Petition for Writ of Certiorari — Bushman v. California

LIBRARY

SUPREME COURT. '4 &

IN THE

Supreme Court y the United Seater: ee

- October rey a:

TED BUSHMAN, :

Petitioner,”

US.

THE STATE oF CALIFORNIA, 5 nae Te

. Respondent.

Petition for a Writ of Certicrari to the Apisctiatve

Department of the Superior Court for the

County of Santa Barbara, State of California.

Joun M. Sink,

Lawyer for Petitioner,

8 East Figueroa Street,

Suite 200,

Santa Barbara, Calif. 93104.

>

Parker & Son, Inc, Law Printers, Los Angeles. Phone 685-9790

SETAE PRPS GRA AEH CIOS MORES ARES INE BES ERS OAS IE ELL OOS i

“ ane a Le = ‘ = Sh a ee nt

SUBJECT INDEX

4 Page

Opinions Relow Se eos eRe LT ee 1

Pa gains ciecsioeisirsa cetacean 2

Questions Presented ie te ea iedacabatiigas :

Constitutional Provisions and Statutes Involved .... 3.

i ii retsocckhtectbnbeeninal wsonsennsenesaseennsennsseueeneee 8

Reasons for Granting the Writ -..........-. sigicidinseisitocsa 11

Cem NAB IRD -a ssn cnecvsss vecessnnevccvnsncssonareosocsnsnnenynrenseasonmennenente 14

INDEX TO APPENDICES

Appendix A. Judgment of Municipal Court -....... 1

Appendix B. Opinion of Appellate Department of

Superior Court -.-.---------sccsecspeseessesseessceeseeceeerteentens 8

Appendix D. Denial of hoaleatii for Transfer ..°19 -

Appendix D. Jury Instruction (Refused) ccinesuas a

- .

BD hrc Qn Sah wins ee hill ch ta Voi de

TABLE OF AUTHORITIES CITED

aCases . Page

Barber v. iw 390 i aN scesassasaeinrntseeSsanieaniacenarty 13 °

Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 7a

.. Brown v. Louisiana, 383 U.S. 131. ....-..--------------+- 12

eaten». Unieel Gates, 901 US. 123... 13

Chapman -v. California, 386 U.S. 18 —............. =

Cox vy. Louisiana, 379 U.S. 559 ...........-.....---s-00 aathoik 12

Douglas v. Alabama, 380 U.S. Se Oe ic ae

Giannini and Iser, In re, 69 Adv. Cal. 588 eon pauls 13

Gregory v. City of Chicago (October Term 1968, .

No. 60, decided March 10, -1969) .........--------+----++-- 12

Kinoy v: District of Columbia, 400 F. 2d 761 ......... 12

New York Times Co. v. Sullivan, 376 U.S. 254 ....... 12

Pecple v. Allenthrop, 64 Cal. 2d 679, 51 Cal. Rptr.

| (244, ne Se scuaessieausciiebableiaintidinces 2

People v. Johnson, 68 Cal. 2d 646, 68 Cal. Rptr. 599,

BAL PP. 2d UUD nas nnnnnnenenesennseesyyeoennenndenenansnensennnes 13

Pickering v. Board of Education, 391 ho cee i 12

~ Pointer v. Texas, 380 U.S.’ 400 ........------------ erecnaver a

Duseubiatt v. Beer 265- US: 7S eect 12

St. Amant v.: Thompson, 390 U.S. 727 ........2.---------- 12

Talley v. California, 362°U.S. 60 ..........---.--------- en

Whittaker v. Superior Court, 68. Cal. 2d 357, 66

Cal. 7 710, 438 Oe I I acacia 2

: ate Rules

‘California Rules of Court, Rule 62 ...........-....-.------- 2

California Rules of Court, Rule 63... Pe

- California Rules of Court, Rule 976 sienna Ar 2

Statutes Page

California Constitution, Art, 6, Set. 15... 4,13 -

California Penal Code, ies RD. hn snaniaeione ‘5

United States Code, Title 28, Sec. 1257(3) 2

United States Constitution, First Amendment .......- .

fa calatiscteceheeeenntete \ tomb Ia dg 30

United States Constitution, Sixth Amendment ......

os eetcpmnnicheesenalislaheseriewnss Snip: Wy a a

ove United States Constitution, nF Amendment,

+ Pear | 5... cencenscsuossouseconmetetsusseing Mieeserseacoocsentsnentionsoee 4

Textbook

Paul Chevigny, Police Power. (1969), pp. 24-26 . -12

IN THE.

Supreme Court of the United States.

ctober Term, 1968

A cccctsiinaeiets

TED BUSHMAN,

Petitioner, B |

mAy

THE STATE OF CALIFORNIA, na

~* - Respondent.

~ Petition for a Writ of Certiorari to the Appellate

| Department of the Superior Court for the

County of Santa Barbara, State of California.

Petitioner asks certiorari to review a judgment of the

Appellate Department of the Superior Court of the

State of California for Santa Barbara County.

Opinions Below.

