were still the subjects of regular racial prejudice, even physical harm. These cases required us to try to get their citizenship back; so we had a lot of cases in which we filed suit. As I say, I really feel good about the justice system as it worked in those cases because--


Tape Number: VII, Side One
(March 9, 1982)


Fred, when we left off last time, we had just started talking about the Japanese renunciant cases, particularly at Tule Lake, and you had just started saying that you felt that the justice system had really come through in those cases. You had just started making those remarks, and I wonder if you could elaborate on that.


Yes, as I thought back on that, I got it a little bit confused with another group of cases involving the Japanese, which we'll get into. There weren't so many cases, as such, involving the renunciants. There was one big case that was filed in San Francisco and handled mainly by Wayne [M.] Collins, an attorney who'd done a lot of work for the ACLU in San Francisco. (We had some down here that we tried.) But the principle was established when two or three of the cases got to the court of appeals for the ninth circuit, and the court of appeals said that conditions at Tule Lake were so oppressive and the circumstances were so coercive that there was a presumption that the renunciations that had taken place by the Japanese were involuntary and it behooved the government to come forward with evidence, if it had, to overcome that presumption. If the government could not do that in any particular case, then all the persons at Tule Lake who had renounced would

get their citizenship back. As I say, that theory was evolved in about two or three cases, and we participated down here in Los Angeles in a couple of them and also when it got to the argument in the court of appeals.

My gratification is that the court understood the really difficult circumstances under which the Japanese were in, even those who were considered to be disloyal, because that was the purpose of those questions 27 and 28. Then when it was followed through by enabling legislation to allow people to renounce, nevertheless the court acted as a court should act, understood what had taken place and acted appropriately. So, out of some 5,000 who renounced at Tule Lake, very, very few did not get their citizenship back, and I think that's gratifying.


Fred, do you recall before or actually following the lawsuits in these cases whether there were attempts to get the government voluntarily to restore the citizenship? Do you recall anything about the process that went on?


No, I don't. There may have been something that was done to try to get the government to not recognize it, but I don't see how they could. They really had gotten themselves in a bind because first they got this legislation which enabled this to happen, and when it did happen, I don't know how they could say that -- Well, I suppose they could go back and undo it, but it was

difficult for them, I would suppose. And the government did put up quite a battle in the cases. I can't think of the names of any of them. One of the defendants, I know of course, was Attorney General [J. Howard] McGrath. I remember that. But who the plaintiffs were, what the names of the cases were, I don't remember. As I say, in specific answer to your question, I don't recall any efforts being made to have the government say, "We won't recognize these renunciations."


Now, you say that the government put up quite a battle. Do you recall the specific arguments that they tried to use?


Well, sure. They said, "Look, these are grown persons, and they knew what they were doing. They had asked for this." They pointed out the obstacles that had been put in the way. I think I mentioned to you that the--I've forgotten the name; Ed Ennis's office--the Alien Enemy Control [Unit] was surprised at the number of persons who asked for renunciation. So they made it very difficult by having extensive questionnaires to be filled out and an elaborate hearing system that took place. That really wasn't for the purpose of giving due process but, quite to the contrary, was to make it very difficult for them to renounce. But having done that, the government then said,

"Well, now they've done it, and so they should be stuck by their own actions." That's all.


Fred, the names which appear in the record, in the Open Forum, of people who were involved in the test case in Los Angeles--such people as Albert [Y.] Inouye, Rose Sunecko, and Arthur Katayama--I don't know if those names ring a bell to you now, but--


Inouye rings a bell. I think the case was known probably as Inouye v. McGrath, but I don't recall the individuals as such. I just don't. You see, those cases were tried mainly on paper, rather than a dramatic trial in court. The circumstances of the camp were brought forth, and, as I say, we were trying to get a court decision which would be applicable to all persons rather than just to one, two, or three persons.


Now, the ninth circuit court of appeals decision that you refer to, I assume that's the one that was written by Justice William Denman?


Yes, he was the chief justice, a magnificent judge.


Can you give me some of your recollections about that?


Well, Justice Denman--he was a justice then; I think they've changed the name now so that they're called judges in the court of appeals on the federal side (we

still call them justices in the court of appeal on the state side)--was my idea of a judge. In the first place, he looked like a judge ought to look. He was tall, very distinguished looking, white hair, and when you appeared before him, or when you happened to have the opportunity to speak with him in person, how can I describe it? He was a gentleman. He understood that the law was for the purpose of dispensing justice, and he did.

Actually, as I recall it, either in the Inouye case or in the other case (the one from up north, which was the mass one), Denman was the one who described what we called the war relocation centers where the Japanese were interned as concentration camps. In the opinion there's a picture laid out--actually in the law books, which is quite rare; a photograph taken, I guess, from an airplane--of the camp, and you could see the barbed wire and you can see the towers. The justice used that to illustrate, to demonstrate why the court had written that opinion the way it did. So I have nothing but just the fondest memory of Justice Denman, not only because he happened to rule in our favor in that case; in many other cases he didn't.


Fred, one other case that you handled as a private attorney was the case of Hans Zimmerman, who was interned in Hawaii after Pearl Harbor until about 1943. You and Al

Wirin evidently served as private attorneys. Do you recall that case?


Oh, I recall that case very well. That is a saga in and of itself. It's fascinating. It started out as an ACLU case, the first part. Hans Zimmerman was a German immigrant who lived in Hawaii, and on occasion before the war he had gone back to Germany and visited with his family. On Pearl Harbor day or the day after (whatever it may be), he was simply arrested and just physically taken away and incarcerated on Sand Island in Hawaii, off Oahu. I guess it's in Honolulu harbor; I'm not sure. No due process of any kind, and he was just kept--theoretically, I guess, because the government thought he was a spy. I don't know why they had picked him up.

Well, as I say, the Zimmerman story is a saga. The ACLU learned about it. I talked with him sometime later. I forget how he got word out where he was, but somehow or other the ACLU in Hawaii learned about it. There wasn't much of a chapter there, or affiliate, but somebody [found out]. They filed a petition for a writ of habeas corpus on behalf of Mr. Zimmerman--Dr. Zimmerman actually. The case was heard before Judge [Delbert] Metzger, and Judge Metzger was one of those really wonderful judges--very courageous. But when I tell you what he did, it demonstrates just

somehow how conditions can get so coercive and so unreal that individuals act peculiarly.

When the petition for writ of habeas corpus was filed and heard before Judge Metzger, he denied the petition, to everybody's surprise. (I'll tell the rest of the story and then come back to a conversation I had with him years later.)

So then an appeal was taken to the court of appeals for the ninth circuit. I'm a little bit hazy on whether that happened at that time. I seem to think that, for some reason and I really don't know what it is, the government transferred Zimmerman to the mainland, to Minnesota or Wisconsin, I think--probably Minnesota. At that point the ACLU in Minnesota took up the cudgels and filed a petition for writ of habeas corpus on his behalf. It appeared that the court there was going to grant the petition (conditions weren't so warlike there, apparently), at which point the government released Zimmerman. They either took him or let him go to San Francisco and said, "You're free to go."

But he says, "I don't have any money, and I have no place. How do I get back to Hawaii?"

"Well, any way you can; it's up to you," which was an interesting bit of direction because there was no transportation. All transportation was taken up for the war. The navy had commandeered all the ships, and there was no place

for him to go. So, although theoretically he was free to go back to Hawaii during the war, actually he was not. And he never did get back to Hawaii until after the war was over.

After the war was over, I'm not exactly sure how-- Up to that point our office had nothing to do with it, but, as I say, the ACLU in Hawaii had, and I think the Minnesota affiliate had. Contact in some way was made between our office and Dr. Zimmerman, and we filed a lawsuit in Hawaii against the commanding generals for what they had done to the doctor. That's the lawsuit that I think probably appears in the Open Forum. We sued for damages, and we-- It was a very interesing lawsuit in the sense that there was some new ground broken. We actually got to see the FBI reports that the FBI had on Dr. Zimmerman. Now, whether we saw all of them I don't know. There was no Freedom of Information Act at that time, but we actually got a court order requiring the government to let us see [the reports] and I assume we saw all of them. There was nothing that they had against the doctor.

So the case was tried before a jury in Hawaii years and years later, and, to our unhappiness and the unhappiness of Dr. Zimmerman, the jury found for the defendants on very much the same ground that the United States Supreme Court upheld the Japanese evacuation.

Namely, they weren't going to second-guess the army generals. Dr. Zimmerman was German, he had made very recent trips to Germany, and if they in their military judgment felt that he should be incarcerated, they weren't going to do anything about it. So we lost the case before the jury, and we appealed it. I remember that I worked on the brief in the summer out here; we had just moved out to this house. It must have been either the summer of 1951 or the summer of 1952 because--


You had this house at that time?


The one we're in right now on Ventura Canyon Avenue in Van Nuys. I took all the transcripts home and worked out on a little patio we had out towards the front part of the house. The court of appeals for the ninth circuit affirmed, and the United States Supreme Court denied a hearing. So, it was a terribly interesting case and we thought a very important one: to demonstrate that even during time of war the Bill of Rights should be observed. And if you have something against an individual, you ought to present it to him and let some impartial tribunal judge it. The excuse of wartime not allowing time for that simply didn't wash.

There were other instances over in Hawaii--and I'll come back to Judge Metzger-- It might have been in that case or another one in front of Judge Metzger when they

issued process against the army generals. The story is that the U.S. marshals went over across the way-- In Honolulu the United States District Court is virtually across the street, maybe a half a block removed (with a little triangle in between), from--what's the name of the palace? Iolani Palace?--the capitol of Hawaii. At that time it wasn't a state yet; it was a territory. [It was the] main building, where the governor would stay and, at that time, where the commanding generals were staying. The story is that the marshals went to serve the commanding general with a paper to appear in court to defend the case or cases that had been filed, and they were just tossed back over the fence by the military and never did get to serve them, although they did appear through their counsel.

Years later I talked with Judge Metzger about the Zimmerman case. I visited him at his home on a couple of occasions, and he said this. I said, "Jiminy Christmas, Judge Metzger, how could you not have issued the writ under those circumstances, where they just picked this fellow up, held him without even giving him any charges: no proceedings pending anywhere, no declaration of martial law. It was just patently unconstitutional for them to have done what they did. How could you--you're a good lawyer; you know the law--not have issued the writ?"


He said, "That courtroom was filled with soldiers with drawn guns. They had their guns, and I was coerced." But, he said, and this is interesting, "I was sure the court of appeals would have granted the writ, would have reversed me. I just knew that they would. Had I any idea that they would not, I would have issued the writ."

Now, that's what he told me. Now, maybe that's hindsight. Who knows? But the interesting thing about it is that in the United States, while the courts were open--there was no declaration of martial law--the army really controlled the justice system during that brief period of time. That was very dramatic to me. And, as I say, I knew Judge Metzger--he's now dead--and he was a very courageous man. But in that one instance he didn't do it. He just didn't do it, and it just simply demonstrated how frail, I guess, human nature is, even of the best of us. That was the story. So we lost that case.


You mentioned in regard to the Zimmerman case that it started out as an ACLU case. Did I miss how that--


Well, as I say, the ACLU part was that they filed this petition for writ of habeas corpus in Honolulu and also either did or were going to file it in Minnesota. I think it was Minnesota. That was ACLU. The part after the war, where Dr. Zimmerman was suing for damages, partly was not ACLU. We handled that as a private case.


Well, that raises an interesting question. Obviously, this was long before the ACLU had a legal staff of its own as it does now. What type of arrangement was there with the ACLU? Were you and Al Wirin paid in any way by the--


Well, let's see, at that time I was not paid at all by the ACLU. Al had a very small retainer. The figure of about a hundred dollars a month or something like that sticks in my mind; I'm not sure what it was. But it was infinitesimal, just a very small amount. For all intents and purposes, we just donated our time to the ACLU. And, of course, in between we'd have to rely on some private cases which would pay us a fee so that we could go on. Dr. Zimmerman was a pretty well-to-do man and was able to pay us a fee, and that's one of the reasons we took the case--I mean, in addition to the fact that we thought he was right. But on occasion we would get a person who was able to pay us a substantial fee, and that's really the way we lumbered along. We were able to manage. Certainly not from the ACLU payment and not munificently from our paying clients because there wasn't enough time to really develop a lucrative practice. There simply wasn't that much time. Too much ACLU stuff came along.


Well, the record shows a number of different cases that you worked on during the late forties in addition to

the renunciant cases. Are there any that particularly strike you in your memory during that period of time?


Well, there's one that I didn't work on very much. It was well along the way when I came back. I came back to California in June of '46, as I remember, and probably didn't start to work for about a month--mid-1946. But there was this one case--and, as I said, it was a case that was well along--and that case was known at Westminister [School District] v. Mendez. I did very little on that case. I helped a little bit on the brief on appeal before the court of appeals for the ninth circuit. The reason, though, it sticks in my mind is the court of appeals for the ninth circuit issued its opinion in 1947. I remember that. It held that the segregation of Latin students in Orange County was unconstitutional. Now, this was seven years before Brown v. Board of Education; so we in the Southern California ACLU have been involved in desegregation cases for a long, long time.

As I say, the reason that it sticks in my memory is because that is the fact. I don't know if there were any cases-- Well, sure there was a case brought in Boston in the 1800s to try to get rid of segregation. But Judge McCormick decided the case in the trial court. As I say, that was before I came back. But that's the same judge who

wouldn't give me writ of habeas corpus for the Nazi or that Bundist who didn't want to leave California.


Your first case?


Almost my first case. He decided it on a very interesting basis. At that time--and this occurred up until very recently--Mexican children, Mexican persons, were considered white; they were counted in the census as white persons. Al and [David C.] Marcus, who was the attorney who represented the schoolchildren of the school district who were told to go to a segregated school-- I mean, this wasn't any happenstance thing: Mexican kids in the Westminster School District went to this school, and white kids--Anglo kids--went to the other school or schools. So, because of the fact that Mexicans were considered to be white for census purposes and any other reasons [where] race made any difference, Judge McCormick was hard pressed to say that there was racial discrimination, which is what at that time most people thought the Fourteenth Amendment--the equal-protection clause--was all about.

So he said, "Well, this is not a race case." But I thought it was a race case when I got to it, and everybody else did. "This is not a race case," and so he didn't have to try to distinguish the separate-but-equal cases that had previously been decided: Plessy v. Ferguson, for instance.

But he said, "There's no basis for this classification in California law, and it's an irrational classification. It makes no sense." He talked way ahead of his time, actually, in legal terms. And it was on that basis that these Mexican youngsters were being illegally treated because there was no justification for them being separately schooled.

Now, of course, Hispanic persons, Latin persons, are treated separately. In fact, it's kind of funny. They're still considered white in some sense because if you go down the L.A. statistics, for example, they list: Black, Asian (and the Filipinos are sometimes put in with the Asians), Native American, and then they put Hispanic, and then they say Other White. The Other White are the Caucasians, the group that is considered by everybody to be white.

So, because of that little quirk, Judge McCormick had to find some other legal handle, and the court of appeals affirmed that. I worked on that brief, and that was a very gratifying result. I mean, it really was. As I say, it was seven years before Brown v. Board of Education.


Do you recall to what extent the order of the courts was complied with?


Oh, I'm sure it was complied with. Now, I don't know. I didn't follow it through in later years, nor even recently, what the situation is; but I have no doubt that

the order that the Mexican kids go to this school and the white kids go to that school or schools was rescinded.


Now, Fred, there are some other cases again in the late 1940s that the record shows you were involved in to one extent or another. I was wondering which ones you have some clear memories on.


Give me a hint.


OK. [laughter] The Alien Land Law cases and alien fishing cases, for example. You seem to have been quite involved in that.


Well, there were actually three main Alien Land Law cases. One was Oyama v. California. Another was Sei Fujii v. California (that came later); and Masaoka v. California. Now Oyama v. California went to the United States Supreme Court, and I worked very heavily on that case. Now, it seems to me that Al had been in Hawaii on some matters and had written a draft of the brief. He asked me to go over it and put it in final shape. He said he'd been with that case for so long that he was afraid he was losing perspective on it. So I worked on that brief very heavily, and, as I say, it went to the United States Supreme Court. Both the California superior court and the California Supreme Court held the Alien Land Law constitutional. That was a case where the state of California had taken away from an American citizen his land on the

theory that it really wasn't his land, that it really was his father's land (who was an alien and, under United States law, ineligible to become a citizen), and that the transfer to the child of the title was a fraud.


Tape Number: VII, Side Two
(March 9, 1982)


Now, as you know, the California Alien Land Law, as were the alien land laws of Washington and Oregon, was passed originally about in 1913 for the avowed purpose of preventing the Japanese and other Asians from owning land. It then was reenacted in about 1919, perhaps 1920. [The California Alien Land Law, or Webb-Heney Act, enacted in 1913, was reenacted in 1920 --Ed.] There was a provision in either the 1913 or the 1919-1920 legislation to the effect that a transfer of property from an "alien-ineligible-to-citizenship"--that's the euphemism we used for Japanese--to an American citizen child was presumed to be fraudulent. Now, the only proof that California had that the transfer of property from Mr. Oyama to his son was fradulent was that presumption. They had nothing else. The young man was tilling the land, caring for it, his folks lived with him and all that. But that's all they had.

The California Supreme Court, as I say, sustained that provision, as had earlier California and Washington courts. And the United States Supreme Court had sustained the validity of the alien land laws. When the case came to the United States Supreme Court, the United States Supreme Court held that this was a violation of equal protection to the alien children of aliens-ineligible-to-citizenship,

namely, Japanese aliens. The court said this because in Anglo-Saxon law for umpty-nine years, coming down for 300 years of history to us, when a parent, in most cases a father, transfers property to his child, the presumption is that that is a gift and belongs to the child; and that if the father, for example, wants to say, "Well, I just gave it to him for convenience" or something, he has one hell of a time proving that because he has to show it. The presumption is just the other way. The presumption is that it belongs to the child; whereas under the Alien Land Law the presumption is contrariwise. The presumption is that it still belongs to the father. This happens to be a Japanese child, but he's an American citizen just like a white American citizen. So the United States Supreme Court held that that was unconstitutional as a denial of equal protection.

An interesting part of our participation in the Oyama case-- I think that, when that was argued, I do believe that I also argued my first case in the United States Supreme Court. The Delgadillo case? Does that show up anyplace?


That does not sound familiar. But what I can tell you is that in the October 18, 1947, Open Forum there is an article which says that you, Al Wirin, and also Saburo Kido, whom you mentioned last time, were on your way to Washington to argue the Oyama case before the U.S. Supreme Court.


OK. All right. Now, the Oyama case was argued, and, for me, what I thought was particularly noteworthy about it was that Dean Acheson participated in the argument on our behalf. He later became, you remember, secretary of state. Dean Acheson was a very dignified-looking gentleman.


What was his position at that time?


He was in private practice with a very large law firm in Washington, Covington & Burling, and he just did this as a pro bono. He argued it, and Al argued it, before the Supreme Court. In those days it wasn't so difficult for parties to have what's called a split argument: one attorney argues one part and another attorney argues another. The Court frowns on that now and doesn't really like to do it--rarely does, although occasionally.

It was at that occasion that I met Dean Acheson, and I met another wonderful person, Charles [A.] Horsky, who was in that same law firm. Now, what did Charles argue? Oh, later on Charles argued another case, which we'll get to, I assume.

But, yes, I think it was that time that I argued my first case in the United States Supreme Court. It was Delgadillo v.--I don't know who it was, but it was against the Immigration and Naturalization Service. Yes, Delgadillo v. Carmichael. And I can tell you, I was

scared. Well, I'd been back about a year, I guess, by that time, in private practice. I never had been before the Supreme Court, of course, and was admitted at that time. The Delgadillo case was an interesting case. It was not an ACLU case, I guess, but we handled it for free for some reason or another because we never got a fee out of that case.

That was a case where a person had shipped out, during the war, on a merchant marine ship, which went through the Panama Canal eastward and was steaming up north in the Atlantic Ocean and was torpedoed by, I guess, a German vessel. Delgadillo was rescued and taken to Cuba and he came back to the United States. Now, the problem was that they wanted to deport him, and the reason was that he had been convicted of a felony, perhaps two, within a certain period of time following this adventure. If you'd been convicted of a felony, you were deportable under our United States immigration laws, and they tried to deport him. We just thought that that was terrible [laughter] that they should try to deport him when he came into the country as a sailor, helping our country during time of war. The technical point was that when he was brought back, actually by the United States government or under United States auspices, to the United States--he landed in Florida, I guess--that that was what they call an "entry"

into the United States. And he was not entitled to have an entry into the United States because of his past criminal record. So, whereas had he not gone out of the country on his voyage and had just been in the country, he could be convicted of a dozen felonies and they couldn't deport him for that. But because he had this entry he could be deported.

We argued that while, yes, it's true that physically he made an entry, in that he was out of the country--he was in Cuba--but it wasn't the kind of an entry that should count. The government argued very strenuously that an entry is an entry is an entry. They pointed to cases which had preceded ours: one where a train went from Texas to New Mexico, I think--New Mexico or Arizona--and part of the journey was through the northern part of Mexico. I mean, that was the route that the train took. And in a similar situation a person became eligible for deportation because he made an entry into the country. Previous cases had held that that was an entry, even though the particular case [involved] a guy who went to sleep in Texas and slept the whole night on the train and woke up in Arizona or New Mexico; but since he had gone out of the country and back into the country, that previous case had held that that was an entry, and so he was deportable. The government relied very heavily on that case. It said, "My God, talk about

innocence. So what about this?" Anyway, the Delgadillo case was decided in our favor, unanimously. The Court ruled nine to zero that that kind of an entry was not an "entry" within the meaning of the deportation statute-- And it was written by Mr. Justice [William O.] Douglas, which was very nice. So I batted a thousand percent at that time before the Supreme Court.


Now, you said that this was the first time you appeared before the Supreme Court.




Let me ask you a couple things about that. This was a case that you and Al Wirin had taken, I assume. Do you recall how the decision was made? "Here is your first case. Fred, you go and do the argument before the U.S. Supreme Court." Do you remember anything about how that was decided or what Al said to you and so on?


Oh, Lord, no, I don't. I don't remember that. But Al had his hands full with Oyama. Takahashi came later, I think. The alien fishing [rights] case must have come later. It wasn't decided at the same time. Was it?


No, I think that was later.


That came down half a year later. [Oyama v. California, 332 U.S. 633, decided Jan. 19, 1948. Takahashi v. Fish and Game Commission, 334 U.S. 410, decided June 7, 1948 --Ed.] The Oyama case was the case for Al at that

time, and it was the case for the Japanese community, actually. I mean, the evacuation hurt, was there, but from the standpoint of going forward--this was 1947 and even before (the case started before I came back)--if the Japanese couldn't own property in California, they were hamstrung. It was very important that they be allowed to, enabled to, own property. So it was a terribly important case to everybody, and I guess Al just felt that I ought to argue it [the Delgadillo case]. I don't remember having any discussion about it. I suppose it was kind of understood. I guess when it came into the office I must have written the brief, and, as I say, it happened that we arranged so it could be done at the same time. It was just simply understood that I would do it. I'd never met Delgadillo. I never met him; I don't know him.


Do I understand you to mean that the two cases were argued during the same trip to Washington? Is that what you mean?


Yes, right. They had nothing to do with each other.


But on this same trip was the Oyama case.


Right. So we didn't have to make the trip two times.


Do you recall your actual appearance before the U.S. Supreme Court and the questions you were asked?


I remember sort of two things about that that sort of stick out (I certainly remember the trip). In those days the Court used to start at twelve o'clock. They would start their sessions at twelve o'clock. They would go till two, take a half hour for lunch, come back at two-thirty, and then finish at four-thirty. They had four hours of argument just as they do today, although now they're a little more sensible: they start at ten and quit at twelve. But they still start at twelve-thirty again --although maybe not, because we just got word that our Crawford case is going to be argued on March 22 starting at one o'clock. So maybe they're even taking an hour for lunch now; I don't know.

But in those days they started at this crazy hour--at twelve o'clock-- Incidentally, when Mr. Justice [Arthur J.] Goldberg was on the Court, he ranted and raved about that--not so much starting at twelve, but the half hour for lunch he thought was absolutely terrible. "They ought to take some time," he thought. So maybe they're doing that now. They didn't as of last year, anyway.

But two things stand out. One, I was pacing up and down in front of the Supreme Court, actually--I guess during the morning, before we went. Alpha Wirin was back there too--Mrs. Wirin, Al's wife--and she said, "You shouldn't be nervous. Don't be nervous."


I said, "Yeah, that's easy for you to say. Don't be nervous."

She says, "Remember, every one of them has a belly button, just like you." [laughter]

So that calmed me to no end. The only question I remember was this: I was trying to get the Supreme Court to overrule a previous case that was really against us, and Mr. Justice [Fred M.] Vinson was a chief justice at that time--also a very distinguished-looking person with white hair. (I have white hair but not much of it. It's different. I mean, they had hair, both Denman and Vinson.) I guess my argument came after Oyama. It must have been after the Oyama argument because, in Oyama, among the arguments that were being made on our side was that the previous cases--the Thompson case and a couple of the other cases in which the United States Supreme Court had upheld the constitutionality of the alien land laws--we asked that they be overruled as not good law. So Vinson, I remember, said, "You heard the argument just before you in the Oyama case."

"Yes, sir."

"And you heard the counsel arguing for us to overrule previous decisions of this Court. That's a very big thing to ask the Court to do: to overrule previous decisions."

And Vinson said, "Well how many cases do you want us to overrule?"

And I said, "As many as may be necessary, Your Honor." [laughter]

That's about all I remember.


I get the impression that the alien fishing rights cases with the Japanese were fairly closely related. Certainly they took place around the same period of time. What do you recall about your involvement in those?


Well, the concept there was the same. During the war, when the Japanese had been evacuated, the California legislature passed a statute making it illegal for Japanese--their terminology was again aliens-ineligible-to-citizenship--to have commercial fishing licenses. But they started out much more crudely. The first draft of the legislation read: "Alien Japanese cannot have fishing licenses," just blatantly, just like that. Then somebody pointed out, "Well, that'll probably be declared unconstitutional. You can't just single out people by name and say that they can't have a fishing license or any other benefit." So they changed it. They crossed out the word--You've seen the way legislation comes down: the words would say "alien Japanese," and so they'd cross out "Japanese" and it came out "aliens-ineligible-to-citizenship." Well, of course, the only "aliens-ineligible-to-citizenship"

who had commercial fishing licenses in any number at that time were the Japanese and that's who it was directed against during the war. So the Supreme Court didn't have much trouble with that one.

I don't know if Acheson argued that or not; I can't remember that. I know Al argued, surely. I did not argue it. I just helped on the brief with that one. But that was held unconstitutional outright as a violation of equal protection. They didn't have to go through this presumption business or anything like that.


In the February 21, 1948, Open Forum, there's mention that U.S. Attorney Tom [C.] Clark entered the fishing [rights] case on the side of the Japanese. Do you recall the circumstances of that?


Yes, that's right. The government of the United States--I don't remember how it came about-- The attorney general it said?


U.S. Attorney Tom Clark it says.


Well, that's a mistake. Clark was attorney general. It's strange that he should-- Ordinarily, when the United States enters a case in the United States Supreme Court, the solicitor general handles it. Yes, I remember they were on our side, and that's interesting. The government is still doing that. You know, they're appearing in cases. Only now the philosophy has changed,

apparently. Whereas in those days when the government entered it tried to apparently enter on the side of those who needed their help, those who were being downtrodden, those whose rights were being denied, right now the government is entering cases against those whose rights are being denied. I'm talking about the two desegregation cases that are before the Supreme Court now. The government has filed amicus curiae briefs against the minority school children.


This situation struck me as odd because my understanding of Tom Clark was that he was quite a conservative, perhaps even right-wing, attorney.


Well, he was conservative, and he was attorney general, as I recall, part of the time during the war. Now, Biddle was part of the time, but I think Clark came along in there. Of course, later on when he became a justice, he was, generally speaking, on the conservative side--much different from his son Ramsey, you know, who's practicing law in New York now. Well, did you say that the Forum says that the government entered the Oyama case or the Takahashi case?


Well, it refers to the alien fishing [rights] case.


All right, that's Takahashi. As I say, that case was much easier than the alien land [law] case because it

was so blatant. I mean, here are these Japanese who had commercial fishing licenses for years and years, and boom! they were just cut out, just like that. As I say, the legislative history made it so very clear that it was racial that the court couldn't very well have held the other way--although in Oyama, as I now remember, Justice Jackson (I think I mentioned this earlier when we were talking about when I was in Europe during the war) I think voted against us. That hurt us considerably. We had thought surely we had Justice Jackson after what he had gone through in Nuremberg and saw how terrible racial legislation is. But my memory is that he voted against us on that one.


You did mention that once. Fred, earlier you had mentioned to me, continuing with the discussion of some of the cases during the late forties that you were apparently involved in, that you had worked on the case of the strike of the conscientious objectors in a camp in Glendora, California. [Civilian Public Service Camp No. 76]


That was really fascinating. There was a camp in Glendora-- I forget what they called them during the war, but they were camps to which conscientious objectors who were recognized as such under the Selective Service Act were sent to do work of national importance under civilian direction. That was what the law said: If a person were

a conscientious objector by reason of religious training and belief, he could be given a conscientious objector classification, which would be 4-D I think--4-E was a minister; 4-D I think was conscientious objector. Then he would have to do work of national importance under civilian direction. And those who were taking care of this thought that a camp up in the mountains doing forestation and so on would be a fulfillment of that provision of the law.

The only problem was that these camps were run by military people. They were really run by the military. This happened just as I got back, I think, in 1946. Eighty of the persons who were there--they were recognized as conscientious objectors; they fulfilled all the requirements of the law--went on strike, the main reason being that they were not under civilian direction, that they were under military direction. Of course, part of the philosophy of some conscientious objectors is inability to participate with the military because of what the military stands for. There were other gripes, but the main problem was that they were under military and not civilian direction. So they were prosecuted under the Selective Service Act for failing to perform a duty required by the act, namely, to perform work of national importance.

So we raised all kinds of arguments: slavery and all that sort of thing. That didn't work. These were

remarkable people, these young men, who really stuck their neck out. They could be convicted of felonies and go to prison for long periods of time.


Do you recall any of their names?


One was [Howard] Goldstein; one was-- Oh, gee, I can see a couple of their faces. I can't think of any others. [See Atherton v. United States, 176 F.2d 835 (1949) --Ed.] I remember him because I came in contact with him years later. They tried, with great acumen and very skillfully, to get the government to drop the case. While the case was pending in the district court here in Los Angeles, they had delegations go back to the Department of Justice. They got public opinion to get in on their side. Then, when a decision had to be made, usually they'd come to almost a unanimous decision as to what had to be done concerning the litigation or so on, but there would be eighty different reasons why. They were all individualists. Eighty might be an exaggeration, but pretty close. They each had their own different logic.

Finally, the government--James [M.] Carter was the United States attorney at that time, and James Carter had worked for the ACLU years before and had a reputation of being a liberal person--said it was going to dismiss sixty of the cases and just prosecute what he called the ringleaders of this strike. Well, so there had to be a meeting

of all the defendants, and the sixty whose cases were being dismissed said, "We will not permit this. They either have to dismiss against all or none. And we want to go to trial if they don't dismiss because we're no better than they are. There are no ringleaders, and we're all in this same boat together."

So we were instructed--Al and I were their counsel--to oppose the motion to dismiss the sixty. Well, that's unheard of. Whoever heard of, first, a defendant or his lawyer opposing a motion of the government to dismiss. This was with no strings attached. Sometimes the government wants to dismiss if you make a statement of probable cause, so that you won't sue later. There were no strings attached. Sixty of them were to be dismissed.

James Carter himself, the United States attorney, handled the case--a very important case. He stands up in front of the judge--gee, I can't remember his name. [He was a] venerable gentleman from Arizona--very old. I think he was a retired judge who was sitting temporarily just for this case. [David W. Ling] "Your Honor, the government moves to dismiss," and then he gives all the names. Well, the judge is very happy, very pleased. It sounds pretty good: get rid of sixty cases, only have twenty to try.

Al gets up and says, "Your Honor, the defendants oppose the motion to dismiss."


The judge looks over, "The defendants what?"

"The defendants oppose the motion to dismiss."

"But I've never heard of such a thing! For what reason? What are your grounds?"

"Well, Your Honor, there is a basis for the dismissal. All the cases should be dismissed because this indictment is not a good indictment. But if any are to be dismissed, then all should be dismissed, because they're all in the same boat together. These defendants so tell me."

"Well," the judge says, "Motion granted." So the sixty were dismissed, and then the other twenty were tried thereafter.

Well, there wasn't much of a trial. They each got up and explained why they wanted to do this. I mean, we made a substantial legal argument. When it says, "perform work of national importance under civilian direction," the government should be taken at its word. "Civilian" means "civilian." It doesn't mean a colonel in the United States Army, especially for conscientious objectors. Well, our arguments did not prevail upon this very nice judge. Then it came time for sentencing. Let me see if I can remember the technical part of the way this sentence worked.


Tape Number: VIII

Side One
(March 9, 1982)


I don't know if I can remember the technical feature of the sentence. It seems to me that the judge sentenced each defendant to a year and one day. Now, that made it a felony. I'm not sure under the statute as it read he could have done anything else. But he suspended the necessity to serve time. Now, there's something about the one day in there. Oh, he sentenced them to a year and a day, but the sentence-- In those times--and it still may be true on the federal side--you could elect to start serving your sentence even though you started to appeal. So he suspended a year of it, or something like that, and put them on probation. Or he suspended the whole thing, put them on probation for a very short period of time, and then we took an appeal. And we lost the appeal. The court of appeals ruled against us. But by that time all the individuals had served their sentences, so that although their convictions had been affirmed, none of them had to go to jail.

As I say, I'm so sorry I can't remember how the judge did it, but he was very sympathetic and gave them this kind of a sentence. Of course, they all had the mark on their records from then on as having been convicted of a felony, and that's not much fun for a person to have later in life.

But they didn't have to be incarcerated. It was really kind of an interesting situation, mainly because these young men were really of the highest caliber. I mean, they were super, from all over the country, and they knew exactly what they wanted. They were all, of course, opposed to war as such, and, as I say, they had the courage which others, whose names I will not mention, did not have at the time. Oh, I just remembered the judge's name. It was David Ling.

Second Part (March 13, 1982)


Fred, just before we began today, you mentioned some other cases to me involving citizenship of Japanese people that you were very heavily involved in after the wars.


Yes. Almost immediately after I came back--let's see, I came back in 1946--very soon thereafter, I got involved in many, many cases involving Japanese persons who were American citizens, to whom the United States government said they had lost their citizenship by reason of acts that they performed in Japan during and after World War II. Many Japanese young people who were born in the United States were sent by their families to Japan as part of their education, usually after they graduated high school. There were many of those. Some even went earlier. Those who went earlier sometimes went very early in their lives,

even as early as grammar school. They generally were known as kibei, which is the term for persons who, though American-born citizens of Japanese descent, went to Japan at a very early time and didn't grow up as American citizens. But also there were many who went, as I say, later in life to get further education.

For whatever reason, they went. Hundreds and perhaps thousands of Japanese persons who were American citizens were caught in Japan at the time of the outbreak of World War II and were unable to come back to the United States until they tried after the war was over. Lots of things happened to them, as one can imagaine. Being, for many of them, in a foreign country, they had no place to turn. They had no American diplomatic representation. So a number of things happened. For one, as was the case in the United States, all males--I don't know what the age was; I can't remember--were subject to being drafted into the Japanese army. The only difference was that under Japanese law one did not have the right to opt out as we had under United States law. Under United States law, if you're an alien you're subject to being drafted--that is, when we had the draft law--but if you want to claim exemption from being drafted on the ground that you're not an American citizen, you may do so. But the penalty is that never can

you become a United States citizen after that. There was no such option in Japan.

Moreover, these persons who were of Japanese ancestry and American citizens were also Japanese citizens under Japanese law. Now, in Japan during the war, certainly, one who received a notice to report to the army did not refuse to go. We had many cases involving the circumstances and the atmosphere in Japan. There wasn't any such thing as a conscientious objector. And, as I say, one just went. If one didn't go, one's life was in absolute danger. So I don't know of any persons who didn't go. I'm sure there might be some who were successful in simply hiding out, but I don't know of any. So, many, many young men were drafted into the Japanese army and served.

After the war most of those people who had their roots here in the United States--kibei, as well as just the nisei, the second-generation Japanese--applied to the American consulates and the American embassy to come back to the United States. They were told automatically if they served in the Japanese army, they had lost their citizenship under a provision of United States law.

Similarly, during the war and even after--these cases were during the war, I would suppose--many women, young girls, who were in the same category served as school- teachers in Japan. The government of the United States

took the position that they too had lost their United States citizenship and wouldn't be allowed to come back, under a provision of the law which said that if you worked for a foreign government and had to have the citizenship of that foreign government in order to work for that foreign government, you lost your United States citizenship. We had cases involving that. I'll sort of describe a little bit later on what happened to them.

After the war the occupation forces under General [Douglas] MacArthur put on a tremendous campaign towards democratization of Japan. You may remember that we in effect wrote the Japanese constitution--it was a very liberal constitution. Among the things that MacArthur tried very hard was to get people to vote in Japanese elections, and many, many people did vote. The turnout was something like 98 percent. This was after the war. And when these persons, who were American citizens who were in Japan, as I have described, and were still there, voted in those elections, the United States government took the position that they too had lost their citizenship and would not allow them to come back to the United States. They were issued certificates of loss of citizenship.

We were asked to represent just a large number of them, and I did that. We filed dozens and dozens of lawsuits. We had to file individual lawsuits for each one,

as distinguished from the renunciation case (the main one of which I mentioned was filed in San Francisco and which covered sort of the class, with some individual suits which we filed). So we had to, in each instance, prove factually that these individuals should not lose their citizenship. We would file the lawsuits, and under the law we were able to get the persons to come here. They came on a temporary basis. They were admitted for the purpose of their lawsuits so that they could testify in front of the judges. We had many cases. We had cases here in Los Angeles, in Hawaii, in San Francisco, in Portland. I went to all those places. I can't remember whether we had any in Seattle. We must have because I went up there one time, but I guess just to assist other attorneys. I can't remember trying any cases in Seattle.