Petitioner was convicted after a jury trial in the

Santa Maria Municipal Court of violating California

Penal: Code Section 415 (maliciously disturbing the

peace); a.copy of the Municipal Court’s judgment is ~

attached as Appendix A. The Appellate Department of

the Superior Court of the State of California for the

County of Santa Barbara affirmed this conviction by an

opinion dated and filed December. 17, 1968; a copy of

the opinion (the judgment of which review by certiorari

is now sought) is attached as ‘Appendix B. A copy

of the opinion of the Appellate Department of the Su-

Peer F

ree "

e-

a. eo

perior Court denying transfer of this-case of the Court

_ of Appeal, dated and filed January 13, 1969, is attached

as Appendix C. These opinions are unpublished under

California “Rules of Court, Rule 976 [60 Cal. 2d 1-2

(1964), amended 65 Cal. 2d 12 (1966)]. No other —

opinion is involved. The opinion of the Appellate De-

partment of the Santa Barbara Superior Court is there-

fore a final judgment rendered: by the highest - State

court in which a decision can be had in this case, under

‘California. Rules of Court, Rules'62 and 63 [57 Cal.

2d 9-12 (1962)]. Talley v. C alifornia, 362 U.S. 60, 62

(1960) ; Whittaker v. Superior Court, 68 Cal. 2d 357,

365, 66 Cal. Rptr. 710, 438 P. 2d. 358, 365 (1968);

People y. Allenthorp, 64. Cal. 2d 679, 682-683, 51 Cal.

Rptr. 244, 247, 414 P. 2d 372, 375 (1966).

Jurisdiction.

The opinion sought to be reviewed by this petition

( Appendix B)_was dated and entered December 17,

1968.* There was no order respecting a rehearing. By

an application filed in this ‘Court on March 17, 1969,

petitioner obtained an order dated March 19,:1969 ex-

tending the time for filing this petition for writ of

certiorari to and including April 26, 1969. Jurisdiction

to review this judgment by writ of certiorari is derived

from 28 U.S.C. Sec. 1257(3).

*This date (December 17, 1968) is the date of the judgment

-[App. Dept. CT 15] and also the date which the Clerk’s- Office

advised us (by telephone) that the judgment was filed and

entered. Local practice is to file and enter judgments .on their.

dates. However, we note from the transcript [App. Dept. CT

6, 15] that this judgment bears stamps showing it was filed later,

on December 23, 1968, and not entered until January 24, 1969.

Although these later dates would have helped our own filing, by

making our extension less urgent, we have chosen to use tlie

earliest date (December 17, 1968) from excess of caution.

—3—

Questions Presented.

1. Where a lawyer appearing before a legislative

~ board communicates an idea critical of the board’s of-

ficial acts, by means of a wordless action not in itself

offensive. but which conveys a meaning derived from

prior dealings that so infuriates the chairman that he

instantly assaults the lawyer, and then prosecutes the |

lawyer for maliciously disturbing the peace, is the un-

resisting (speechless) lawyer entitled to a jury instruc-

tion'as to the circumstances under which his act ——

be protected by the First Amendment? |

2. Where the lawyer testified that he acted not from

- malice but to persuade the board of the existence of cer-

tain facts, and the lawyer was then impeached as to his

reason for acting solely by a witness who did not ap-

pear at the trial but whose testimony was introduced in .

the form of a letter, and where the appellate court agreed

that the introduction of the letter violated his right to be

confronted by witnesses against him under the Sixth

Amendment, may his conviction be affirmed nonethe-

less under a state doctrine of “harmless error”?

Constitutional Provisions and Statutes Involved.

The constitutional provisions and statutes which this

case involves are:

UNITED STATES CONSTITUTION, FIRST

AMENDMENT

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise

‘thereof; or abridging the freedom of speech, or

of the press; or the right of the people peaceably to

assemble, and to petition the Government for a

redress of grievances. |

ne ree

UNITED STATES CONSTITUTION,

SIXTH AMENDMENT

In all criminal prosecutions, the accused shall en-

joy the right to a speedy and public trial, by an

impartial jury of the State and‘district, wherein the

crime shall have been committed, which district.

shall have been previously ascertained by law, and

to be informed of the nature and cause of the ac-

cusation; to be confronted with the witnesses

against him; to have compulsory process for ob-

taining witnesses.in his favor, and to have the

Assistance of Counsel for his defense.

UNITED STATES CONSTITUTION, °

FOURTEENTH AMENDMENT, Sec. 1.

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are |

citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or im-

munities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or

property, without due process of law; nor deny to

any person within its jurisdiction the equal protec-

tion of the laws. :

CALIFORNIA CONSTITUTION, Art. 6, Sec. 13.

No judgment shall be set aside, or new trial

granted, in any cause, on the ground of misdirec- —

tion of the jury, or of the improper admission or

rejection of evidence, or for any error as to any

matter of pleading, or for any error as to any

matter of procedure, unless, after an examination

of the entire cause, including the evidence, the -

5

court shall be of the opinion that the error com-_

plained of has resulted in a miscarriage of justice.

CALIFORNIA PENAL CODE Sec. 415.

Every person who maliciously and willfully dis-

turbs the peace or quiet of any neighborhood or

person, by loud or unusual noise, or by tumultuous

or offensive conduct, or threatening, traducing,

quarreling, challenging to fight, or fighting, or

who, on the public streets of any unincorporated

town, or upon the public highways in such unin-

corporated town, run any _horse-race, either for a

wager or for amusement, or fire any gun or pistol

.in such unincorporated town, or use any vulgar,

profane, or indecent language within the presence

or hearing of: women or children, in a loud and

boisterous manner, is guilty of a misdemeanor, and i

upon conviction by any court of competent juris- |

diction shall be punished by a fine not exceeding

two hundred dollars, or by imprisonment in the. ~

county jail for not more than ninety days, or by

both fine and imprisonment, or ——— at the dis-

cretion of the court.