Well, we were able to convince the court in almost every instance, as far as those young men who were drafted into the Japanese army, that they did not do so voluntarily, certainly did not do so for the purpose of losing their United States citizenship, and that their action was coerced. Therefore, under general principles of law, if one does an act which is involuntary, he or she is not responsible or isn't required to suffer the consequences of that involuntary act, and the courts almost invariably restored the citizenship to those young men. There was one

exception involving a young man by the name of [Mitsugi] Nishikawa--I can't remember his first name--and that case went to the United States Supreme Court [Nishikawa v. Dulles, 352 U.S. 907 (1956), 354 U.S. 935 (1957) --Ed.]. The Supreme Court of the United States reversed the judgments of the lower courts which had refused to allow him to have his citizenship back and laid down some very good law: in effect, that when a person is drafted under those circumstances, there's a presumption of involuntary conduct and the government has to come forward and show that in this particular case this individual did so voluntarily out of eagerness to serve the Japanese emperor or whatever, or eagerness to lose his United States citizenship. So that was a very satisfying United States Supreme Court decision, which I argued.


You argued that one?


Yes. Well, as I remember now, it may have been argued two times: once by Al and once by me. I can't remember why it was reargument, but that's my recollection--that it was argued twice.


Were there some special circumstances in the Nishikawa case that cause that particular one to be an exception?


No, I don't think so. But we just happened to draw a judge who didn't feel that there were coercive

circumstances, and the court of appeals affirmed it. So we had to take it on. Now, with regard to, first, the teacher cases, I don't know of any of those cases that had to be appealed. The courts did agree eventually, and then all the courts sort of started following one another, that one did not have to be a citizen of Japan in order to work in those capacities and therefore the act was not expatriating.

We had a lot of fun in all of those cases from the standpoint of lawyering. We had to get all the Japanese law, and we had to get publications that were put out by--in the case of the election cases, which I haven't described yet--the American government, to show the circumstances there. It was a very interesting bit of litigation. It took up almost all of my time for several years. There were just a lot of cases. And these were not ACLU cases. Those are the cases, really, that paid our overhead for a long time. We got paid, not munificently but adequately, for the representation by the various persons who filed these lawsuits.

In the election cases, as I say, there's a provision in the United States Immigration Code that if one votes in an election in a foreign state, he or she loses his United States citizenship. We were able to convince the courts-- I'm trying to think if one of those went to the United

States Supreme Court; I can't remember now--by and large, almost every one, that the circumstances were coercive. All kinds of things happened: rumors just flew far and wide. This was sort of a new experience for the Japanese--the idea of voting, having democracy. Rumors would fly that if you didn't vote, you would lose your ration cards for your ration. Well, if you lost your ration cards in Japan after the war, you were in lots of trouble because food was rationed and was very scarce. And, as I say, the government of the United States through General MacArthur and the armed forces put on a tremendous campaign, with a show of military force--not to shoot people if they didn't vote, but everybody knew the United States Army wanted you to vote. So you just didn't refuse to vote, whether you were an American citizen or not. So, as I say, lots of them did that, but the courts restored their citizenship as well.

That whole experience, representing a large number of individual Japanese, was most gratifying. One of them--I think it must have been one of the renunciants, to go back to the others--a family--Kiyama I think was their name--every year on Christmas, oh, I think for fifteen years, sent me a plant, just out of gratitude that they were able to maintain their residence here in the United States. That's just one instance.


And, as I indicated before we started the session here, we had received so very many letters from the people of Japan, Japanese persons who were American citizens, asking what could be done, that it became very difficult to really gather the information here; so I took a trip to Japan in the early fifties and stayed there a month. I traveled around in Japan with a Japanese lawyer whose last name is Ishii, interviewing these various persons and getting the individual facts of their particular cases so that we were able to file the complaints when I got back to the United States.


Did Mimi go with you on that?


No, she didn't. Just as an aside on that, apropos to your question, one time we had a series of cases in Honolulu that had been set up--I don't know, maybe a dozen of them--and Mimi was in the office one day and saw the ticket. She hadn't known about it ahead of time. I guess it had just been arranged. I don't know why I didn't tell her. I can't think why she wouldn't know. But, anyway, there was my ticket to go to Honolulu on the desk. She happened to see it, and so she got on the phone to see how much a ticket would cost for her and for the kids to go too. It was too much money. [laughter] She didn't go. It would have been nice had she been there during that time

because I was lonely as the dickens. It was about three weeks that these trials lasted.

No, I traveled to Japan alone. Of course, it was the first time I'd been to Japan. I was very excited. Japan Air Lines had just started. I was on one of the first planes. There were not yet Japanese pilots. They were learning to fly the planes. The planes were flown by American pilots and the Japanese were learning. A year or so later, of course, the Americans left and JAL--Japan Air Lines--took over their own operations. It was a delighful experience. The women on the plane wore kimonos, and I remember one little pamphlet they gave us called Parlezvous Japanese?. It told you a few phrases so that you'd get along there.

I had kind of a fun experience one time in Japan: I was sitting in the lobby of the Maranouchi Hotel, which was the hotel I stayed at. They had television in the lobby, but we didn't have any--in my room, anyway. There were Japanese commercials and Japanese programs, and there was a young, white Caucasian boy sitting in the next chair watching. We struck up a conversation, and it turned out to be Dave Roberts. I didn't know him before, but he is the nephew of my brother-in-law. As I say, I hadn't met him before, but a letter was on the way for him to look me up when I got there. He was stationed in the navy over

there, and of course when we got back we became very good friends and I see him quite regularly now.

Well, to describe what happened in Japan: whenever someone would come to see you at the hotel, they would come with their little bandana. Everybody--men and women--has a bandana in which they carry their belongings. You know, you carry books, you carry lunch, you carry-- I guess the women carry cosmetics and the men wallets or whatever. They have their little bandana and invariably some little gift--just something. They come and they give you something when they come to visit you.

Of course, always with the men--not with the women, as I recall--[there is] the exchange of cards. I had taken with me, when I went to Japan on this trip, a few of my business cards. I figured I'd give them out to-- I almost never use cards here. So I had a few with me, but immediately I was out of cards because one of the first things you do when you meet somebody is they hand you a card. I mean, its just like a handshake and a card. Of course, the Japanese themselves don't shake hands; they bow. I got into the custom too: you bow and you give a card. The custom over there, at least for the Americans, is that the inscription is on both sides of the card: one in Japanese and one in English. So I have cards that have my name, Fred Okrand, in Japanese, bengoshi, "lawyer," and my

address at that time, 257 South Spring. Well, so much for that. We won't dwell too much on it.


Let me ask you a few questions about the circumstances of the cases and so on. You mentioned that rumors were flying around, for example, that if you didn't vote, in the postwar period there, you would lose your ration card.




Did you uncover some evidence in these lawsuits that the army itself was responsible for these rumors? What kind of information was developed about that?


You can't put your finger on how the rumors started. The army made it very clear: "We want you to vote." Now, if you were to ask General MacArthur, for example, or if you were to ask-- There was a wonderful lawyer in the headquarters at that time, Tom Blakemore, who is still in Japan practicing law. He was there also during the war. Or did he go over after? He was in MacArthur's headquarters. If you were to ask him, "Did the army give the impression of coercion?" "Of course not," [he would say]. But one has to understand that here was a country that had just been defeated, just had two atomic bombs dropped on them, two of them. They were a beaten country, and the army of this foreign nation was there. It put on this tremendous drive, great propaganda, to get people to

vote. They made it very clear that that was what was expected of them. And one simply did not disobey authority. That was a Japanese trait anyway, which they had learned and had been steeped in before the war. That's one of the things that happened to Japan. They were so authoritarian-minded, in the sense that they followed authority, that it would be unthinkable for them not to follow that kind of instruction.

Now, I'm sure those rumors or those statements that were circulated were not made by the army. But they were circulated widely in the newspapers and mouth-to-mouth in the neighborhoods by the people. That was easily proven in the courts. But, no, I don't think we can put the finger on our government. What we can say is-- Of course, the purposes were absolutely good: they just wanted the people to get started in this idea of voting for candidates and so on. They had no idea that it would be taken that way. Of course, our other defense in the case was that to take away citizenship from a citizen of the United States without his or her desire to have that taken away would be an unconstitutional act. We never had to get to that because of these factual circumstances.


But, just to pursue the question of the army's role a little further, I would assume that someone would have had to compare the voter rolls with the list of people

who were applying to come back to the U.S. and be citizens, in order for that to have been used as a reason. Was there any indication of just how that happened?


No, no. That isn't the way it worked. Oh, you mean, to know whether or not they had voted?


Right. In other words, if the fact that they had voted was being used as a reason--


Well, you see, on your passport application--even one that you were to go down to get now; I think they still have that kind of a-- I think it's in a statement form: "I swear that I have not served in an army of a foreign state. I have not served in government employment." That's all on the form, and these people--they didn't lie--would have to say: "No, I voted," or "I was in the army," or "I taught," or whatever. So that's how that information was uncovered. There was no surveillance that I know of to ferret people out. It just came out; that's all. [laughter]


Perhaps my paranoid 1980s mind. [laughter]


No, as I say, it's on the form even today. Oh, let me tell you one more thing about Japan.


Yes. Please.


There weren't too many Americans traveling in Japan at that time, and Mr. Ishii was a prominent lawyer in Tokyo. Whenever we'd come into town, it would just be

known that we were there and what our purpose was: to help anybody who wanted to get his citizenship back.

I want to tell you about two little incidents. I don't know what city I was in. It wasn't Hiroshima and I didn't get down to Nagasaki. Anyway, we traveled to a number of cities. I got a call on the telephone, and usually Mr. Ishii would answer. We shared the room. Mr. Ishii would answer the phone, "Moshi-moshi," s"Hello." This time, however, he was out. He just happened to be gone, and I picked up the phone, "Moshi-moshi." You know, that was in my Parlez-vous Japanese? book. [laughter] And I hear, in just the most perfect English, "Is this the Freddy Okrand who went to Roosevelt High School in Los Angeles?"

"Yes, it is. Who's this?"

"This is--" Oh, I had his name on my tongue just a minute ago. It's not Johnny Yamazaki; he was the minister. Oh, I can't think of it! Anyway, this was someone with whom I'd gone to school at Roosevelt High, and I remembered the name and I remembered him.

"What are you doing here?"

And he said, "I live here." And then he said, "What are you doing here?"

And I told him what I was doing, and I said, "Come on over."


So he did come over and we had a grand reunion. Gee, I wish I could think of his name.

What had happened was--and this is interesting how each family, each person is a human being; each person is different. His first name was Johnny; this I remember. "What are you doing here?"

He said, "Well, when I graduated junior high school, my father, who had come to the United States, wasn't able to become a citizen." Even then, because the law that allowed the Japanese to become citizens was passed in 1952, just about at that time. "My father wanted me to go to Japan to live; I didn't want to go, and I begged him to let me stay and at least finish high school." So his dad let him do that, and that's how we met in high school. "But after I finished high school, my father insisted that I go to Japan and live there. So, of course, I went to Japan." He was a minor at the time he got out of high school, and he went. Now, this was before-- How could it have been before the war? That's right. Just before the war, and there he was during the war.

I guess he was always hoping to come back, but he never did and he lived in Japan. He said, "My father and mother arranged a marriage for me, just in the typical old Japanese fashion. I am married to the same woman and I love her. I hadn't met her before. They arranged it. And

here I am." He was prosperous, he was doing well, which was quite an experience. Now, I don't think that was typical. Most of them tried to get back and did come back in one way or another. Johnny didn't. Maybe before we're through I'll remember his name. He was there.


Tape Number: VIII, Side Two
(March 13, 1982)


Another experience I had while I was there--not in the same city but in another city--I met the person who was our plaintiff in the suit that we filed just before I went away to World War II, challenging the constitutionality of the Japanese evacuation. Did we go into that in our other session?


Yes, to some extent.


OK. What was his name? Wakayama?


Ernest Wakayama. You met him in Japan?


I met him in Japan. He was one of those who had gone to Japan and was living there. He was a prosperous businessman representing American interests. So he'd lived there.


He came out of it OK.


Well, he went back.


In a sense.


Well, I don't know whether he ever longed to come back to the United States or not. He never tried I assume, because he would have probably gotten in touch with us. But it was interesting. Here you are in a foreign country, never been there, and you meet people whom you had met before. So much for those cases. We can go longer, but that's enough of that.


Well, actually, I wanted to ask you just a couple more things. First of all, you mentioned that you were asked--I take it by "you," you mean you and Al primarily-to represent these people. Did they come to you as individuals, or was there a group or organization that came to you? How did you get the cases?


There was no organization. I mean, the Japanese American Citizens League was in existence, of course, and they were interested in having citizenship restored to them. But there was no organization. People would just come. I mean, this is the way some law practices are developed. You have one case that becomes known in the community, and other persons who have similar cases start coming. Of course, the Japanese press--the Rafu Shimpo, for the most part, and there were a couple of others; I don't know if they're still in existence--would cover the cases and report them as they were decided. And they would go in the other Japanese papers all up and down the coast.

It became known that I-- I tried those cases for the most part. Al certainly didn't try many. I'm not sure he tried any of those, what we called strandee cases: those persons who were stranded in Japan. I really did virtually all of that work. So that's how the cases came. Now, how the first case came in I don't know. I would assume [it was] because of Al's reputation in the Japanese community.

He had, you remember, handled the Oyama case, the Japanese Alien Land Law case, the Japanese fishing rights case. When I got back in 1946 we just had a lot of Japanese clients.

One case I remember--a tragic, tragic case--involved a large number of persons who had businesses on Terminal Island here in Los Angeles. I'll digress and tell you a little bit about those. Terminal Island was owned by the city of Los Angeles and is controlled by the [Board of] Harbor Commission[ers of the City of Los Angeles]. Many of the alien Japanese had businesses on Terminal Island for years, thirty, forty years, perhaps even longer. They never had a written agreement for their tenancy. They always were there simply on a month-to-month basis, year after year after year. Some younger Japanese, as they came along and as the older folks died out, took over those businesses and, I guess, were a little more used to business ways. Some of them insisted on having lease agreements with the city of Los Angeles. And so they'd have a lease agreement.

Well, when the war came the navy evacuated everybody from Terminal Island. Everybody had to go. They lost all their businesses, lost their physical possessions and everything. Then, under our Fifth Amendment, we being the country we are, the government filed condemnation

proceedings against those who had to leave, whose property was seized for public use. Well, the tragedy of it was that those people who had leases, they were paid the amount of their leasehold: like if they had ten more years to run, there's a leasehold value; you know, there's a market value for a lease. So they would get a substantial amount of money for those. The issei, the old folks who had been there the longest and who were the most established, didn't have these leases, and they were there only on a month-to-month license--not even a tenancy, because they didn't have any real tenancy. They were sort of permittees, in effect. They would only get the value of thirty days' tenancy. And they lost a lot of money.

That was just one other facet that happened, not because they were Japanese--because everybody was evicted from Terminal Island--but it was one other incident that happened to them. I handled that case. It was just finished in the trial court, I guess, when I got back, and I handled the appeal and wrote the brief. I remember the attorney on the other side, Reuben Rosensweig, who was a very vigorous advocate for the government position. He was very sympathetic with the Japanese. In effect, he said he really hoped he'd lost the case, which means he didn't-- Not that he didn't work very hard: he did; he won it, as it turns out.


But it seemed so wrong. And I was never able to explain to our clients and to the Japanese community how it was that these young whippersnappers who came along late in the proceedings were able to get so much money, and the old ones who'd been there and had spent their lives developing a business got so little. But that is the way the law is. It's like if you have the right title on your property when you die, your heirs do well. That was always something that bothered me a great deal, but that's one of the things that happened.


Could you estimate, say, specifically on the citizenship cases, how many you handled during that period of time? Even a rough estimate?


Well, dozens and dozens and dozens. [laughter] I don't know. I have a list of some of them that were reported, and it runs several pages in my notebook. As I say, it occupied my time for two or three years. Well, we did other things too, but it was an important moment in my life. I was gratified that it turned out as well as it did.


You mentioned that these were taken primarily as private cases rather than as ACLU cases.




What, during that period of time at any rate, were the major factors that would determine whether a case would

be an ACLU case or a private case--and specifically in these cases?


That's a conundrum which has never been answered. It couldn't be answered then, and it isn't answerable now. I don't know why. I guess it was just the sheer numbers. You know, hopefully, we take an ACLU case in the hopes that one case will establish a sufficient precedent in the law, [that it will have] a sufficient constitutional impact so that that will be the end of it as far as the ACLU is concerned and other lawyers can take over and handle individuals' cases that come along.

These cases couldn't be handled that way because the government insisted that each case had to be tried separately and because each fact was different. They would try, in their defense, to show that this person didn't act involuntarily, that he really wanted to lose his United States citizenship or really wanted to be in the army or whatever it was. So it wasn't the kind of case that we could take one case and that would be the end of it-- although sometimes it was just a matter of sheer economics. The ACLU had to let us have some cases in which we got fees, otherwise we couldn't have survived. [laughter]


Just on that, I seem to recall something--and now I can't remember what the specifics were--either you said to me earlier or whatever, about some cases that Al may

have taken or that you may have taken that may have created some conflict with the ACLU or the public image of the ACLU?


Oh, well, for instance, the communist cases here in Los Angeles. The cases where--I don't know how many there were: ten or twelve-- Slim Connelly was one, Dorothy Healey was one--


The Smith Act cases.


The Smith Act cases. The ACLU and the clients themselves didn't want those cases to be ACLU cases. The clients wanted to have individual representation, and there were lots of lawyers involved. Al represented one or more of those defendants. Well, of course, the whole defense was a constitutional defense, and it was a whole defense in which the ACLU was sympathetic and in which it filed amicus curiae briefs and so on. Try as much as Al would, and as much as we tried to let the media understand that this was a private case, it just didn't seep that way through the press. There was no conflict with the ACLU, but the public thought that these were ACLU cases.

There was no conflict, though, in that sense. But it was very difficult, and even now-- Well, now there's no difficulty because I'm not in private practice; but before I came to the ACLU full time, no matter what case I took, the press would think it's an ACLU case, and I had to over

and over again say, "Hey, we got to pay rent, you know. So I take one case once in a while." But it was very difficult.


Well, just picking up on the question of the Smith Act cases for a moment--and perhaps we can return to them very soon--given the constitution of the ACLU board at that time and the constitutional issues that were involved in the Smith Act cases, would that board have been adverse to having those be formally ACLU cases? What was the thinking at that time?


Well, I'm not sure that it had the opportunity, as I say. The individuals wanted to be privately represented. I don't think they would have been adverse. The ACLU at that time, here in Southern California, was very prestigious, in one sense, but very small--and with limited financial ability. I don't think they could have carried the cases as ACLU cases. You know, when the ACLU takes a case now--and then too--it takes a case and takes care of the finances and that sort of thing. I don't think they could have done it. They couldn't have handled the Smith Act cases as ACLU cases.

I don't think there was any disagreement that they were civil liberties cases, that the Smith Act was unconstitutional. The ACLU had taken that position when it was passed in 1940 and had adhered to it all the way through.

The adversity would simply be in the politics of the thing. That is, the clients didn't want it, and we didn't have the money to do it.


Well, while we're on the subject, perhaps we might as well go on and talk about your recollections of your own role in those cases. To what extent were you involved in them?


Not very much. Not very much. I was doing other things at the time, and Al participated in the trial of the Los Angeles Smith Act cases and in the Honolulu Smith Act cases. Those are the two that he participated in. Of course, while Al was in Honolulu on those cases--he was away for months--I was in the office handling what ACLU work I could and whatever paying clients there were. I didn't do very much on those cases. I remember I got a phone call from Al from Honolulu asking me to look up something. I'm sure from time to time I did some briefing or something like that.


Right. Your names are on a couple of the briefs.


Well, I'm sure I did that. But I did not try any of the cases.


Now, one other very important area that I understand you were involved in, again during the late forties, was the restrictive covenant cases.




This is certainly a not well enough known area of California history.


When I came back in '46 there were a large number of restrictive convenant cases in the courts. Some of them were already up in the appellate courts of California; others we filed ourselves in the trial courts. I remember Amer.


Tom Amer.


Tom Amer. Another named Kim.


Yin Kim.


Yin Kim. Now, those were Koreans. Amer, I remember especially, wanted to move into a house near Western [Avenue] and maybe Pico [Boulevard]. I'm not sure. Pico or Tenth [Olympic Boulevard]--Venice [Boulevard] maybe--a very lovely house. It was a beautiful neighborhood which was slowly becoming non-Caucasian. He was a doctor, as I remember--wonderful person, wonderful family. And, of course, the restrictive covenant was on the property, and cases were filed against him to prevent him from moving in. We, of course, took the position that the courts had no authority to enforce those restrictive covenants because it would be a violation of the Fourteenth Amendment (right to due process of law and equal protection).


They were difficult cases on the surface because there was theoretically no state action involved. All that was happening was that private people were trying to enforce a private contract. Now, it wasn't unusual in the law for a court to refuse to enforce a private contract if it were against public policy, if there was something that was unconscionable about it in the court's view. That is nothing unusual in law. It wasn't at that time. But it was unheard of in the law for a private person's conduct to be challenged on the basis that it was unconstitutional. Of course, then the unconstitutionality consisted of the court enforcing the contract. That was the state action that we argued, and eventually it was successful in the United States Supreme Court.

I don't know how many cases there were. As I say, there were a number of them in the California Supreme Court. But also at the same time cases were before the United States Supreme Court, and the California cases were sort of held in abeyance while the United States Supreme Court decided the Shelley v. Kraemer case. We filed a brief in Shelley.

You asked me earlier, how did we get the Japanese cases. There was a law firm here in Los Angeles that was handling all of the restrictive convenant cases for the owners. I mean, they just happened to get that kind of

business. As I say, that's the way law practices are developed.


Which law firm was it?


I don't remember the name of the law firm, but the lawyers were [Ray C.] Eberhard--his last name was Eberhard --and his daughter, Betty [Elisabeth Eberhard] Zeigler, at that time, with whom I went to law school. And that's what they did. They were representing just a large number of landlords and were filing cases all over the place to try to get enforcement of the restrictive covenants. They participated in the United States Supreme Court cases; they maybe even had one of those. At the time of Shelley there were a number of other restrictive covenant cases that came up to the United States Supreme Court.


The NAACP brought cases, according to the record, in Michigan and Missouri and Washington, D. C.


Yes, and the District of Columbia. [McGhee] v. Sipes was the District of Columbia case. Those cases, of course, are of tremendous importance in the law. To the extent that we have diversified housing--to the little extent that we have it--it's largely due to those cases, because with restrictive covenants on the land, you just couldn't break down ghettos. There was just no way to do it.


Incidentally, I got a call not too long ago--maybe six months ago--from Tom Amer's son, who had some little problem, I don't know what it was. But he reminded me that he was a little boy at the time that this happened. It's always fun to have someone call like that, with whom you've done something. The Amer case actually didn't set any precedent of any kind because everything was waiting on Shelley v. Kraemer and the related cases. Then when those came down the California Supreme Court ruled likewise. They had earlier continued to sustain the validity of-- Just before the case was decided by the United States Supreme Court, and even before they held their cases in abeyance, they had okayed a couple of cases involving restrictive covenants and said that they were still valid and could be enforced.

After those cases, then along came Barrows v. Jackson, and that created quite a controversy in legal circles. That case was handled by Loren Miller, who used to be on the board of the ACLU--a very prominent black judge, prominent in the restrictive covenant cases, prominent in the Brown v. Board of Education desegregation case. We participated with him. The significance of Barrows was this. The restrictive covenant cases, by and large--well, here, anyway--were certainly brought this way. I can't remember the Michigan and the District of Columbia cases:

how those arose, the posture. But here the landlord would bring a lawsuit trying to get an injunction against allowing a non-Caucasian to move into property which he or she [the non-Caucasian] owned.

The argument was made that "we're entitled to this injunction because that's what the covenant says; and not allowing this non-Caucasian to move in is the only relief that will really afford us the benefit of our contract. Damages will not be adequate because, if they move in, you've defeated the whole purpose of the restrictive covenant." But the courts said, "No, we're not going to issue this injunction--" That is, they [said this] when the United States Supreme Court decided Shelley v. Kraemer.

Following Shelley, the landlords, or the real estate interests, Eberhard still, and Betty Zeigler (she's still on the bench; she later was appointed a judge and is still on the bench here around Los Angeles, but I think I saw something that she might be retiring) brought an action in court and said, "Well, OK, we lost on our injunction. You allowed this contract to be broken, in effect. Now we want damages. I mean, we have a contract which you say we can't enforce because the courts aren't going to keep a person out of his or her own property. But we certainly had a contract. It wasn't declared illegal. In Shelley v. Kraemer the court went out of its way to say the contract

is not illegal. It just is unenforceable by a state agency because that would violate the Constitution. So now we want the dough." [laughter]

Well, we finally won that one too. The United States Supreme Court said, "No, that would defeat the whole purpose of Shelley v. Kraemer, if damages could be awarded for non-Caucasians moving into their own property."

But that was an important case because it was the first time, actually, that I could think of where a contract which was not illegal was unenforceable, in effect. It simply wasn't enforceable. We participated in that case, and that was terribly important. Had we lost Barrows v. Jackson, Shelley v. Kraemer would have been kind of a Pyrrhic victory because if a person moved into his house but had to pay damages for it, he would hardly really risk it, unless he was very wealthy or whatever. So that was an important case, a real milestone in the law.


You mentioned Loren Miller in regards to all of this. Could you tell me something about your recollections of him?


Well, Loren Miller was an individual par excellence. He was a real human being, a very, very wonderful individual. He was a good lawyer and was able to plan things ahead. He worked hard with Thurgood Marshall planning (Thurgood Marshall is now on the Supreme Court of

the United States) the desegregation fight, and he had an office-- He and Stanley [R.] Malone [Jr.], who is now on the superior court bench, had a law office together on Third and Spring, right across from us, right on the same floor. We could look at each other during the day. Loren's son, Loren Miller, Jr., was in the office at the time. He's now a judge too.

Well, I can't say enough about Loren Miller. When the Japanese evacuation came along--you remember, I told you that we were sort of ostracized--he was the one that I remember who did not ostracize us. I mean, he was right there with us the whole time on that venture. And his wife, Juanita, was just the loveliest lady. He suffered from emphysema and eventually, I guess, died from it. He had a hard time to breathe very often. He was finally appointed to a municipal courtship not too long before he died. Well, that's Loren Miller. I can't say too much about him.


Do you recall much about his role on the ACLU board during the controversies and so on?


Yes. Well, do you mean specifically? He came all the time. He was on the board. It was a very small board, as I remember it. I don't think there were more than ten people on it--or twelve, if that many. It was a very small

board. We used to meet in a room, well, half the size of this one. [laughter] That was our board, whenever we met.


This room being, maybe, nine by fifteen?


It's ten by twenty. So it was half: ten by ten. I don't remember any particular positions as to which there was a controversy. As I say, on the Japanese evacuation question he was a hundred percent with us and one of the very few lawyers who made it known that he was with us. One of the things that happened in Little Tokyo after the Japanese left is a lot of black people moved in, which is, I guess, a phenomenon that happens. One ethnic group moves out and another moves in. I had personal concern, when I saw what was happening, as to what would happen after the war was over--whether the Japanese would be allowed to come back to Little Tokyo. As it turned out, it worked out quite well. I had some worry, I must say, as to what might have happened; but nothing did.


Tape Number: IX, Side One
(March 17, 1982)


Fred, during the 1940s there are a few names that come up again and again in the record, people who were around the ACLU or who were otherwise important to the work of the ACLU in this period of time, and I wanted to see what your recollections were about just a few of these people. One individual, who I know was gone--as far as being executive director--when you came back from the army but did continue his relationship with the ACLU, was Clinton J. Taft.




There is one story that I wanted to ask you about Carey McWilliams and his just-published oral history. He says that Al Wirin and Clinton [J.] Taft didn't always get along too well because Al had a tendency to go off and take cases on his own without checking with Dr. Taft first, although it usually turned out that the cases were good ones to take. He mentioned, in particular, the case of the New Mexico strikers, and that Al went off and defended them at one point. At any rate, I was wondering whether you had any specific recollections to share about Dr. Taft and, in particular, the relationship of your legal office with him during that time.


Well, I personally never had any contact with any friction between Al and Dr. Taft along the lines that you mentioned. My recollections of Dr. Taft are, of course, quite warm. He was indefatigable: he worked very, very hard. He ran, of course, the office all by himself there. There wasn't anybody else in the office, but occasionally there was a part-time secretary.

I do have this understanding: when I came back in 1946 Dr. Taft was no longer the executive director. I understand that in some strange way--I never really knew it; this is all hearsayish, but it was around the talk--Dr. Taft became enamored with some of the fascists at that time, Gerald L. K. Smith and-- Now, just exactly what that was I don't know. I like to think that what was involved was that he stood up for the rights of those individuals to speak and to have their rights recognized. But I get the impression there was more than that--that in some way he had turned. Now, as I say, that is rank hearsay, maybe totally untrue; but in any event, there was, I gather, some unhappiness on the part of everybody when Dr. Taft left.

Dr. Taft, at the time that I had contact with him, lived way out in San Fernando Valley, and we went to visit him on one or two occasions. The San Fernando Valley at that time was really the country, and he lived in a little house way, way back from the road. He had a refrigerator.

I thought that was kind of interesting because it was very, very rural. It really was. He drove in, as I say, every day. When I saw him some years later, he had moved closer in to Los Angeles but still a considerable distance-- Well, I think it was-- No, when he moved in, it was in Van Nuys that he moved to. And he may have lived in Van Nuys when I saw him before. But in his later years it was sort of built up already, although the neighborhood was rather old. He told me that as he grew older and the Valley started growing and traffic became more dense, he found it more and more difficult to drive down to the office. And that was one of the reasons he said he gave up the directorship.

He must be dead by this time, but somehow or other I never did hear when he did die. As I say, he must be gone by this time because he must have been in his seventies at the time that I came back. There are wonderful stories about Dr. Taft: how he really founded the Civil Liberties Union. That is, there was the incident that gave birth to the Civil Liberties Union, namely, the arrest of Upton Sinclair and Hugh Hardyman and [Rev.] Allan Hunter and Haig Prinzmetal for having the temerity to read the Declaration of Independence down in San Pedro one time to dramatize the fact that the strikers, who were peacefully picketing, were being arrested. And that gave birth to the ACLU.


But also around that time, Dr. Taft, as I understand it--this was in the early twenties, of course, and maybe even 1919--every Sunday night at what was then the-- There was an auditorium right next to the Criterion Theater on Wilshire [Boulevard] and Grand [Avenue]. Now there is a huge building there and all that, but I remember the Criterion Theater. Right next to it there was some kind of a hall, and every Sunday night Dr. Taft, so I'm told, presided over what was called Open Forum, at which place people with all kinds of ideas would come and discuss and have a real open-forum meeting. That, of course, is the name of the ACLU publication, and it came from that meeting which Dr. Taft used to chair every Sunday night. I've thought about him many, many times.


Were the open forums still being conducted when you came?


No, no, that was gone. I don't know how they stopped being put on, but they weren't. Of course, at that time, as I say, Dr. Taft was the ACLU, aside from Al, who did the legal work. He was the editor of the Open Forum; that was part of his job. [laughter] He spent a lot of time [on that], as did later executive directors, until actually-- Well, even when Eason Monroe came in 1952, that was one of his main responsibilities. That's no longer the case, as you know.


Then, evidently, Hannah Shields took over after a while?


Well, Hannah Shields, who-- I thought she got married, or was that her married name? Well, she became editor of the Open Forum in later years. That was after Eason Monroe. She was wonderful as an editor. Then she and her husband moved up to Central California, I think, and she gave that up. I forget who came after Hannah. It might have been Ed Cray.

I'm trying to think of Hannah's other name [Bloom]. But she used to tell stories about how, whenever it came time to do her work--she was, I guess, a free-lance writer before--somehow or other the refrigerator needed to be cleaned out and she always found an excuse. Of course she was just talking, but I know that feeling. You've got something to do that you should be doing, but somehow or other some other little physical thing seems to be more important, something you've neglected for a long time, and you go out and do that. Hannah used to tell that story.


Now, in 1945--I guess around November of 1945--Aaron A. Heist took over for Clinton Taft.


Yes. When I came back Dr. Reverend Heist was the executive director. We still had those little offices-- well, they were fairly good-sized rooms; there were two or three rooms--on the fifth floor of the northwest corner of

the Douglas Building, on Third and Spring Street. Reverend Heist was there; he was a Protestant minister. I think he had been from some place like Huntington Park. Dr. Heist did the same thing: the Open Forum was his big responsibility. The Open Forum at that time, when Dr. Heist had it, had all kinds of quotations in it, sayings from Thomas Jefferson and from Emerson, all sorts of things, real words of wisdom. I guess they were good educationally; they didn't say much about what we were doing [laughter] in the Civil Liberties Union. But I recall that was a hallmark of the way Heist wrote the Open Forum.


In what other ways would you compare Heist's tenure as executive director to Clinton Taft's?


Well, Taft's tenure was for many, many years. The ACLU must have been founded in '23, I think, here in Southern California, and Dr. Taft must have left, as you say, in '45. So he was here twenty or twenty-two years. Heist, when he left-- Let's see, was Heist-- I guess he left just before Dr. Monroe came. So he was here only seven years, or maybe even less. For a while, I guess, we didn't have one.

Well, Heist also was just a wonderful gentleman, a real civil libertarian. There was nothing spectacular about him. I don't think he had the charisma that Clinton Taft had. Clinton Taft was very much like Roger Baldwin:

feisty, very vigorous, clear voice. Heist was more, as I say, staid, more proper looking, maybe, and I don't think got as excited, outwardly at least, as Dr. Taft did at the many injustices that were occurring around him. I thought he was a good executive director. As I say, many people didn't think he had fire the way some people think that an executive director ought to have; but, you know, the resources of the Civil Liberties Union at that time were almost nil, and we didn't have a good press. The Los Angeles Times was anything but friendly to the Union and to what it stood for. But Dr. Heist was stalwart in his defense of civil liberties.


Now, you mentioned Roger Baldwin. Did he come out to the West Coast very often, and what were your experiences with him?


As you see, on my wall there is a picture of Roger and me. I can't say enough about Roger Baldwin. I wouldn't say he came out to the coast often. I think he came--and I was simply thrilled--before I went into the service. I can't remember. But I remember the time he came, and I was just awestruck, as was my wife. He didn't change; he literally did not change in all those years--from when I met him in the forties until the last time I saw him. I guess that must have been at our last biennial in Washington, D.C., probably in 1979. Probably in '79 was

the last time I saw him in Washington. He was just as vigorous as all, at least he seemed that way. Now, obviously he wasn't, because he sat quite a bit the last time. But his voice was resonant and loud all the way to the end.

Roger Baldwin was Mr. Civil Liberties; there's no question about it. Of course, lots of things have been written about him. I remember, on a couple of later occasions he said that the Civil Liberties Union is changing, and many times we took positions that he didn't approve of, but he never wavered in his support of the Civil Liberties Union.


Can you give me some examples of some of the positions he might have taken later.


Well, he became quite, quite anticommunist in his later years, and I think he had some doubts about some of the cases that the Civil Liberties Union took. And in later years we branched off into areas which some folks did not consider to be civil-liberties-type questions--poverty questions. We'd stretch things in order to do what we could, and he recognized it. But that didn't make any difference to him. I mean, he and Norman Thomas-- God, when they got together it was just a thrill to see them talk.


While I think about it, let me tell you a little something. This isn't about the personalities, but-- Every year, as you know, the Civil Liberties Union here (and elsewhere in the country) has some kind of Bill of Rights celebration. And in the days of Heist and Taft, we had the same thing. But it was quite different from the way it is now with a big dinner at a hotel somewhere and charged a lot of money. For two or three, maybe four, years--and I can't remember which years they were--we used to have our Bill of Rights celebration at Clifton's cafeteria. What it consisted of was the board of directors, which, as I say, were about a dozen people, going through the line, getting their food, and going up to the balcony at some table someplace and talking. That was our Bill of Rights celebration. Of course, the meal was probably a dollar or a dollar and a half. Mimi and I used to go to those, and we were actually the kids. Everybody else was, it seemed to us, ancient--much, much older than we were.

One year, I remember, we had a Bill of Rights celebration at the Embassy Auditorium, but not the auditorium of the Embassy that you might think of when you think of the Embassy Auditorium, which is still here in Los Angeles on Grand Avenue. [It was] in a little, tiny room of the Embassy Auditorium, in the basement, where you went down-- The room probably held fifty people total, and I don't

think there were twenty people there, on the whole. That was that celebration.

Those very small Bill of Rights-type things happened even after Eason Monroe came, because, I remember, every now and then Mimi and Vivian Monroe, whenever we meet her at the big Bill of Rights dinner, say its a far cry from Clifton's cafeteria. She remembers that, too. Oh, yes, they were really not very much, but it was important to celebrate the Bill of Rights. I mean, December 15 is an important day.


So you've come a long way now that they're held at the Ambassador Hotel with stars and celebrities.


Yes, it's quite different. It's really totally different. I don't know whether we accomplish any more civil-liberties-wise, but more people know about it. Obviously, it's much better. You get newspaper coverage, and you try to spread the word of the Bill of Rights. That's the name of the ball game.


Now, another individual who figures prominently in a number of cases that were being decided in Los Angeles at this time was Judge Leon [R.] Yankwich. Do you know some things about him?


Yes, but I don't recall him, certainly, as a participant with the ACLU in any cases. When I became acquainted with Judge Yankwich, he was already a federal

judge. I don't know, did I mention the Hardyman v. Collins case? You remember that before, where we got reversed?


I believe you mentioned it, yes.


That was Judge Yankwich who was the judge in that. Yes, that was the one where the Legionnaires had broken up a meeting in La Crescenta where people were talking about the Marshall Plan. We sued under the civil rights [statute] for damages, and Judge Yankwich said we had to have state action.

As I say, Judge Yankwich was a scholar. I had some occasions to be in cases in front of him in addition to the Hardyman v. Collins case. He was mentioned on more than one occasion as a possible appointee to the United States Supreme Court. He was a Felix Frankfurter type of an individual. He had very poor eyesight. It used to make me feel very bad: he had to hold a book almost right next to his nose in order to see. But he wrote prolifically. And I think he was a good civil libertarian, even though he ruled against us [laughter] in that one case. I don't remember if he ruled for us in other cases, but, obviously from his pronouncements, he was considered to be a good civil libertarian from our point of view.