Statement.

Petitioner is a lawyer practicing in Santa Maria, Cali-

fornia. At the time of this incident (July 6, 1967), he

had been a pilot for about seven years [RT 156:5-8].

His practice included aviation clients and required him

to appear regularly before the board of directors of the --

_ Santa Maria Public Airport District. ' None of the mem-

bers of the board was then an active pilot [RT 160:5-9] ;

petitioner was not a member then [RT 93:5-7] but has

since been elected to that board.

e

—h—

For. over a year before this incident, petitioner had

been concerned about the condition of the runways at

the Santa Maria Public Airport. As a consequence of

what petitioner considered long-standing neglect, these

runways were cracked, pitted, beginning to grow weeds

and were filthy, littered with gravel. metal, glass and

debris [RT 158:1-9]. During the year preceding July

6, 1967, petitioner and other persons expressed their

concern to the board, particularly about the gravel.

- During this time, there was no correction or improve-

ment of the runways [RT 158:10-20]. The board was

aware of petitioner’s feelings about the runways, but

disagreed [RT 133:18-24]._ Apparently the disagree-

~ ment was that the board did sot believe that there was

antyhing wrong with the runways; gravel or other-|

wise; in any event, the board continued to ignore peti-°

tioner throughout these months [RT 169:7-8].

Matters finally reached a deadlock. Petitioner was

unable to persuade the board to believe (or acknowledge)

that the gravel existed. He also came to believe that his

own persistence had made him unpopular with individu- .

al members of the board, and that his repeated con-

tentions about the gravel, or some other part of his

personality, had made him sufficiently unwelcome that

his very appearance before the board provoked resent-

ment, apart from any words he had to say [RT 196:15

to i97:26; also RT 208:20-26]. — |

On the late afternoon of July 5, 1967, the day before

a regular board meeting at which petitioner was sched-

uled. to appear again on behalf of his clients, he went

_ to the Santa Maria Public Airport and walked out on the

runway, equipped with broom, dustpan and_ bucket

[RT 161:20 to 162:6]. He made five parallel sweeps

te — >

across the width of the main runway, collecting a ran-

dom sample of the gravel about which he and his clients |

had been complaining so long [RT 160:10-14]. Peti-

tioner was acutely anxious to corivince the board that

the gravel was there and was dangerous; he had been

told that week of damage to an aircraft caused by the °

gravel on this particular runway and he feared a major

catastrophe [RT 160:23-26: 169:7-10; 171:14-17].

. The’ pile of gravel which petitioner collected v.as

enough to fill his bucket within two or ‘three inches

from the top [RT 162:20-25]. It had been there

several years and had accumulated a little dirt [RT

137:8-14; 97:5]. This sample alsc ‘included some metal

scraps, and a sharp sliver of metal, which happened to

be within the five broom-width —- ‘aes 151:2-7;

172:19 to 173:11].

While petitioner was on the runway he was observed ©

, by a member of the airport staff [RT 194:14 to 195:1]

who informed Prentice, the-chairman of the board, that

appellant had been on the runway and had collected -a

bucket of gravel. Prentice was therefore aware at the

beginning of the next regular board meeting (the fol-

lowing morning, July 6, 1967) [RT 127 :4- 25], where -

petitioner was scheduled to appear and had matters on

the agenda for his clients: [RT. 108:4-10], that ial

- tioner had a bucket of runway gravel. ‘

The board meeting took place as usual in a small

room on the second floor of the’ Pacific Airlines terminal -

building at the Santa Maria Public Airport [RT 116:

11-24]. There was room for two rows of folding

seats for the public [RT 147:19 to 148:4]. ‘The

atmosphere was informal. Smoking was allowed [RT

121:11-14] and the board’s coffee machine freely used

Aww wri Talia itia

—8—

during board meetings [RT 121.:15-19 ; 122:4-16; 104:

7-8]. Airport board meetings were cobiets to regular

interruption by noise, since.one wall of the meeting

room was an outside wall of the building, on the run-

way side [RT 120:20-25]. The racket of commercial —

jets would bring things ‘to a halt; but as a rule, smaller

aircraft were not noisy enough [RT 121 :20-26].

Petitioner brought his bucket of gravel to this-meet-

ing and placed the contents on the tabletop in front of

Prentice. He said nothing at all while doing this [97:

2-4: 138:25 to 139:4]. There was a rattling sound as.

the gravel came in contact with the table. |

This gesture showed: no effect on the few members

of the public present, except that one woman. com-

merited, “Isn’t that stupid” [RT -114:18].” The effect

on Prentice, however, was electric [RT 136:22-24]. He

sprang up, called petitioner a “dirty low-down son of a

bitch”, lunged and made every effort to fight with him

[RT 96:24 to 97:25]. . Petitioner said nothing and

withdrew from the room immediately; other persons

restrained Prentice [RT 97:25 to 98:7]. . When petition-

‘ er was gone, Prentice immediately demanded the services

of a photographer, ordered that nothing be moved [RT

114:20-21: 130:14-18], recessed the meeting [RT 98:

8-13]; someone called the police, and had statements

taken by a court reporter [RT.100:15-16; 107:10-15].