I guess whatever you've been able to find must be before he became a judge. As I remember, though, he was a superior court judge before he became a federal judge.


Yes, I'm thinking of his importance not so much because of his involvement with the ACLU per se, but because of his prominence as a judge in the area.


Well, as I say, the main case that I remember is the Hardyman v. Collins case. There was another case I had--I guess that might have been a private case--in which a conscientious objector had been denied citizenship, and the Immigration and Naturalization Service had denied him citizenship on the ground that he wasn't an orthodox religious person. I don't recall him as really being very cultish or anything like that, but for some reason or other the Immigration Service didn't want him to become a citizen. So we filed a petition in the federal court and came in front of Judge Yankwich.

You know, very often, when you go up to court--and the federal courts are not alone in this--you have to wait around for your case to be called. So my client was there, and we had lots of witnesses and we were waiting and waiting and waiting. Finally, the case was called, and Judge Yankwich--he'd read papers and so on--turns to the government lawyers and he says: "The government has no basis for denying citizenship to this individual, and I'm going to grant citizenship." I hadn't opened my mouth; he just called the case, and that's what he said.


Of course, I was pleased. That's fine with me. But Judge Yankwich said: "Oh, Mr. Okrand, I'll explain to your client and to his family and to the witnesses. You did your work, you prepared the case, it wasn't easy, and you should get credit for what you did. It's just that I don't think we should take up the court's time with this any further." [laughter]

So I didn't have a chance to-- I worked hard on that case and prepared a wonderful argument that would have persuaded anybody, but I didn't have a chance to give it.


[laughter] Do you recall the name of the client in this case?


No, I sure don't. [laughter]


One last person from this period of time that I wanted to ask you about. At the end of 1949 Roger Baldwin retired as national ACLU director.


That long ago!


Right. It's amazing how long he was active after that. He was replaced by Patrick [M.] Malin. I was curious about what difference that change in administration may have made in the relationship between the Southern California ACLU and the national, and also whether you knew Mr. Malin.


Yes, yes, I met him. There were some turbulent times when Pat Malin became executive director. For one

thing, you remember, the national ACLU had passed what we call the 1940 resolution, a resolution which the Southern California ACLU never did acquiesce in and never did agree with. But it was one (which demonstrates that everybody is a human being) in which the ACLU, nationally, had passed to the effect that no one who was a member of a--I forget the wording now--Nazi, fascist, totalitarian, probably communist, organization, could be a member of the board of the national ACLU or of any ACLU affiliate. Of course, the passage of the 1940 resolution itself created quite a stir nationally, led to the ouster of Elizabeth Gurley Flynn and, I think, Harry Ward from the national board.

As I say, we never had agreed with it and opposed it, but we were a part of the national ACLU. For some reason-- I guess it was the onset of the McCarthy days in '49 or early '50--the national board decided that they wanted everybody to sort of reaffirm the 1940 resolution. I'm sure Pat Malin didn't agree with it either. But it became his job, really, as executive director to try to get everybody to come along, so to speak. I'm not sure what the organizational tie-up was, but the national office just did want everybody to sort of agree to the 1940 resolution --if not in spirit, at least to the letter, as much as they could.


Pat Malin had to make a special trip out here, and he really had a hard time with our board. As I say, I think he had a hard time with himself. As a result of those times nationally, my recollection is that the San Francisco office ostensibly sort of said: "We're no longer affiliated with the national ACLU." It really wasn't so, but they sort of said so. We never did do that. We refused to buck the resolution as such. We sort of said, "Well, OK, it's there and its a part and we don't like it, but OK."

As a result of that, Hugh Hardyman resigned from our board. Hugh Hardyman, you'll remember, was one of our founding persons and was arrested at Liberty Hill. And he's the one at whose house this meeting took place which resulted in the Hardyman v. Collins case which I mentioned.

What Pat said was, "We don't want a unanimity, but--" He had a phrase. He came, as I recall, from-- He came from Amherst College, I think, to the ACLU. I think it was Amherst. "We don't want uniformity, but--" Golly, I can't think of the name. I'll bet what he said is in the Open Forum. Something like, "You can go your own separate way, but you have to go along with us too." I think the phrase was something like, "General unity rather than absolute uniformity." But, as I say, he had a real hard time because of that.


I thought Pat Malin was very good. Now, I don't know how he was as an administrator or national director. I don't know; I didn't go to the board meetings and didn't see how he conducted himself. Later, of course, he resigned and went to the Middle East and became a professor (or maybe the dean or something) of an American university in Beirut, I think--some place like that. Many, many years later, as a result of our importunings--when I say "our," I mean the Southern California ACLU--the national ACLU finally repealed the 1940 resolution.

Let me just say one thing about the resolution. That resolution only applied to membership on the boards. There was no test for membership in the ACLU as such. I'm not sure, though, what that means. Membership in the ACLU means you give some money. That's really all it means, [laughter] unless you participate in board work. Of course, I wasn't in the ACLU at the time it was passed, but I was always uncomfortable and felt quite happy when we finally repealed it. It wasn't too many years ago, in the seventies.






I take it, when Malin came out he addressed a full meeting of the ACLU board here in Southern California?


Yes, but that wasn't very many. [laughter]


Do you recall if there was anyone on the board here who did agree with the 1940 resolution despite the fact they would have been a minority?


I can't remember. I can't remember anybody. I know the board disagreed. I can't remember any individual who--


Was there anybody on the board during the forties or fifties who would have met that criterion of the 1940 resolution? Do you recollect where it might have been an issue?


I think by that time Leo Gallagher was off the board. Leo, as I remember, always said that he had never been a member of the Communist Party, but he did run for public office on the Communist Party ticket. Now, I don't know what that means. Many people--most people who knew anything about him--would say that he was a member of the Communist Party. He certainly was Marxist in the sense of the philosophical-economic views. I think if the national office had made an issue of it, they might have taken off after Leo too. But they never did. Leo left the board really because of the Japanese evacuation and the difference that the ACLU had with the CIO.

As you remember, Leo stayed on with the CIO when Al and I left, and he just felt uncomfortable, I guess, being counsel for the CIO and also being on the board. I don't

know whether there was any pressure put on him to resign, but my recollection is that that's when he left the board. But we never kicked anybody off the board because of asserted membership in anything. When I say "we"-- I was on the board at that time. They allowed that because I wasn't getting paid. There's sort of a rule that if you get paid, if you work on the staff, you shouldn't be on any board of directors of the ACLU. So I was on the board, and I voted, and I got reelected. I think they changed the board every year in those days. I mean, everybody ran, [laughter] but it was a self-perpetuating organization of not many people.


Apropos to the question of Leo Gallagher's relationship with the Communist Party, there was a very cryptic interchange that was printed in the Open Forum sometime in the middle fifties without much explanation. First, a letter to Eason Monroe from Leo Gallagher, saying: "I was running for office, and I couldn't get an ad in the People's World." And then the rejoinder from the People's World with some very difficult-to-understand reasoning for why Gallagher's ad should be turned down. Do you recall any of that? [laughter]


[laughter] No, I don't remember that. But I do know this: Leo Gallagher was a person who-- Well, in the first place he had an absolute heart of gold. I mean, he really did. And he was a very, very religious man. He was

a devout Catholic. Many people think that's paradoxical, because they would swear that he's a member of the Communist Party and then say they didn't know how that could be. Well, as I say, he said he'd never been a member, for whatever that's worth.

But Leo could get very angry, and lots of times he wasn't exactly the most tactful person in the world, both personally and in court many times. He was cited for contempt, and we had to go all the way up either to the California Supreme Court or the court of appeal to reverse a conviction of his. I'm sure that he disagreed with the Communist Party on many, many occasions--there's no question about it--because he was a civil libertarian. On the other hand, he did agree with many of the things that they were saying. As I remember, the Marshal Plan was a big thing in the forties, and I think he was opposed to it. And that was official Communist Party line at that time. He had an ability to get a lot of people sore at him, and so I'm not surprised at all that the People's World wouldn't have printed an ad on behalf of Leo. But the specific incident I don't recall.


Well, it caught my eye because the Open Forum printed it as if everybody would know what was going on. It was little bit of an insider type of thing.


That could have been the case. The Open Forum didn't have much circulation at that time. I think probably the reason--I'm just guessing--was to demonstrate that some people who professed to being civil libertarians from time to time, such as the People's World, maybe forgot their civil libertarian points of view when it suited them. That incident I just don't remember, but I'm not surprised.


Now, we've covered a number of legal cases and recollections of individuals in the postwar years up into the fifties. What I'd like to do is go back a little bit and catch up on some of your personal history. I know that you had two sons born during this period of time and so on. What were some of the things that were happening with you and Mimi and your family and your personal life?


Well, let's see. When I came back to Los Angeles from Europe (we got here in 1946), the first thing I suppose one had to do was find a place to live. The housing situation was very, very bad at that time. There was no housing to be obtained, and so we had to move in with Mimi's sister and brother-in-law on Orange Street, near La Brea [Avenue] and Beverly [Boulevard], more or less. A friend of ours was building some apartments, and we had been promised one. So we theoretically were to stay a month or two with Paula and Max Grone. I don't know why, but it extended into a long time: six to eight or nine

months, maybe. The one apartment that we were supposed to get, somebody's friend or relative had got it instead of us. Then he was building another one, and so he promised it.

Finally we did move in, in a nice, new little apartment on Dunsmuir [Avenue], between Venice and Pico [boulevards]. I don't remember the address, but there were two stories and we lived upstairs. It was there that Marc, our oldest son, was born. Mimi had had a miscarriage before Marc was born, and so he was our second shot at it. He was born in 1948, July 3. He was supposed to come on the Fourth; he came a day early. We had this one child in one apartment. I remember Marc was a colicky baby, and he used to cry all the time. I think he cried for three months straight. Then at the third month the doctor said, "Well, don't worry; it'll end." And it did. After about three months it stopped. But at night he would cry. I remember one night I was walking-- If you walked him he would stop crying, but the minute you let him down he would start again. Our neighbor was banging on the wall, [laughter] and Mimi began to cry because she didn't know how to stop this little baby from crying.

Anyway, that's where Marc was born, and that was our first experience, of course, with a child. He'd had some difficulties. One time--this was a close call--Mimi called

me up from the Doctor's Hospital, someplace in Mid-Wilshire, and Marc was there. What had happened was that she had heard him wheeze, and it just didn't seem right. So she called the doctor, and the doctor said to come on in. She brought him in, and what had happened was that Marc had swallowed a little piece of bacon, just a speck, and it went into his lung. They had to go someplace, and they finally got it out with some kind of scope. What the heck do they call it? Something on which you have a little light on the end of a string; there was sticky stuff on it or something. They went down into the lung and were able to get it and come out. The doctor said that had Mimi not heard that and called right away and gotten over to him, he would have died. And it turned out that Marc for a long time had respiratory difficulty. He's fine now. But that was a very close call.

We moved from Dunsmuir to Rowena [Avenue], near John Marshall High School. In fact, we could see the John Marshall playing field from our apartment. Why in the world did we move? I don't know why we moved. But I know one day I was visiting my aunt, who lived then on Rowena-- Sophie Okrand was her name, she married my father's brother--and there were these new apartments being built across the street from her. She said, "You ought to move in there. It would be pleasant." And we did, but I can't

in the world figure out why we moved. I don't think it was a bigger apartment. Oh, yes. On Dunsmuir we only had one bedroom, and on Rowena we had two. That's right. We had two bedrooms and so we were able to expand a little bit and let Marc have his own room. Yes, that was it. But it was pleasant because my aunt and uncle were across the street. Charlie [Okrand] is my uncle's name. He's still living, and he still lives in that same place on Rowena.

Then we moved out to the Valley. We wanted to have a house. At first we bought a lot up near the Hollywood Bowl; we were going to build there. Oh, it was a sensational lot on a hill--no sidewalks, quite rural. One day we were up there, and we even had some plans drawn up. We didn't have any money. I don't know how we ever thought we were going to build it, but we thought we would. We started looking at the street and this hill, and Mimi said, "How in the world are we going to take care of a baby on a place like this. There are no sidewalks, no level ground; I can't walk with the buggy; I'd have to go about a mile down the hill." So we gave that up, and out here the Valley was growing at the time.

Oh, yes. We had even put down a deposit for a house in La Canada--a very modest house. We put a $300 deposit down, and I don't know how much the house was going to cost: $10,000 or something like that. But for some reason

or other it just never got built. It just dragged on and on and on, and finally the house that we're living in right here opened up. That is, the sale of them opened up. There were just four models on Buffalo [Avenue], the street west of here, and we put our name on the waiting list. So we were able to buy it and come out here. It took every dime we had. I had to cash in-- We didn't have much to cash in, but we cashed in everything. I had no reserves at all when we moved in. We only had to put down $2,000, and so you can see what the length of our purse was in those days.


Tape Number: IX, Side Two
(March 17, 1982)


The reason we wanted to have a house was that Mimi was pregnant again, and we just thought it would be a nice thing to have a house. Our apartment on Rowena was very, very pleasant. It really was very pleasant, and we met some very dear friends, Seymour and Bunny Roof, with whom--Well, Seymour has since died, but we keep in touch with his wife, who's now moved up to central California. They had two boys also. I'm not sure if they had two at the time. We only had one at the time, Marc, and when we moved out here we kept in touch with them, and they finally moved out to the Valley, too.

But the reason we moved from there was in order to have a house and have a little more room for the two children. We moved out here in January of 1951. It was a brand-new tract: no fences, no lawns, no anything. In our garage there was about two feet of dirt, literally--I don't know where it came from--that had been left by the-- I suppose they shoveled the dirt away from the front and put it in the garage. [laughter] We had to clean that out, and we moved out here. That was kind of fun, in the sense that everyone who'd moved out was in the same boat: we had one or two children who were fairly young, we built our

fences together, and the mothers would be out on the street. You met all your neighbors; you knew everybody on the block in those days. We know hardly anybody now, except the originals. We have a few original people, and we know them; but we're quite citified, I guess, as most of the people who live in the city are, and you don't meet people anymore. The children are grown up, and so there's no one out on the street.

So we built our fence, and I spent virtually all my spare time carpentering and building things--shelves and Lord knows what--and being a father. Dean was born June 4, 1951. He was supposed to come on the third, but he came on the fourth. So Marc was a day early and Dean was a day late. That's our family. We have the two boys. Now they're quite grown up and quite independent.


Did Mimi continue to work up until the time that Marc was born? Or did she work after that also?


Let's see, she certainly was working at Berg Metals when we lived on Orange. Well, yes, she continued to work until a reasonable time before Marc was born. She didn't work after that until after the children were fairly well grown up. And then she came to help out at Al's and my office on Spring Street. Well, it was probably in the sixties. So, for a period of fifteen years or something

like that, I suppose, she didn't. I think until Dean was out of high school she probably didn't.

But then, of course, when both the boys went off to college, that was the end of it. They never did move back into the house. Dean went off and got married, and Marc taught school at [California State University,] Sonoma and then taught at the University of California at Santa Barbara. Then he went back to the Smithsonian [Institution] in Washington, and he's still there. That's where he is, in Washington--not at the Smithsonian. But when they left high school, then she went back, just part-time, and she's still working part-time with me at the ACLU.


OK, before we finish up today's session, I want to go back to some of the cases again, still some of these in the late forties and early fifties. There was one sort of related set of cases that intrigued me particularly. I guess we would call them free-speech cases. Some of them revolved around the issue of free speech at Pershing Square.




Isador Edelman is the prime example. Evidently Mr. Edelman was a quite infamous orator at Pershing Square whose rights were finally vindicated. The record shows

that you were somewhat involved in that. I was wondering what your recollections were.


Oh, yes. Well, let's see. I remember one thing we tried to do: I tried to get him in jail. I literally tried to get him in jail in order to be able to file a petition on his behalf. I forget the circumstances of it.

But, yes, in those days and even before, Los Angeles had an ordinance which virtually said: "You cannot make a speech in a public park on the subject of politics or religion." There was a flat prohibition, and then there would be some provision for you [to get] a permit of some kind. Well, of course, those kind of ordinances are violative of the First Amendment: you don't need a permit in order to make a public speech somewhere.

Edelman was arrested more than once, as I remember. We took his case to the United States Supreme Court, and on some technical reason the case was sent back. I can't remember it. I tried to get him put into jail so that we could file a petition for writ of habeas corpus, and I couldn't do it. They wouldn't take him back. I guess it was after the Supreme Court decision, and the remittitur or the mandate hadn't come down. Nobody would accept him because they didn't have a piece of paper to bring him in. I can't for the life of me think of why we were in such a

hurry, but we did do that, and the ordinance was eventually held unconstitutional.


Do you recall what he used to talk about specifically in his speeches? [laughter]


No, I certainly don't. But he was arrested more than once.


When his conviction was finally overturned, did that finally put an end to the ordinance, or were there further atempts to--


Well, it put an end to that ordinance. There were a number of ordinances around at that time: there was some parade ordinance. The Duffy case, as I remember, held the Los Angeles parade ordinance unconstitutional--on the same ground, namely that there were no standards for the granting or denial of the permit.

As you know, in Los Angeles today you don't need a permit to make a speech in Pershing Square anymore. Of course, we're not as pure as it might sound. The city fathers never did like the idea of Pershing Square being a gathering place for orators. I never could figure out why they didn't like the Hyde Park idea, which it was. Now, I haven't been down there for a long time, and so I don't know what it is now, except that what they did was arrange it in such a way that it's very difficult really to have a

public debating session the way they used to have it down at Pershing Square. They made much of it lawn with signs all over it: Don't step on the lawn! and that sort of thing. It's really not conducive anymore. And that was done really for the very purpose of shutting off public debate in Pershing Square. They designed that place for that purpose--and, I guess, succeeded. It ain't the way it used to be. There's no question about that. [laughter]


Tape Number: X, Side One
(March 20, 1982)


Fred, the period of the late forties and the early fifties are often referred to as the McCarthy period, as far as civil liberties and related matters go--perhaps somewhat arbitrarily. Nevertheless, I'd like to start off today by asking you about some of your general recollections of what that period meant for Los Angeles in particular and for the state of California. What are your recollections of the atmosphere, of some of the personalities, of some of the things that went on that would typify this period of time?


Well, the atmosphere was one of repression. I hesitate to use the word, but I guess that describes it. Loyalty oaths were rampant everywhere. The university was embroiled in a big loyalty-oath controversy. As a result of that, Eason Monroe came to us because of his having been fired from, at that time it was called San Francisco State College in San Francisco [renamed San Francisco State University], where he had been the head of the English Department. He and a number of other professors had refused to take the loyalty oath which had been decreed by the state legislature. Teachers were being fired because of refusing to both answer questions and take the state loyalty oath. The House [Committee to Investigate]

Un-American Activities was coming to town quite regularly, and we were regularly filing lawsuits to try to prevent them from asking questions. And regularly the courts were turning us down--with some exceptions. It was one that was a dark day for civil liberties in general because there was a misunderstanding on the part of many people of what the Constitution meant.

The Hollywood Ten situation was extant. Of course, that happened in '47. I happened to be back in Washington in October of 1947, arguing, it must have been, the Delgadillo case. Mimi came back with me at that time, and she attended the hearings. She described her impressions of them to me. Generally speaking, it was not a good time for civil liberties.


What are some of your major recollections of specific cases or things that you were personally involved in during that period of time as part of your ACLU work?


Well, we filed a number of cases and represented some persons. We filed a number of cases: one, to have declared unconstitutional the state loyalty oath. We also either filed cases or represented individuals who were being discharged because they didn't answer questions, to challenge the so-called Levering-- I guess the Levering [Act] was the loyalty oath. It was the statute which said that a public employee who did not answer questions

concerning communist membership or affiliation or activities could be fired. As I say, when the House Un-American Activities Committee came to town, we filed a number of suits. One seeked to not permit them to ask these various questions concerning citizens' political beliefs or affiliations. And, of course, we represented Don[ald] Wheeldin, who was called before the committee and refused on First Amendment grounds to answer questions, and who was convicted. We took his case to the United States Supreme Court, lost it, and he went to jail.


What were some of the specifics of that case?


Well, they were all almost always the same. "Are you now or have you ever been a member of the Communist Party?" is what it boiled down to. The legal strategy, of course, evolved as the years went by. Our feeling was, and still is, that the asking of those kinds of questions by the House Committee on Un-American Activities and Senate Internal Security Subcommittee (which didn't come out here, as I recall, but their rationale was the same), was a violation of the First Amendment. [We felt] that the charter of the House Un-American Committee, which authorized Congress to investigate propaganda, was on the face of it violative of the First Amendment. And that was the theory on which the Hollywood Ten refused to answer questions before the committee and because of which they went

to jail. The Court refused to recognize that the First Amendment prevented the asking of these kinds of questions.

Now, as I say, as the years went by and certain legal strategies failed, other stategies were successful--well, successful and not successful. The Supreme Court in-- Gee, the Barenblatt case comes to mind; that was not handled by us. I'm sure that the national ACLU filed an [amicus curiae] brief in it. Oh, here it is. The Watkins case came along first, and the United States Supreme Court said that an individual who wasn't apprised completely of what the relevancy of the question was, was not in contempt of Congress if he didn't answer the question. There was some language in that case which was very encouraging to us. We thought that the Court was about ready to hold the charter of the House committee unconstitutional. But when the Barenblatt case came along, we found out we were wrong. It was not ready to do that.

As cases came before the Court and as courts refused to recognize the First Amendment as a basis for not answering those questions, of course, it became very clear, because of the presence of the Smith Act, that if a person indeed were a member of the Communist Party, he or she stood a very good chance of going to jail under the Smith Act, that being a crime--an unconstitutional crime in our view. And so it became evident that unless persons were

to go wholesale to jail, they had to resort to what was then called the Fifth Amendment. I mean, it's still called the Fifth Amendment, [laughter] but then you just said Fifth Amendment and everyone knew what you were talking about: namely, the provision of the Fifth Amendment which said that one need not be a witness against him- or herself.

The use of the Fifth Amendment by many people resulted in loss of job, even though they had the right under the Constitution to not answer the questions. Nevertheless, the courts in many instances said, sure, they could take the Fifth Amendment and they wouldn't go to jail for taking it, nor for any membership that no one was able to prove because of their refusal to answer, but that didn't mean they were entitled to have their jobs. So lots of persons lost their jobs: teachers here in L.A. and state employees generally.


A few cases that appear in the record, referred to in the Open Forum and so on, that I was curious about your involvement in are, for example-- One of the L.A. County loyalty-oath cases that went to the U.S. Supreme Court was the Steiner case.




Do you recall that one?


Let's see, the Steiner case-- I remember the name very well. I'm trying to think whether or not that one actually had an opinion by the United States Supreme Court. We were involved in two of them: one involving the Unitarian church, a tax case, where the state statute said that an organization would lose its tax exemption if it didn't certify that it was not a subversive organization, in effect. That went to the United States Supreme Court, and the Court held--as I remember; I wish I'd reviewed this before--that the church did not lose its tax exemption. I'm trying to remember why. We won that case, and I'm having difficulty in recalling the legal reasoning of the court.

The Unitarian church case came along at the same time as Larry Speiser's case came along. He was staff counsel of the Northern California ACLU at the time. Veterans likewise would lose their tax exemption if they didn't so certify, and he wouldn't, on the ground that it put the burden of proof in the wrong place. The government always had the burden of proving something wrong if they wanted to take something away from an individual, and this oath of California which took tax exemption away because somebody didn't say something put the burden of proof on the individual to prove his loyalty, so to speak. That was a

violation of the Fifth Amendment and of the Fourteenth Amendment. So we won the Unitarian church case.

Now, Steiner was a county employee, as I remember. But I can't remember whether we won that case or not. I think we lost that one.


Well, let's see. Actually, my notes tell me that the Supreme Court in December of '49 remanded the case back to the California courts and did not rule on the constitutional issues that were raised.


Yes, and I'm trying to remember what it was. Well, as I say, Steiner was one of the many county employees who refused to answer questions and who did lose. Steiner was one of many; there were a number of them. Steiner was just the first name in the case. But I just can't remember the specifics of why the Supreme Court did what it did.


Well, a later case that the record shows you worked on was another county case. You, in particular, represented Richard Petherbridge, who was one of evidently fourteen county employees fired at one time.


Yes, well, it's the same thing. Now, Petherbridge's case did not go to the Supreme Court. Petherbridge likewise lost his job on the same ground. Now, years later, in '68 as I remember, we brought-- We kept on filing these cases over the years in the hope that

we'd get some favorable ruling, and we finally did, after a number of decisions by the United States Supreme Court. The California Supreme Court in Vogel v. County of Los Angeles held the oath unconstitutional. Bob Vogel had been, at one time, the president of the Southern California ACLU, and this was a taxpayer's suit. Well, in Dick's case I don't remember specifically either. I think we lost his case, though, eventually.


That's correct. That's what the record shows.


Yes, yes.


As a matter of fact, evidently in 1952 the California Supreme Court upheld both the L.A. County and the Levering oaths--


Oh, yes.


--in three different cases: one involving Petherbridge and also Bowen--


Marjorie [A.] Bowen.


--and L.A. County, [the third] in Fraser v. Regents of the University of California.


[Russell A.] Fraser was involved with the regents' oath. And Marjorie Bowen later married Dick Petherbridge, it so happened.


I see. [laughter]


Dick became--is now and has been for many years--a volunteer ACLU counsel. There were a couple of cases that

I remember involving loyalty oaths which we did win. One was Danskin v. [Board of Education of San Diego], and another was ACLU v. Board of Education of Los Angeles. We won one of those and lost one by that same title.

In the Danskin case, there was a state statute which required persons and organizations who wanted to have a meeting in a public school, under the Civic Center Act, to take an oath that in the organization's case it was not a subversive organization, in effect. That was an ACLU case. Danskin was a reverend in San Diego. The ACLU wanted to hold a meeting on something but wouldn't sign the oath, and then they filed a lawsuit.

The Danskin case was a terribly important case; it's used even today. It stands for the proposition that a public body need not grant a so-called privilege to anybody if it doesn't want to; but, once it grants it, it has to give it to everybody on an equal basis. So, when the California legislature tried to keep away so-called subversive organizations from holding meetings in public schools under the Civic Center Act, it violated the First Amendment as well the equal-protection clause. The mere fact that an organization may indeed be subversive--whatever that means--doesn't mean it has lost all its First Amendment rights. It still has a right to hold meetings, and if nothing illegal is done at the meeting, they're

entitled to hold it. That's a very important principle in the law, and it's used all the time.

Now, the Los Angeles case of the ACLU against the Board of Education of the City of Los Angeles was similarly a case involving the Civic Center Act, and the effort of the city board to keep ACLU, again, from holding a meeting was unsuccessful. Now, I must say that the city board of education was indefatigable in its efforts to keep out so-called subversives from using its schools. After we had won the Danskin case, after we won the ACLU v. Board of Education case, L.A. City Board of Education, the board of education passed a regulation that said anyone who wanted to use an auditorium for the purpose of holding a meeting had to sign a statement that it was not going to commit any illegal act.

The debate that led to that regulation clearly centered around what the board of education at that time thought were subversive organizations, particularly organizations which advocated criminal syndicalism. Indeed, either one of the members of the board or the legal adviser to the board pointed to the penal code--I can't remember the section's number--which made it illegal to engage in criminal syndicalism. This was a statute that passed way back during the IWW days. The idea was to keep those kind of organizations from holding meetings in the city schools.


So, when they passed this regulation, we filed another lawsuit--it was also called ACLU v. Board of Education of the City of Los Angeles--and we argued that that oath requirement, that the organization was not going to engage in any illegal conduct, was likewise unconstitutional because one didn't have to take an oath in order to use a meeting hall. If they had something against the organization, they could come forth and present their evidence. We argued to the court that the regulation was not designed to stop the organizations from setting fire inside the auditorium or breaking windows or anything like that; it was clearly directed against speech, witness the debate that went on concerning trying to stop people from advocating criminal syndicalism. To our great amazement, and quite a disappointing experience, we lost that case. Not only did we lose it but it was a unanimous California Supreme Court. And, to make things even worse, it was written by Justice [Raymond E.] Peters, who was probably the greatest civil libertarian on the court at that time.

He wrote this opinion, and what he said was that a public body did have the right to demand from a party who wants to use its facilities--and all this is free, under the Civic Center Act--to get assurances, even though verbal, that they weren't going to commit any crime during the time that they used the facilities. In response to our

argument that, "Well, Your Honors, you know that this is directed against speech, which is not illegal speech but advocacy only, which is protected by the First Amendment," the court replied-- And we said, "Look at all this debate that made that very clear." The court replied to us: "Well, no matter what the legislators said during the time of their debate, they came out with a regulation that said, `You agree to use the auditorium and you will not commit any illegal act while you're doing it.' They have the right to do that. While you may think they are talking about speech, all it says, in effect, is that you're not going to break windows, you're not going to set fires, and they have the right to do that."

So that was a very disappointing case to me because the board wasn't worried about anybody breaking any windows; they didn't want so-called subversive organizations to use the auditorium. They knew, or thought they knew, that many organizations wouldn't sign those kinds of loyalty oaths; so they would have succeeded in keeping them out. Of course, that isn't what happened at all. After the case was lost, the organizations just signed the oath. I don't know what the penalty is if you engage in some unlawful activity while you're holding a meeting, but there is still that oath that's required, even to this day, to hold a Civic Center Act meeting.


When I say "even to this day," it's been some time since anyone has approached me or had any trouble in getting a civic center permit; so I really don't know firsthand, but I have no reason to believe that they changed it, because even after the loyalty oath was held unconstitutional by the supreme court in Vogel, those oaths showed up all over the place whenever people came to make applications to hold meetings. Forms have a way of maintaining themselves in public bureaucracies, and the mere fact that some supreme court someplace up in Sacramento or San Francisco said it's unconstitutional doesn't bother people [laughter] apparently, and they kept giving them. So, as I say, I believe that that regulation still exists in the Los Angeles city school system.


Fred, nowadays, of course, the ACLU, although perhaps its main function is still litigation around civil-liberties issues, certainly has branched into a lot of different ways of tackling the subject--




--legislative lobbying and many other things. During this period of time in the fifties where there certainly were a number of setbacks on the legal fronts-- highest courts in the land were returning decisions that were very disappointing in this area and so on--back at that point, during the McCarthy era, to what extent did the

ACLU board or the ACLU nationally attempt to tackle these things in other arenas besides the litigation?


Well, here in Southern California, shortly after Eason Monroe came, the ACLU hired a lobbyist in Sacramento. Coleman ("Cole") Blease went sort of half-time (I don't know what the precise arrangement was). He was our first lobbyist. Now, that's the first time that we in Southern California (Northern California came along later) had an actual lobbyist in Sacramento. (Incidentally, Cole is now a justice of the court of appeal for the first appellate district in San Francisco.) Cole did what he could to stem the tide. He was successful in stopping lots of legislation, unsuccessful in others. So they tried that. The national office also opened an office in Washington for the purpose of engaging in lobbying activities. So we tried, and we've had that ever since--both in Washington and Sacramento.

Now we have virtually a full-time lobbyist, although now our lobbyist in on a contract. I mean, he's got a year-to-year contract because he has other clients as well. But up until about a year ago, we had a full-time lobbyist in Sacramento on our payroll, actually. So we tried in other ways to educate the public as to what the constitution is all about.


Was it a particularly pessimistic time on the ACLU board then?


Well, it was pessimistic in the sense that we were losing our law cases a great deal, but that didn't bother us. I have a friend who likes to tell the story--I didn't hear it myself--about the ACLU: when the ACLU wins, it is a terrible organization, but they're magnificent when they lose. As I say, he said somebody told that story; I myself never heard it.

We never were discouraged. Oh, no. We knew what we were supposed to do and had to do and wanted to do. The times today are not dissimilar. I don't feel the fear that was extant during the late forties and the fifties, but we're having our difficulties in court now, you know, and we're not about to be pessimistic about it. We know that eventually the courts well see the correct way that the Constitution should be interpreted, and so we keep fighting.


Were there any cases that stood out where people disassociated themselves from the ACLU during this period of time for defending unpopular views?


Oh, well, I'm sure that we lost lots of members because of our position that communists had a right to free speech, that the loyalty oaths were invalid. Yes, we lost lots of members because of that. Any particular case--


People on the board?


No, no, the board never wavered. The only dissension we had on the board was on the 1940 resolution that I mentioned last time. I remember one person resigned from our board because of the position we took that the 1940 resolution was no good. That was Harriet Weider. On the other hand, Hugh Hardyman, as I told you, resigned from our board because we sort of acquiesced to go along because the oath was there. But I can't remember losing any board members because of any particular case that we took.

Speaking of cases, you know that we took all kinds of cases--not only in the political field. I remember one case where we challenged the validity of an antinudity ordinance, and we lost a considerable number of persons who felt-- Well, you lose members for a number of reasons: some because they disagree with the position you take; others because they feel, "Well, the position was probably right, but why are you wasting your time on that kind of a case? I don't want to give you my money to do that sort of thing." So we're constantly losing members for one reason or another.

Of course, in later years, when we took cases involving fascists-- Well, during World War II when we took cases where we challenged the orders against the fascists, the Bundists, we lost members. So that's just par for the

course; that's one of the prices we unfortunately have to pay.


What do you remember about the antinudity case? Was that a major one for the ACLU?


It was a major one for me. I don't know if it was a major one for the ACLU. It was for me because I really had a lot of fun in researching it. What was involved, of course, was the right of a human being to not wear any clothes and not to have to go to jail. Well, so I did a lot of research on clothing: I started with the Encyclopedia Britannica, and I read books on clothing and on designers. The fact is that women's clothes, for example, are designed by designers for the very purpose of inciting sexual responses from somebody--although I'm told that women wear clothes to satisfy other women. Maybe they do, but designers design women's clothes for sexual pruposes. I was able to show how nudity is quite accepted in many other places in the world and historically. I had a lot of fun in researching it.

As I remember it, that particular ordinance--I don't remember the name of the case-- [It was] probably People v. Glassey. We probably lost that case at that time, but later on we were able to, in other cases, establish the right of persons to go to nudist camps without going to jail. In that particular one, I think, the United States

Supreme Court denied a hearing to us, and they held that county ordinance all right.

I'm trying to think why they would hold it OK. It may have been that you couldn't have a nudist camp at a certain place or something like that. But eventually, and even now, you can do that. Of course, you can't parade around down Seventh and Broadway or Hollywood and Vine without clothes today, and we still have on the books the indecent exposure statutes and so on. But the right of individuals to associate together without wearing clothes, I think, is established in our law.


To associate privately, in other words, in a club or something.


That's right. I ran across cases where police would surreptitiously go into nudist camps and pretend that they were nudists, and the courts frowned on that sort of thing. They did protect the people in that out-of-the-ordinary type of behavior.


Now, before we completely leave the earlier subject of the loyalty oaths, I thought your recollections of the loyalty oaths that the University of California regents had in effect at that time would be of particular interest: some of the people who were fired. I know our own John Caughey, who later went on to be a long-standing

board member of the ACLU, was one of them. What was your involvement in that?


Well, we were involved in the regents' oath. Now, the regents' oath case was both won and lost; it really was lost. At that time, in the fifties, the court upheld the validity of the regents' oath, which was the same as the state oath that was required for other government employees. The reason the regents had to have a separate oath-- and you wouldn't know it if you looked at what our legislators are trying to do and what our former governor tried to do to the university--is that in the state constitution, the Regents of the University of California, which is the full title of the University of California, are absolutely and completely separate and apart from the authority of the state legislature, with the exception of finances. Now, the state legislature has the right to deal in the finances of the university (and of course that's probably the whole ball game), but they can't control the internal workings of the university. The university is a completely self-governing body under the state constitution. So, for that reason, they had to have a separate oath of their own so that they'd be in line. And they had no difficulty in enacting one.

The reason I say it was partly won is that--again, I don't remember the details of it--for some reason, the

professor who didn't take the oath were entitled to a thirty-day notice or something like that. So, although their firing was upheld by the California Supreme Court, they were entitled to thirty days' pay because of a peculiar term of their employment.

Now, as I say, John Caughey, of course, was one who refused to-- Well, he eventually, I think, took the oath. There's something about John's case. He first refused to take it--there's no question about that--and was fired. Then I think he and several other--now, I may be completely inaccurate about this--finally took the position: "Well, I tried to make my point. I was unsuccessful in the courts; the courts ruled against us." And he didn't see any reason why he shouldn't [laughter] go back and teach. Now, that's my recollection. We know he went back and taught because he taught in later years, even while he was on the board of the ACLU, and is now a professor emeritus of history at the University of California at Los Angeles. So I know he went back to the university, and he didn't-- And it was long before Vogel, which came in 1968, which held the state oath unconstitutional. So there was something there.

But, of course, John was among those very stalwarts who did lose his job when he took that position. There was a book written by [George R. Stewart] called The Year of the Oath, I think, and it's a good, good history of the

travail that went on at the university between the professors. I don't think there was any other professor that I knew at the university who was fired besides John. Eason, at San Francisco State [was fired]. I don't know that I remember any of the others. Most of our clients were either county employees or teachers.


I said that that was the last one about the loyalty oaths, but actually I did want to ask you about one more situation, and that is the [Gwinn] Amendment [an amendment to the United States Housing Act of 1937 (66 Stat. 393) --Ed.] in the cases of public-housing tenants.


Cordova, is that the name of the case? Cordova v. Housing Authority [of the City of Los Angeles]?


I believe that's one of them, yes. There were a total of thirty-six tenants--


Yes, yes.


--at the time who were evicted.


Yes, now, this one we won, as I remember. Golly, I wish you had told me so [laughter] I could have reviewed some of the law on this. Well, a loyalty oath was required of tenants of public housing. Los Angeles had the city housing authority and it had public housing. The oaths were sought to be extracted from tenants, and we filed-- Now, I can't remember whether we filed it or whether they filed unlawful-detainer actions against the tenants who

refused to sign the oath. In any event, I remember our adversary on the case was the law firm of Laughlin [E.] Waters, who is now a federal judge, and a very good lawyer whose name I don't remember.

Eventually, we won that case, but again I can't-- I think the case started out in a municipal court, and then it was appealed to the appellate department of the superior court, and from that court the other side took it to the United States Supreme Court. And my recollection is that the Court denied a hearing on it.


That's right.


Yes. The appellate department of the superior court held that that amendment, which required tenants to take a loyalty oath in order to have public housing, was unconstitutional. So, as I say, we won a few. But the overall view was dim [laughter] in the early fifties.


Fred, in about the middle fifties there was one school-desegregation case that seems to stand out in the record. Around 1955, in the case of the El Centro School District, evidently you and attorney Hugh Manes at one point filed an amicus brief. What do you recall about that case?


Boy, I don't remember that one at all. El Centro desegregation?


It involved both the black and Latino students in the El Centro School District.


That one draws a blank. We were involved in a number of desegregation cases, as I think I mentioned. Shortly after I came back from World War II, we were involved in the Westminster School District desegregation case [Westminster School District v. Mendez]. which was decided favorably. Latinos were segregated in the Westminster School District in Orange County, and both the United States District Court here and the United States Court of Appeals in San Francisco held that that conduct was unconstitutional. We also were involved in cases in Arizona and Texas, not so much for the ACLU but for Hispanic organizations. We had some cases--and these involved Mexicans, mainly, not blacks so much. In Arizona, in a town called Glendale, we had a case, and one in another town in Arizona. We were also involved in some cases in Texas where Mexicans were being segregated.


When you say "we," do you mean you and Al?


Al and I, and there was a wonderful young Mexican lawyer from, I think, Houston who came out here and worked with us on those cases. He was, I thought, an excellent, excellent lawyer and quite dedicated to his cause. And there was a professor from the University of Texas, also a Mexican person, whose name I do not remember, who worked

with us quite assiduously in gathering information for use in those cases. [George I. Sanchez] We were successful in desegregating a number--two or three--school districts.

The only trouble was that when you litigate school district by school district, it's a tedious, long, drawn-out, expensive, inefficient way to desegregate what is endemic to the whole state. I remember the professor said: "We've got to get the state agencies in here. We have to prove that the state board of education is responsible. You see, in Texas and Arizona, of course, we didn't have the California law that you had to desegregate irrespective of the cause. That didn't come in California even until '63. So, in those days everything was to prove the intentional, de jure, segregation. So they were long, drawn-out, tedious cases. I was involved in that for a long time.

In fact, I met, at that time, Rafael [Ralph C.] Guzman, who is a professor now of political science at the University of California at Santa Cruz. That's a satisfying story in and of itself. He was an alien who came here, and his parents didn't speak English when they came and so on. He sort of pulled himself up by his own bootstraps, actually, and went through college. At that time he had a grant from the Fund for the Republic [Inc.] to do some research on Mexicans in the United States, including their immigration problems. I worked on that

with him, and he also worked on these desegregation cases. I wish I could think of the name of that professor from Texas, but I can't think of it.


Were these cases in state court or federal court?


Those were in federal courts.


They were all in federal courts.


Federal courts, yes.


You mentioned that you and Al and others were approached by Latino organizations mainly.




Do you recall any of the groups or the people?


Well, well, this professor is the main one, whose name I can't remember. And the [American] G.I. Forum was one of them.


Does that still exist?


I don't know. I don't know, but that was one that we worked with. Then, of course, we worked with the Community Service Organization [CSO], but that was here in California. That was on general Mexican-American problems. There was another Mexican organization whose name I don't remember. But, anyway, we worked with them on these cases.


What types of remedies did you finally receive?


Well, you'd get an order that the school district-- First, you have to prove that they were de jure segregated, and then you get an order that they have to

take steps to desegregate. And, of course, it would always involve the requirement of transportation of students from one school to another--more than one school. These school districts were very small school districts. The typical one would be like the very famous case in the United States Supreme Court, where there were two schools: one black and one white. [Green v. County School Board of New Kent County, Va.] So all they have to do is integrate; so they're really relatively simple matters. You had just as much resistance against the court order as you do have in Los Angeles, where they talk about long-distance bus rides and all that sort of thing. Those arguments were not available to the opponents of desegregation, but the vehemence was just as prevalent against changing the status quo. There's a tremendous resistance to desegregation.


Well, let's follow that up just a little bit, while we're on it. In these cases in the Southwest-- Arizona and Texas and so on--who would line up on the other side, as far as the legal battle went, in addition to, say, the school board?


That's all.


You mean, just the school board.


Yes, just the school board.


Tape Number: X, Side Two
(March 20, 1982)


What I'm getting at is what types of arguments were used specifically in those cases where you didn't have the long-distance busing argument and so on.


Well, one argument would be that there is no segregation because--as I mentioned to you, these are Hispanic students--Hispanics are not a race, they're not a minority, they're whites, and so they just go to white schools. So there's no segregation.

As I say, there were about three of these cases [where] you'd have a statute or a regulation or an ordinance, and I don't know what arguments these lawyers would make after Brown v. Board of Education. Before Brown, of course, the argument was--and some of them could have before Brown--that under Plessy v. Ferguson they were entitled to have these segregated school districts. So, "Go someplace else with your troubles."

Then, of course, sometimes you would have to try to show that their schools were inferior. You didn't really have much difficulty in that. It's just amazing how, when you have a segregated school district, the minority schools are just inferior. That's just it. That's the unfortunate part of it. [laughter]


Now, our arguments, of course, were the same that were presented in Brown, namely, that separate education for youngsters is a violation of the equal-protection clause, that all the kids are entitled to an equal-protection clause, that all the kids are entitled to an equal shot at getting an education, and that, to the extent that the school district maintains a segregated district, it violates the Fourteenth Amendment. Those were simpler arguments.


Do I take it that the Brown decision came down somewhere in between--


I think so.


--these cases?


Yes, I think so.


That must have been an interesting--


Yes. Timewise, I can't really place it; but I remember that we were making anti-Plessy v. Ferguson arguments in our briefs and in our presentation. And, as I say, also with the Mexicans, just as they had done in the Westminster School District in Orange County, school boards were taking the position that Mexicans are white persons and therefore there is no discrimination.


No explanation for why some white people were put in one school--


Just that some were whiter than others. [laughter]


--and some white people were put in another school. [laughter]

A few other sort of interesting cases that I find in the Open Forum during the fifties that I wanted to ask you about: one, evidently, that you were very directly involved in was the case of Orans v. Landon--Alice Orans.


Refresh my memory a little bit. Landon was the immigration officer.


Evidently, Alice Orans refused to answer questions about her political beliefs at her immigration hearing, and the immigration service was trying to deny her--


Her citizenship.


--her citizenship. She eventually was victorious. This was a case that the Open Forum indicates you worked on.


Yes, I remember the name, but I don't remember the circumstances about that case. I just don't remember it. I remember there was that case, but that's all. Try me on another one.


Try you on another one, OK. [laughter] We've got plenty here. [laughter] Well, another area (and, again, just to see if you recall)--particularly in light of things that are going on now with the exclusionary rule in

California and nationally--there was a case that you and Al worked on, as reported in the October and December 1955 Open Forums, [in which] you were testing the recent California Supreme Court decision in the Cahan case People v. Cahan, 44 Cal.2d 434], concerning the suppression of evidence. Evidently, there were some cases you and Al had taken: bookmaking- and narcotics-type cases.


Well, OK. The Cahan case was a case in which the California Supreme Court ruled, after many, many importunings in other cases over many, many years, that evidence which is obtained illegally by law-enforcement officers cannot be used against an individual in a criminal case. Now, that wasn't a new rule in the law. The United States Supreme Court in Weeks v. United States [232 U.S. 383 (1914)], I think in 1914, had so ruled for the federal courts. The FBI had lived--I don't think the FBI had been started by 1914-- Let's see, it started during Coolidge's time. So the FBI came along. The federal law-enforcement agencies were able to live under the exclusionary rule very, very well and do a fine job for us in protecting us.

We had, in other cases, urged--we and other lawyers, obviously--the California Supreme Court that that ought to be the rule in California. You see, the Weeks case had held that it was a violation of the United States Constitution for courts to allow illegally obtained evidence by

federal officers, but there was no such prohibition against state agencies doing that. And there were some interesting federal cases in which the question was, Did the federal officers collude with the state officers so that they could get the evidence? But, anyway, the California Supreme Court used the same argument that many persons are using today, namely, that the mere fact that one crime had been committed--if it is a crime--is no reason for letting another crime go "unjusticed." I can't think of a better name. [laughter] The rubric they used was one that [Benjamin N.] Cardozo [U.S. Supreme Court Justice] had used in one of his cases [see Justice Cardozo's opinion in People v. Defore, 242 N.Y. 13 (1925) --Ed.]: that the criminal should not go free because the constable blundered. That was the phrase.

Well, the California Supreme Court, in Cahan, said finally: "Well, we tried. We tried to impress upon the law-enforcement officers the necessity for engaging in their conduct legally and that we weren't going to not allow them to present their evidence. But we've had enough. There are just too many cases coming before us in which the police are violating the constitutional rights of individuals and the court simply cannot condone it." The court said that "by allowing this kind of evidence to come

in, we are participating in this unlawful conduct, and we will not do it."

I don't know whether in Cahan-- Actually, at the time of Cahan there were about five or six other cases involving different kinds of activities. You mentioned narcotics, burglaries. There were just a number of cases. I'm sure in one of them the supreme court of California must have referred to that wonderful statement by Mr. Justice [Louis D.] Brandeis in dissent in one of the wiretapping cases in the 1920s. Brandeis said that the government is the teacher, and the example it sets is what's followed by the people; and if the government becomes a lawbreaker, you really can't be surprised because the citizenry break the law. So I'm sure the California Supreme Court used that in Cahan or one of the other cases.

But we filed an amicus curiae brief in the Cahan case, and, as I say, there were about four or five or six others at the same time in which we filed briefs. Different factual situations which escape me at the moment. Then, after that, it became necessary to kind of follow up. Cahan established the principle, namely, that if a law officer violates the law in obtaining evidence, that evidence will not be allowed to be used in a criminal prosecution. Now, that was established in Cahan. Then, of course, along came cases: well, what is unlawful

conduct on the part of the officer? That was--and in some instances still is--the big cry of law-enforcement officers. They're perfectly willing, to a certain extent, to abide by the principle that if they violate the law in obtaining evidence, it's not admissible. But how do they violate the law? Well, some cases are very simple. You don't have a warrant, you break down somebody's house, and you go in and search: that's clear.

But you do have some cases which are interesting. Does a law officer have the right, if he stops a car for legitimate reasons-- We have some cases even now, in Ventura County, in which we are contesting the right of law officers to "pretextually" stop a car for the purpose of making a search when they know that they shouldn't be making that search. But, anyway, say an officer stops a car for a small, minor traffic violation, and for some reason or another asks the individual to step out of the car. Does the officer have the right to search the car?--for no reason at all, but simply because he wants to see something. So cases like that would arise. Does an officer have a right to open up the trunk? If he sees a box in the car, can he open up the box and so on? Those kinds of things had to be clarified. So we participated in cases along those lines after the Cahan decision.


Volume II

Tape Number: XI, Side One
(July 24, 1982)



Now, when we left off four months ago, we had been talking about a number of things. But, in particular, we had not completely left the subject of the McCarthy period, a period of time in which I know the ACLU and yourself were heavily involved. I wonder if we could return to some of your general recollections of some of the things that you and the ACLU were involved in, particularly as it relates to the House Un-American Activities Committee and other witch-hunting activities in Los Angeles and Southern California.


Sure. Well, I suppose that era is marked on two fronts, generally--well, many fronts, but two main fronts. One, the House Un-American Activities Committee [HUAC] and- Of course, the Senate Internal Security Subcommittee was also involved, but not as severely as the House Un-American Activities Committee. That's on the national level.

Here in California we had our spate of legislation involving efforts to keep so-called subversives out of public employment and even private employment. Statutes were passed requiring loyalty oaths of all public employees, both on the state level and on the local level. Here in Los Angeles an ordinance was passed seeking to

require members of the Communist Party to register in Los Angeles.

There was a lot of litigation in which the ACLU and I were involved. From the standpoint of the House Un-American Activities Committee, every time they came to town, I can say without exception, we filed some kind of a lawsuit in an effort to have the mandate of the House committee declared unconstitutional. It was our view that the mandate of the House committee, which was to investigate so-called un-American or subversive propaganda and that's all, was on its face a violation of the First Amendment because propaganda is nothing more than speech. And we felt that Congress had no business investigating speech. There just wasn't any legislation that they could pass involving speech. So, whenever the House committee would come to town, of course, they would subpoena witnesses, either a large number or a small number. While we didn't file a suit for every person subpoenaed, we did file a number. We filed affirmative suits to seek to enjoin the issuance of subpoenas in some cases, which is, of course, a very difficult legal task. Sometimes we tried to quash subpoenas. Our argument was always the same one in a general way: the mandate of the committee violated the First Amendment.


I remember one situation that was kind of peripheral to our main attack, but we felt it important to attack the committee whenever we could, because we did feel it was an abomination on the national scene. The committee had fallen into the habit of giving its investigator blank subpoenas, which were just signed by the committee chairman in blank, he himself not knowing who the subpoenee would be. He'd just give it to the investigator, who himself, in any one investigation, wouldn't know who was going to be subpoenaed. He'd try to find out through their various ways: their cross-referencing and indexing that they had. He would decide who would be subpoenaed, and he would fill in the name of the person and then go and serve it. We felt that that was a violation of the right of the individual to have individual judgment by the committee chairman, and we filed on lawsuit on that. We took it on appeal, actually, and didn't win it.

In one instance an individual seeking to challenge the validity of the committee refused to answer questions. Well, you may remember the history of the thing. When the Hollywood Ten were subpoenaed in Washington and refused to answer in 1947, the constitutional basis they had used was the First Amendment, which I think was appropriate because I do think the House committee was investigating activities or conduct or speech which was protected by the First

Amendment. They, appropriately, on advice of counsel, said they would not answer on the basis of the First Amendment. Well, they lost. And here in Los Angeles there was one individual who-- He's still around and quite a respectable person. Don Wheeldin is his name. He similarly felt that the House committee was unconstitutional, and he didn't want to reply. He wanted to make a stand on the First Amendment, and so he came to us and asked if we would represent him.


Now, by "us," do you mean you and Al Wirin?


Right, and the ACLU. That was directly [taken in] as an ACLU matter. If he refused to answer-- We prided ourselves, as we still do, on being good lawyers, and we advised him that, in light of what had happened to the Hollywood Ten and their unsuccessful attack on First Amendment grounds, the chances of his not being cited for contempt and then found guilty of contempt if he persisted were very slim--and, in fact, virtually nil. He understood that, but as a matter of conscience he felt he could not answer. So he refused to answer on the ground of the First Amendment, and, of course, he was cited by-- First, the committee reported this to the House, and then the House cited him for contempt. It was turned over to the Department of Justice, and in due course he was charged with a violation of a federal statute which makes it a

crime not to answer a question when so ordered by a congressional committee. He was tried here in Los Angeles and found guilty. His sentence was thirty days, which compared to others was not very much. We took the matter up on appeal and lost, as could be expected. And Don did spend-- Well, I should ask him, I guess. I don't know whether he spent the whole thirty days or not here at Terminal Island.

That was the only one that I can remember that I and/or Al represented in criminal proceedings for a contempt of the House Committee on Un-American Activities. As I say, from time to time, whenever they came to town, we would try to file a lawsuit, hoping to find the ear of a court someplace, sometime. And that never was successful. The First Amendment attack never was successful.

Later on, the Supreme Court did say that-- There were just a lot of people, as you may remember, who were found guilty of contempt of Congress. But later on, in a case known as United States v. Watkins, the Supreme Court of the United States held that even though a First Amendment defense was not available to challenge the committee's authority or to be a defense against contempt, the Watkins case and then later cases said that the House committee, or any congressional committee, had to make very clear to the individual the pertinency of the question that was being asked and that was being refused of answer. If the

committee did not make that relevance and pertinency very clear, then the individual could not be held guilty of contempt of Congress. So, as a result of the Watkins decision, which also didn't take place here, a great many persons who were cited for contempt actually were found not guilty of contempt.


Do you recall the year of the Watkins decision?


Oh, well, it certainly must have been after '48, probably in the fifties sometime. It was still during the time of the McCarthy era, when the House committee was still functioning. Later on, in another case-- And there was some language in the Watkins case that all of us took great cheer from. At the moment I can't remember the precise language, but there was something to the effect that the Court was sort of leaning towards questioning the validity of the committee's mandate or charge, and we thought, well, the next case that came along, maybe the Court would be ready to hold it unconstitutional. But they didn't. When the Barenblatt case came along a couple of years later, they refused to hold the mandate unconstitutional, and Barenblatt went to jail.


Right, I recall you mentioning that case previously.


Now, so much for the House committee. As I say, we were real pals with William Wheeler, who was the

investigator for the committee. We'd always be suing him, challenging his right to do what he was doing, and, of course, challenging the right of the committee to investigate. It wasn't, as you know, until many years later--not as a result of any court decision but as a result of public opinion, largely influenced by Frank Wilkinson and his cohorts--that finally the House committee was abolished, as was the Senate Internal Security Subcommittee, although I see there are rumblings again now about reinstituting them.




This would be a sad thing for us--I mean, for the country.

Now, on the state front, all kinds of things were happening. The Regents of the University of California felt impelled, because of the times, the scariness of the times, to impose a loyalty oath on all faculty members. A large number of faculty members did not take the oath, as a result of which many of them were discharged, among them our own John Caughey, who used to be on the board of our-- I guess he's still on the board; he was off and now he's back on. A specific challenge was made to the regents' oath, in which we participated. In the strange way that the law works, the regents' oath was held to be unconstitutional in a sense for thirty days or something like that.

They hadn't given proper notice to the professors, and so they got thirty days' pay that they were docked. But the oath was upheld as to its validity.

There was the Levering oath. That was a statute that was known as the Levering oath, passed by the state legislature, in which every public employee of the state had to take that oath. They were all the same: "I do not advocate the overthrow of the government by force and violence. While I'm an employee I won't. . . . I have never been a member of any organization that advocates. . . ." If any exceptions, you write in. Unfortunately, that oath was upheld by our California Supreme Court, and the United States Supreme Court denied a hearing.

There was a separate [oath] for teachers. It was called the Dilworth oath. It was exactly the same, just sponsored by another legislator. There were a large number of teachers who were discharged for refusing to take the oath. We represented many of those, usually unsuccessfully unless we could find-- Sometimes there was a technical thing that the administrative agency had done incorrectly, and we were able to save a person's job here or there. But on the substantive issue--the merits of the oath--we were unsuccessful.

We had one case arising out of San Diego involving a gardener in a park. We thought that would be a very good

one because we wondered how in the world could a gardener have anything in the world to do with subversiveness, or how could it affect pushing a lawnmower or mowing the lawn or something. But we just were not able to make a dent in the courts. We'd get an occasional dissent from a justice someplace, but we weren't successful.

Later on, after the furor of the McCarthy days died down, we were successful in knocking out the California loyalty oath. The one case involved the Levering oath and a taxpayer suit brought by Bob Vogel, who was president of the American Civil Liberties Union. I don't think he was president at the time we brought the lawsuit. No, I'm sure he wasn't. But he had formerly been a president. We brought a taxpayer's suit, and by that time the law had so advanced that the courts understood that our California loyalty oath was unconstitutional, based on a number of United States Supreme Court decisions, and so it was knocked out.

But in a strange way the oath keeps popping back. Every once in a while even today, within the last year before I got ill, every once in a while someone would call up and say, "Hey, I've got this job application, and it's got this loyalty oath on it. Do I have to sign it?" What happens is that these forms have a nefarious way of sticking around in somebody's drawer, and new persons come to

take the positions and don't know that the statute has been declared unconstitutional; so they hand the employee this kind of an application, and we have to call up the attorney and explain it to him. The way the law works, the statute is still on the books. I mean, the printed imprint of the oath is still in our California Constitution--article 20, section 3, I think it is. When a court declares a statute unconstitutional--or, in this instance, a constitutional amendment [is declared] unconstitutional--it doesn't automatically wipe the ink off of the books. It's still there. You just have a court declaration that says it's unconstitutional, and unless the legislature or the people vote to knock it off, it still stays. It's there.

A good example is this (it's still there; I had to look it up for some other reason just the other day): the California Alien Land Law and the California alien fishing laws, which we talked about, were declared unconstitutional but still remained on the books until later, when there were elections and they were wiped out. Anyway, so some young neophyte or some layperson who doesn't know the history of the oaths [and who] would go to look in the California Constitution today, and who didn't have an annotated edition, would see that every public employee has to take the so-called antisubversive, or loyalty, oath.


Do you recall, in addition to you and Al Wirin, during this period of time when you were attempting to take on HUAC and the loyalty oaths and so on, any other attorneys who worked with you on these cases, who were involved in the general effort?


Well, of course, in the Hollywood Ten, the-- As I say, all the people were from here, but it was tried back East. Charlie Katz and Ben Margolis and Bob [Robert W.] Kenny and-- I just can't think of the name of this very wonderful lawyer from San Francisco, who wrote a book-- It seems to me that he ran for office on the Republican ticket, too. He was very heavily involved. Oh, yes, Bartley Crum. I'm sure that John [T.] McTernan, who is now on our board, was involved, although I don't think he actually was involved in the Hollywood Ten as such.

Of course, there were lawsuits that took place also involving the Smith Act at about the same time, which Al was involved in, both here and in Hawaii (and which Margolis was involved in and also Kenny and McTernan). The Smith Act was passed in 1940, and the ACLU opposed [it] all those years. Let's see, who else-- Oh, I think a very brilliant black lawyer, Leo Branton; he was involved in the Smith Act cases as well. Other lawyers-- It seems to me Bob [Robert H.] Shutan, who was a bankruptcy lawyer, did

some work for us as a volunteer in those days. There were others; they just don't come to mind.


Did the ACLU itself come under any serious attack during this period of time for defending--


Well, yes, in the public eye we did. [None] of our people was called as a witness or anything like that, but of course in the public eye we were either a communist organization or a dupe of a communist organization or simply incompetent or whatever other terminology. Yes, we came under serious attack, which was to be expected. You really can't explain the times or describe them, I guess. I think I mentioned, at the beginning of the war when we supported the Japanese there was a hysteria in the air; no one would talk to us. I think people talked to us during the McCarthy days, but they didn't understand what we were doing or why we were doing it and thought we were doing the wrong thing. We had a hell of a time trying to explain, as we always do, that it didn't make any difference who the individual is: the Constitution simply is there for everybody, and that's a cardinal principle of the ACLU.


Did this reflect itself in the sense of any kind of dropping off of financial contributions, as has happened more recently?


I think so. I will say this, and it always gives me a good feeling, although I'm not sure I should have it:

as vitriolic as public criticism of the ACLU was--and it was quite severe--our relationship with the committee was very good in the sense that they didn't attack us as such.


The House committee?


Yes. And, as I say, when I said we were good friends with Wheeler, that was meant in two senses: not in a friendly sense in the sense that you would have cocktails with him or have him over to your house, but our rapport was good; so that if we had to have information or if we needed to have a continuance or a postponement or something like that, we were able to do it. I think they understood what we were doing even though they didn't agree with us. Now, when I say "they," I mean some of the people. I'm sure that there were others who thought we were absolute enemies of the state. But we always tried--and this has been a precept of mine, as it was Al's before--to keep a decent rapport with our adversaries, because it sort of pays off. You fight in the arena that was designated for that purpose in the courts, but you don't become antagonistic to the individual if you can help it. Sometimes it's very difficult.


Now, also during the fifties, in a number of places the Open Forum reflects a number of obscenity cases that the ACLU was involved in. Which ones stand out in your mind?


Well, I remember, of course-- I think we talked about the Zeitlin case earlier. Obviously, the question of obscenity is one that is of importance to the ACLU. It's a First Amendment question and, much to my dismay (something I have never been able to understand), the Supreme Court has come flat out and said that obscenity is not protected by the First Amendment. So it can be barred; it can be stopped, prohibited. I've never been able to understand that, but that is the law. But during the fifties, this was really before the Roth case which-- Well, that's not accurate. The Supreme Court has always said that obscenity is not protected by the First Amendment, and if they didn't have a specific case that said it, I guess Roth is the one that epitomizes it. But in dicta and various statements, the Supreme Court has always said that obscenity, whatever it is, is not protected.

Then the big fight has been: well, what is obscenity? How do you define obscenity? Can you ban a book because three words in it are obscene in somebody's view, or do you have to look at the whole book? And there's been a whole history of that. Because we feel that individuals ought to have the right to choose what they want to read, and it's not up to government and not up to other people to tell them what to do-- Although we protect the right of persons who also want to picket a book place if they want to. They

have a right to do that too. That's the open marketplace idea. But individuals, if they want to read something which titillates them--if that's the word--and which in some government official's view is obscene, government ought not to have the right to do that. So, even though we have not been successful, and no one's been successful, in getting the Supreme Court to recognize that obscenity is simply one other form of writing or graphic depiction, there's been a fair amount of success by various numbers of decisions in at least [restraining] those who would censor and those who would restrict the ability of other persons to read or to see what they want. I remember Whisper and Confidential were two publications which come to mind. I think we filed a lawsuit against the attorney general of the state to try to get him to-- It was Pat Brown at the time, wasn't it?




To get a declaration that his efforts to ban those books were unconstitutional. I think we were successful in that. At first we weren't, but I think eventually those publications were allowed to be distributed. Even today there are various ordinances which were filed. In fact, L.A. County had one which was declared unconstitutional just this year. In those days, every now and then L.A. County would try to pass an ordinance which would require

publications which were on the news rack to be covered up so that people can't see what the cover looked like. L.A. City tried to do it. Sometimes they tried to do it by not allowing news racks on the city streets altogether. Well, of course, the newspapers would protest against that, and we'd have allies. Usually in the obscenity cases there would be allies who would, while not interested in obscenity as such--even as the ACLU is not interested in obscenity but interested in the First Amendment concept-- And from the standpoint of the metropolitan press, [they were defending] their right to sell newspapers on the stand and get some money. So we would have allies.

We didn't go into all the obscenity cases that came along. In fact, we went into very few: Zeitlin comes to mind, Whisper and Confidential, a couple of L.A. County news rack ordinances. Over the years, [we were involved in] perhaps a half a dozen, but our position is very clear on that subject.


One thing not reflected in the record of the ACLU, because I understand it was a private case that you were working on--


One of the few.


One of the few that you had time for?


Yes. [laughter]


But which you did mention to me, and I did want to hear about, particularly because these were the height of the cold war years. There was a case involving atomic testing in the USSR?


All right. I don't know whose idea it was, but we were approached by some of the Quakers. There was a young man who had a huge family. I don't know, he had seven or eight or ten kinds, I remember. Bob somebody; I don't remember his name. My memory for names is terrible. Oh, yes, it was David Walden. Catherine Cory was involved. I don't know what her name is now, but at that time it was Catherine Cory. We were approached to try to stop the United States from any further testing of atomic weapons in the Pacific Ocean. And the Russians from doing the same thing in Russia.

Now, I've just said something very blithely. But the prospect or the concept of trying to stop even the United States but then to try to stop the Soviet Union from testing bombs was mind shattering, mind boggling actually. And, as I say, Catherine Cory was involved.

So Al and I and Francis Heisler, who was an ACLU volunteer attorney, both in Chicago and up in San Francisco-- He just retired about a year ago. He practiced in Carmel. He came out to Carmel from Chicago. [The three of us] got together and tried to figure out some kind of a

theory for stopping both the United States and the Soviet Union from atomic-bomb testing. And, as you say, it was not an ACLU case. There was a committee set up to raise money so that we could pay our rent, and we had meetings. A most wonderful man, Lloyd Smith, was the treasurer. I remember the committee one time had a meeting in some place at which I think something like 800 people attended, to get up enthusiasm and to talk about the case and try to get some support for it. We were patting ourselves on the back after the meeting-- "God, we got 800 people to come!" and Catherine says, "Yes, but do you know how many people saw the Dodger game tonight?" I can't remember whether they were still at the Coliseum or whether they had moved over to Dodger Stadium. In either event, there was something like 50,000 people; so, we were put in our proper place.

We filed a law suit [Pauling v. McElroy]. The one here in the United States was filed in Washington, D.C. And we had wonderful plaintiffs. What's the name of the professor who, he used to be at Caltech [California Institute of Technology] and got two Nobel Prizes?


Linus [C.] Pauling?


Yes, Linus Pauling was one, and Pastor [Martin] Niemoller from Germany, and Bishop Baker from Great Britain. It was just a marvelous cast of characters that this young man who acted as sort of a secretary to the

committee had gotten together from all over the world. It made you feel good; you glowed in just the presence of their names. I'd never met them. Well, I'd met Pauling, of course.

So we prepared this complaint, and I remember one day I went over to Pauling while he was still at Caltech with a copy of the complaint, and he was going through it to make sure that it was technically correct. He came across something and made some reference to strontium 90, which had been prepared as a result of atomic testing. We had an allegation--I guess we got it from him because he must have helped us in drafting it. He said, "Everybody in the world now has some strontium 90 in him, and before the testing nobody had any."

I said, "Dr. Pauling that's a very, very drastic statement. Is it true? I mean, we can't put anything in here that is not absolutely correct."

"No question about it," he said.

OK, that was it. That went into the complaint.

Then we talked with a Professor Brown at Caltech, who fooled around with fruit flies, and they had made some experiments about how much radiation gets into people. I said, "Well, what are you doing? How can you tell by doing it with fruit flies?" And he explained to me that fruit flies have characteristics very much like human beings in

some ways, and you can do experiments on fruit flies and it will give you pretty good information as to how it would act on human beings. And the beauty is that fruit flies live a very short time; so you can have a hundred generations in a very short period of time, and you can see what's going to happen to the mutations, and so on. And they were horrendous. [laughter] So that was a very interesting experience for me.

We filed a suit in the District of Columbia, lost in the trial court, took it up in the court of appeals and lost it. We then filed a petition in the United States Supreme Court and it was denied.

So much for that in the United States, with one little addendum. A little bit later, Joe Rauh in Washington, who had done some ACLU work and is also quite a prominent attorney in Democratic circles, had an actual defendant who defied-- When we lost our effort to stop the testing in the Pacific, the United States went ahead and started to test. So a man by the name of [Earle L.] Reynolds, and his friend or friends, Quakers [who] wanted to either protest or actually stop the bombings, they took a boat and they went right into the area. What the United States had done is that they had-- They gave notice to all the nations of the world that hundreds of thousands of square miles of the Pacific were not to be entered into because we were going

to do these testings. Reynolds and his crew went into this area for the precise purpose of being there and being dropped on, if necessary, by these bombs that were being tested, to try to stop them. Well, they were arrested, and Joe Rauh and his partner [John Silard], who was the son or nephew of the Nobel Prize winner, represented Reynolds. They were found not guilty on the technical ground that they'd hadn't received sufficient notice or something like that. But there were other efforts, not only ours, to try to stop the bomb. If we'd been able to stop the testing, we'd probably have a much better world today, I guess, less scary.

Well, I mentioned that we wanted to do the same thing in Russia. So who knows anything about Russian law? I certainly didn't, and it was one of my tasks to get the thing going in the Soviet Union. Well, there were two men in the United States, one of whose name I can't remember; one was at Columbia University, and the other one was at Harvard. His name, I think, was Professor Hazard. They were supposed to be experts on Soviet law. So I was back in Washington for something, and I made an appointment to go see Professor Hazard up at Harvard and get all the information I could as to how you file a lawsuit in the Soviet Union. (I'll tell you a little bit about him later on.) I went into his office, and he explained to me what

you do: you file it, you send it to a certain lawyer there.

I said, "Do they have lawyers in Russia?"

"Oh, yes, they have lawyers. They're just like we have here."

"And they fight each other in court?"

"Yes, they fight each other in court." [laughter]

He gave me what to do; so when I came back we prepared all the papers in the proper form and in the proper court, we thought, and I sent them back to this-- It wasn't to an attorney but to something like a bar association of lawyers who file lawsuits against the government. And I never heard a word. We never were able to get that suit filed. I wrote to every place I could think of after that, and apparently we never got the suit filed. Of course, I guess it didn't make any difference. We got the suit filed here, and it didn't do us any good. [laughter]

But we wanted to, as everybody wants to, make a demonstration, make a witness, to all the people everywhere to try to stop this madness if we could, and it seemed to us to be a pretty good gimmick, if you will, to have a lawsuit against the governments of both these major powers to try to show them that they shouldn't be doing this. And the suit did draw a considerable amount of publicity. Publicity for its own sake, I guess, doesn't mean much, but

maybe a little bit. Somebody may have been impressed that we ought not to continue with this. Of course, the fight is still going on with the nuclear freeze effort now and so on.


Was the publicity on a national scale or locally?


No, no, it was a national scale. As I say, the suit was filed in Washington, and there was no trial. It was all on papers. There was one argument at the court of appeals. Al and Francis went back for that and did get a considerable amount of national publicity.


Was there no trial because--


Well, there was no evidence. This was on papers, you know. The government filed a motion to dismiss on the ground that, "Who the hell are you trying to tell us what we can do for national defense?" and that sort of thing. So there wasn't any trial in the sense that witnesses were called. We would have loved to call Niemoller and Bishop Baker and-- I ought to pull out those papers and look at them. It was a very impressive list of very important-- We had a half a dozen Nobel laureates and that sort of thing, all of whom wanted to stop this insanity, which we have not yet been able to do. Not yet.

So I was going to tell you a little bit about [Professor Hazard]. While I was back there talking to Professor Hazard, I said, "Well, how do you know all about this Russian law?" Well, he was teaching it, and in

addition he represented, he told me, the heirs of Arthur Conan Doyle, who had written [the] Sherlock Holmes [stories]. And every country in the world paid royalties to the family for the Sherlock Holmes stories except the Soviet Union.


Oh, yes. I think I've heard something about that.


And he said, "I'm filing a lawsuit to get them to pay." Well, he did. Years later--and perhaps that's the story you saw--he did file a lawsuit. He got his filed. I don't know how he did it, but he got his filed--but he didn't win. [laughter] And they're still not paying royalties to the family.


One other issue that came up in the late fifties for the ACLU--and there's mention of it in the April 1959 Open Forum--is that evidently the Southern California affiliate of the ACLU was the first affiliate in the country to actually declare against the death penalty as a violation of the Eighth Amendment as an ACLU policy.


Yes, yes.


And also around this same time the ACLU did become involved in one aspect of the Caryl Chessman case--the Caryl Chessman appeal?




I'm wondering what your recollections are about whatever debates might have gone on, as far as the adoption of that policy.


Well, I didn't realize it was as early as 1959 that we started to talk about it. My recollection is that we actually adopted the policy in 1962. For some reason or another that date sticks in my mind. Now, you've been perusing the Open Forum, and so maybe we talked about it for three years before we adopted it. That's possible.

Well, I don't remember the members of the board--who they were and what the discussion was--but there were four attorneys who were involved in it and very much concerned about it. [One was] Gerald Gottlieb, who's still practicing law here in Los Angeles. He's probably the one who approached us. It was his idea, I think, that-- Well, first, historically, you may or may not know, the issue of the constitutionality of capital punishment had been kicked around in the ACLU, I suppose, from the beginning. And the official policy of the ACLU was that it was not a civilliberties issue, mainly because it's talked about in the Constitution-- I mean, there's language in the Constitution--"No person may be deprived of life, liberty, or property without due process of law," which kind of recognizes that you can be killed if you're given due process. I've seen some of the correspondence or

literature that went on. I would say, to a person, everybody on the board of the national ACLU (and all the affiliates) was opposed to capital punishment. Clarence Darrow and so on were opposed to it as individuals. But they felt, as an organizational matter, it wasn't a civil-liberties question.

That kind of a debate--not on the same issue--still goes on in ACLU circles today: Is poverty a civil-liberties issue? Well, there are many staunch, good, and wise civil libertarians who are members of our boards, nationally and affiliates all over the country, who will say, "No, it is not a civil-liberties issue. Poverty is an economic question and is not a civil-liberties question. Things happen from poverty which cause civil-liberties questions; people are denied equal protection of the laws; they're denied due process. Those are civil-liberties questions which arise from poverty. But poverty is not a civil liberties question." And the debate goes on.

Similarly, the capital-punishment question for years had been rejected as a civil-liberties issue. We here in Southern California-- Now, who on the board I just don't know; I can't remember that. Eason was the executive director, Jerome [W.] MacNair was the chairperson for a while, Ed [Edmund W.] Cook was the chairperson for a while, Bob Vogel, all of whom I know were opposed to capital

punishment. But who were the proponents or opponents in the debate I don't know. But Jerry Gottlieb came to us and had this legal theory, and we gave it to the board. (I think at that time I was on the board and Al was counsel. I don't think I was counsel; I was then on the board, for some reason. Later on, when I started getting a little income from the ACLU, I stepped off the board, which was the policy.) We debated it--I can't remember a three-year debate--and finally we adopted the policy. And the national office kind of criticized us for doing it--why did we do it?--and eventually the national office took the same position, as did, I guess, all of the affiliates by this time. We went to court on a number of occasions--not affirmatively but in defense of individuals. Oh, did I mention Ed Mosk? I don't think I did.




I mentioned four attorneys. Jerry Gottlieb, Ed Mosk, Al, and myself were primarily concerned. Ed and Jerry went to court on a number of capital-punishment cases, trying to get the court to declare the institution of capital punishment invalid and unconstitutional.


Do you recall who on the ACLU board here opposed adoption of that policy?


Well, that's what I-- No, I thought I mentioned that. I do not; I do not. But I'm sure that there were

spirited debates along the same lines: not as to the issue of capital punishment itself but on the issue of "Is it a civil-liberties issue?" That same thing went on in our affiliate as it did on the national board. And, as you know, the national board didn't adopt the policy until some years later and it did agree that it was a violation of the Eighth Amendment.

When that issue went to the United States Supreme Court eventually, and the Court threw out all the capital-punishment statutes which were in existence at that time, a couple of the justices, [Thurgood] Marshall and [William J.] Brennan and [William O.] Douglas, at that time held that it was unconstitutional under the Eighth Amendment. But the Court itself said, "Well, you could write a statute that was constitutional, that wasn't frivolous, that didn't allow some person to be sent to death while others who did the same thing were allowed to live."