Prentice had not received any physical injury; a little

dust had gotten in his lap, and some was later found

and photographed on a portion of his chair [RT 102:

| 9-13]. He felt, however, that he had received some

mental hurt [RT 137:5-7]. He did not discuss the

matter with petitioner, although the latter had returned

with, his brief case within ten minutes after placing

a

the gravel on the table, and had sat cei in the back

of the room [106:14-22]. Instead, Prentice filed the

criminal complaint which resulted in this prosecution. _ .

Petitioner asked for a jury instruction (Appendix D)

to the effect that free speech may serve its purpose by

inducing unrest, dissatisfaction with conditions, or even,

anger, so that petitioner could not be convicted merely

because the board of directors had been disturbed_or

angered, but only if petitioner’s, action-was indeed of-

fensive and malicious. This instruction was refused

[CT 54, 56].

The main issue for the jury was] raised by petitioner’s

_ testimony that he brought the gravel into the hearing

room not. maliciously, but to persuade the board that

there was loose gravel on the runway [RT. 157:12 to

161:4; 164:9 to 169:10, 171:2-17; 195:18-26]. The:

prosecutor argued that it was not done to persuade the

board of anything, but as a “cheap publicity stunt”, and

that in fact there had not been any gravel on the runway.

To do this, the prosecutor placed in evidence (over ob-

jection) a letter [People’s Ex. 8] from the F.A.A. to

petitioner, dated January 23° 1968, written five months

after the gravel incident. This letter said that petitioner

had complained about the gravel to the F.A.A. (also

after the incident of July 6, 1967) and that in doing:

so, petitioner had quoted an article which he had written

himself concerning this gravel; that the F.A°A. had not

verified the gravel. Petitioner objected on the ground of

hearsay, that the events of the letter were subsequent to

those in the trial, and that the letter was a device to get

‘testimony before the jury by a person not subject to - )

cross-examination [RT 203 :1-26], and that petitioner

was being denied the right to confront a hostile witness

ON PRE PNT IN

ee

Print etal ithe D acne denna owe

: . —l0—

(the writer of the letter). The court nidinined the lefter «

over those objections [RT 204:10; 208:2-3], and\ the

' prosecutor used it in his final argument to suggest to the

jury that petitioner had been lying to the F.A.A., ‘and

consequently must be lying to the jury (“trying to fool

you”) [260:4 to 262 :2%279:5-25].

After a verdict’ of | guilty, the trial judge wrote a

seven-page opinion (Appendix A), including this com-

ment on the significance of ‘the letter :

During the trial, other instances of ‘Mr: Bushman’s

unreliability and untruthfulness, deception and mis-

conduct, came to light. I refer to the letters placed

in evidence, corréspondence: between Mr. Bushman

and the Federal Aviation Administration concerning

his vociferous complaints about the presence of

gravel on the airport runways. Mr. Bushman _

knowingly and intentionally, gave unfounded and

unverified information to the F.A.A. with the ob-

vious intention that his misleading information be

. acted upon by the F.A.A. 3

Petitioner appealed to the Appellate Department of

the Superior Court on the ground that the prosecution -

infringed his First Amendment rights to free speech

and that he had been entitled to appropriate jury in-

structions; also, that he was denied the right of .con- .

frontation under the Sixth Amendment. The Appellate

Department (Appendix B) rejected the first argument

on the ground that no speaking was’ ‘involved — P.

15]:

From the time. appellant entered the room until

he left it he said nothing. Nor can any sensible

argument be made that .appellant’s acts amounted .

to some sort of symbolic speech, protected by the .

First Amendment.

pies Si ans ute cam ae Ge, GPRLNC Tal DO a teamed Sie edncanineoilet apdlh ida T

pas | ae

Although the Appellate Department agreed entirely

that the letter had been improperly received and violated

petitioner’s Sixth Amendment right to confront . the

letter writer, and that the burden of proof was on the

People to show this federal constitutional error had been

harmless beyond a reasonable doubt, nevertheless, this"

error was harmless. The Appellate Department reached

this conclusion becausé; although it recognized that ~

petitioner had denied any intention of annoying the

board, he also admitted that he knew matters bad

reached the explosive point so that petitioner’s presence ~

in the board room, alone, annoyed the board members. |

As the Appellate Department ‘saw it, petitioner’s will-

ingness. to bring. the gravely in under those circum-

stances, with the intention of placing it in front of the

president of the board, was a disturbance of the -peace

entitled to no protection whatever [App. pp. 12-15].

Reasons for Granting Writ.

This writ. shouldbe granted because of two reasons

that touch many other people besides petitioner. First,

he is being punished for an act which consisted largely.

if not entirely, of a communication from a lawyer to a

legislative body. The board of directors was responsible

for maintaining a public airport and its: runways. Peti-—

tioner was a lawyer who had argued repeatedly for

himself and clients that the runways were littered with

gravel and unsafe. Petitioner used no words, because ©

as everyone conceded, words. were useless. He did

not throw gravel at the board, he put it on the table.

It was not just any gravel, but gravel from the runway,

as the chairman actually knew. And so to those par-

ticular legislators, at that time and place, the gravel.

os

was not a weapon or a little pile of missiles, bift some-

thing more effective. It waS a message. It meant

Bushman was saying that he was right and they were

wrong; that was too much, and that was why the out-

burst occurred. This Court has previously recognized —

limited First Amendment protection for criticism of

public. officials on a non-face-to-face basis. Pickering

v. Board of Education, 391 U.S. 563 (1968); St.

Amant v. Thompson, 390 U.S. 727 (1968) ; Beckley

Newspapers Corp. v. Hanks, 389 U.S. 81 (1967);

Rosenblatt v. Baer, 383 U.S. 75 (1966); New York

Times Co. v. Sullivan, 376 U.S. 254 (1964). Similarly,

this Court has not been reluctant to find First Amend-

ment protection for communications which take the

* form of symbolic acts. Gregory v. City of Chicago,

(October Term 1968, No. 60, decided March 10, 1969) ;

Brown v. Louisiana, 383 U.S. 131 (1966) ; Cox v. Lou-

isiana, 379 U.S. 559 (1965). It would be constitutionally

inappropriate if criticism 6f public officials, that enjoys

limited protection when carried on in the public press,

should be utterly’deprived of First Amendment protec-

tion when done face-to-face, in the form of a symbolic

act, in a legislative hearing and by a lawyer in the~.

course of his practice. Situations reminiscent of Kinoy

v. District of Columbia, 400 F. 2d 761 (D.C. Cir. 1968)

should not be decided on the chance outcome of techni-

calities, such as the precise wording of a misdemeanor

charge. People framing misdemeanor charges for

repressive purposes are quick to learn which charges to

frame. Sce, e.g., Paul Chevigny, Police Power at 24-26

(1969). It would. be ironic if a lawyer’s symbolically-

imparted criticism of a legislative body received less

constitutional protection than, to. name a_ recent ex-

»

ee

a ere ee ee a Le i Ke - BN cote

a

ample, the symbolically-imparted message of a .bare-

breasted dancer. See /n re Giannini and Iser, 69 Adv. -

Cal. 588 (1968). Ad that we request is 4 thin net of

constitutional cover in the form of a jury instruction

which. protects the first ‘Amendment element of what

petitioner did. ;

The second reason the writ should be granted is that

the Appellate Department's idea of what is tolerable in

the form of contitutional error flies in the face of

rulings of this Court (and those of other California

courts).. There ‘is no question that the Sixth Amend-

ment applies to California. Bruton v. United States,

391 U.S. 123 (1968); Barber v. Page, 390 U.S. 719

(1968) ; Pointer v. Texas, 380 U.S. 400 (1965) ; Doug-

las v. Alabama, 380 U.S. 415 (1965). These are

acknowledged in People v.-J ohnson, 68 Cal. 2d 646, 68

‘Cal. Rptr. 599, 441 P. 2d 111 (1968). It is generally

understood that despite California Constitution Art. 6,

Sec. 13, concerning harmless error, the standard for an .-

error of constitutional dimensions is that of C hapman v. . .

California, 386 U.S. 18 (1967). The appellate depart-

ment effectively wiped out all of those cases in a way

which could be resorted to by anftourt so minded:

it simply said that although «petitioner testified. to

facts (about his own state of mind) that would have jus-

tified his acquittal, and was impeached on those facts

solely by a witness he did not confront, still, petitioner

said other things which (the court decided) should be

construed as sufficient to uphold his conviction. If ju-

dicial construing in favor of affirmance were allowed to

inform the Bill of Rights, then the long dead doctrine _

of Nullification would be with tis again, and - John

Calhoun would have won out at last.

pF a

‘Conclusion.

For each and all of the foregoing reasons, this writ of

certiorari should be granted, and the judgment of the

Appellate Department of the Santa Barbara Superior

Court should-be reversed.

Respectfully submitted,

Joun M. Sink, |

Lawyer for Petitioner.

APPENDIX A.

Judgment.

Municipal Court of the Santa Maria Judicial District,

County of Santa Barbara, State of California.

The People of the State of California, Plaintiff, vs.

Ted Bushman, Defendant. No..M-3869.

The defendant was.charged with, and convicted of,

a violation of Penal Codé ‘Section 415—disturbing the

peace, which is a misdemeanor punishable by a fine of

not to exceed $200.00, or by imprisonment in the county

jail not to exceed 90 days, or by both fine and imprison-

ment, or by either fine or imprisonment, in the dis-

cretion of the Court.. The defendant was found guilty,

beyond a reasonable doubt, by a jury, after a two day

trial. Counsel for. the prosecution and for the de-

fense both presented their positions in an outstanding .

manner, as I stated to them at the conclusion of the

trial. Time for pronouncement of judgment was set

for this-date and time—May 28, 1968 at 1:30 P.M.