Tape Number: XI, Side Two
(July 24, 1982)


As I say, the Supreme Court of the United States eventually did hold that there was a difference in statutes that provided for capital punishment, and they've been consistent in that since then. They've held the legislature to the strict necessity for defining exactly the circumstances which will allow the taking of an individual's life. And as a result of those decisions--there were a number of them--many statutes have been overturned, although, to my chagrin, several of them have been upheld. In California, the California case In re Anderson, in which we filed a friend-of-the-court brief and participated, held our California capital-punishment statutes violative of the California Constitution even before the United States Supreme Court got the cases. As a result of that, the California statute was rewritten, and we do have one on the books today. A couple of the redrafts, or at least one, was held unconstitutional. It was redrafted again. There's one on the books today which has been upheld but which is now before the United States Court of Appeals for the Ninth Circuit, in which we have filed a brief urging the unconstitutionality of the statute. So that fight has gone on since '59 until today, and it will go on for some time, I

think. Hopefully, one day we will abolish the institution entirely.

You mentioned, while you were changing the tape, the Caryl Chessman case. We participated in the Caryl Chessman matter in kind of two ways: one on behalf of the ACLU and one--Al and I--by ourselves. The part that the ACLU played was in that part involving Chessman's claim that he was denied due process because while the case was on appeal and before the reporter's transcript was prepared, the reporter died, and there was nobody who was able to decipher the notes of the individual who had taken down the proceedings in court. Whereas the law had been-- It probably still is; I hope they've changed it on the criminal side. I'm not sure, but I think they have. The law was at the time that in a civil matter if it was not possible to prepare a record on appeal because the reporter had died, you were entitled to a new trial if you needed the transcript on appeal; whereas in the criminal case you weren't. Efforts were made to try to resuscitate the transcript, to try to read the notes, get experts to do it, and so on.

Chessman had a number of arguments on various points in his numerous appeals. I always remember the Chessman series of cases for a number of things, but this one in particular. Chessman had gone to the Supreme Court of the United States several times, on various issues, and he had

always been turned down. On one occasion he went to the Supreme Court on this issue of the right at least to try to get a readable transcript, and the Supreme Court of the United States [said], yes, he was entitled to that. The attorney general of California argued, "My God, what are you doing! He's been up here a half a dozen times. You've always turned him down. There must be an end to litigation. You just can't go on and on and on. He's been given the death sentence; he's a vicious man; he should die. How can you do this?"

And the Court said, very eloquently--the exact words I can't remember--something to the effect that, "Just because the courts--including this Court--haven't been able to see the constitutional defect that was in a particular case does not mean that, when we do see it, simply because we erred before, we should continue to err, and we are going to give this man another shot at it." Which is refreshing. Justice [Felix] Frankfurter, when he was on the bench, and Justice [Robert H.] Jackson and, it seems to me, Justice [John M.] Harlan all had something similar to say. I remember Frankfurter had kind of a cute quote. He said, "Wisdom too often never comes. It should not be rejected because it comes late." Which illustrates that we shouldn't be too harsh upon the courts because they give persons a chance to present their points of view.


Well, so the ACLU filed a brief as a friend of the court on the issue that he was being denied due process because he was being required to have an appeal without an adequate record and he was entitled to try to get that record. Eventually he did get that. There was a hearing held here in Los Angeles in which Paul [M.] Posner, who was then in our office, represented Chessman in the effort to get that transcript. Of course, what Chessman and what Paul were trying to do was to show that the record could simply not be reconstituted. There were stories about how the reporter at the time was drunk at the end, and there were all sorts of things. His notes were really not decipherable.


Drunk during the trial?


Yes. They went many weeks, but the court finally got some kind of record that they said was satisfactory, and it went up.

After that, I helped Chessman-- I say, "I helped;" that's an advised word. Chessman was a brilliant man, really quite brilliant. I met him in San Quentin. I went up. He prepared his petition for writ of certiorari, the last one, which was finally denied and which ended in his being executed. He prepared his petition, which was to bring up all of the points that he had made all these years to finally get the Supreme Court to hear him, and didn't

get it. So I met him. But I had corresponded with him, and he had written two or three or four books while he was in jail--pretty good. [He was a] pretty good novelist. One was called The Kid Was A Killer. I thought it was about him, but, of course, it wasn't. It was a prizefighting story. Chessman had never killed anybody, and today it can very well be doubted that he would be subject to the death penalty.


I wonder if you saw, on that point, the publication of the California Attorneys for Criminal Justice, the CACJ Forum?




They had a two-part series ["The Caryl Chessman Case: Irreversible Error," Edmund G. Brown, Sr., et al., CAJC Forum, vol. 8, nos. 5, 6 (Sept.-Oct., Nov.-Dec., 1981) --Ed.]: articles by Pat Brown, who was governor at the time, and--I don't recall the name--one of the attorneys who was a woman who worked with Chessman on his appeals.


Oh, the librarian, yes.


I believe so. Do you recall her name?


Yes, Rosalie Asher.


There were some disagreements on some points, but there was not disagreement that today Chessman would have not been executed.


Yes, that's because of the law that has progressed since his time.

Anyway, so I went up and we went over the petition, and I remember that little room where you sit across the table with the guard out there. Theoretically, he can't hear you--I assume he can't--but he's there through a door. We went over this thing in great detail. I think the real criticism I had of the petition he prepared-- He'd done all his labor work although he had lawyers: George [T.] Davis, in San Francisco, who did some of the work for him. He prepared this himself, and I said--I guess by that time I was calling him Caryl; I'm not sure--"This is just too long." He answered, he said, "This is my last crack, and I've got to give the justices everything that I've got. I've got to tell them everything that there is." You see, a petition for a writ of certiorari is supposed to be a comparatively small document. It's not supposed to be everything; you're not supposed to argue your whole case. The whole object is to tell four out of those nine justices, "Hey, you should listen to me." That's really all you're supposed to say. But he just felt he just had to put everything in, and he did. And he did it well. But it wasn't successful.


Do you recall about how long your meeting was with him? Did you have more than one meeting?


No, I just had the one with him, and [it was] the only time I'd met him. Oh, I suppose it was an hour or so. We weren't cut off by the guards or anything. It wasn't anything like "Your time is up." I went through the metal detector and all that stuff that you go through before you go in. And to go to the little room to see him, you pass through another room where other prisoners are being visited by their families and by people. It's a very large room. And you pass through a room where the artifacts that the prisoners make are on sale. That's the only time I'd been to San Quentin.

As I say, he never killed anyone. The main thing that people have against him is that he was the red-light bandit and that one girl who he was supposed to have molested became insane. He maintained throughout it all that he was not the red-light bandit, that he had not committed those crimes. He said, "I'm a bandit, but I didn't molest any women." He said, "All my life I lived by my wits." He wrote an autobiography which is quite interesting, in which he tells about the various robberies in which he engaged and how he really had a vendetta against society. He wanted to prove that he could outwit society, and he did rob. But he said he never engaged in violence, and he did not commit these crimes for which he was going to the death chamber. That was Caryl Chessman. As I say, had this happened today, he would not be under the death penalty.


Tape Number: XII, Side One
(July 31, 1982)


Fred, last time we had talked about the atomictesting cases, the challenge to both the U.S. and the Soviet Union to stop their atomic testing [Pauling v. McElroy]. In between sessions you mentioned to me that there was a sequel to that case. I wonder if you could tell me about that.


Yes, I will. Well, first I want to apologize. I vowed to try to get the names of the plaintiffs, because they are of some interest. I mentioned a couple of them: Bishop Baker of England and Pastor Niemoller of Germany, and of course Linus Pauling of the United States; but there were many, many others, and I'll try to remember to do that, because I think it is of interest.

After we lost the suit in both the United States District Court and the United States Court of Appeals for the District of Columbia, and the United States Supreme Court denied certiorari, the United States government continued to go forward with its plans to test atomic bombs, or atomic devices, in the Pacific. They cordoned off hundreds of thousands of square miles of the Pacific Ocean. By cordoned off, I mean they just told all the nations of the world and all the sailors, "Don't come in here at such-and-such a time because we are going to do

this testing." Well, there were these individuals who were trying to stop the atomic testing, who made it known that they were going to defy that ban and sail into the area for a confrontation. The government theoretically would be required to make a decision between testing or not testing, because these people would be right below the bomb. Well, of course, it didn't happen that way: as soon as they got into the area, they were arrested and charged with a violation of a federal statute which reportedly allowed the United States to take control of all of these international waters, at least as to United States citizens.

They were tried, but eventually their case was thrown out, really on technical grounds, on notice grounds. They were represented by Joseph Rauh of Washington, D.C. So, of course, the hope for legal challenge to the legality of testing of atomic bombs did not prove fruitful. However, the efforts were well worthwhile, I think, to the extent that they continued the battle to try to bring to the forefront of all people, including our governments, the incorrectness, to use a mild word, of engaging in this atomic proliferation. That's all [I have] about that case.


Do you happen to recall the names of any of the people involved in that case?


Well, Reynolds. Didn't I mention Reynolds?


I'm not sure.


Yes, in the court of appeals it was called Reynolds v. United States. I don't know his first name. I probably could find that out, too, if I looked far enough. There were others, but I remember that Reynolds was one of them. Reynolds, as I recall, was a pacifist; I think he probably refused to register, or something like that, during World War II. So he was a well-known, confirmed pacifist and continued his work well into the sixties. I'm not sure what he's doing now.


Well, Fred, one case that the ACLU was involved in during approximately the same period of time was the case of the-- Well, it came to be known as the Five Spanish Sailors [case, Fernandez v. Hartman], sailors who had jumped ship to escape from Franco's Spain and attempted, I guess, to obtain asylum in the United States. But things didn't go so well for them, initially at any rate. Tell me about the ACLU's and your involvement?


Yes, well I'm not sure how we got ahold of the case. It came into the office. I didn't work very much on it. Al and Hugh Manes, who is practicing law here in Los Angeles and who was in our office at the time, concerned themselves with that. But for some reason that case caught the imagination of many, many prominent people who ordinarily weren't concerned with civil liberties. I don't remember the names of any of them except one, but he was

typical of the type of person who came to the support. That was President Rufus B. von KleinSmid of the University of Southern California [USC], who was a very conservative individual, distinguished educator, great money raiser for the university, and to my knowledge, at least, never really concerned himself--at least publicly--with matters of civil liberties or anything outside the university. But for some reason, when it became known that these Spanish sailors had jumped ship in San Diego and were seeking asylum--and it wasn't really only in the United States; I'll tell you about that in a minute--he volunteered, for some reason, and he and others collected a committee which just publicized the thing, and it became a very well-known case.

What happened was, these sailors were given, of course, shore leave, as is the case when a foreign ship comes into a port, and they just took off for Mexico. They didn't stay in the United States; they went to Mexico and wanted to stay there. Now, at that time, Mexico did not recognize Franco's Spain, so they could have asylum in Mexico--no problem about that. But our government through the Navy, arranged for them to be, in a sense, kidnapped in Mexico and simply brought back to the United States, physically, to the border; and then either our United States Navy-- I'm not sure whether the Navy took physical custody of them or the immigration service. But, in any

event--and I did participate in this part--we prepared a petition for writ of habeas corpus to get their release from whomever's custody they were in. We did get an order preventing the Navy from physically putting them on--was it the Spanish Navy? I don't think it was the United States Navy--the ship that was in the San Diego port and ready to leave. It was ready to leave very quickly; so we had to get this order so they wouldn't be physically shanghaied, in a sense, and be put on the ship.

Then the immigration service started deportation proceedings, and we claimed that they had the right to asylum in the United States. Now, as it turned out, the whole question of the right to asylum really wasn't important, because the government of Mexico had formally agreed that if they were allowed to come to Mexico, they would be given the right to asylum there. The sailors, of course, contended that they now certainly couldn't go back to Spain, because, if they did, they would be executed. The Franco government was there, and they were persons who did not want to live under the Franco government.

Now, another interesting part of the case was that the matter was argued-- They were in jail at San Ysidro, at the immigration-detention facility, and the matter was lost in the district court. But by this time the ship had gone; so their being in jail was OK with them, in a sense. Then the

matter was appealed to the United States Court of Appeals, and arguments were made on the ground that they were entitled to asylum, because, at least by this government, they shouldn't be sent back to what was certain death. In those days the ninth circuit was not as far behind in its cases as it is now--although now it's catching up. (They have a lot of new judges, and they're catching up.) They were pretty current in their cases, and a decision could be expected to come down within three or four months ordinarily. Well, the decision didn't come down, and about a year passed. In the meantime, of course, efforts were made to allow them to be out on bail, so they wouldn't have to sit in jail while their appeal was pending. Those efforts were denied; those motions were denied. Finally, after about a year or so had passed, they were sitting in jail--no bail--and the court hadn't come down with an opinion. So we decided--and I remember participating in the discussions on this--that we would make another motion for bail, although it had been turned down in the district court and the court of appeals.


Now, by we, who do you mean?


Oh, Al and Hugh and myself. We were still the attorneys. As I say, this public group continued their interest, and the case was pretty much alive throughout all that time, although there wasn't anything they could do.

They didn't have to raise any money, as an ordinary committee has to. It was just that it was a case that caught their attention.

I remember the argument: Al argued this here in Los Angeles, on the sixteenth floor of the Federal Building. The court of appeals it was, and still is, although it is going to move to Pasadena pretty soon, that is, the Los Angeles office. Who was on the court? I think, as I remember it, it was Judge [Richard H.] Chambers and a maverick kind of a judge from the state of Washington [George H. Boldt]. I remember the court saying, "Mr. Wirin, we think we understand why you brought this motion for bail at this time. You're a little vexed"--these are not necessarily their words--"at the length of time that it has taken us to make a decision in this case, and we get the message." I don't know whether they ruled from the bench or shortly thereafter. They denied, again, the motion for bail, but very quickly, within a week or two, they came down with their decision, and they sustained the right for the sailors to have asylum. Then, of course, they went right to Mexico, and I suppose they're still living there to this day.

So it was an interesting case, from the standpoint of the public concern that was indicated, and I thought it was

kind of cute the way the court handled the bail motion: and denied the bail but gave them what they wanted.


Well, you mentioned that the Navy actually kidnapped them back out of Mexico.


Yes, the reason I said navy was because I was thinking about the Spanish Navy. Now, whether it was the United States Navy--and it might have been--or [whether] agents of the United States government cooperated with or got the Mexican government to-- No, my memory is that our guys went in and just literally took them, and I think that created a little fuss too.


With the Mexican government?


Well, I'm really confused now. As I talk about it, I know the Mexican government was very sympathetic to the sailors. Whether they connived with the American authorities to do it, or whether the American authorities just went down and got them-- I'm fuzzy now, but I do know that they were physically brought to the border, and then they were in the clutches of the United States authorities, who kept them.


Now, of course, this was the late fifties, and the cold war and the McCarthy era were, of course, still going on; but, still, how would you account for the extraordinary interest that the government took in this?


The government?


[The interest] the U.S. government took in the situation.


Well, Franco was an ally, and I suppose it's consistent.


I guess when I say extraordinary interest, what I mean is that it's one thing to provide this service for Franco if the sailors were in the United States, but to go to the extraordinary lengths of going down and getting them from Mexico--




--when it wasn't really necessary and would just create a stir on behalf of even conservative people, as you mentioned.


Well, that may have been what got people. I really don't know. And I can't explain why the government-- Of course, once they were here and the ship had left, they were here illegally; so it was not extraordinary for them to engage in deportation proceedings.


A question along somewhat the same lines would be: Do you recall the cicumstances through which the president of USC got involved, or why he took such an interest?


No, I don't. I really don't. But he and-- They just got such a respectable [laughter]--to use that term--committee together; it just amazed me. I mean, we had never had that kind of support on any case. As I say,

there wasn't financial support or anything; that wasn't necessary, although it would have been welcomed. It's simply that they supported the ACLU. But the ACLU didn't get any money from it, and our firm didn't get any money from it. But it was just a nice feeling to have all these nice people [laughter] on our side, when ordinarily, in those days, they generally weren't.


Now, Fred, you mentioned Hugh Manes in connection with this case.




Of course, Hugh is still alive and kicking as an attorney here in Los Angeles, particularly on police-abuse cases. But I'd be interested to hear the story of how he first became involved with you and Al and the firm.


I don't remember when it was, but he came to the office and he had been recommended either-- I'm not sure whether we got a call from Ben[jamin] Aaron--is his name Ben Aaron?--who was a professor at the labor institute at the University of California, Los Angeles, [the Institute of Industrial Relations] which was also connected with the law school in some way; they exchanged professors or whatnot. We needed somebody. I'm sure we didn't advertise; I don't know. Hugh came in one day and said-- Yes, I'm sure it's Ben. His brother is Al. I think it's Ben, a very prominent labor writer in labor law, a big labor

arbitrator, and so on. [Hugh] said that [Aaron] had recommended he see if there was a job here, and there happened to be. So Hugh came in and worked for us, almost right out of law school. He was with us for a number of years and participated, as the cases came along, in the Spanish Sailors case, and he also participated in the Talley case in the United States Supreme Court. Was it Talley? I think so; I think [it was] Talley v. California. He wrote the brief, I think--or helped write the brief-- involving the right of a person to distribute leaflets without the necessity of your having his name and address on it, as required by a city ordinance. That ordinance was held, as applied to that case, to be unconstitutional. So, yes, Hugh's been around a long time.


Fred, the October 1959 issue of the ACLU Open Forum mentions a "stiff debate"--and those words were used in the Open Forum--within the ACLU on whether to take a case concerning some members of the machinists union who had been expelled from the union for advocating so-called right-to-work laws. I'm interested not only in the debate that took place and the nature of it, but also your involvement in it.


OK, well, the editor of the Open Forum could have added not only stiff but long and wearisome. The debate, I think, lasted for about a year. Well, what happened was

that there was a proposition on the ballot to enact a so-called right-to-work law in California, which would have made union security contracts in the state illegal--a law such as there still is, I think, in Arizona: you couldn't have a union shop, you couldn't have a closed shop, you couldn't have a security contract. Simply, you just had labor unions; you could have labor unions, obviously, but you couldn't have the union security clauses in the contract. That was the proposition that was on the ballot. [Proposition 18 was defeated on November 4, 1958 --Ed.]

Well, as you can understand, organized labor as such was opposed to that proposition, including the machinists union. Now, there were a couple of individuals who belonged to the local of the machinists union at Lockheed Aircraft [Lockheed Corporation], who, contrary to what one might think, were very active in the union--indeed, had formerly been officers of the union. For reasons best known to them, they publicly took the position that the right-to-work law should be enacted, and, for taking that position, they were expelled from the local. Now, they took pains--I think the record is clear--to indicate when they spoke publicly in favor of the proposition that they were not speaking for the local. Indeed, I think they would say the local is opposed to it. But they also made it very clear that they were labor-union members and former

officers of the local, and so they tried to give themselves an aura of labor-union respectability. And so they were expelled.

Well, the question came up before the Southern California affiliate, what do you do? I think it's fair to say that most, if not all, the members of the board at that time--I don't remember how big it was; not nearly as big as it is today, it probably had perhaps thirty people on it-- I think it's fair to say that everybody--now, there may be one or two who didn't--was opposed to the initiative as individuals. They thought that labor unions ought to have the right to have union security provisions in their contract.


Perhaps it would be best if I asked you to define security conditions.


Union security conditions of that kind?


Yes, exactly what that means.


Well, a labor union, as you know, tries to have a contract with an employer. The contract covers wages, hours, conditions of employment, and so on. Labor unions, in order to exist, have to have money, and they charge monthly dues to their members. It's easier and it makes the union more stable if the money for sure comes in, so they don't have to go chasing individuals for their dues every month. That's one phase of it. So, over the years,

there have grown up two or three different kinds of clauses in the contract.

Some clauses require--they're illegal under the National Labor Relations Act at the moment--labor-union membership in order to get a job at the company. That's called a closed-shop provision. You have to be a member of the union in order to get a job. There has been some considerable criticism of that kind of a clause, because how does a person become a member of the union if he doesn't work in the industry and so on. In any event, Congress outlawed the closed shop; so it is no longer legal to require membership in the union the day that you go to work.

The National Labor Relations Act allows a time period, generally thirty days, in the garment-workers industry and I think in the motion-picture industry there's a shorter time because it's sort of itinerant and move-around employment. But then it allows the labor union to require membership after a certain length of time after you've become an employee. After there's a union security clause, there's a check-off, generally, in which the company deducts the amount of your labor-union dues from your check and sends it in to the union--just like the [way] they do the income tax and the unemployment-insurance tax and so on.


Those are some of the types. They're not all that way, but the idea is to require a person to be a member of the union at some time in order to continue to work in that place. Also, generally, the unions like to have a check-off so that the money comes off the check and into the union directly, rather than try to get it from the employees directly--for obvious reasons.

So the initiative that was on the ballot would outlaw those kinds of clauses in the contract, and would even outlaw the requirement for union membership--outlaw it completely--and check-off and all the rest of it. So the question came up: well, here are these individuals who exercised their right of free speech, apparently from all we've been able to ascertain, honestly, straightforwardly; expressed a point of view publicly; and here they get booted out of the union. Isn't that a matter for the American Civil Liberties Union to get into? Incidentally, they were represented--and this was part of the debate that went on-- Probably the lawyers for the ousted individuals were paid for by Lockheed--or employers' organizations, anyway--and they sued the union in order to get back in.

Well, the argument went back and forth. It's so completely antithetical to union principles for a person to take a position and not only advocate but try to get votes for something which will hurt the union because, obviously,

your membership will be greater if you have a union security clause. If your membership is greater, you have a stronger union, you can do more for the members. And I agree that so-called right-to-work laws are very deleterious to labor unions, and to the extent that it weakens labor unions, as it does, it hurts, I think, our industrial democracy and our whole way of life. So, why should not the union have a right to protect itself? In addition, because of the presence of the Taft-Hartley [Labor] Act--and it would have been interesting had the debate taken place before Taft-Hartley--these people, although the local had a union security contract with Lockheed requiring union membership, wouldn't lose their job with Lockheed, because under Taft-Hartley, you can't fire a person for not belonging to the union if he was not kicked out for proper reasons, the main one being not paying dues. But if you kick him out because you disagree with him or because of free-speech activity or for some other reason than not paying dues, he can't lose his job, despite the presence of the union security clause.

So the argument for those who didn't want the ACLU to go in on behalf of the labor union was, "These guys are just traitors to the labor-union cause. They are not harmed in any way, because they are not going to lose their job, and so what's the civil-liberties issue?" The

argument on the other side was that membership in a labor union is an important thing. If the individual wants to be a member, he certainly ought to be entitled to be a member; he oughtn't to be kept out of a labor union because of his political views, even though they're on labor political views. And there was some loss, because, generally speaking, labor unions sometimes have some kind of life-insurance benefits and things like that, over and above what they might get from the company.

So the debate went on, as I say, literally for a year, and the vote would be, for a long period of time--as I say, I think they had something like thirty people on the board--fourteen to go in and fifteen not to go in, if there were that many there. Well, there were a lot of Quakers on the board at that time. In fact, I think Allan Hunter, who just recently died, was on the board--just the most magnificent person, pastor of the Mt. Hollywood church. Quakers, as you know, like to go by way of the consensus: they like to have the sense of the meeting. They like to have virtual unanimity. So, while by no means did they constitute a majority--there were a number of them on--they were very uncomfortable with a fourteen-to-fifteen vote. "Oh, let's try it again next month." This could happen because the case was winding its way through the trial court. We did not go into the trial court on this issue. We just

couldn't make up our minds. Like Quakers, when they don't get the sense of the meeting, they don't act, [laughter] so we didn't act. The case was going up on appeal; so there would be time.

The next month we would come back, and maybe there would be twenty-eight at this meeting; and this time it would be thirteen to go in and twelve not to go in and three not voting or something. Or sometimes it would be a little more: there would be [a margin of] three or two. So we just didn't make a decision. Finally, though, at the end of about a year's debate, enough people had been convinced so that the majority that voted to go in on the side of the ousted workers was sufficiently large; so the [ACLU] felt comfortable enough. We don't do that anymore--not if we have a majority--although once in a while we might hesitate a little bit. Our orders were to file a brief in the court of appeal on behalf of the ousted workers.

Now, one interesting thing about the debate was that the board was interested in what the lawyers said. Well, who were the lawyers? There was Al and me--we were ostensibly the lawyers who would do the work for the ACLU--but also in our firm was our partner Bob Rissman, who was a very prominent labor lawyer, and in our private practice he handled virtually all the labor-union stuff for us. I

mean, we represented labor unions. So Al and I, of course, were talking, in a sense, against labor unions when we took the position. Al and I were very firm in our views--I certainly was in mine, and Al expressed it--that we ought to go in on the side of the workers who had been ousted, because they had a right to free speech, even though we agreed that it was deleterious to the labor unions. On the other side was Bob, who as I say, represented most of the labor work in our office. And, on one evening-- He came more than once. He was not a member of the board; neither were Al and-- I don't know if I was on the board at that time or not.


I believe you were, if I recall.


I can't recall. I was still on the board, because theoretically I wasn't getting paid. So we would argue, and then Bob would argue. Bob would say, "Oh, absolutely, the Southern California affiliate of the American Civil Liberties Union should get into this union case; but it ought to get in on the side of the union, because the union has a right to protect itself. And whatever freedom-of-speech rights Mitchell had should be, in this instance, subordinate to the labor union's right."


This would be Cecil [C.] Mitchell--


Whoever the--


--and John Mulgrew?


Mulgrew I don't remember. I remember Mitchell, because I remember the name of the case: Mitchell v. International Association of Machinists. Rissman argued very eloquently, and I'm sure persuaded some people. So that was interesting. It created no difficulty in our law firm at all. We understood each other very well, and our rapport was very good. We simply disagreed on this one particular issue. It had nothing to do with our law firm. We didn't represent the machinists. Had we represented the machinists, of course, we wouldn't have participated at all in the debate, or anything in the case.

Anyway, we filed a brief on behalf of the individuals, and the court eventually came down with a decision supporting the right of the workers who had been ousted and saying that the union did not have the right to oust them for publicly expressing their own individual views on a public issue. Of course, [if] it was very clear that had they pretended that they were speaking for the union, or anything like that, it would be a totally different case.

Now, the reason I said it would be interesting had this debate occurred before Taft-Hartley, which was enacted in 1947-- I'm wondering the debate would have been, because had that occurred, then these individuals could have lost their jobs at Lockheed and would be very seriously damaged. I don't know what the views of those who

said that they didn't get hurt really, would have been under that set of circumstances. But that wasn't the case. It was an example of real debate, really interesting debate within the board. [It was] one of the most vigorously fought-- As I say, it took almost a year, if not more, and it was the sort of thing that I wish we had more of on our present board. For some reason or another, we don't have time to debate the issues, and they are important.


Now, do some of the other people on the board itself, on either side of the issue, come to mind, and what positions they took?


No, they sure don't. I don't remember who the board members were or who was on one side or the other. I think Phil Wain, who is not on our affiliate board but who is on the board of the ACLU Foundation, was on the board then. I'm reasonably sure he took the position that we eventually came out with. His name comes to mind because I remember somebody couldn't come one night to one of the meetings--one who was in favor of not--

I don't think there was ever a feeling on the part of the board to go in on behalf of the union, although Bob urged that. Bob Rissman urged that. I don't think there was much of [that kind] a feeling. The debate was whether should we go in, and everyone sort of understood that if we went in, we'd go in on behalf of the individuals. There

may have been some who felt we should go in on behalf of the union, but there wasn't much of a strong feeling, as I recall.

But one night this individual couldn't come--and I don't remember who--and they wanted to know what his point of view was. I tried to express it as best I could; apparently I didn't do too good a job, because I remember Phil said, "Well, Fred, you know, I've heard you debate before, and I know you're a lot more persuasive than you were tonight," or something like that. [laughter] But, no, I don't [remember any other names]. In fact, the time frame is so hazy, I don't even remember who our president was. Was it '59, did you say?


Well, this took place actually over a period of about two years: from late '59 [until] the final decision by the district court of appeal for reinstatement of the unionists, in about December of '61.


I don't remember who the president was. I don't remember if it was McNair or Vogel. I can't remember. And I'm sorry, but I just don't remember the names of the individuals who debated.


Fred, around the time when the machinists case was wrapping up, a new case came along around Henry Miller's Tropic of Cancer. Particularly interesting from the point of view of the history of Los Angeles, is [the involvement

of] Jacob Zeitlin and another individual, Paul Ferguson, who evidently was an English instructor at Los Angeles City College. Mr. Ferguson had assigned Henry Miller's Tropic of Cancer to his class evidently, and Jacob Zeitlin was selling the book at his bookstore. This apparently resulted in some obscenity charges against the both of them, and the ACLU became involved. Tell me the story.


Well, it wasn't quite that. Incidentally, I think Zeitlin-- Did he just die? I'm not sure. No, I guess he's still around. I guess his store is still around; I'm not sure. He pronounced his name "zatelin." I pronounced it "zitelin" until he told me it was "zatelin." Actually, what happened was that no charges were filed against them, but the city attorney had filed some charges against some others who were selling the book and threatened to file charges against anybody who sold it, anybody who had it, and anybody who used it.

So it was decided that the ACLU should do something to stop the prosecution against that book, in the hopes of clearing the atmosphere in general. We didn't have any penchant particularly for Henry Miller or for his book, but in general about what the law should be in connection with so-called obscenity. Zeitlin was a member of the ACLU, very friendly, and Paul Ferguson was a member of the board of the ACLU. So we filed on their behalf a taxpayer's suit

against the city attorney. The case was known as Zeitlin and Ferguson v. Arnebergh, and we alleged--there was no question, without contradiction--that [Roger] Arnebergh was threatening to prosecute anybody who sold the book or who used the book. We wanted a declaration from the court to enjoin him from doing so, and we succeeded in getting it. We had a very fine volunteer attorney working with us at the time, Nathan Schoichet, who has since died. He was a volunteer attorney and actually did most of the work on that case, and the court came down with a good decision. Now, I can't remember now. Did that get to the Supreme Court?




The Supreme Court of California finally got that. Yes, that's what I thought.


And then in early '64 the United States Supreme Court refused to--


Denied the hearing, yes. There was some good law laid down in the Zeitlin case, and that case is cited very often now in support of the right of freedom of expression and the freedom to read. We didn't, and we don't, very often get into obscenity cases--not because we think they don't involve civil-liberties issues; almost every one of them does--but just because of our person power. And it so happened that at the time, there was growing up in Los

Angeles a considerable bar. I guess the most prominent person was Stanley Fleishman, who had a fine law firm with really good lawyers who were able, for a fee, to represent and do the work that was necessary. But we felt, in the Zeitlin case, that it was such a blatant effort on the part of the city attorney. Tropic of Cancer, while it had been barred in previous years, had finally emerged as a so-called classic of literature of the post-World War I era. And it just struck us that if that book were to be banned, then almost all kinds of other books which shouldn't be banned would be. And that's why we went into that particular case.

In addition, another reason we may have gone in is because we had a volunteer lawyer who could do much of the work. That sometimes plays a great part in deciding whether we are able to get into a case or not. And he certainly did a great job on that case.


Was there any controversy within the ACLU board on the question of taking obscenity cases?


No, no, not at all. Whether we went into this or that obscenity case simply depended on our ability to do it, timewise.


Now, we've talked over the past several sessions-- we've gone through the forties, the fifties, and now we're in the sixties--and you've always referred to the ACLU

board as being a fairly small group of people. You told the story about how the Bill of Rights dinner was at Clifton's cafeteria.


Yes, oh, that was small.


You get the idea of a very small, cozy group. Was there a point at which this began to change and the structure of that body began to change? What determined how many people were on the board?


Well, I think it probably began to change when Eason Monroe came in '52, as I remember. I don't know what determined why the board should be larger and getting larger all the time. In later years, more recent years, probably since Ramona Ripston came--she came in '72, and it might have started a little bit before that--when concepts of affirmative action came into the forefront-- I'm sure our board increased recently, starting, as I say, probably a little before Ramona came, in an effort to have a more balanced board.

When I came to the ACLU in '41, there was just one black--I'm not sure he was on the board at the time but certainly soon thereafter--and that was Loren Miller, whom I mentioned, I think, earlier. And over the years, we just didn't have any minorities on the board. I think at one time Donn [D.] Moomaw-- No, not Moomaw; he's not black. But [it was] a minister who played for the Rams. (Moomaw

played for the Rams too.) Another minister, black, was on the board at one time, but for all intents and purposes, we were a lily-white organization. And, as I say, because of simply the events of the sixties, because of the changing atmosphere that the sixties had wrought--not that the ACLU had been insensitive to the requirements for minorities participating in our society-- We were subject to the same virus that everybody else was, and we just didn't have any minorities.

So I think that's really the impetus that got it started. I said it started when Eason came. I think Eason tried to broaden the participation on the board, and I think it got larger because of that; but we really started getting larger in an effort to comply with affirmative action concepts, and by today I think we've done fairly well. I think we've got a very good percentage of minorities, an excellent percentage of women, our bylaws require a certain kind, and we've done all that. So that's what started the growth of it.


Was there much resistance? When it began to be raised that the board should both be expanded and also include minority members, and there should be a concerted effort to that effect, what kind of resistance did that meet from some members of the board, perhaps?


Yes, I can recall a debate that people ought to be on the board because of their abilities, or their interest in civil liberties, and not because of their color. We had the same debates that others had, but, as far as the membership of our board was concerned, I don't think that was very spirited.

Now, I remember. I think the minister I was trying to think of was Deacon Dan Towler.


Tape Number: XII, Side Two
(July 31, 1982)


I was saying that later on we had some quite spirited debates on the question of affirmative action, as such, when it came to quotas and numbers and this sort of thing. But, as far as that being the case on our board, it wasn't quite as vociferous. Arguments were made that, "Sure, you can go out and get minorities to come on the board; that's just fine. But our primary object should be to get people who are civil-liberties-minded, who will contribute," and so on. And, of course, the answering argument to that was, "Well, you can have both, and that's what you should do." So I guess that's the story about that.


Now, Fred, in Al Wirin's oral history, mention is made of something which, of course, is fairly well known, I suppose: that the firm, as you and Al in the firm as private attorneys, handled cases for Mickey Cohen and other of what were referred to as gangster elements in Los Angeles. That was the public perception of them, certainly. I'd be very interested in hearing the story of your firm's involvement with that.


OK, yes. Well, we had to pay the rent, you know, we just had to do that. And so we did represent people who could pay us substantial fees, in order for us to be able

to do our ACLU work. I haven't the slightest idea--just I haven't the slightest idea how von KleinSmid came around--how Mickey happened to come to the office, but he did come. And he told us a tale of real woe, it seemed to us. He would be driving down the street, and for no reason at all he'd be pulled over and asked to show his driver's license. The police would take a look around the car, see what they could see, and then they'd let him go. He'd be stopped for a very minor kind of a traffic [violation]. Although he drove very large cars, I don't know if his license plates--Or his taillight was out. Generally speaking, you'd be given a ticket and you could arrange to show that it was fixed, and then you didn't have to go to court and that was the end of it. Not so with him. They would stick it to him as much as they could and stop him.

One time, he was in San Francisco in a hotel, and he got a call from the chief of police. The chief of police [wanted] to talk to him, wondering, theoretically, what's he doing in our town when he's supposed to be down in Los Angeles.

"So, OK, I'll come down, chief."

So he would go down, and when he came back he finds his hotel room had been ransacked and searched and that sort of thing. So we filed a suit against the chief of police in San Francisco, called Cohen v. Cahill, alleging

unlawful search and seizure, and we were successful in it. It's a very important search-and-seizure case, which is cited even to this day, about the right--all of us would think it was kind of understood--of an individual not to have his home or his hotel room searched without a proper search warrant and so on. And they didn't have one in those cases; they just went in.

Here in Los Angeles-- I'm trying to think. We had a suit in the federal court on his behalf, some civil-rights case. I don't remember what it was, but I do remember one out in Beverly Hills Municipal Court. Mickey Cohen's language was quite picturesque at times, and he didn't hesitate to use the so-called four-letter or twelve-letter words. [laughter] So he was arrested--again, just one of these things--for disturbing the peace, and I think he was charged under three ordinances in Beverly Hills. And we represented him; we defended him. And it was a rather well-publicized trial. It so happens that the ordinances under which he was charged were, in our view, unconstitutional. He was entitled to a defense as to whether his language was such as to violate the statute. But there used to be a statute about loudness, an ordinance about loudness, and whatever, all of which infringed, in our view, on freedom of speech. So we advanced those arguments. And we were successful. His prosecutor-- Well, I guess two of the

ordinances were thrown out and one of them was under a state statute, which went to the jury and the jury came back with an acquittal.

I remember that trial very well; apparently it must have been during vacation, either summer or Easter or Christmas or something, because Mimi, my wife, and our two kids, Marc and Dean, came to court to listen to the trial. They were there sitting in the courtroom before the case started, and then I noticed pretty soon the marshall goes over and talks to Mimi, and I don't know what he's talking to her about. Fine. Mimi comes over and says, "The marshall said the kids have to leave because of the language that's going to be used in the courtroom. What should we do?" Well, a true civil libertarian would have said, "He ain't got no right to tell you to get out of the courtroom. Stay there." [laughter] But I felt, just because I had a client to represent, that I better not; so they did leave during part of the trial. I don't know if I compromised my principles on that day or not. [laughter]


You stayed on the good side of the judge, anyway.


Or whether it was just practical. I don't know what would have happened, but I felt that was not the time to test out that question of whether the courtroom should be open. There had been all kinds of litigation, as you know, on the right of a judge to close a courtroom, the

right of the defendant to ask the judge, to require the judge to close the courtroom. Well, that courtroom was closed to my kids, anyway, that day. But I told them what happened all the way through.

Later on, we also represented him, in a way. He had a considerable amount of income-tax difficulties. On one of his cases, I was called as a witness (I think Al was called too), because he was charged with income-tax evasion on the theory of net worth. That's a theory whereby the government takes a look and gets as much information as it can on how much money you've been spending. Well, Mickey Cohen spent a lot of money, and they would figure out, "Well, you spent so much money, and you only reported so much; therefore you not only owe the government money but"--in the case of Mickey Cohen--"you did it fraudulently and criminally." So they criminally charged him of violation of the income-tax laws. And I was called as a witness to testify to the fees that he had paid us. I wrangled about that for a long time as to whether or not that didn't come within the attorney-client privilege. I spent a lot of time researching the law, without pay in this instance, and finally I came to the conclusion (and Al did too) that--and it is the law--that information is not privileged any more than-- It's just not a communication, and it was relevant in the trial.


What was the name of the prosecuting attorney? The fellow who was the counsel for the McCone Commission right after the Watts riots. They had a special part of the U.S. Attorney's office that went after so-called gangsters or mafia or whatnot. He called me and he said, "We want you to testify. Will you require a subpoena?"

And I said, "No, I won't require a subpoena; I'll come." [laughter] Because if I know they're going to subpoena me, what's the point. So I came down. I was on the stand, and that was the only time I've been a witness in a case.




Yes. And I must tell you, they say lawyers make lousy witnesses, and I bet I did. It was a very interesting experience. Among the things that came up was this Beverly Hills trial. They wanted to know how much we got paid for it and so on. I don't know why; I don't know whether the defense lawyer or whether-- What the heck is that guy's name? Tom Sheridan. The prosecutor [Sheridan] wanted to know what the trial was about. So I was explaining what the trial was about. They also wanted to know a little bit more about it and what the ordinance was about, and I couldn't remember what the ordinances were about. The judge was a visiting judge from Washington. It may have been the same one who sat on the Five Spanish Sailors

case [George H. Boldt]; I can't remember. But, anyway, I just couldn't remember, just couldn't remember. I had said that the court had held the ordinance unconstitutional, and the judge said, "Mr. Okrand, do you get so many ordinances declared unconstitutional that you just can't remember some of them?"

And I said, "Well, I get some declared unconstitutional, but whether it's a large [number], or a little, I can't remember it." [laughter]

I couldn't remember it. I don't know what impression that made on the jury--whether it helped or hindered him. Well, Mickey got convicted of income-tax evasion. I think that was the second time. When his case went up on appeal, I worked on a portion of the brief-although we weren't in the case at all at the trial--to try to get his conviction reversed unsuccessfully. And, as you may remember, he went to penitentiary.

While he was, I guess, washing his face or something in the bathroom, a fellow inmate hit him over the head with a blunt instrument, as the police say, causing him great injury. They had to put in a plate in his head and so on. The irony of it is that Cohen went to jail, as I say, for income-tax evasion, but the government still claimed he owed the money. He still owed the money that they claimed. He got a considerable award. He filed a lawsuit, and the

government settled. He got a large amount of money for that injury. This man apparently had done this to others before, and the prison authorities hadn't taken sufficient precaution. But Mickey never saw a dime of that money; that went towards paying off his income tax. He just never did.


What was your personal impression of him, and also, as his attorney, to what extent do you think his public reputation was deserved?


Well, he was a very personable fellow. Actually, I don't [know] if I met him, but I had probably seen him: Mickey grew up in the east side at just about the same time I did, and he was just about my age. I think he went to that special school which was right next to my junior high school. I went to Hollenbeck Junior High, and there was a special school right next door. I forget the name of it. I remember the name of the special school for the high school. It was Jacob Riis. But this one I don't remember.


Is this the one where taunts would be yelled?


Oh, yes, back and forth, that's right. And he was in that school. Mickey had trouble from way back. He was a very personable fellow--very, very free with his money-- and a typical-- I don't like to use the word gangster from the movies, in the sense that-- I'm not sure what the sense is, but, for instance, during the Beverly Hills trial, I

remember, we went to lunch at, I guess, the Beverly Hilton. It seems to me it was the Beverly Hilton Hotel. Yes, it was right close by, and so that's where we went. Mickey would drive his big Cadillac, drive up, and leave it, and the person would take it away. And then he would take off: I mean, just walk real fast, and he wouldn't even wait for Al and me. We were sort of trailing along-- [laughter] He would go off. I met a lot of people he had met: people who would come up and see him. He was a very friendly individual.

Now, whether his reputation was deserved? Probably, in a sense, it was. Not the violent part: I don't know about that--about murders or anything about that. He always denied that, but he freely talked about the time when he ran a big gambling operation here in either Laurel Canyon or Coldwater Canyon, how the police knew about it, and all the bigshots would come up. He was part of the-- He just got away with it; he was not reticent to talk about that. And, as I say, everyone with whom I talked really liked the fellow. The nefariousness-- He was accused of murder a couple of times, I recall, and was shot at himself and so on. So his reputation as a person who didn't live exactly within the law I think was well deserved. Whether there's any truth to the charges of murder and that sort of thing against him, I just have no basis of knowing. Our

relationship was always very friendly, and I enjoyed it. I enjoyed representing him. I enjoyed the fact that he paid good fees, and he was always very prompt. As I say, it helped pay the rent so we could do ACLU work. [laughter]

It was a sad occasion, actually. I personally felt very sad at the fact of what had happened to him in prison. And I must say his brother Harry was a very staunch supporter of him. We met him, he stood by him all the way through--all his troubles--kept in touch, and tried to get us to do things for his brother. He's a very, very staunch supporter. Now, I can't remember whether it was Harry or Mickey who was killed by an automobile accident. Mickey finally got out, I think, of prison. Or did he die in prison? Either Harry or Mickey was killed by an automobile right in front of Harry's house. I know it was in front of Harry's house. So our relationship was good.


You mentioned to me some time back an episode--I'm not sure if it was Mickey Cohen or perhaps one of his associates--where there was a call in the middle of the night. Somebody had to see you here at the house and was driving--


Oh, that wasn't Mickey. I don't know whether they knew each other or not. That was Joe Conforte from Nevada. [laughter] I think I mentioned that they wouldn't let him into the various casinos or even into the buildings.

He and Johnny Marshall were in that black book that the Nevada Gaming Commission has to this very day. We challenged, actually, their right to have a so-called rogues' gallery, or list of sinners, who couldn't peacefully go into a place and get a cup of coffee. We thought that was wrong; I still do. I still think that's wrong. I just like the idea that if a person commits a crime, you should charge him, you should prosecute him vigorously; he should serve time or do the punishment. But these extracurricular sorts of things, such as I mentioned against Mickey: stopping him and really harassing him in his life. In the case of Conforte, Marshall, and others, not allowing them to go into a place simply because it happens to have a gambling casino, and not even allowing them to have dinner with their friends and so on. While the courts have allowed it thus far, it just seems to me the wrong way for a society to act against its members, even the no-goodniks, so-called.


Tape Number: XIII, Side One
(August 7, 1982)


Fred, the decade of the 1960s, perhaps somewhat artificially, but nevertheless in the public's mind, denotes a period of time in American history where a great deal of dissent was going on on issues of the Vietnam War, the civil-rights movement, and a number of other things. And it's clear that the ACLU had a big role to play during that decade. We've talked about some of the cases that you worked on during the early part of the sixties, but I'd like to hear some of your memories of the ACLU as it relates to the major currents that were going on during that period of time politically in this country.


Well, I don't know that the ACLU as such participated in the political movements, in the sense of the whatever protests there were. I'm not sure what political movements you're talking about, but there were a great deal of dissents, demonstrations, sit-ins, lots of arrests, in which the ACLU participated. Now, I'm not sure whether this--we talked a little bit before the session, and we didn't mention this one--was in the sixties, but there was a lot of fair-housing dissent that went on. Was that during the sixties?


I believe so.


Yes, it was. OK. Well, we participated rather heavily in a number of the situations involving that issue, some of which was difficult to justify, actually, from the standpoint of the ACLU. Some illegal conduct took place, such as sitting-in in someone else's home. That actually took place. There was a large development out in the southern part of Los Angeles which wouldn't rent to blacks. And there was, even as there is today, a concerted effort to require the owner to rent to blacks. I think the development company was Watts Real Estate Company, I'm not sure, I think--


Would this have been the Sunray Estates down in Wilmington?


Yes, well, Sunray was one--it might well have been--in which there was a sit-in. But the sit-in was not just an ordinary sit-in where you come during business hours and sit in the office of the company. Or, as was the case in many instances, they had sit-ins and lie-ins in banks during business hours and so on. This was one where--we didn't engineer this, but that's what happened-- someone came and indicated a desire to look at a house. I'm not sure how it went, but apparently the office gave the people a key to go look at the house--it was a new development--and they went. Then all of their cohorts came into the house, and they just stayed there. It was for

many days, not, as I say, just a sit-in during business hours or overnight or something like that. They just occupied the house as a demonstration and as a protest against the policy of the developer not to sell to black persons.

Naturally they were arrested for trespass, and we represented them. Now, in some respects it's hard to justify, I guess, as a matter of civil liberties, that lawbreaking, which it was. I suppose the board rationalized that-- Obviously, they were peaceful: they didn't damage any property, and they didn't actually keep anybody out of getting a house who needed one or wanted one, because there were plenty of empty houses around. So I suppose in a way you can rationalize that they weren't too bad characters. They did no damage, as I say, and they were arrested and charged with trespass. There were large numbers of them, and we lawyered the case, Al and I. We filed motions challenging the constitutionality of the trespass statute under which they were arrested. There was something to be said about the validity of that statute. As it turned out, we negotiated with the developer--it had to be done with the developer's consent--and the prosecution was finally dropped.

And I remember there was a big fuss. There's been some law on the subject now, but there was a big fuss. The

developer, as well as the prosecution, demanded as a condition of dismissing the cases that the individuals would stipulate that there was probable cause for the arrest. There's always in the mind of the prosecutor, when he or she dismisses a case, that the individual will turn around and sue for malicious prosecution or whatnot. Our people were very principled, as you can imagine. They sat in without food for long periods of time; they had to kind of sneak the food in. It was kind of a dramatic event. They felt that what they had done was proper and that the prosecution had no cause for arresting them, and we had quite a time in convincing them-- I guess we actually had to convince them. Obviously, they didn't have to take our advice, but we suggested to them that they were really not giving up very much by that stipulation. And so they did.

Actually, years later there was a case decided by the California courts to the effect that a prosecutor may no longer demand that there be a stipulation as to probable cause as the quid pro quo for a dismissal. I suppose as a matter of strict jurisprudential law or concepts that case is correct: the prosecutor ought not to be able to demand that, and there ought not to be discussions along those lines. And yet, I have a hunch, although I haven't been practicing criminal law as such, that sometimes a little compromise on the part of an attorney, or on the part of a

client or an individual charged with a crime, is a very useful thing. But, anyway, as a matter of principle it's correct.


Do you recall any of the people or organizations that took part in the sit-in?


I think this was an ad hoc organization that just grew up. The name of it I don't remember at all. The name of the person who is in Frank Wilkinson's office now with an R seems to come back to mind. I'm not sure she's the right one, but the name seems familiar.




Betty Rotker, yes; I think she was one of the persons involved. At least that name comes back to me. I think there was a Herbert Mann, it seems to me, who was involved in it. But others I don't remember. I guess I have a terrible memory for people we represented--maybe because I have always tried to stand off from getting too involved with our clients, although obviously these cases are dear to my heart. But it is a good thing for a lawyer not to get too closely involved with a client. You sometimes can't lawyer the case properly.

Other events during the sixties. Of course, I suppose the big one, the one that I felt was the most unfortunate and the one that was the most wrong from the standpoint of the police and everybody from the so-called establishment,

was the Century City demonstration when President Johnson came. It was wrong from start to finish. Sometime before that event there had been a parade by some left-wing group whose name I don't remember. And I don't know where the parade was or what the issue was, but the group somehow or other got a little bit out of hand and there was a police altercation. I think they stopped-- They were supposed to have four hours or three hours. No, not that long: maybe an hour or two. They insisted on staying longer, tied up traffic longer than their permit had authorized them to do. And there was a very bad taste in the mouth of the police for street demonstrations. I guess it had been building up. Maybe that wasn't the only one, but that's the one I sort of remember.

So when the time came, first, to get a permit for the march that was to take place, which was to go from-- What's the name of that park on Pico?




Yes, Rancho Park. Down Pico and then north on Avenue of the Stars, and then they were to go past the hotel [Century Plaza Hotel] and disperse someplace along farther. Well, what they had wanted to do-- And, as I say, there were mistakes all the way through. At that time the restaurants and theaters which are now on the east side of Avenue of the Stars, across the street from the Century

Plaza Hotel, were not there. All that was there was a very, very large empty lot--completely empty. It was owned, I guess, by ABC, but I think it was controlled, for some reason, by the hotel. I'm not sure what the arrangement was. The people who were organizing the demonstration wanted to end their march and go on this empty lot and have speeches and a rally at that time. And it was quite adequate. I suppose they expected 10,000 people--at least 10,000 came, actually--but it was quite adequate for that purpose, and there was no reason in the world why whoever controlled that empty lot, which was not being used at the time, should not have given his or her consent for what would have been a rally of half an hour, something like that. Well, that was the first thing that happened. They wouldn't do it.

So that required the parade to go past the hotel and elsewhere, and I'm not sure whether they were able to find another place to have a rally, which they wanted to do. But they certainly couldn't have it at the place where it was meaningful, right in front of the hotel, actually (but away from the hotel, quite away). And it would have disturbed nobody. So that was the first thing.

Then a stringent condition of the parade permit, which was for the ease side of Avenue of the Stars on the street, was to be no stopping. The parade was not to stop. As I

say, this was the result of a previous parade that had happened. That was very stringently imposed by the police commission in issuing the permit, and it was understood by the people who were putting on the parade.

Now, another complicating thing that happened--and I can't figure out now, as I think about it-- I don't know why or for what reason, but the hotel people, on the day of the march, through their attorneys--very substantial attorneys of a big law firm, Latham and Watkins, Max [L.] Giliam was the attorney--went down to Santa Monica and got an injunction, I guess, against-- I guess they were afraid that the people were going to use that lot anyway; so they got an injunction against, I think, the use of the lot. That was a crazy thing, because the proper place to get that would be the writs and receivers court downtown, in Los Angeles. Somehow or other they went to Santa Monica, I think, and they got the order. I know the writs and receivers judge afterwards was very angry because they hadn't come to him, as they should have done. And there was some confusion about that injunction: whether it enjoined the march or whether it enjoined the holding of the rally. It just didn't jell. There was an injunction, though, against demonstrating, and that caused a great deal of consternation among the people.


Well, the march started, and in some way, some group which was not among those who were running the march as such got close to the head of the march--not actually at the head but close (the head of the march had gone by the hotel)--and they sat down in the middle of the street. And as a result--the thing was very crowded: there were just thousands and thousands of people--there were sufficient numbers of them so that they just stopped the parade. Well, that was directly contrary to the parade permit that was given. Nothing happened. I mean, they just stopped the parade. But that caused the police all kinds of problems, because they knew they were instructed that the parade has to keep moving, and here were these people sitting down in the middle of the street stopping the parade. As a result, all of the people who were coming for, I suppose, about a two-mile area were all stopped. People in the back, I heard from them, didn't know what was going on.

I was working late that day, and on the way home I just heard the police say, "This is an unlawful assembly." And when I heard that, chills went up and down my body, because I knew that there had to be trouble. I just knew that there was no way-- When the police declare an assembly unlawful, and then they order the people to disperse-- Well,

here were all these thousands of people and no place to disperse, and I knew there was going to be trouble.

So, as I gather--this is all hearsay, as I say-- I mean, it wasn't hearsay about the announcement. I heard it over the radio. You could just hear it. But the events that happened afterwards were obviously hearsay. The people didn't move. The people on the street didn't move; the parade and the people in the back couldn't go; there wasn't anyplace to go. The ones who were right close to the people who were sitting down couldn't go backwards; you couldn't go to the west because that was cordoned off in front of the hotel; you couldn't go to the east because that was that empty place where they were not permitted to go in the first place. Besides, the people in the back, there wasn't anyplace to go. Some of them were on the bridge over Olympic Boulevard. So pretty soon the police start breaking up, just saying, "Well, if you don't move, we'll move you." So, obviously, some people started moving and getting away, but not fast enough for the police.

Well, as a result, there was a great deal of scurrying and running around and hitting of people by the police to get them to go. Those who didn't want to go were on the ground, and they were beaten. There are pictures of it. It was a very unsatisfactory thing that happened in Los Angeles. It's an event that never should have happened the

way it did. There was no reason for it to have happened. It was very poor police work, really bad police work. They needn't have declared the assembly unlawful; there was really nothing unlawful. Sooner or later the people would have been able to-- If these people didn't move who were in the middle of the street, the parade could have gone around them slowly, and it would have gone off the way it had been planned and had been agreed to. But the police were simply impatient. They stuck to the letter of the parade permit without realizing that those who had disrupted it, or had done what they had done, were not part of the groups that were putting it on, which, of course, is a danger that happens, I suppose, in any public parade. But they simply did not exhibit good judgment. As a result, they got a lot of bad publicity, I think, a lot of people were hurt, and that was the Century City demonstration.

Well, as a result of that--a lot of people were arrested--we filed a lawsuit in the federal court to try to get something out of what the police had done. The case dragged on, we took depositions, and the lawsuit was not successful, in the sense that we never got a judgment out of it. We didn't press it to the end. There were just too many people involved, and too much energy and money would have been required to prosecute the case to its conclusion

as a single case. Individual cases were handled; we got a lot of volunteer attorneys.

We didn't get into the Watts riots. When was that? That's in '65?


August '65.




Maybe we should talk about that.


Yes. We got a lot of volunteer attorneys to represent the particular individuals in their criminal cases, and most of them did get off. Some of them got convicted.


The Open Forum mentions that you and Al Wirin made a number of appearances--




--in particular on behalf of the Peace Action Council, which, I guess, was the main organizer.


I guess that was the main organizer. That was the name of the outfit. Yes, the Peace Action Council. Somebody by the name of Healey-- Is it Healey?


Not Dorothy?


No, not Dorothy. I think it was one of her husbands, or former husbands. [Don R.] Healey was his name, and he was an organizer.


I believe also Irv Sarnoff.


Yes, Irving Sarnoff, yes. That's right. It's all in the Open Forum but not in my head. Yes, we represented a number of persons, and, as I say, we were successful in recruiting a large number of volunteer lawyers to represent many of the persons who were arrested.

That was a very sad day, it really was, because there was just no reason-- As I say, it began in one way because the hotel, or whoever controlled that parking lot, wouldn't let it be used. Had that happened, the parade would have ended right there, and these people wouldn't have been able to disrupt. Why they did it I don't know. It was sad.


Now, in the organizing of the defense for many people who had been arrested, how did that come about? Did people come to the ACLU directly?


Well, many people came to the ACLU. We let it be known that, to the extent we were able, we would get volunteers. We sent out notices to some of our volunteer lawyers saying, "Anyone who would like to help in this, let us know." This was not as large an operation as the Watts riots. That's what brought the Watts riots thing to my mind, and I'll tell you about that. So that was it

Oh, and then we put out a pamphlet. Ed Cray, who was then the editor of the Open Forum--I believe he was the editor of the Open Forum at that time--


I believe so.


--put out a very wonderful pamphlet about the riots. I've kept that over these years. It was a really good thing. It illustrated and sort of demonstrated what had happened. We also asked for and obtained a hearing before the city council about what had happened. This was a very unusual one because it wasn't the kind of a hearing in the sense-- It wasn't before a committee; it was before the whole city council. And you will be interested to know that probably the prime person on the council who pushed for and got the council go give us this hearing was [Arthur K.] Snyder.


Art Snyder?


He thought that the council ought to know what went on, and so it was really an ACLU presentation at which Ed, for the most part, presented witnesses. Al was there too, but Ed researched this so carefully and graphically demonstrated with photos and a chart-- And, as I say, it wasn't really a hearing in the sense that people put on witnesses and they were cross-examined. Ed just called witnesses and they told their story. And there were pictures. I think that it lasted a whole morning--maybe longer, maybe over a couple of days, I'm not sure. But it was televised. KPFK, of course, was down there every day, and KCET televised it live. And I think the commercial stations carried it too. I think that presentation did a

great deal to educate those who didn't understand why the demonstration was going on.

All along, of course, what this was all about was a protest against the war in Vietnam. And, as I say, the fact that the demonstration itself ended in a terrible altercation was unfortunate, but that had seemed to be the case in many demonstrations during those times. I often wonder why it had to be, because there was just no reason for it, had there been any modicum of common sense. So those two things happened afterwards. In my view, that's really one of the worst things that happened in Los Angeles that was officially done by the police. It was just not right. OK, so much for that one.

Now, the Watts riots, of course, come to mind, and we were involved in that too--not in the riots but in the aftermath. [laughter] It started, as you probably know, because of a traffic incident involving the Frye brothers, and again I don't know whether the police acted properly or not. I think what the police were supposed to have done in that situation is make their arrest and get out of there as quickly as possible, but they lingered for some reason or other. The Frye brothers were stopped for some minor traffic accident, and the riot started. I was away at that time. I heard it over the radio in San Francisco. I was on vacation, and when I came back-- I did not cut my

vacation short, however, a decision I wonder whether was correct or not. I think the reason that I didn't was that I hadn't taken a vacation for ten years, probably. I mean, a real vacation where I went away with the kids and my wife. I think it was going to be for a whole ten days or something, and I just didn't feel that I ought to come back. Well, as could be expected, life went on, but I could have been here. But when I did come back there was already in motion a huge effort to recruit volunteer lawyers to represent literally the thousands-- I think there was something like 4,000 persons who were arrested--


I believe that's the figure.


--and who were charged. Well, that was a monumental task. The public defender's office obviously couldn't handle it. They could, but I don't know what would have happened at the trial. Many of them would have had to have been dismissed. You know, you're entitled to be tried, if it's a misdemeanor, within thirty days after you're arraigned and brought into court. If it's a felony, you're entitled to be tried within sixty days. I'm sure that it just couldn't have been handled, except that there were large masses of attorneys who came to the fore at the time. Attorneys we didn't even know. Most of them, of course, had had criminal law experience; many of them didn't. This raises another question: whether it's a good thing to have

a volunteer attorney who isn't versed in that particular field of law. But I think the persons who accepted these lawyers understood they were getting free counsel and understood that some of them were not experienced.

Most of the cases were disposed of: many people were convicted, but many people were acquitted. That, I think, was handled well--not the start of the riot part but, I mean, the aftermath, the system of justice. The courts cooperated; a whole little department to see whether the persons could be released on their own recognizance was set up and operated on an emergency basis. The D.A.'s office cooperated; the police-- Everyone seemed to cooperate in that one. I thought it was a pretty good demonstration. It was unfortunate that that had to be done in that way, and people were losing sleep and all that sort of thing. But at least to get counsel for the individuals and to get them released on their O.R.-- While many people had to stay in jail longer than would have been wanted, by and large it was a good thing, and the ACLU was completely responsible for virtually all of that volunteer counsel work. So I felt very good about that.


Do the names of some of the other attorneys who were involved in organizing that come to mind?


Well, no. It's the same old ACLU guys who were on. Al, of course, was very instrumental. Loren Miller--I

don't think he'd been yet appointed to the bench--his name comes to mind. And of course Stanley Malone, who is now a judge, was very instrumental in bringing that about. He and Al and I represented the Frye brothers in their criminal cases, which went up and down the court ladder a couple of times. Stanley was very instrumental, and that's the first time I had met Stanley. Yes, because after that he and Loren set up a law practice right across the street from us, when we were on Third and Spring. I think Abe [Abraham] Gorenfeld, who is now a commissioner--maybe a judge now, I'm not sure. Marshall Ross, I think. Those are the ones I remember. That was a good thing, although it was an unfortunate thing that happened.


Did the ACLU take any flak publicly for defending these people?


No, I don't think so. I think that was good P.R., actually, and we were commended for what we had done. People appreciated it. I think that was a plus from the standpoint of public relations for the ACLU.


Now, earlier you mentioned some fair housing cases that you were involved in, particularly--


Well, that's the one I mentioned. That's the one we were talking about: the Sunray--


The Sunray Estates.


Well, are you talking about Proposition 14, then?


Right, that's what I wanted to ask you about next.


Yes, well, of course, during that period of time, there was a large effort on behalf of people to get the blacks-- For the most part, it was for blacks. I don't think the Chicano community was yet involved in the civil-rights movement as such. Although, that's not quite accurate. When we get into the segregation case, I'll tell you some parts that the Mexican community played. But this push for housing was mainly on behalf of black persons.

Also at the same time, a Dick Petherbridge, who used to be on our board and who is now practicing law in Orange County, was doing a lot of virtually pro bono work trying to make use of the Unruh Civil Rights Act to get black persons serviced in business establishments. He did a lot of work on behalf of blacks trying to get their hair cut. Barbers wouldn't take blacks, for some reason or other, and Dick got involved in that. So that was going on. There was a big movement during the civil-rights movement days in housing, in getting people served in restaurants. There was a big sit-in at Bullock's [Department Store] restaurant downtown. They wouldn't serve blacks.


Now, what year was this?


Well, during the sixties, during the same time. There was a sit-in. People would go into the lovely

Bullock's tea shop and sit until they changed their policy. It was amazing what was going on even here in Los Angeles.

Anyway, so there was a large effort to obtain housing for black persons, and what you would do, of course, for people who were interested: I don't know if they were called Fair Housing Councils at that time as they are now. You'd have a shopper, a black person, who would first report that he or she wanted to rent an apartment and was shunted aside on one pretext or another. So you'd try it again. You'd have a black person go up and be told there were no vacancies, or whatever, and then a white shopper would go and was told, "Yes, we'd be glad to rent to you. Here's the apartment," and so on.

As a result of that effort to get fair housing, of course, the Rumford Act [the Fair Housing Act] was passed in the state legislature to make it unlawful to discriminate against persons. Then, as is California's wont, apparently, the initiative [Proposition 14] was used to repeal the Rumford Act, by seemingly innocuous language: something to the effect that every person has a right to sell or rent, or refuse to sell or rent, his or her property for any reason that he or she may feel proper. This was neutral language, just like that. It sounds perfectly American. You have a piece of property; you ought to be able to rent it or not rent it as you see fit.

But of course the reason for that was to allow persons to have the right to discriminate against individuals in housing.

Let's see, as I recall, there were three cases involved in what was-- That was Proposition 14, in [November] 1964, was it? There were three cases that were involved in testing the constitutionality of Prop. 14. One was what became Mulkey v. Reitman, arising in Orange County. One was Prendergast v. [Snyder]. And there was a third one, involving Barrington Plaza [Peyton v. Barrington Plaza Corporation]. Is it Barrington Plaza on Wilshire Boulevard? Barrington Towers? Barrington Plaza, I think. It's high rise--


At Wilshire and Barrington?


Yes, a very nice place. Well, I'll tell you about each one, and then I'll tell you about the case that went to the United States Supreme Court.

The Prendergast case was one involving a very well-educated couple. She was white and he was black. They lived in Northern California. His job shifted, and they had to come down to Southern California. She came down and rented an apartment in anticipation of him coming down in about a week or ten days later. She told the landlord that her husband was coming down, and that was just fine. Then her husband came down. The only difficulty was that he was

black, and when the landlord saw that, he filed a lawsuit for eviction. He gave them notice to move on the grounds of Proposition 14, namely that he had the right to refuse to rent. That was that case.

The other case involved a doctor, who was a professor at the University of California at Los Angeles, to whom Barrington Plaza wouldn't rent. So we filed a lawsuit on his behalf to get him admitted under the old civil rights act, under the Hawkins Bill [Fair Employment Practices Act], and the Fair Housing Act, which I just mentioned.


This doctor was black also?


The doctor was black. I don't know whether he was married or not. I just don't know.

And then the case in Orange County in which-- Who the heck was our client? Our client was either Reitman or Mulkey, I can't remember. [Mulkey] He had been refused an apartment in Orange County because he was black, under Proposition 14, and a fellow by the name of-- Gee whiz, I wish I could remember because he did yeoman service in the case. Perhaps I'll remember him.

Before this is over there are a couple of things I'm supposed to find out for you, like the names of the plaintiffs in the atomic-testing suit.




And I'll remember his name. He was a volunteer attorney for us in Orange County, and he filed the suit. Ah, yes. David Cadwell. Well, all of a sudden we found on the other side of all three lawsuits a very prestigious law firm, Gibson, Dunn, and Crutcher. And their senior law partner, Sam[uel O.] Pruitt [Jr.], was on the other side. You know, in those days it was wrong for lawyers to advertise or to go out and get cases, although the ACLU of course, as a nonprofit organization, had been doing it for a long time. We all had for a long time gone into cases where we thought that the ACLU ought to go in, and as it turned out, in later years the United States Supreme Court ruled that that was perfectly proper for us to do that. But Sam confessed to us that they had done a little bit of ambulance chasing--not in the ambulance-chasing sense that you go out after an accident victim, but the California [Real Estate] Association had gone out and offered legal services to all of the parties: the defendant in the Barrington Plaza case and the defendant in the Reitman v. Mulkey case in Orange County, and they were the attorneys for the plaintiff in the Prendergast eviction case.

I must say, Sam Pruitt was a great, great person, actually--a good lawyer and a good person.

I'll tell you a little something about him, what he did for us for one time. Well, I'll tell you about it, and

then we'll come back to it later. During the course of our dealings with each other during all of these cases, I said to Sam--by that time it was "Sam"--"You know, Sam, your law firm ought to really be doing some civil-liberties work and not always doing things for money, for profit."

And he said, "Well, when this case is over, Fred, you come to me and we'll take a civil-liberties case."

I'll tell you about what happened years later. Well, the cases were tried here in the superior court in Los Angeles. Well, the Prendergast and-- Did I give you the name of the doctor's case?


I don't believe so.


I didn't. No, I didn't remember his name. Well, those two cases were tried here in Los Angeles and then the Reitman v. Mulkey case in Orange County. They were lost completely down here. Our challenge to the Proposition 14 was unsuccessful, and then they went up on appeal. Well, the Reitman case got there first, before the court of appeal, and got to the California Supreme Court. When it got to the California Supreme Court, we asked Herman [F.] Selvin, who was a partner at that time in a law firm known as Loeb and Loeb, if he would come in and participate in the case. And he came in with a vengeance, really wrote a magnificent brief, and argued with Al before the California Supreme Court. I, of course, participated in that too, and

I spent hours on the brief. But Herman was just great in this.

The California Supreme Court ruled that Proposition 14 was unconstitutional, its theory being that it was passed for a racist purpose, namely, to allow persons to discriminate on the basis of race. And although it was a California constitutional amendment, like Proposition 1 of the 1978 election, we were able to convince the court that it was passed for a racial purpose, and so they held it unconstitutional under the Fourteenth Amendment to the United States Constitution. And when the case got back to the United States Supreme Court, Herman and Al went back, and the Supreme Court of the United States affirmed the California Supreme Court's decision. Just parenthetically, when Proposition 1 came along, Mulkey v. Reitman, or Reitman v. Mulkey-- I don't know which one it was in the California Supreme Court. Mulkey v. Reitman, I'm sure. [Mulkey v. Reitman, 64 C.2d 529 (1966)] Jesus, I don't know, it's just awful. [laughter]


We'll have to look that one up.


Yes. Anyway, they affirmed it and said that they were accepting the California Supreme Court's finding that it was passed for a racial purpose, and that would, of course, violate the Fourteenth Amendment.


Well, that's what we didn't have in the Proposition 1 case. We had it just the opposite: the California courts did not find that it was passed for a racial purpose, and so that's one of the reasons we didn't win Proposition 1 in the United States Supreme Court this last June.

Anyway, Proposition 14, on the '64 ballot, was held unconstitutional; and so in the housing field you still have statutes which are viable which prevent persons from discriminating on the basis of race in the sale or rental of housing.


One thing I found particularly interesting on the question of Proposition 14: the Open Forum indicates that you and Al and some other attorneys even before the November 1964 elections had attempted to prevent it from being put on the ballot, and the Open Forum doesn't give much detail as far as legal arguments that were being used there. Do you recall that effort to--


I recall the effort; I didn't recall that we had done it on behalf of the ACLU. Well, it's sort of the policy of the ACLU now, much in line with rulings of the California Supreme Court, that even though a proposition is clearly unconstitutional-- Well, let's put it this way: we haven't spent any energy, at least since that instance, to try to prevent a proposition being put on the ballot on the ground of unconstitutionality. The theory of the

California Supreme Court is very clear now that if an initiative measure is properly put on the ballot--namely, the proper notices given and the proper titles are given and the proper signatures are obtained and all that sort of thing-- even though the substance of the proposition is patently unconstitutional, it will not prevent that from going on the ballot. Their theory being, "We're going to let the people vote. Hopefully, reason will prevail and they will not vote for it if the opponents are persuasive enough so that they'll understand that they shouldn't vote for it. And there's time enough for us," says the Supreme Court of California, "to look at the substantive constitutionality of a proposition after, and if, it gets passed by the people."


Tape Number: XIII, Side Two
(August 7, 1982)


I was talking about the question of the policy of the Supreme Court of California allowing measures to get put on the ballot even though substantively they may clearly appear to be unconstitutional. As I say, since the time I became legal director and since that experience when the effort was made to keep Proposition 14 off the ballot, I have counseled against the ACLU trying to keep measures off the ballot. There is a certain logic to the Supreme Court of California's point of view; and there's a certain, I think, correctness in allowing the people to vote, although it's dangerous, as one can see.

In any event, the effort to keep Proposition 14 off the ballot-- I remember the suit being filed. I don't remember that we participated, but perhaps we did. Perhaps that was before we decided not to try this in the future; maybe that was the lesson that we learned, or at least that was a reason for that sort of policy. It's not written in stone, and there's no reason why the next time if a proposition comes along that says all Jews should be put in gas chambers the day after tomorrow, I suppose that might be enough for even the Supreme Court of California to say,

[laughter] "Well, we're not going to allow that to be voted on."

In any event, it was lost, and it was lost for the simple reason that the court said, "How do you know that the people will vote for it? And if you've got a case after it's over, why, come back and we'll take a look at it." And that's the way it happened. It didn't happen that way with Proposition l unfortunately. [laughter]


Right, which we'll get to later.


I think that's all about Prop. 14 that I recall.


Now, one case that seems very interesting, although it perhaps hasn't made it into the annals, [laughter] so to speak, was an attempt in the middle sixties, around 1966 I believe, to resurrect California's old criminal syndicalism law--the case of John Harris and other members of the Progressive Labor Party [PLP]. I know you were very involved in that.


Oh, yes. Well, the Criminal Syndicalism Act was passed in the early 1920s or maybe even before. It was passed clearly and avowedly to stop the activities of the IWW, the International Workers of the World, which at the time was a very left-wing, revolutionary organization which had a great deal of difficulty all over the country. Well, I don't think they were in the South, but in Chicago, in Colorado, and in California. And there was a flurry of

prosecutions against IWW people in the twenties, in the main simply because of their rhetoric, for their philosophy and their political point of view, which entailed violence if and when the time ever became necessary. Well, the time never came, and they were the subject of a considerable number of prosecutions.

The constitutionality of the Criminal Syndicalism Act had been upheld. The particular section involved-- Well, there were a couple of sections involved: one, the distribution of literature which advocated--I forget the language of it--criminal syndicalism, and criminal syndicalism had a definition which was encased in the armor of being against violent conduct. But when you got right down to the basics, what was prohibited was speech and membership in organizations. John Harris was a member of some labor party. Which one was it?


The Progressive Labor Party.


Progressive Labor Party. I think they're still around probably in some way.




And what he was doing was handing out a leaflet on the steps of and, in some instances perhaps, in the firstfloor corridor of the Los Angeles County Courthouse and talking about injustices that were happening to the blacks and saying, "We're not going to stand for this and we're

going to do something about it." The precise language I don't remember. I thought it was, from the standpoint of political rhetoric, comparatively mild, but obviously it wasn't mild to somebody in the district attorney's office. So they got an indictment against John Harris for violation of the Criminal Syndicalism Act for the passing out of these leaflets.

We filed a motion after it got before the superior court, on the basis of the transcript, which simply had said that he was handing out these leaflets, "there's the leaflet, and we claim that it violates the criminal syndicalism law." We filed a motion in the superior court, under, at that time, Section 995 of the Penal Code, to have the prosecution dropped because it was filed under an unconstitutional statute. And we lost. That motion was denied. Under the California procedure, as you have the right to do, we filed a petition in the California appellate court to have the ruling on the 995 motion set aside. That was denied. We filed a petition for hearing in the California Supreme Court to have that heard, and that was denied.

Whereupon we filed a civil-rights proceeding in the federal court here in Los Angeles, called Harris v. Younger--[Evelle] Younger was the district attorney at the time--and under the procedure that was extant then, we got

a three-judge federal court. That has since been changed for almost every instance; there may be one or two hangovers. In those days, if you were attacking the constitutionality of a state statute in the federal court, asking for an injunction against it, you were entitled to a three-judge court. That was a court that was appointed by the chief judge of the ninth circuit of the circuit court of appeals. He would appoint one circuit justice, circuit judge. They're called judges. State appellate court judges are called justices; court of appeals judges are called judges. He'd appoint one circuit judge and one other district judge, plus the one district judge to whom the case had been assigned here in Los Angeles. Under our system then and now, when you file a case in the district court, they have a little card system, random, and they just pick out a judge. [The cards are] in an envelope, and there's the judge's name, and that's the judge to whom you go.

So we got Judge [Walter] Ely, who was the circuit judge. I think Judge [Warren] Ferguson was one of the judges, and I can't remember-- But Ferguson was not the judge to whom it was assigned; it was another judge to whom it was assigned. Gray, Judge [William] Gray, was the third judge. We had a hearing, and they held the act unconstitutional, which was very nice. The ACLU, since the

beginning, had participated in cases trying to knock out the Criminal Syndicalism Act.

Of course, the government appealed that decision. The state of California--that is, Younger--appealed. At that time, as I say, there was a three-judge court, and the rule was that when you have a decision by a three-judge court, you go directly to the United States Supreme Court; you do not go to the intermediate court of appeals, which is the ordinary way that you go from a federal district court. I wrote that brief, pretty much, although Sam[uel] Rosenwein was very much involved in that. For some reason--and I think it was a good reason--Sam argued the case the first time before the United States Supreme Court. And the Court did not make a decision. In a few cases, for one reason or another, it will put a case over for reargument to the next term. So the first time it went up there, Sam argued and it was not decided.

We didn't file any new briefs, as I recall. Maybe we filed some addenda; I'm not sure. But, in any event, it came up for argument the next time and Al argued. And again they didn't decide the case. The following year it came up for reargument again--so this was the third time it was argued; it was known at that time as Younger v. Harris--and now we finally found out what was troubling the judges. Of course, we sort of knew.