I have soberly considered the case and have endeav-

ored to reach a judgment that ‘will be reasonable, fair to

the defendant, and yet enforce the law as it should be

enforced. ; , : ca

Today; we are in deep trouble as a ‘people. No society

can live in constant tumult. We will have either a civil

order in which discipline is internalized in the breast of

each free and responsible citizen, or sooner or later we

will have repressive measures designed to re-establish -

‘order. The anarchist plays into the hands of the au-

thoritarian. (Former HEW Secretary John W. Gard-

ner ) ,

SDs Sis 8 Baik. Gti oat Rr ne ee tet LOTT, Oar ee SMR RT ee ee TOT eat ts eee Ee enn Ane ere TELY

We are not concerned in this case with the right of

free speech—we are concerned with a-disregard for law

and the rights of others. “Freedom of speech can never

harm us—if we remember that freedom of speech is a

two-way street. We must guard every man’s right to

speak; but we must defend every man’s right to an- ,

* swer.” (President Johnson—1967 )

The over-riding danger in the United States today is

not that the rights of dissidents will be suffocated, but

that their rampant and heedless abuse by those reck-

- lessly acting to deny these rights to others will under-

_ mine the concept and climate of freedom of speech and

freedom of assembly for everybody. If we are going to

preserve the whole range of Civil Rights, we must reject

the whole range of Civil Wrongs. |

When a college student stands up at a public meeting

and hurls a pie into the face of a speaker whom other’

students wanted: to hear, he isn’t just staining the

clothes of an invited guest, he is smearing the Bill of

Rights. What does the conduct of such a student and

- . what does the conduct of the defendant Bushman mean?

Are these actions just passing exuberances, college

pranks? Far from it. They are rebellion against

civil order tearing apart our democratic society. Ponder

_ these words from Erwin N. Griswold, Solicitor General

of the United States, and former dean of Harvard Law

School: ‘“‘Violent-opposition to law—any law—or forcible

disregard of another’s freedom to disagree falls beyond

the pale of legitimate dissent. or even of civil disobe-

dience, properly understood; it is nothing short of rebel-

on,”

The Supreme Court has said “No mob has ever pro-

tected any liberty, even its own”. Civil government

a

cannot let any group ride roughshod over others simply

because their “Consciences” tell them to do so. The

Vice-president has put it this way: “Fascists, com-_

munists, racists, cross-burners, book-burners, flag-burn-

ers—all of them share a basic intolerance for the views

of others and for the rights of others”’.

Communism and fascism enthrone the premise that

the end justifies the means. The antifree-speech ha-

rassment and violent disdain of the rights of others at

loose in the land today is the stuff from which com-

munism and fascism are made.

And what, do these principles have to do with the

defendant in this case? The, defendant stands con-

victed of being a publicity seeker, whose sole purpose in

disrupting the:meeting of the board of directors of the

Santa Maria Airport District on July 6, 1967 was to call

attention to himself. And this was at a time when. the

defendant was seeking the office of director himself,

to which I hasten to add he was unfortunately elected.

With his callous display of bad manners, arrogant rude-

ness, and ‘childish behavior, he is inviting those who

may disagree with him to disrupt the meetings of the

board of which he is now a’‘member. He has set the

example for similar misconduct by persons as foolish

and smart-aleck as he has shown himself to be.

However, the defendant’s conduct was more than a

hasty, impulsive act.. His conduct was premeditated—

as he gathered the gravel and dirt from the airport run-

way the evening before. And when Ted Bushman’

- dumped the gravel on the desk of Donald Prentice, he

not only created a disgusting scene—he added a stain to

the Bill of Rights. His conduct was a disgrace to the

legal profession of which he is a member. I am certain

NOTED ROTEL TIEN PENS

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.

that every congcientious and ethical attorney in this ©

County, and elsewhere, who are aware of the facts suf-

fered more than a little embarrassment and shame be-

cause, of the conduct of a fellow lawyer. A fellow law-

_ yer whose position is that‘of an officer of the Court—

who should be the first to demand respect for law and .

order, not the first to tear. down the standards of

social behavior and obedience to the law of our land.

I commended the jury for their penetration and dis-

cernment. . They were not deceived by Mr. Bushman’s

assertion that his dumping of the gravel was an accident

—they were not fooled his claim that he was only

demonstrating the right ‘to disagree with the Establish-

ment. They recognized this conduct for what it was—

a vulgar, rude, annoying, and aggravated breach of the

peace. :

The jury did not believe the testimony of Mr. Bush-

man that the dumping of the gravel was an accident.

Neither ,did 1 place the slightest credence on his testi-

mony to that effect.. I am quite sure that the jury

must-have come to the same conclusion that I did—that

Mr. Bushman is riot a person whose testimony under

oath can be believed—that Mr. Bushman committed

perjury in this courtroom. This is a sad commentary

on the alleged principles of Mr. Bushman—who holds

himself out as a battler for the under- dog—who will

fight for his principles at all costs.

Mr. Bushman demonstrated that he did ‘not learn

anything. from the charge filed against him, and it ap-

- pears to me that he has not gained any knowledge, in-

sight or judgment because he’has been convicted. I read

an article which appeared in the Santa Barbara News

Press on Wednesday evening, May 22, 1968, the same

: ae Sve

day Mr. Bushesen was convicted. The article quoted |

an attack by Mr. Bushman on another community leader .

_and Mr. Bushman referred to the conduct of the victim:

of his attack as’“‘it- must be termed, most charitably, a

stupid, vicious and injudicigus personal attack”. It is

almost incredible that Mr. Bushman has the gall to at-

tack another person and accuse him of a “stupid, vicious

and injudicious personal attack”. How apt his own

terms are when used to describe Mr. Bushman’s own

conduct at the airport directors’ meeting!

The defendant has displayed not the slightest remorse

for his inexcusable behavior. No regrets have been ex-

pressed, unless one can believe that Mr. Bushman’s ex-

planation of the dumping of the gravel as being an

“accident” can be construed.as expressing an apology.

I do not construe it as such. It was obvious. that, in

making this alleged explanation, Mr. Bushman was only

trying to. avoid the consequences of his own act and he

was willing to commit perjury to do it.

During the trial, other instances of Mr. Bushman’s

unreliability and-untruthfulness, deception and miscon-

duct, came to light. I.refer to the letters placed in

evidence, correspondence between Mr.’ Bushman and the

Federal Aviation Administration concerning his vocif-.

erous complaints about the presence of gravel on the

airport runways. Mr. Bushman knowingly and inten-

tionally, gave unfounded and unverified information to

the F.A.A. with the obvious. intention that his mislead- .

ing information be acted upon by the F. A. A.

It is revealing to note that, in spite of the intense:

ant’s publicized battles. against injustice, against the Es-

tablishment, or whatever he thought he was fighting

for, his alleged principles became non-existent when he

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was facing punishment for a criminal offense. Did the

defendant stand up and admit that he had deliberately

and intentionally dumped thé gravel on the desk of Mr.

Prentice? Not this defendant. He claimed, belatedly,

that it was an accident. He did not dispute the testi-

mony of other witnesses that he had never claimed that

the incident was-an accident when he was basking in the

light of_self-arranged publicity after demonstrating his

“smart-aleck” behavior. Did he stand up, as a cou-

rageous man of principle, and admit that he had de-

liberately dumped. the gravel in order to call attention to

his battle for truth and for justice? Not this defend-

ant.

What is to be done with Mr. Ted Bushman?

A fine of $200.00 and a jail sentence of 90 days

might serve to improve his behavior, but. it would de-

prive him of his livelihood and be a hardship on his

wife and children. I am inclined to grant him probation,

although I doubt very,much that anyone can change

his attitude unless he makes the effort himself.

‘The, defendant, is sentenced to 90 days in the County —

Jail and to pay a fine of $200.00. The sentence and the

fine are suspended for two years and the defendant

is placed on probation, under the supervision of the

County Probation Department. In addition to the usual

terms and conditions of probation, the following spe-

cific conditions are imposed: _

1. The defendant will promptly and sincerely make

a public apology to Donald Prentice and other mem-

bers of the Airport District Board of Directors, and

staff, as they existed on July 6, 1967.

2. Defendant will reimburse the ies District

"in the sum of $100.00, payable within 10 days, as par-

é

® ne A

tial payment for costs of cleaning the director’s room

after the incident on July 6, 1967, expense of employ-

ment of photographers, and loss of time. _ }

3. Defendant will seek psychiatric treatment, at his

own expense, with a qualified psychiatrist, approved by

the Court, and will continue such treatment for such

period of time and at such intervals as may be sug-

gested by the doctor, and a approved ik the ‘Prohatiog |

*

departinent and the Court.

4. Defendant will tender his resignation to the

Board of Directors of the Santa Maria Public Airport

District, and the. matter of acceptance of such resigna-

tion will bé up to the discretion of the board. The de-

fendantewill seek no other public office during the peri-

od of probation, and will refrain from engaging in

any publicity seeking activities, including radio, tele-

vision and newspapers. The defendant will request

a consultation with the Santa Barbara Bar As-

sociation, Lompoc-Santa Maria Chapter, to discuss his

conduct mentioned in this opinion, with the view that

defendant will hereafter comply with all recommenda-

‘ tions of the.Bar Association designed to insure that de- .

fendant conducts his business and affairs in an ethical

and professional manner, ayoiding violation of the Rules

of Professional Conduct of members of the Bar. ,

Dated: May 28, 1968.

Arden T. Jensen

Judge

si eld ato Neal alia tees

APPENDIX B.

Memorandum of Opinion and Decision.

In the Appellate Department of the Superior Court »

of the State of California in and for the County of

Santa Barbara. .

The People of the State of California, Plaintiff and |

Respondent, vs. Ted Bushman, ‘Defendant and Appel- .

lant. No 82816. |

Appeal from a judgment and order of the Municipal

Court of the Santa Maria Judicial District, Arden T.

Jensen, Judge assigned. Modified and affirmed.

Appearances:

Fér Appellant: John M. Sink.

_ For Respondent: David D. Minier, District Attorney, )

by JAMES P. FAHRES, Deputy District Attorney.

The defendant and appellant in this case was charged

with and convicted of a violation of Penal Code Section

415, disturbing the peace, after a jury trial. This appeal

is from the judgment and from the order granting pro-

bation.

The reporter’ S inet of the trial proceedings dis-

closes ample evidence to support. the conviction, and no

attack is made upon the sutticiency of the evidence in

this regard. |

Appellant’s first point is that the receipt in evidence

of a letter fromm the Federal Aviation Agency; dated

, January 23, 1968, constituted reversible error, being

hearsay. The disturbing the peace charge of which ap-

pellant was convicted occurred on July 6, 1967. Essen-

tially, the évidence relied upon by the People to support

the charge was that appellant on that date entered a

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—9-—

room where the Board of Directors of the Santa Maria

Airport District were conducting a regularly scheduled

public meeting, and deliberately dumped a bucket of

gravel, dirt, and debris on the table in front of the Pres-

ident of the Board, spilling the contents generally over

’ the table, burying various papers that were:on the table,

and spilling a part of the contents onto the floor and

into the lap of the President. A difference of opinion

had theretofore existed between appellant and the

Board over runway conditions at the airport. Appellant

had complained to the Board that the runway was dan-

gerous to aircraft because of the accumulation of loose

gravel and scraps of metal. It was appellant’s position |

that this condition had persisted for some months,

without correction by the Board. On the day hefore

the meeting appellant had gone to the runway and

swept up from part of it a bucketful of the gravel and

debris of which he was ‘complaining. It was this bucket-.

ful, according to the People, that was dumped upon thée*

table of the President on the day in question.