What was troubling the judges, the justices of the Supreme Court, was not the California Criminal Syndicalism Act and the constitutionality of it but the relief that we had asked for in our federal court suit, namely, to enjoin the California court from going ahead with the prosecution of Harris. That was the way we were attacking the constitutional issue; otherwise we had no case or controversy. You just can't walk into the federal court and say, "Hey, I've got an unconstitutional statute here, declare it unconstitutional." You have to have a controversy under Article 3 of the United States Constitution. So that's what was troubling the court all along: this business of, Should they allow a federal judge to enjoin a state court from going forward with a prosecution, even though the contention was that the statute under which the state court was proceeding was unconstitutional?

We argued--and I remember researching this so, so much-- There is a statute which sort of says that a federal judge should not enjoin a judicial proceeding in the state court, but there are exceptions. And we said this case should certainly come under it because in this case we had already gone through the state court system, so we ought not be required to do it again.

The whole concept [bothering the Court was] one of comity. Namely, that it isn't seemly or it isn't good

federalism for a federal court to enjoin a state court because state court judges are likewise bound by their oath to defend the Constitution of the United States, they're supposed to issue their decisions in accordance with the Constitution of the United States, and it will be time enough again for the litigants to go to the United States Supreme Court should they lose in the state courts. So there's a great resistance to a federal court telling a state court, "Thou shalt not go forward with your case." So that was what was troubling the justices of the Supreme Court.

On the third round they did decide the case. And you probably guessed it: they never got to the question of the California Criminal Syndicalism Act. What they said was, the federal court-- In holding the act unconstitutional [the federal court], of course, issued an injunction against the state court prosecution, and the United States Supreme Court said the three-judge court should not have issued that injunction because of the doctrine of comity, because of the statute and the way it should have been interpreted. When you have a pending criminal case that's actually pending before the court, you shouldn't enjoin that prosecution--which left open a lot of other questions: What if you don't have one yet pending? and so on.


Anyway, so we lost. And that case is one of the extremely important cases in civil rights jurisprudence because it takes away a pretty handy tool from civil-rights lawyers who want to enjoin a prosecution which is going forward under an unconstitutional state statute. That's one of our big losses, I must say.

Then the case was back in the California Supreme Court.


Let me make sure I understand this. They have ruled the state statute unconstitutional, and yet they're allowing the prosecution to go on?


Well, the judgment of the three-judge court was: "We hold the statute unconstitutional, and therefore the judgment is: we enjoin you, Mr. Younger, from going forward with the prosecution."

That's the judgment. The appellate courts only rule on judgments; they don't rule on things that are said in between, before you get to the judgment. And that, of course, is the important thing to the litigant. I mean, it wouldn't have done us any good for the three-judge court to have said, "Yes, the statute is unconstitutional but you can go ahead with the prosecution." That doesn't help us any. What we wanted was that judgment that said, "Stop the prosecution." And of course our reason was, we want to knock off the Criminal Syndicalism Act. Anyway, the United

States Supreme Court reversed the three-judge court, which had said the prosecution must be stopped. So that judgment is finished; now the state prosecution can go forward.

At that time Sam had been out of the case, I guess, for two years already, and Al was out of the case at that point completely--I don't know why. So I went back into the California courts, and I appeared before a judge whose name was [Malcolm] Lucas. And it was clear-- I mean, it just didn't seem possible to me. But I knew then, and I know it even more now, that nothing is impossible in the law.

Anyway, I filed a petition for writ of habeas corpus on behalf of John Harris on the ground that he should be released from the prosecution because the statute was unconstitutional. And under normal circumstances you would think all I would have to do would be to present the three-judge court opinion which hadn't been set aside by the United States Supreme Court--that is, that part of the opinion that said the act is unconstitutional. But I knew better, I knew that I shouldn't do that, and I prepared a whole brief, a legitimate-size brief with all the cases, and argued at some length before Judge Lucas. All to no avail. He came back and he said, "No, you went up in the California court system before; judge so-and-so held it was constitutional; I think it's constitutional."


So I had to file another petition in the court of appeal on behalf of Harris to get this done. To my chagrin, I don't think it was more than-- It couldn't have been more than a month. It seemed to me like just almost days--and it might have been much longer--but Judge Lucas was appointed to the federal bench. And I thought, "Holy Smoke--" [laughter] I think I'll leave it at that. Anyway, I filed the petition for writ of habeas corpus in the court of appeal, and this time we won. The court ruled unanimously that the Criminal Syndicalism Act, that portion of it, was unconstitutional. That has been laid to rest, I hope, forever.

What happens, you know, with statutes being declared unconstitutional-- The court's saying so doesn't make the statute disappear like putting the genie back in the bottle. The statute still stays on the books; the print is still there. And even to this very day the California Criminal Syndicalism Act is on the books of the penal statutes of California. Who knows, some prosecutor some day in the future may try to revive it again, although the reason it hadn't been used all these many years was that most prosecutors understood that it was unconstitutional. It hadn't been used for some thirty years when they just drug it out to use against John Harris and the Progressive Labor Party, which was giving the police a little trouble

at that time, I suppose, and maybe that was the reason for it.

So anyway, that was a long battle for the ACLU. As I say, they were opposed to it since the first statute was started-- Well, it may have been passed before the ACLU was started, if I'm right that it was passed in the late--1919, something like that. But as long as the ACLU had existed in Southern California, it had fought the Criminal Syndicalism Act. So that gave us a great deal of satisfaction. Although, as the case went along and we got Younger v. Harris, that was an unfortunate part of the whole experience. It was unfortunate, but I guess that's just part of the hazards of litigating.

As you know, sometimes we anguish for long periods of time as to whether we should take a particular case--will it make bad law? will it make good law?--even though we know that some injustice or some unconstitutional situation is happening. Had we anticipated or certainly had I anticipated, that Younger v. Harris, the Younger v. Harris that the United States Supreme Court wrote, would have resulted, I'm sure we would have stuck to the state court and allowed-- Well, I don't know what we would have done. Obviously, it wouldn't have been a pleasant experience for John Harris to be prosecuted. You could see them trying to drag in all other members of the PLP and that sort of

thing. So it was important not only to get the California Criminal Syndicalism Act declared unconstitutional but to prevent another political trial that the PLP probably wouldn't have wanted to occur.


Tape Number: XIV, Side One
(September 4, 1982)


Fred, when we left off last time, we had been doing some discussion of Proposition 14 in the Mulkey v. Reitman case, and you mentioned to me that Sam Pruitt, who was one of the attorneys on the case, said that at some point he would do a case for the ACLU. Evidently he took you up on that. I wonder if you could tell me that story.


I took him up on it.


You took him up on it. [laughter] Right.


Right. After the United States Supreme Court had rendered its decision in Reitman v. Mulkey, which is what it was known [as] in the United States Supreme Court, I reminded Sam of his statement.

The reason his statement came about was that-- It's inevitable when you have cases like Reitman v. Mulkey, where you have highly emotional issues involved and people on one side call the people on the other sides bigots or similar such words-- I never do, but some of my colleagues do, and some of my friends do. Sam was lamenting that he didn't think his firm, Gibson, Dunn, and Crutcher, deserved the reputation that they were always anti-civil libertarian, that they were always establishment. [He said] that they really had some good guys and some good ideas in

the firm, and he had hoped, he said, that one day he'd be able, he or his firm would be able, to handle an ACLU case. I told him at that time I would remind him of it when the case was over; obviously, he couldn't do it during that time. So when the case was over I reminded him about our conversation, and he said, yes, he certainly would like to take a case involving the ACLU.

It so happened at the time Al Wirin and I had been discussing that it seemed to us an appropriate time, I've really forgotten the date, but whenever it was it seemed an appropriate time--having in mind the judicial climate and cases that had come down--to try to undo the wrong that had been done to Eason Monroe when he had been fired from the Cal State University--


San Francisco State College?


San Francisco State College, right. [renamed San Francisco State University] He was the head of the English department at that time [1950]. For refusing to take the state nonconformity oath, popularly known as the loyalty oath--he did that as a matter of principle--[he] lost his job. It was fortunate for the ACLU because he came on board as executive director shortly thereafter. But it was one of the many wrong things that had happened during the McCarthy days. I can't remember whether Vogel v. County of Los Angeles

had been decided yet, which held that those oaths were unconstitutional, but it must have been at or about that time. Either that case had already been decided or we were confident that it would be-- whatever.

So we approached Sam and said, "Here is our executive director who was fired because as a matter of conscience, he wouldn't take this nonconformity oath." We thought that record ought to be cleared. We wanted to [clear it], and more importantly, really, it would serve as a precedent for others who would be able to get their jobs back. And that has proved to be true after Monroe's case was won. So would he undertake it? We thought it was a matter of civil liberties that that oath was unconstitutional. And he did agree to take it.

Now, it was not an easy case because there was a very considerably difficult legal problem involved in the case, called the statute of limitations; because Eason had lost his job in 1952--I'm sure that's the year, or just about then--and here it was in the late sixties or early seventies. Ordinarily, if you "sleep on your rights," which is what the law terms it, and don't try to get your job back within a reasonable time, a principle known as laches sets in, which means time has elapsed and other people have

taken your job and you are prejudicing other persons or an actual statute of limitations. So although the substantive matter, namely, the validity of the oath and Eason's right to have refused to take it, was comparatively easy, that legal question was not an easy one.

Anyway, Sam said indeed he would undertake it and filed a lawsuit in the superior court here and promptly lost it, as unfortunately is the case in too many cases involving civil liberties. The trial courts for some reason are not willing to pioneer, in a sense. And then he took it on, and it came to-- I can't remember whether that case got to the supreme court or whether it was won in the court of appeal. I don't remember. But in any event, eventually either the court of appeal or the California Supreme Court ruled that Eason was entitled to his job back.

On the statute of limitations question the way the court ruled was that--yes, it must have been following Vogel--once it was clear in the law, or comparatively clear in the law, that the oath was unconstitutional, those who had been discharged for it, in order to get their jobs back, had to make another application or indicate that they wanted to come back. I always thought that was kind of peculiar because obviously if a man's fired he wants his

job, or theoretically he wants his job. But in any event, he had to make an application or an indication that he wanted the job back; and if the hiring agency--in this case it would be Cal State San Francisco--refused to do it, his damages ran from that application date and not from the original firing, 1952.

Obviously, had the compensation been from the original firing, theoretically Eason would have been entitled to a lot of money. His salary at the ACLU was quite less than he was getting as a professor at Cal State, and the law says that if you're wrongly fired and then you're ordered to be reinstated, you get all your back pay minus what you've earned in the meantime. So theoretically you can get your job back and, as it happened in a number of cases, the people earned more money and so they didn't get any back pay from the firing agency, which I always thought was a bad rule of law, although that's the rule that the National Labor Relations Board uses.

So there's no real incentive for an employer not to fire somebody if he wants to, because the individual has to go out and mitigate damages (that's the legal phrase); and if he doesn't, and he just kind of sleeps and says, "Oh, I'm going to get my job back," then he doesn't get his full compensation. So there's really no incentive for an

antiunion employer, for example, [not] to fire everybody if he doesn't like the union, because the back pay award is really not very much. But anyway, that's what happened.

So Eason got some back pay, of course, from the time that he applied until the end of the case, and in addition he also got entitlement to his pension, which had lapsed, of course, when he got fired. The only difficulty was that--and that's because he couldn't get the back pay for the interim period--he would have had to pay into the pension fund all that he would have himself had to pay in during the time of his absence; and of course he was not able to do that financially.

So he did get a little bit of a pension reinstatement from the time that he made application after Sam took the case, and as a result of that we lost Eason Monroe. [laughter] He went back to San Francisco State College. Unfortunately, not for a long time. We knew when he left [that] he had cancer, and shortly after he was at the university he died.

But Sam kept his word and did a class-A job, as his firm always does and as it did in Reitman v. Mulkey--as we found out because of many long hours staying up at night to meet their legal work. So that was a satisfying thing.

Since that time many persons in Gibson, Dunn have done volunteer work for the ACLU and still do to this very day.


Could you name some of those people?


You always ask me that, and I always forget. I'll try to remember.


For example, has Sam Pruitt done any more cases?


No, Sam himself hasn't. Now, that's not his fault. My hunch is that if I approached him, he would, he would. Now, I haven't talked to Sam in many years, and he was a senior partner at that time, and it could very well be that he's gone on and retired--I don't know--although he was a comparatively young man. But, no, he hasn't. But it's not his fault; [it's] one of my failings.


Fred, at this point I'd like to get into what will surely be a fairly long discussion of a case that began, I guess, in around 1963, or really before in some ways, and is still going on as we speak right now in 1982--it's almost into its twentieth year--and that's the L.A. school desegregation case. I wonder if you could just begin at the beginning on that case and tell me some of the developments and things that led to that being filed in the first place.


OK. It really began before the Crawford case was filed, as you indicated. The case is known as Crawford v.

Board of Education of the City of Los Angeles.
That's not an accurate title, either, for the board of education, because the board of education of the city of Los Angeles encompasses not only the city of Los Angeles but about five or six cities which are adjacent to Los Angeles and some county territory as well. School districts in California have a way of growing in a peculiar fashion, and Los Angeles, as I say, took in not only the city but many other places.

There was a lawyer, a black lawyer in Pasadena, with whom we had a fairly good acquaintanceship [by] the name [of] Sam[uel C.] Sheats, who was, as many black lawyers are--not only black but many lawyers are--quite concerned with the quality of education that was being given in his city. He saw that his city had segregated schools. I don't know exactly how that case started, whether Sam approached the Jackson family to file a lawsuit or whether the Jackson family approached him, but in any event, he filed a very simple lawsuit which sought to require the Pasadena Board of Education to enter the Jackson child in a junior high school which is very close to where the Jackson family lived. It so happened that because Pasadena had an intentionally segregated school system--which was later proved in court in another case in which we participated--blacks

were sent to black schools and whites went to white schools and blacks were transported past white schools in the typical old Southern fashion. So Sam filed this lawsuit just to get this black child into a white "neighborhood school" (you should excuse the expression).

The trial court sustained the demurrer to the complaint, the board of education demurrer. Well, the allegation was, by the Jacksons: my child lives here; there's a junior high school very close, a neighborhood junior high school to which she is entitled to go--and it's a virtually all-white school--but you're transporting her to a segregated black school. So the trial court sustained a demurrer. (A demurrer is a piece of paper that a defendant in a lawsuit files which says that even if everything you say is true, you still have no right to get any relief from me [the defendant]). The rationale of the board's claim was boards of education have the right to assign pupils to whatever school the board of education wants, and that is the general rule. As you see, this is backwards from the desegregation cases in the North today: a typical Southern desegregation case.

I don't know whether a big fuss was made in Sam's complaint as to it being intentional segregation. He simply stated the fact: my child lives here; here's a

nearby school; you're sending me away from my neighborhood school; I have a right to go to this neighborhood school.

The demurrer was sustained. It was taken up on appeal, and the California Supreme Court ruled in Jackson v. Pasadena [City School District] that in California--Well, it didn't rule that; that's what made the Crawford case necessary. I guess there [were] allegations of intentional segregation. It ruled that under the allegations of the complaint, the Jackson family had a right to a trial to prove the facts that they stated; and if they proved the facts that they stated--namely, that they were intentionally transporting their child to a segregated black school--she was entitled to go to the nearby school. By way of what lawyers call dictum, which is a statement in a case which is a statement of law but is not necessary to the ruling of the case, the California Supreme Court said in California, under the California Constitution, it makes no difference whether there is intentional segregation or not; if there is segregation it is the duty of the school board to desegregate those schools. That's what was the genesis of Crawford, that dictum, so-called dictum.

That was in early 1963, in the spring of 1963, when the California Supreme Court said that. On September 1, 1963, we filed the Crawford case.


The way that case came about, frankly-- Loren Miller--who was either on our board at that time, probably was on our board at that time; I don't think he'd been appointed a judge yet--and Sam Sheats and Al Wirin and I--there may have been others, I can't remember--were sitting around and decided that the time has come to do something in Los Angeles because in Los Angeles you look around and you've got segregated schools. No question about it, all-black schools. At that time there were some all-Mexican schools, but they weren't quite so marked as they are today. And we said, "Here's what the California Supreme Court said in what the board of education later termed dictum" (and [it] probably was dictum in the case, in Jackson) "and so let's do something about it."

Well, what to do? We started out very modestly, very modestly. We took a look at the south side of town and saw two schools in the district. One, Jordan High School, which is on the west side of Alameda Street and whose eastern boundary is Alameda-- The boundary of Jordan High School was Alameda Street, and it went all the way west and north and south but always bounded on the east by Alameda Street. Then we saw about a mile--perhaps a mile and a half; I don't think so, but between a mile and a mile and a half--to the east was South Gate High School. Now, South

Gate is one of those cities which is in the Los Angeles city school system but is a separate city of its own. And South Gate High School had a boundary which is more normal for schools and which is the kind of districting that Los Angeles said in the Crawford case later on, "We don't gerrrymander boundaries; we try to put our schools in the middle of the district and of an area." And of course South Gate was in the middle of the area. But it was all white, because to the east of Alameda Street it was all white. South Gate at that time was an all-white city. Today it's virtually all Chicano as time goes on.

So we said, "Well, look Mr. Board of Education"--Mr. and Mrs., I guess--"Look at these two schools. Here's an all-black school in your district; here's an all-white school in your district--a mile or a mile and a half [apart]. The kids can walk to schools. No buses involved in that situation. Here's Jackson saying that it's the duty of a school district or the school board to desegregate a segregated school. Do something!"

Well, they didn't do anything, and they wouldn't. That was between, as I say, the spring of '63 and September 1, when we filed the suit.

So we filed a lawsuit, the Crawford case, for the very simple purpose of desegregating only one school in the city

of Los Angeles, namely, Jordan High School. We wanted to get white children into Jordan High School and give some black children the right to go to an all-white school. It was a very simple matter. All you had to do is, instead of having the Jordan High School boundary on the west side of Alameda Street, you just make it go north and west between South Gate and Jordan on a northeast and southwest angle (or do it the other way: make it a northwest-southeast angle) and you've got white kids walking to Jordan and black kids walking to South Gate. Very simple.

Well, the board absolutely would not budge. They kind of talked about it, and they would pass resolutions. And then John and LaRee Caughey would appear before the board of education and urge them to do something. They would say, "Yes, we're going to." They'd pass resolutions saying, "It is the purpose of the Los Angeles Board of Education to give every child an integrated education." All kinds of things like that. But they simply wouldn't budge.

One excuse after another: "Alameda Street is a major thoroughfare as it is; a lot of trucks go down that street; too dangerous for high school kids to be walking across Alameda Street."

OK. How about guards?


"Well, you can't do that for high school kids; they're too big! You don't have guards for high school kids."

What about building a path, a bridge, over Alameda Street?

"We can't get permission from anybody, and besides, on the immediate east side of Alameda Street is the Southern Pacific Railroad. They own it and we can't trespass on their property."

It was incredible, really, the excuses. Of course, the real answer was that they wouldn't do it because--not that the school board really themselves, I don't imagine (I can't remember who was on the board at that time), not that they really cared whether blacks went to white schools or whites were integrated with blacks--but because of the resistance from South Gate, just as later on in years the resistance from the San Fernando Valley. South Gate had rallies and meetings that if those kids are required to come to our school and we have to go out of our district, we'll withdraw from the district, and all sorts of things like that. So the result was that we got nowhere. And we really-- As I look back, I wonder at our temperance and at our patience, if that's the description, because it wasn't until about almost five years later that we decided that we've had enough of this.


At one time the board said, "Well, if we redistrict Jordan and South Gate, you can't redistrict, change the boundary lines of two schools. That's not possible. That means that you have to do that for the whole school system, one after another, you know, sort of like a domino effect."

So we said, "OK, you so-and-sos, if that's the way it's going to be, that's exactly what we're going to do, hopefully."

So we amended our complaint and changed it from just trying to desegregate Jordan High School. We changed it to desegregate all the minority-segregated schools in the district and at that time added the Mexican plaintiffs to desegregate the Hispanic schools.

We were very fortunate to be able to obtain the services of Bayard Berman of the Kaplan, Livingston, Goodwin and Berkowitz law firm. I don't know whether Bayard realized at the time he said he would handle the case for us what he was getting into. My hunch is he didn't anticipate a seven-and-a-half-month trial. That is a tremendous undertaking for an attorney to do. Fortunately, he had a big law firm behind him who could stand the monetary loss. They really had one. Not only one; they had others in the law firm who participated on a daily basis in the case. As I say, I don't know, had he

known what he was getting into, whether he would have done it. But he undertook it and did an admirable, just a beautiful job of representing the minority kids in the lawsuit.

By the time it actually got to trial, it was an actual seven-and-a-half-month trial. The amended complaint was filed in 1968. Trial began probably at the end of '68, and intermittently, and finished sometime towards the end of '69. Judge [Alfred T.] Gitelson came down with a decision in--first in February of his intended decision--and a final decision came in May of 1970.

It was a long opinion, almost a hundred pages; quite redundant, quite repetitive. That was one of Al Gitelson's faults. He would never say anything in a page that he could say in twenty pages. He was just that sort of a fellow. A magnificent lawyer, understood the law and, more importantly, understood what was involved in segregation of minority youngsters. His opinion came down and he found that the Los Angeles School District was intentionally segregated, and he ordered the school board to come up with a plan to desegregate the minority-segregated schools by July 1, 1970. That was in May.

The board had consistently taken the position throughout the trial that they had not intentionally segregated,

that there was no objection to any black kid going to a white school anyplace in the district, and they had some programs for getting some white kids-- APEX [Area Program for Enrichment Exchange] programs. White kids, if they volunteered, they could go to minority schools. They took the position that they were not intentionally segregating and therefore had no duty to do anything, to order desegregation by transporting youngsters for that very purpose. They agreed--their witnesses said in court and later on in appellate papers--that you could not desegregate minority schools without transportation. They agreed to that, that without busing--that terrible word--you couldn't desegregate. But nevertheless, they had no duty to do it because they hadn't segregated.

To our argument that Jackson said, whether you have intentionally segregated or not, you have the duty to desegregate it under Jackson, they said, "Pooh, pooh, that isn't what Jackson said at all. That was mere obitur dictum." In legal parlance dictum is, as I said, a statement by a court that is not necessary for the decision; obitur dictum is that it's really quite away from the central issue in the case; and rank obitur dictum is the court went really off it's nut when it-- [laughter] Something like that. They virtually said that it was rank

obitur dictum and there was no requirement under the California Constitution to desegregate minority-segregated schools if there was not intentional segregation.

So, instead of complying with the writ of mandate, with the order of Judge Gitelson, they appealed. And under our California law, when there is an appeal from a writ of mandate, that automatically stays the order of the court so they don't have to.


Now, before we go on chronologically with the appeal, I did want to ask you a few things. First of all, the original plaintiffs in the original 1963 case, Mary Ellen Crawford and several other black children--do you recall how those plaintiffs were recruited?


Well, I think Sam Sheats and Loren Miller just went out and canvased the black neighborhood around Jordan and got those individuals to be plaintiffs.


They hadn't known them previously?


Well, they may have. I had nothing to do-- I did not get the plaintiffs, and Al Wirin didn't. I'm sure it was Sam Sheats and Loren (primarily, probably, Sam) with the assistance of the NAACP [National Association for the Advancement of Colored People] people. I mean, whether they knew them personally I don't know; but they knew people, obviously, and that's how the plaintiffs were

obtained. For a long time, of course, there was no-- This wasn't something that just grew out of a lawyer's brain. The black people in the neighborhood were complaining all the time that they were going to segregated schools and that they were getting an inferior education, so it wasn't something that was a surprise to anybody. But the two hadn't jelled until Sam and Loren (Sam mainly) went out and canvased.


The media from time to time in its reporting of the case will point out that evidently Ellen Crawford now no longer wants to be personally associated with it. I'm curious to know at what point, or if there really was a firm break, or when she no longer became interested in staying the plaintiff or--


Oh. Well, there was no break of any kind, never has been a break. What happened was that Ellen Crawford's children had graduated by the time-- Remember, this was filed in 1963, and I don't know whether the Crawford child, whether Mary Ellen Crawford was in the ninth grade--in the tenth grade--at the time, or the eleventh or the twelfth; but even if she were in the tenth grade, by the time we changed the lawsuit from merely Jordan to the total school district, she was out. And so while technically in this kind of a class action suit one could go forward with it if

one were not involved, there wasn't any point. All new plaintiffs were brought into the lawsuit in 1968. Mary Ellen Crawford herself was dismissed out, but the court made an order that because the case was known as that all this time, that the case would continue to be known as Crawford v. Board of Education [of Los Angeles].

It is true-- I have never talked with her, but in later years I had heard from media people that she had said [that], you know, she filed this lawsuit because she wanted her kids to get a desegregated, a better, education; but that was the reason, and she didn't want any more publicity or anything like that. My understanding is that she's refused to talk to the media about it anymore. She did, at the beginning.

That's all. There was no break of any kind; it was simply that she wasn't involved anymore.


I see. OK. And then also you mentioned the amount of time that it took to make the decision to go to trial between '63 and '68. What were some of the factors behind that long period of time?


Well, we were continually assured by the board of education that they were going to do something. As I say, the Caugheys went down time after time, year after year, and we were kind of-- We believed in the board of

education, I guess, when they indicated that they would do something. But, obviously, we were, I guess-- We miscalculated in having that faith. We perhaps should have moved sooner to get to trial because every day that a child is in a segregated school is a deprivation of his or her constitutional rights, and you can never get them back, ever. So it was mainly that. And in addition, of course, there was the problem of lawyer power. Neither Al nor I, who were in private practice, as I indicated before, felt that we could-- We couldn't afford the time that it would take for that kind of a case. We knew what Bayard was getting into. [laughter]


You said the trial took seven and a half months. When the trial was about to open, the Open Forum said the trial was expected to take about three weeks.


Is that what it said?


Yes. [laughter]


The same thing was true even this last time in '77 when Ed Medvene undertook to be a volunteer counsel when it came back from the supreme court. He thought it was going to be a three-day trial. I said to him, "Ed, it's not going to be that." As it turned out, that went from March to June. These cases just take a long time. But we really didn't, we really weren't looking for volunteer counsel

until we made the determination to really go after the school district as a whole. As I say, it was just-- In the California Supreme Court's opinion in Crawford in '76, it pointed out that the plaintiffs, namely, we--and the court also--kept thinking that the board was going to do something because we had various status conferences with the court over those five years, and a lot of discovery had gone on. But it just took that long; it just did.


OK. So back to the appeal.


OK. So they appealed. The board decided to appeal rather than do what they should have done. And it's really-- Well, there are several tragedies. It's really one, but there are several. Of course, the big tragedy is that the board didn't recognize its duty after Jackson to voluntarily desegregate its minority-segregated schools. The second part of that is that they refused to comply with the court order at that time, in 1970, when it was ordered to do so, rather than appeal. It would have been very easy at that time. And I think Los Angeles would have been a model, actually, for desegregated education because the demographics were such and the makeup of the school district was such, that it could have easily been accomplished with very little transportation--and real good desegregation.


The school district at the time was majority white. While it is true that by that time the decrease of white population in the school district had begun, a phenomenon which was true all over in most of the northern states, the northern school districts-- I was very closely involved in the Pasadena case which came up later, and that exodus-- that isn't a good term, but that decrease of white population having nothing to do with segregation--started in that city in about 1948. My hunch is that it started in Los Angeles, too, right after the war. When people came back from the war, housing was short in Los Angeles. People were coming into Los Angeles at a great rate. There was a big push for people leaving the central city and going into the suburbs, and leaving even the district but coming out in the [San Fernando] Valley. So that phenomenon had already begun. But at the time, either in '63, surely, and in '70 still, Los Angeles was a majority white school district and could easily have desegregated all, really all, of its minority-segregated schools. Now it's a different story, of course; now it's very difficult. So that was a great tragedy.

Well, anyway, they filed their notice of appeal that stayed any order that would allow that to go forward. I do not recall myself working on--and my hunch is that either--Bayard

probably didn't either. Maybe he did file a motion. There is a provision in California law which permits a trial judge on motion, where there is a mandatory order like this, which is automatically stayed on appeal, to, for proper reasons, set aside that stay and say that "My order does go forward even though you've appealed it, and if you want to get a stay of my order, you have to go to the appellate court." There was no such order in 1970. There was-- We did that in 1978, I guess. Later on we were able to get such a stay order but apparently were not able to in 1970.

So there was no desegregation, and the same old thing went on. The school district was getting more and more segregated, more heavily segregated, and no desegregation was going on. It took until 1975, another five years, before the California Court of Appeal rendered its decision on that appeal.

There were a number of reasons for that delay. In the first place, the record was very voluminous: seven and a half months of virtual daily, daily trial creates a very large record. It took the school board forever to file its opening brief, it seemed to us. And we filed our brief; it took us some considerable amount of time. The ordinary briefing schedule, which is sometimes followed, but rarely,

even in a very small case, is that after the record finally gets to the court of appeal, the appellant's opening brief is supposed to be filed in thirty days, and then the reply brief in thirty, and then a reply to that in twenty. That's all the briefing there is, and then the court hears oral argument. Well, that schedule simply wasn't followed, and it took years before all the briefing was done.

Even after the briefing was done, and even after oral argument, the court of appeal didn't come down with its decision for a long time. Now there was a possible reason for that. During the time that the appeal was before the California Court of Appeal, the intermediate court of appeal, there was pending before the United States Supreme Court a very important case involving busing, Swann v. Charlotte-Mecklenberg Board of Education, which was to decide whether or not federal courts, even in an intentional segregation situation, could order busing as a means of alleviating that segregation.

So that combination of things--the magnitude of the record, the time it took for all the lawyers, the time it took for the court, and the waiting for the United States Supreme Court to come down with its decision--resulted in the court of appeal not coming down with its decision until 1975.


Which attorneys worked on the appeal?


That was Bayard. And I worked on it; and there was a young man named [Peter C.] Smoot, which is an extremely interesting thing. His father [Charles Reed Smoot] was on the board of education at that very time and [he] was very antidesegregation. But Smoot [the son] was very prodesegregation and did a magnificent job. Allen Rosenthal, I think--was that his name?--worked on it from the Kaplan office, and later on John [E.] McDermott worked on it. Those are some of them I remember. Actually, one time I sat down and I wrote out all the attorneys who worked on the Crawford case from the beginning, and we came up with something like fourteen lawyers. So if you want those names, I can get them for you again.


OK. [laughter]


Those are the ones. And Loren Miller, Jr., worked on it at the trial level.

So that's what happened. Then the court came down in '75 and held that the finding by Judge Gitelson that the school board had intentionally segregated was not adequately supported, and that they didn't really believe that the Jackson dictum was the law in California. So they reversed, in effect, Judge Gitelson's decision and sent it

back, kind of vacated it, sent it back for more testimony on the question of intentional segregation.

At which point we filed a petition for hearing. I say "we": Bayard did it; I participated a bit. And the California Supreme Court granted a hearing in the case. Under California law the granting of a hearing by the California Supreme Court knocks out the court of appeal opinion as though it didn't exist. It's just wiped out of the books; you can't find it in the official reports of the California decisions.

No new briefs were filed in the California Supreme Court of any consequence. The practice is that when the California Supreme Court grants a hearing after a decision by a court of appeal, it uses the briefs that were filed in the court of appeal unless either side asks for some supplemental briefing or unless the court asks for it. We did some supplemental briefing, but for all intents and purposes, the voluminous brief that was filed in the court of appeal on our side, and the briefs that were filed by the board of education, are what the supreme court had in front of it.

And the case was argued before the California Supreme Court, I think it was by John McDermott, but I'm not sure. It was not Bayard. As luck would have it, Bayard got very

sick the very night before the oral argument and couldn't even appear in court, so oral argument was done by one of the other lawyers who worked on it.

On June 28, 1976, the California Supreme Court came down with its ruling in Crawford, holding that yes, indeed, the L.A. School District was intentionally segregated. But they were not positing its decision on that ground because they went back to Jackson, where we said, "Remember, we told you that it doesn't make any difference how the school district got segregated, whether it's de jure or de facto. In California under the California Constitution, as distinguished from the United States Constitution, even if a school district is unintentionally segregated it is the duty of the school board to desegregate it, because the harms of segregation to a minority youngster lie in the fact of a segregated education, not in what lies in the mind of an educator someplace far removed as to how the kid got there."


So this meant now that that principle was no longer dictum where the supreme court was--?


Not in 1976, it was no longer dictum. There's no question. Well, and they pointed out that in cases subsequent to Jackson, a Santa Barbara School District case in which we participated--The court reiterated that in Reitman

v. Mulkey they had said the same thing, they had talked about that concept. Where else? In a case involving some legislation.

The legislature had passed some legislation to the effect that a child could not be forced--the way it read, or the way it was interpreted by some--a child could not be forced to get on a bus to go to a school, which the California Supreme Court interpreted to mean not that a kid had to get on a bus to go to school, but that school districts had the right to assign kids contra to the fact, to the order in Jackson, you recall. Remember, in Jackson the school board had said, "We have the right to assign kids." And in I think it was Johnson v. San Francisco School Board [San Francisco Unified School District v. Johnson, 3 Cal. 3d 937 (1971)], the California Supreme Court said, "That's right, a school board does have the right to assign children to whatever school district they can for desegregation purposes. They can't do it for segregation purposes, but for desegregation purposes."

In many cases the court had reiterated that principle, and so there was really nothing new. What they said was, "It was clear when we said it in Jackson, and we said it again many times since then, and now we really say it, that segregated education in California is not permissible under

the California Constitution; and the school boards have the duty to desegregate."


Tape Number: XIV, Side Two
(September 4, 1982)


The court rendered its decision on June 28, 1976. I sort of remember that date. I don't remember many dates, I assure you, but I remember that one. And it sent the case back for the purpose of the school board complying with the writ of mandate which was issued in May of 1970. This was '76. All right. So the case was back in the superior court.

At that time it became clear to us what I suppose should have been clear all along but wasn't, that it was simply not right for the ACLU itself to be the only protagonist in the lawsuit. We had, as I indicated, in 1968 brought aboard the Mexican youngsters as plaintiffs in the lawsuit, but we still were the only lawyers in the case. And while we had some minority lawyers--as I say, Loren Miller, Jr., participated; by golly, I think he was the only minority lawyer--we felt that there should be a broader cross section of the minority youngsters represented, at least on the legal team.

So we solicited--I guess it was simultaneous, maybe-- both the Mexican legal community and the black legal community. I had a conference with Nathaniel Jones and Sam Sheats--Nathaniel Jones at that time was general counsel of the NAACP--about the NAACP participating, and also with

members of the Mexican-American Bar Association about them having some lawyers, or a lawyer, assigned for the purpose of having a broader representation in the lawsuit. And that was agreed to.

For the Mexican-American Bar Association, Lynn Pineda, who was a staff counsel for the Los Angeles Center for Law and Justice, was assigned. And there were actually two law firms and an individual lawyer assigned by the NAACP, all of whom participated to some extent, but then it pointed [narrowed] itself down. A law firm known as Reynolds-- Well, one was known as-- [Shockley, Duff, Hart-Nibbrig] was one firm, [and] [Manning], Reynolds, and Roberts was another law firm--they were black lawyers--and Loren Miller's cousin, also named Miller, Halvor T. Miller, were sort of assigned by the NAACP to participate. So we had aboard, as I say, the Los Angeles Center for Law and Justice, for the Mexican-American youngsters, the NAACP and its attorneys for the black youngsters. We didn't represent white youngsters, but we were there too.

We had all kinds of meetings. Again, we wanted to get volunteer counsel to assist in this on our side. By that time I had moved over to the ACLU full-time, and I by no means wanted to make that my full-time occupation, although it turned out that virtually it was that. I wanted to get some assistance.


As had been the case from time to time, I talked to the attorneys about being volunteer lawyers for ACLU cases, and Marvin Sears at the firm of Pacht, Ross, Warne, Bernhard, and Sears had from time to time indicated that their firm would like to undertake the case. So I approached him and asked him if he would undertake it, if his firm would undertake it. After considerable consultation with their firm, they agreed to do that, and Marvin Sears and another lawyer in the firm were assigned to be the volunteer counsel in the case. This actually was before we had even talked to the black and Mexican lawyers about coming in. So he undertook the preparation, the getting ready for the trial of the case. We had conferences, he and his associate, with the attorneys for the board.

By that time, as you know--or maybe people don't know-- Shortly after Judge Gitelson's decision in 1970, he stood for reelection and was defeated on the basis of that decision in the Crawford case, which was, of course, a tragedy for the public to have done that. A very antibusing person was elected judge in his place. It's of interest to note that when this new judge, when his time came around, he was so bad that he was not reelected at the next time simply because people were dissatisfied with him as a judge. But he was elected under no questions because

he was antidesegregation, which demonstrates the depth of the feeling. I really had not understood it in all those years.

But anyway, Judge Gitelson had been defeated, and subsequently he died, died just before--this is one of the ironies of life--he died just before the California Supreme Court's decision came down in '76, so he never did know whether he was vindicated.

So we had to get a judge, and a one-purpose judge again. I mean, in this kind of a case, the presiding judge agreed that it should be a one-purpose judge. We agreed on a judge; in my absence, actually, it was agreed to. There was some--I've forgotten the judge's name who was agreed to--but there was considerable dissatisfaction in the black community. Black lawyers who heard about it felt that this judge was not the one who should have been agreed to. If you get assigned a judge you can't help it, but we should not have agreed to it. So I was asked that steps be taken to try to get another judge.

Marvin felt that that was the wrong thing to do, that we didn't have any cause for challenge for cause for getting rid of this judge. He did not want to make the motion that would be necessary. So one of the attorneys who had been on the case from the beginning, Tom [Thomas G.] Neusom, I talked with him, and he agreed that we would

have a conference with all the lawyers and express to the judge our feeling that we would feel better if he did not sit on the case. The judge said, "Well, OK, if you don't want me on the case, why, I won't sit on the case." So he recused himself from the case. Then we had to start over again to get another judge, and that was quite a search.

Because of that disagreement Marvin Sears said that he couldn't participate in the case any longer. So Ed Medvene, who also had been one of the original lawyers on the case way back in 1963, said, "Fred, you and I'll try it again." I think I told you he thought it was going to be something like a three-day trial [laughter] because he thought there was nothing to it: here was Judge Gitelson's order, and here was the supreme court affirming it; go ahead and just--


What was the understanding that you and the other attorneys had at the time as to what needed to be done?


Well, the order of Judge Gitelson in 1970 was, you could come up with a plan. That order was given in May. You could come up with a plan by July 1, 1970, to go in effect for the whole school district in September of 1970. That was it, you know, just boom-boom-boom. Our hope was that when we started our hearings in March of 1977--the supreme court's order had come down in June, and there had been all this searching for a judge, and so on--that the

board would present a plan. In fact, we had met with the court after the second judge had been appointed, Judge [Paul] Egly, and Judge Egly had given them a date in March to come up with a plan. The proceedings were to have a kind of a little bit of a hearing to see whether or not it did desegregate, whether it was doing all that it could do, and hopefully we'd get a plan going by September 1977. Didn't happen, as you know, but that was kind of our feeling on it: we'd had this trial in '68 and '69 and that was enough; now let's get going.

Well, so then, as I say, we had to get another lawyer. Ed Medvene, who'd been on the case all the time in more or less a sideline capacity, said, "Fred, let's you and I try it together." And I said, "OK, we can do it."

Then we got these other lawyers on it, and then we had to search again for a judge. We had conferences, and you submit lists to the other side, and they submit lists to you, and you cross off names. Then you finally arrive at some that you think are OK and for some reason or other the presiding judge says, "No, he can't do it," or, "This one is tied up," or, "I won't let him do it." Finally we did hit upon Judge Egly. He had been one who had been on neither of our lists, I think--for one reason because he was sitting out in Pomona and not in Los Angeles--although

the presiding judge had said, "I'll give you any judge that you can agree on if I can agree with you too."

One of the reasons that Bill Shea, [G.] William Shea, who was the private attorney representing, with his firm, the school board, and I sort of agreed on Judge Egly was because he had handled the San Bernardino case and had sat through a hearing on the San Bernardino case, which also went up on appeal and was decided the same day that - Crawford was decided by the California Supreme Court. In San Bernardino Judge Egly had not found any intentional segregation but issued an order pursuant to Jackson. I suppose Shea thought that, well, if he hadn't found any intentional segregation in San Bernardino, he would be OK for us. Both of us agreed that it was a wise choice because he'd had experience in desegregation cases; it was a good idea to have somebody who knew at least something about the field. That's how we agreed to him.

So we had meetings with him. My recollection is that he told the board to come up with a plan by March 1977, when we were going to start our hearings on whether that plan was a good one. We had hearings from March through June of 1977, Ed and I and Harold Hart-Nibbrig and Lynn Pineda. Those were the main ones who tried that part of the case, although others came in from time to time and helped us in briefing.


In July of 1977 Judge Egly ruled that the plan that had been presented to the court was not sufficient: that it did not desegregate minority-segregated schools and that it simply wasn't in compliance with the law. He ordered the board to come up with a plan by October of 1977, with another plan that would comply.


Tape Number: XV, Side One
(September 11, 1982)


Fred, I wanted to go back over some of the things that we talked about last time and ask you a few questions that have occurred to me. First of all, according to the Open Forum and other background sources, during the time that the Crawford case was first being filed, back in 1963, there was a lot of community or protest activity, call it as you will, around the issue of school desegregation; in particular, this reference to the UCRC, the United Civil Rights Committee, that was a coalition of a number of organizations, including the ACLU, the NAACP, people such as Marnesba Tackett who were very active in this. There were evidently two or three major demonstrations, marches, demanding desegregation at the time. I wanted to pose the question: To what extent, at that time, in the early days of the lawsuit, did the legal team coordinate its activities with community groups that were working in an extralegal sense around desegregation? And to what extent did the ACLU conceive of that type of activity as being important to desegregating the schools?


Well, UCRC, as I remember it, as the specific sort of umbrella organization you mentioned, that didn't come into existence until after the Watts riots, which was in '65, as I recall. I don't remember any kind of activity,

civil rights activity, when we filed the lawsuit, as such; I just don't remember it. I must say that I don't think there was any coordination.

See, the lawsuit itself, we filed it; I'm sure there may have been some press notices at the time we filed it, but because we were trying to work it out with the board of education-- As I indicated, the Caugheys would go down periodically, maybe even regularly, and address the board to do something. And we were negotiating with the attorneys, and they kept on promising they were going to do something. It wasn't a matter of really great public notice except to the extent that someone took notice of the board of education appearances.

The UCRC thing, and those demonstrations which I remember, were a part of the whole civil rights movement itself and were really not focused on as a result of the lawsuit. There were all kinds of things. As I remember, after the riots there were divisions for-- There was a division for schools and there was a division for employment and there was a division--I'm talking about UCRC, not military divisions but [laughter] sort of areas of concern --a division for housing. And those components would do what they had to do to advance those ends. But they weren't coordinated with the lawsuit, and the lawyers as such really didn't participate in that.


The ACLU, of course, was very active in UCRC and would send people on almost all--I guess committees is the proper term--would send people to as many committees as they could. So they participated in that. But it really wasn't a part of the lawsuit. I mean, we just didn't-- I went to meetings too, of different UCRC committees. I can't remember which ones. But not in connection with the lawsuit.


OK. Do I gather, then, there was not a concerted strategy for the most part, in an extralegal sense, during the early days of the lawsuit? As an example, I know that later, in 1977, the ACLU, the Integration Project, and the Southern Christian Leadership Conference West organized quite a large demonstration that included a number of local politicians, as well as community people, around the issue of integration. I guess what I'm trying to get at is the extent to which the ACLU conducted an ongoing--


Well, as I say, the ACLU participated in-- As long as the UCRC remained in existence, and as time went on interest lagged and so on and one committee would drop off, but the ACLU continued its interest as long as UCRC remained active. But I thought your question was to what extent did the lawsuit itself have anything to do with it. And really, nothing. There was the big push for integration and trying to put pressure on the board to integrate

and so on. But the lawsuit didn't play any part. And we as lawyers did not influence or try to organize demonstrations or try to get people to participate in them. As individuals, of course, we participated later on, you know, when Johnson came, the Century City stuff and that sort of thing. The ACLU did that. But it just wasn't part of the lawsuit part. The lawsuit was just-- There it was, over there.


OK. Now one thing also. You mentioned that in 1975 the appeals court ruled that Gitelson had not uncovered adequate grounds for concluding intentional segregation and that was appealed to the California Supreme Court. The California Supreme Court, according to what you said last time, based its decision primarily on Jackson and said that it was not dictum and that you had to desegregate whether it was de jure or de facto segregation. You recall that discussion we were having?


Yes, but that's not quite accurate. But go ahead, ask your question.


With that background, the question is (I want to clarify a little bit): What exactly did the California Supreme Court say about the finding of intentional segregation, and what role was it relegated to in its decision? I'm especially interested in this because of the importance

that this would turn out to have later on, the question of intentional versus unintentional.


Oh. Well that's one of the tragedies of this whole thing. What the California Supreme Court said was, and I guess just by way of kind of explaining why it took the case from the-- After the court of appeal's decision, they said, the California Supreme Court said, there was ample evidence to support Judge Gitelson's, the trial court's, findings that the Los Angeles School District was de jure segregated. That's virtually all they said. They said, "The finding is supported by the evidence, there's no question about it." OK. They didn't use the word no question, that's mine, but they virtually said--I can't remember the exact words--but, "The evidence is ample to support the finding of Judge Gitelson that the Los Angeles School District is de jure segregated."

But then they went on and said, "But we do not base our decision in this case, affirming Judge Gitelson's decision, on the fact that it was de jure segregation. Because since 1963, as we have pointed out"--and in intervening years in about three or four other cases which I mentioned last time--"the law in California is clear that school boards have to desegregate segregated schools irrespective of whether they are or are not de jure. Just the fact that they are segregated imposes an obligation on

the school boards to desegregate. Therefore, we affirm Judge Gitelson's decision because there's no question that the Los Angeles School District is segregated. And therefore they have to go ahead and comply with the writ of mandate, namely, prepare a plan for desegregation."

Now, the reason I said your characterization was not accurate [is that] what has been contended to be, and quite properly so, in law circles, to be dictum is the statement of the California Supreme Court that the Los Angeles School District was de jure segregated. That's the part that's dictum. The reason it's dictum, in law, is that the court based its ruling on the fact that as long as there's segregation you have to desegregate. That's all they had to say. They could have put period, "The judgment is affirmed and sent back to the superior court for effectuation of the judgment." That's all they had to say. "Since it is clear that there are segregated schools, under California law the board has to desegregate. Judge Gitelson told them to desegregate. That's the end of the case." All right. They didn't have to go on and say, "But even though we find that in California you have to desegregate irrespective of whether it's [de jure] or not"-- In effect, what they said [was], "And in addition, to kind of bolster the opinion, we find that it is de jure segregated," so as to kind of put an added touch on

it. That's why people call it dictum. They didn't have to say that if they were going to posit their decision on the [de jure] segregation. See?

So the dictum part was not that it was de facto segregated; the dictum part was that it was de jure segregated. But that raises a whole new legal question which we'll discuss when we get to the--


To Proposition 1?


Well, to the court of appeal decision reversing Egly. Was it '80 or '81? My memory will refresh itself as we go on.


OK. And finally, I wonder if we could take some time and discuss the intervenors, the formal intervenors who came into the case after the California Supreme Court decision.


Yes. The California decision in 1976 sent the case back for the purpose of the board presenting its plan and going forward with desegregation. As my recollection is, we started our trial in March of '77; so, before that, we had had, as I mentioned, conferences with the board's lawyers as to what we could agree on and for documents and things like that. Sometime between June of '76 and March of '77, the first applicant for intervention was Bustop. Yes, I'm reasonably sure it was Bustop. [Bustop] made an application for leave to intervene, and shortly thereafter

came BEST, an acronym for Better Education for Students Today, and-- Let me see if I can remember who the other intervenors were. Integration Project tried to intervene quite late. The United Teachers [Los Angeles, UTLA] didn't come along till quite a bit later. How many intervenors did we have? Eventually, Bustop, Integration Project, United Teachers of Los Angeles, and BEST--Oh! yes--and [Robert] Loveland and [Mary] Keip, who were substituted in as intervenors for Mrs. Watson.


Diane Watson?


Diane Watson, yes. All right, now here's the way the thing went. By shortly after the first of the year in 1977, Bustop, BEST, Integration Project, and Diane Watson had sought leave to intervene in the case. Judge Egly denied all of them on the ground that it was too late and the case had gone too far. They would only complicate the thing, make the thing too complex, if they're actual parties, which intervenors are. And so he denied them all leave to intervene but told them that they could appear as a friend of the court at any time and argue whatever positions they wanted the court to listen to.

Bustop took an appeal from that order. The court of appeal reversed Judge Egly and said that Bustop could intervene. The reasoning of the court of appeal was, and I really can't fault them, was that in a sense the point of

view of the white kids in the Valley were not represented in the lawsuit. They said the board really wasn't representing-- In the first place, the court said something which is not quite accurate but in a sense accurate. The board is supposed to be representing all the kids, and they're not representing any one particular point of view. And, obviously, the petitioners are not representing the white kids in the Valley who didn't want to leave their neighborhood schools in order to desegregate minority schools. The court of appeal said that this point of view, of the white kids in the Valley--they didn't use that terminology, but that's the effect of it--was entitled to be heard and to participate in the remedy that was being fashioned. I don't think the court said so, but they wouldn't probably have had so much right to participate in the early part of it, as to whether it was segregated or not; they really didn't have that interest, sort of remote. But they did have a sufficient interest. We argued against it for all kinds of reasons. It really encumbered the lawsuit quite a bit, as you can imagine.

All right. When that happened, Judge Egly, without really analyzing the opinion of the court of appeal to get the real thrust of what the court was saying, just allowed the other three to come in as intervenors: BEST, Integration Project, and-- Oh, but he continued to deny Diane

Watson leave to intervene because she was, in a sense, a defendant. She was already in the case, in a sense. So then there was a substitution of Dr. Loveland, who had been the chairperson of the committee that had been appointed by the board of education [Citizens' Advisory Committee for School Integration (CACSI)], after the California Supreme Court [decision], to come up with a plan. And that's a whole other story.




He was the chairperson of that committee, and Mary Keip was a member of that committee. The purpose of Mrs. Watson's wanting to be an intervenor was to present the point of view of the committee, which had, after all, been appointed by the board to draw up a plan. So he did allow them to intervene. So we had at that time four intervenors. Is that right? BEST, Loveland and Keip, Integration Project, and Bustop.


Oh, UTLA's not yet.


They're not here yet. They came a little bit later. That was another complication. But they're not in at that point. As a matter of fact, that order by the court of appeal to allow Bustop to intervene didn't come down until after we had started the trial already on the plan that the board had first presented. It came down after March 23, 1977. We had already started. The court

of appeal's order came after that, and then they came in two or three weeks after we had started the proceedings.


I think it would be worthwhile, perhaps slightly tedious for you--


That's all right. No problem.


--to go through each of the intervenors and give your impressions of the attorneys and the role that the intervenors played in the case, what they added or did not add, in your view, what the real role of each intervenor was in the case. I think that will be very interesting to--


Well, let's start with Bustop, who, as I say, were the first ones who tried to get in. After Bustop filed, then the others [filed] very soon, except Integration Project. They didn't file their application till right almost on the eve of trial, as I remember.

Well, Bustop was first represented by an attorney who represented the Pasadena School Board in the Pasadena case, Lee [G.] Paul, and a younger attorney, [Peter D.] Collison, from Paul, Hastings, Janofsky, and Walker, a very large law firm in the city of Los Angeles (indeed, Leonard S. Janofsky later became president of the American Bar Association). As I say, Lee Paul had also represented the Pasadena School Board during the later stages of the Pasadena case, and maybe the earlier ones, I don't know. I

came on Pasadena in about 1973 and Lee Paul was there, so whether he handled it before I can't remember.

Lee Paul is a partner in this very large law firm and conducted himself as partners in very large law firms conduct themselves. I mean, he was very confident. He did not strike it off well with Judge Egly. You could feel a perceptible amount of antagonism between them. And Judge Egly obviously did not like at all the opinion of the court of appeal requiring him to allow the intervention and, indeed, required that he be actually served with a document from the court of appeal itself before he would actually allow them in. He was not satisfied with simply Mr. Paul telling him that the court had ruled in that way.

[My] impression of him? Well, he's a capable lawyer. My colleagues didn't think too much of him in the conversation, but he performed-- He made it clear that he thought that any remedy that required white students to be transported to minority schools against their will was a violation of the Constitution and a violation of their rights, and that was the point of view of Bustop.

The board at that time still had Dr. [Robert] Docter on it. While the plan that had been presented in March of 1977 was a terrible plan--there's no question that it was unconstitutional--at least the board recognized that they had to do something to at least try to integrate in some

way. I remember that plan was one where--[it] sounds like Alice in wonderland--people would go to their so-called neighborhood schools for the first hour in the morning, and then they would go to some kind of special education center. They'd have schools elsewhere where the minority youngsters would come and the white youngsters would come, and they'd all be there for part of the day. Then at the end of that part of the day they'd go back to their own schools to complete the day. What was taught at the socalled neighborhood schools was English, mathematics, and the basic subjects; and what was taught at the special education centers were kind of social studies, things that didn't give the basic skills to the minority kids, which is what they really need.

I think if you look at it in the most general way, the minority kids need skills in the basics--reading, writing, and arithmetic--so they can get out in the world and compete. The white kids need the minority kids so they can learn how to live in a multinational world. So even that plan, which didn't again desegregate a single minority school, gave all the real advantages to the white kids, because they were getting the kind of an integrated education which was important to them, and the black kids were not learning their basic skills that they could continue to learn in their segregated minority schools.


Well, how did I get off on the plan? Oh. I started to say that the board at least recognized, even with this very bad plan, that they really had to do some transporting of white kids to get them to the minority children in some way and not only have the minority kids go to the whites. So to that extent the board was doing something; very little, but something. And, of course, the role of Bustop was to advocate against even that, which they did.

Now, Loveland and Keip, of course, were represented by Ray[mond C.] Fisher, who also happened to be on CACSI. CACSI is the acronym for the committee that the board of education had appointed: Citizens' Advisory Committee for School Integration. And Ray had been appointed by somebody on the board. So he was on CACSI, and he understood CACSI's position. Now, CACSI (I suppose this is as good a time as any to go into it) had spent an enormous amount on it. This is one of the real-- There are two tragic moments in this whole saga, more than two, but two main ones. CACSI was a very representative group of the community, having on its membership people from Bustop-- [Bobbi] Fiedler was on CACSI. I'm not sure whether [Roberta] Weintraub was or not. But there were members of Bustop, and there were those who were from the black community who were total integrationists in the sense that they were very fervent, so-called, people who supported transportation for

the purpose of desegregation. They came from all strata of the community. It was a very well-appointed and representative committee. And they spent an enormous amount of time. I think they almost met every day, some committee of it. They had broken themselves down [into committees]. They traveled to Dallas, I think they went to Charlotte-Mecklenburg, they went to Denver, went to a number of places which had desegregation plans.

To the surprise of everybody, and certainly the board of education, they came up with a real desegregation plan. It called for assignment for desegregation, assignment of white youngsters to minority schools, assignment of minority youngsters to white schools, which necessarily meant transportation, which meant busing if you want to use that pejorative term. As I say, it surprised everybody. And it not only surprised the board but caused the board considerable consternation, to the extent that the committee had spent months and months and months in studying and in discussing and in learning. The board, in a period of about three days, concocted this plan which I mentioned. They completely disregarded CACSI's plan.

Of course, that was one of the things that led to the inability of Los Angeles to desegregate later on. Because when you don't have the support of the boards of education --public officials in general, but particularly the board

of education--you just can't desegregate. I mean, we're still suffering from the vestiges of slavery. Whether we admit it, whether we want it, we simply have racism in our society, which people, for one reason or another, can't throw off so easily. It's just here. So when you have the board of education saying, "We're not going to transport kids for desegregation," well, sure, that reemphasizes what the white kids and their parents were thinking of anyway.

So they just did this. They knocked this plan together which was a nonsensical plan. And we went through-- It just seemed like such a waste of time, but we went through from March to the beginning or middle of June listening to the board's witnesses explaining their plan. We were cross-examining. At that time Ed Medvene was in court every day and doing most of the cross-examining. Finally the judge ruled that it simply didn't comply with the Constitution. And in July, I think--I think the date was July [5], 1977--he came down with an order rejecting the plan and telling them to come back with another one in October.

At that point, the board of education had to make a decision as to whether to, again-- See, this is the second time they were told to come down with a plan. They were told to do so by Gitelson in May of 1970, to get it by July 1 of 1970. That board said, "The hell with you, Mr. Judge,

we're appealing." This board in 1977 had to make a similar judgment: whether to go to work to come up with a plan by October of 1977 or whether to appeal. As I say, the only one I remember being on [the board] besides [Richard E.] Ferraro, who was there at the time also, was Docter. The board, and I don't know what the vote was, voted not to appeal.

Well, that set off the whole fireworks out in the Valley at that time and led to Bustop's growth. Up to that point it was just a very small organization, because no one really believed that there would ever be an order requiring desegregation in Los Angeles. I mean, the people in the West Valley. They kind of got the message about that time, I think. So that led to considerable growth of Bustop and led to Docter being defeated at the next election and [led to] the election of Fiedler to the board and all the others, [whom] I can't remember. Was there an effort to recall? Yes, there was, I guess. I can remember--


Howard Miller?


Well, that was later, the recall for Miller. Was Miller on the board? Oh, of course he was on the board. Right. Sure, because I remember during one of the sessions--I don't know when they elect new presidents--but I remember Bill Shea coming in and saying, "Your Honor, we have a new president of the board of education." And it

was Howard Miller. Well, that's what led to the recall of Howard Miller and the election of Weintraub. Because the board had made a determination to follow the law and, instead of appealing and delaying again and again, to comply and come up with another plan.

As I say, this board absolutely must be faulted for not having accepted the CACSI plan, which would have taken a lot of the wind out of the sails of the people in the West Valley who didn't want to desegregate, because it was a community effort. You see, that would have been terribly important in the psychological push for desegregation.

So you're right. Miller was recalled; Weintraub was put on the board; at the next election when Docter came up, Fiedler won; and I can't remember what the composition was, but it became virtually totally, except for maybe one, as now, an antidesegregation board.


Now, when Loveland and Keip-- I believe you said that their attorney was Ray Fisher?


Ray Fisher, yes.


And I guess, obviously, they were intervening on the side of the minority school children.


Well, they--


What role did they play here, and their attorney?


All right. I was going to get to all of them. Fisher was not being paid. He and another person in his

office, I think his name was [Robert S.] Stern, were there periodically; they didn't come every day. Lee Paul or someone from his firm was there every day. [They] were simply there to present the CACSI point of view. But it was really not necessary to present the CACSI point of view because we never did get to putting on our case.

The petitioners never put on their case because at the end of the board putting on its case--because of the cross-examination that had taken place-- You see, the board puts on its witnesses to explain its plan and to extoll it. And Lee Paul would have an opportunity to, I guess the term is cross-examine, in a sense, because it isn't his witness, but to reinforce what the board had done. Then we would cross-examine. Well, the way it was-- I forget who went first, I don't know what the order was. We sat around this table, and I guess it would be BEST and then Integration Project and then maybe Loveland and Keip and then finally us. Or we may have gone first; I can't remember. At the conclusion, then the board said, "We rest. We put on our case. This shows you, Mr. Judge, what a wonderful desegregation plan this is. Please say OK, and we're ready to go. It's June now, and we're ready to go in September to put in this nonplan."

We made a motion at that point that the plan should be rejected right then because, on its face and as a result of

all the witnesses that had been brought in, it simply didn't comply with the Constitutional requirement to desegregate the minority-segregated schools. So we never put on our case, and so Loveland and Keip never had to put on their case either. All they would have done would be to submit the plan that CACSI had developed. It got into evidence anyway. I mean, everything got in. The record is miles high.

So that's the role he played. They really didn't participate very much in the trial after that point.

BEST, through [Jack D.] Fine and-- Why is it that I forget these names? You would see them every single day on paper. I'll think of the name of the other attorney, Harvey Saferstein. [laughter] Their point of view was a moderate one. Everybody said they favored integration. I mean, that's a given. I accept that with tongue-in-cheek, but they were for integration. I mean, it's very important for everybody to get an integrated education. The BEST point of view was, however, [that] the best way to do it is through voluntary conduct by the students. So they pushed for so-called middle schools, midway places where both children, you know, [of] both [black and white] parents, would come, similar to what the board had, only the board was only part-time. At least they talked about an all-day school. But every time anything came up which would really

effectuate some real desegregation, BEST was always with the board. They did not come every day, as I recall, and their papers were meager. Yet, I must say, they were pretty succinct in their papers; although they didn't put in a lot of time, it was quite evident.

Of course, that left Integration Project. Now, Integration Project's point of view was very similar to the petitioners', to us. They at first came in as intervenors ostensibly to represent the point of view of the white persons in the district who favored desegregation. That was their rationale for getting into the case. They couldn't say that the point of view of the minority youngsters wasn't being represented because that's what the plaintiffs were doing. So their point of view was [that of] those white persons who wanted desegregation and approved of assignments for desegregation, which, of course, entailed the opportunity to get on a bus to get to school. Arthur [L.] Goldberg participated every day, virtually, during that period. Later on another attorney came in for Integration Project.


Would that be Brenda McKinnon?


Brenda McKinsey. That was later, not during this time in 1977.

[My] impression of Arthur. Arthur doesn't profess to be a scholar. He was an interesting fellow who made it

interesting to be in court. He would argue from, not quite the top of his head, but from the interior of his gut. I mean, he was cogent, his point of view was correct, but as I say, he was not a scholar and didn't profess to be. This was his first desegregation case, and so on. He would argue quite loudly in the courtroom and from time to time would say something which was of [an] amusing nature, and people sort of liked him, although the judge sometimes got a little bit short with him, but not nearly so short as he was with Paul or even with Shea.

Well, those were the intervenors.


Now, on the Integration Project in general I have gathered the impression through earlier research that there were, from time to time, some strategic or tactical disagreements between the ACLU and the Integration Project. I wonder what comes to mind--


Yes. Well, let's see. One that comes to mind is the question of the PWT, that is, permits with transportation, which was a program that the board instituted, in a sense even before the 1976 order of the supreme court, to allow minority people to be transported to white schools for a desegregated education. That continued to be a part of the board's plan also. At one point Integration Project filed a motion to do away with even the then-existing PWT. We did not join in that motion.


Well, first let me say what the philosophical basis of disenchantment with PWT is--it's perfectly obvious, and we agreed with that--namely, what PWT does is simply a one-way transportation program by which the minority youngsters who cannot otherwise get a desegregated and good education in their own schools, in order to get it, hop on a bus and go to a white school. That results in a couple of things. One, it results in a brain drain from the minority schools, so that the minority schools are even worse because the people who opt to go are the ones whose families are more fervent in their desire for their kids to get an education. It's just a very unfortunate situation. And also, when the kids get to the white schools, the PWT kids are treated differently. The board won't agree with this, but the research has shown that they were. Their discipline was different and they were threatened with being sent back to their black and brown schools if they didn't toe the line; whereas a white school, [if] some white kid did it, there'd be some kind of discipline of, you know, whatever it is. And PWT is a very unsatisfactory method of desegregation. It's OK to have it as an adjunct to a good desegregation program that desegregates minority schools, but when that's really the only so-called integration that's going on, it's not a good thing. It denigrates from the absolute

necessity of desegregating minority-segregated schools, because it doesn't do it.

So we agreed, and still agree, that PWT is not good in and of itself. But we didn't agree with Integration Project's effort to stop it at that point. There were all kinds of reasons for not stopping it at that point. In the first place, the kids who opted for PWT had been told they'd have the right to do it. They'd made plans to do it. They made friends in the new schools already. They were in the lower grade, in the junior high school part of PWT, [and] they were looking forward to matriculating to schools in the white sections of the area. In addition, there was great resistance, which we didn't feel was a good idea to take on at that point, from the families of the youngsters who were engaged in PWT. The very reason that they opted for PWT in the first place was not to be required to go to those so-called neighborhood segregated schools, and so they didn't want to stop PWT.

While we did agree that it should be phased out, and in various papers which we filed later on when we came to trying to refine other plans, we made suggestions to that extent, we just didn't feel that it was a good thing to stop it at that point, which was the thrust of the Integration Project motion. It would have created more problems

had the judge granted it. Well, he denied it, so at least those kids who were going to school finished their semester on PWT.


Tape Number: XV, Side Two
(September 11, 1982)


Fred, just to follow up on this question of the PWT, let me play a little devil's advocate with you, and this is going to be jumping ahead a little bit in the story that you've been outlining, the chronology.

In a long interview that I did with Jackie [Jacqueline] Goldberg for an article that I was working on--who was one of the main leaders, and still is, of the Integration Project--she made the point that--and perhaps this is a point that is informed by things that happened later--that the plan that went into effect in September '78, the plan the school board came up with--and this was a plan that did require some, not in percentages but some, significant transportation of children-- Her argument was that that plan allowed schools to escape, if you will, or I suppose a more neutral way of saying it would be exempt themselves, from participating in that plan if they could show that they fit whatever percentage was necessary in order to be called an integrated school. And that although schools in the West Valley resisted, that schools particularly in the West Side of Los Angeles, Westwood and Bel-Air and the West Los Angeles area, managed to get enough PWT pupils in there so that they were then exempted. Their exemption meant that the schools that were left were far

apart from each other and [that] you did not have a systematic plan where everybody had to participate so that the transportation distances would be short, but you had a plan that was just all over the map. You have people being bused from the West Valley down to East Los Angeles or South Central L.A.


Not quite, no.


OK. I hope I'm fairly stating her point of view--




--as to what the later effect of PWT was in Integration Project's views.


There is no question that PWT is not good. There is no question about it, and there was no disagreement on that. The only question was whether, at that time, that was the right way, the right time, to make the motion before the court to stop it--boom! like that--in the middle of a semester. That's all. We have no disagreement that PWT is not good. As I say, it's OK. The courts have OK'd a PWT type of program as an adjunct. Of course, I have to withdraw that now because now courts all over the place are just allowing PWT as the method of desegregating, so-called desegregation. So Jackie's point is well taken, that it served to exempt schools which otherwise might be participating in desegregation. Actually, the reason for the long distances was quite a different reason; and that's a whole

other story, which I don't know if we want to get into at the moment. When we get to the '78 plan, I'll try to explain that one--


All right.


--but that's different.

But anyway, what started this was your question about our disagreement with Integration Project. I was trying to think if there was another one. I really don't, can't think of it. We had some difficulties, as attorneys do, in our assessment of the cross-examination that was being done by them. Sometimes we thought that it was unnecessary and went off on wrong tacks. But that wasn't important, really. We got along very well with Integration Project. They're still in the case, in a sense. I'm not sure where the case is going, as you know. But I think that was the main tactical disagreement we may have had. At the moment I can't think of any others.


OK. Now, I know that the NAACP has been participating for some time, particularly in the person of Joseph [H.] Duff, their attorney here. The NAACP is not an intervenor, though, right?




Is Joe Duff working just with the ACLU, or what is the relationship?


Oh. I thought I explained that. I thought I explained that when the case came back from the California Supreme Court in '76--either during '76 or at the beginning of '77, before we started our trial in March of '77-- everybody thought that the legal team ought to be a little more representative of the plaintiffs. That's how the NAACP came into the picture. As a matter of fact, Joe Duff, although he was around at the time, didn't participate to any real extent in the 1977 hearings. The NAACP contribution was made by Harold Hart-Nibbrig, of Schockley, Duff, and Hart-Nibbrig. Joe came to really participate after the 1977 hearings. The NAACP lawyers were a part of our team as a result of that amalgamation, as I say, in late '76 or early '77, just as Lynn Pineda participated for the Los Angeles Center for Law and Justice.




And we really, although the newspapers talked about-- Well, the newspapers talked about, in the main, whenever anything happened it was usually the ACLU. That troubled the NAACP people quite a little bit. I'm not sure how much it troubled the L.A. Center for Law and Justice. But it was kind of known as an ACLU case. The newspapers would, when they did take the trouble to delineate between who the attorneys are, would say the NAACP and the ACLU and maybe once in a while the L.A. Center for Law and Justice.

We as lawyers, though, never made that distinction. Just as the ACLU Foundation was not a party to the case, although many people think that we were, so was not the NAACP, and so was not the Los Angeles Center for Law and Justice. All those organizations did was provide the attorneys for the plaintiffs, for the petitioners, for the minority youngsters in the case. We as lawyers never thought of ourselves as ACLU lawyers. Or at least I didn't. And my colleagues didn't, although I'm sure that Joe would consult with national counsel for the NAACP on what to do or what not to do.

We never considered ourselves to be representing the ACLU or Joe representing the NAACP. We were lawyers lawyering a case, and we had a team, we were a team. As you understand, whenever you have a committee trying to do anything, we had all kinds of disagreements which we ironed out in the privacy of our law offices. But when we presented ourselves in court, we were one, presented one point of view, and that's it. We were lawyers for the plaintiffs; we were not lawyers for the NAACP or ACLU or the L.A. Center.


Tape Number: XVI, Side One
(October 9, 1982)


Fred, we've covered a lot of ground in the last couple of sessions. I wanted to, for the time being, go back and pick up the chronology. We had left off more or less at the point where Judge Egly had turned down the board's first plan in 1977, and I'd like to start at this point and ask you one initial question, which is, whether you recall what instructions or words Egly had to say to the board and its attorneys in turning down that plan, what he told them they had to do at that point.


Well, he issued a written order of some length, which, as I recall, came out, it seems to me, around July 5, 6, or 7, 1977, in which he analyzed the plan that the board had presented and as to which there had been hearings since March and finished in June. He turned it down because, in his words, the plan didn't desegregate a single minority-segregated school. In his view, and I think correctly (and still correctly; I just read a recent decision by the California Supreme Court), the object of this whole business is to desegregate minority-segregated schools. Since that plan didn't do it, he sent them back to come back with another plan in October to do that, to desegregate minority-segregated schools. I haven't

reviewed his order, but I think that's about the substance of it.

In other words, he took quite literally and quite to heart the admonition of the California Supreme Court in the Crawford case that was decided in June of '76: that it's really the board of education which is the agency which is supposed to develop the desegregation plan; that courts are not really equipped to do it; and so long as boards of education submit a plan which shows reasonable promise of accomplishing that which is required, namely, the desegregation of minority-segregated schools, the courts should keep their hands off. So that was Egly's idea. He really didn't tell them what to do except to do that which -Crawford said they had to do.

We had urged him from the very beginning, from as early as March, when the hearing began, to understand that the board was not capable of doing that which was required under the law and for him to create a plan by himself: not he himself to create it, but to appoint a master or masters in order to do that. We read the Crawford decision as requiring him to do it. We read the Crawford decision as saying the board had already shown that it would exhibit no meaningful progress toward desegregation and for the court to step in. And the court was supposed to have stepped in, in our view, when it did; namely, when it ordered the board

to desegregate. He never agreed with us on that, not until much later. Well, he never agreed with us, as to the reading of Crawford, that he was supposed to do it at that time. So he didn't accept our motion to declare that the board was recalcitrant--whatever word you want to use, but: did not show meaningful progress--and he wouldn't appoint a master or undertake the planning himself. But he, as you indicated, as we talked about, found that the plan they had presented was no good [and instructed them] to go back with all their expertise and create a plan that would [desegregate] and come back in October for that purpose. Those were about the instructions.


Why do you think, or what reasons did he give for not adopting your view, especially after the board came back with the first plan?


Well, as I indicated, I think he took very seriously, in our view too seriously, the statement in the Crawford case that the best instrumentality for creating plans are the board in consultation with the public, and the courts should keep their hands off as long as the board shows progress. And he wasn't willing, even in July of 1977, after our long hearing and after they had presented a nonplan, to concede that the board wouldn't or couldn't do it. It was just as simple as that. We argued as much as we could, but he wouldn't do it. And that's the irony of

it. At just about that time, you know, resistance was growing up to desegregation. Bustop was already in the case. The irony of it was that the public at large, or some parts of the public at large, thought that Egly was an ogre and that he was running the school board. In our view, he was anything but that. He wasn't doing what we thought he should have done.


Now, from your vantage point, what do you think the board and its planners had in mind in coming up with that first plan? Do you think that they believed that Egly would accept that? What do you think was going on in their motivations?


Well, it's always fun to guess what someone else is doing. I think--


As I say, from your view, your vantage point.


Yes. I suppose to be uncharitable one could say that they didn't want to desegregate the minority- sugregated schools. If one wanted to give them every benefit of whatever one gives a board which for so many years hadn't done anything, I suppose you could say that they really feared, or didn't know how to cope with the phenomenon of losing white students, and they wanted to have a plan which the court would accept and which was palatable, if you want to use that word, to the white people, so that they will stay in the district. Those

are the only things I can think of.

When CACSI came up with its plan, after months of deliberation and a great deal of thought and going all over the country and looking at other plans and really working hard, and it being a cross-section of the community-- When they came up with a plan that complied with Crawford, namely, did desegregate minority-segregated schools--again, not completely, because Los Angeles being what it is, it just couldn't be done completely, but at least they understood it, and psychologically they understood what had to be done--they [the board of education] simply threw it over, as I indicated. And in two or three days [they] came up with this nonplan, exhibiting a--reluctance is a nice word--an absolute determination not to do what Crawford required. So they came up with something that-- Oh, Dallas had something like that; there were some cities that had parts of what they had in mind. And [they] hoped, I guess, really hoped that Egly would accept it. I mean, obviously they didn't present a plan that they hoped he wouldn't accept. I don't attribute that to them. [laughter]


OK. So then, picking up the course of events, what happens next?


You know, the thing is so vague in my mind now. This was in July of '77. He told them to come back in

October of '77. We had all kinds of hearings, and-- Let me just think. When we finally came back to a hearing, a real hearing, it was probably September or October of '79. That's when we had our next trial, so to speak. During this whole two years we were bantering back and forth. We made trip after trip out to Pomona, where Judge Egly was sitting as a judge and from which he had been taken for this case. There were talks of settlement; we tried to figure out some ways of settling the case, the details of which absolutely escape me because we never really got close to it. I suppose to really answer your question I'd have to review it, but we had hearings, hearings in the sense that we had conference after conference, both in Pomona and Los Angeles.

Now, let me just think. There was an intermediate plan, which we called Plan 2, which was presented by the board finally. They were supposed to do it in October; I don't think they did it till January--


Of '78?


--of '78. It was a plan that only affected grades four through eight. And it didn't do, again, what we said had to be done to desegregate the minority schools. But it did affect the schools in those grades, which meant some of the grammar schools and the first two grades of the junior highs.


That was put into effect, as I recall, probably in September of '78. That was not as a result of any hearings as such, but the judge said, "This is a start." He was so anxious to get something going. He was genuinely disappointed, as we all were, I'm sure, that the first plan didn't go, because everyone had hoped that by September of '77 a plan would be in effect. So he accepted that, again over our objection, and allowed this plan to go in effect in September of '78.

Well, that plan was doomed to failure, absolutely doomed to failure, because the experience is clear that you can't desegregate part of a school district, some grades. You can't do it. Now, if you have an elementary school district, sure. I mean, you just do it with the elementary schools. Or if they have a junior high school--I've never heard of a junior high school district--but a secondary school district, high school district, which includes probably ninth through twelfth, you can do that sort of thing. But when you've got a school district that has grammer schools and junior highs and senior highs and you try to do part, psychologically it's just not right. People try to figure out how to get out of it, how to get out of going through desegregation. So families who had kids in the eighth grade would say, those who wanted to leave, "I'll drop out for a year; then it won't be there

anymore, so I'll come back the next year." Or they move out ahead of time. And it left the balance of the schools in a "ha-ha" position: "We don't have to participate and you guys do." It was just wrong, completely wrong.

In addition to which, the way the plan was originally worked out, there were very, very long rides, both for the black and Chicano youngsters and for the white youngsters. It was simply not planned correctly. What the board did, and what the court allowed them to do, was for various schools to team up; that is, to try to get partners for desegregation purposes. So the one white school, which knew it had to participate, would try to contact a minority school close, and they'd make an agreement, and that would be accepted by the board, and there they were. By the time September of '78 came along and not all the schools that were within the plan had desegregated themselves, so to speak, by making agreements, the schools that were not desegregated and not touched were the schools way far away on the west side of the Valley and way far away in East and South Central Los Angeles. So that those schools who were then mandatorily assigned-- You see, because-- The school board was always talking about voluntarism; so they figured out we'd let the schools themselves voluntarily make these