Appellant’ s case at the trial } was th that he only intended

to place>the bucket of gravel and debris on the table

in front of the-President, right side up, that he did not

intend to spill the contents, and that the spilling resulted

when the President physically assaulted appellant, caus-

ing the bucket to be accidentally and unintentionally

overturned. ;

The foregoing factual résumé is necessary to a con-

sideration of appellant’s argument: that thé peter of

- January 23, 1968, was hearsay.

The letter of January 23, 1968, written by the

F.A.A. to appellant, first acknowledges receipt of two

earlier letters from appellant, one dated August 8, 1967,

=

and the other dated November 10, 1967. In the latter

two letters from appellant his complaints about the’

runway conditions at the Santa Maria Airport are ac-

knowledged in the F.A.A. letter. The F.A.A. letter then

goes on to say that following the receipt of each of ap-:

pellant’s ‘earlier letters an inspection of the airport had

been made, and that on neither inspection had any haz-

ardous condition been found. The first inspection, on

August 10, 1967, according to the F.A.A\ letter, . did

disclose a small amount of loose gravel on the edges of

the runway, not enough to amount to anything, and

no metal scraps. The second inspection disclosed no

logse gravel or metal scraps. Reference is made in the

letter. to a flight data publication, and the information

in that publication to the effect that the runway was

unsafe “is said to have been knowingly furnished by

appellant himself, without verification by the F.A.A.

The letter concludes that, in the opinion of the F.A.A.,

_the airport was being properly maintained.

The purpose for which this F. A.A. letter was offered,

and received in evidence is not clear. Both this letter

and the earlier letters from appellant referred to there-

in, were written after the offense in question. The letter

of January 23, 1968, was not, and could not have been, |

offered to impeach appellant’ s trial testimony, for he

stated at the trial that he had received many letters

from many agencies, some of which agreed with him

that a dangerous condition existed,. some of which dis-

agreed, and some of which expressed no concern. The

introduction into evidence of one letter disagreeing

with him did not ‘impeach this testimony, not being’

inconsistent therewith. He at no time testified that the ©

particular F.A.A. letter in question said anything dif-

»

iil. *

ferent from what it did say. He in fact testified that

he had no recollection of the F.A.A. letter until it was

shown to him.

It is apparently respondent’s position that the letter

of January 23, 1968, in some way demonstrated that. —

the condition of the runway on July 5 and 6, 1967, was

safe, and that the safety of the runway on July 5 and

6, 1967, was relevant to the disturbing the peace charge.

But the F.A.A. letter has nothing to say about the con-

dition of the runway on July 5 and 6, 1967.

Respondent argues that the January 23, 1968, letter

bears upon appellant’s state of mind on July 6, 1967, the

date of the offense. Perhaps it might have, if appellant ~

had written it. But obviously appellant’s state of mind —

on July 6, 1967, is not evidenced by what some one else

wrote on January 23, 1968. It is not that appellant’s

state of mind at the time of the offense is irrelevant,

but that this manner of showing. it was not competent.

Respondent’s argument that the January 23, 1968,

letter was not offered to prove the truth of its contents,

and was thus not hearsay, is without merit. The in-

escapable conclusion is that the letter could only have

served to prove that the runway was safe in August and

November, 1967, when the inspections were made, and

that appellant’s complaints.to *he contrary were false.

If the letter. didn’t prove these things it had no relevance

to the lawsuit at all.

The argument that the. letter was admissible as a

reply to an earlier letter from appellant is not founded

on the facts. The Evidence Code (Section 356) provides

that “when a letter is read, the answer may be given.”

No earlier letter was read, nor its substance referred to,

_ except in a most general sort of way.

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We conclude that the letter of January 23, 1968, was

hearsay, that it fell within none of the exceptions to the

hearsay rule, that it should not have been received, and

that its reception into evidence over timely objection

was error. The question now becomes one of how seri-

ous the error was. |

The letter in question was made use of for the pur-

pose of proving the truth of what it said. Appellant _

was never confronted by the writer of the letter, and

had no opportunity to cross-examine him. The right of

-a defendant in a criminal case to be confronted by the

witnesses against him is guaranteed by the Sixth

Amendment to the United States Constitution; a right

now binding on state court tribunals through the 14th

Amendment. vigee | ;

Bruton v. United States, 391 U.S. ....

Painter v. Texas, 380 U. 5. 400

People v. Johnson, 68 A.C. 674

Appellant was deprived of this constitutional right.

Section 1204 of the Evidence Code provides as follows:

“A statement that is otherwise admissible as hear-

say evidence is inadmissible against the defendant

in a criminal action if the statement was made,

either by the defendant or by another, under such

circumstances that it is inadmissible against the de-

fendant under the Constitution of the United States

or the State of California.”

The test for weighing the gravity of a federal consti-

tutional error in a criminal trial is this: Can the re-

viewing court declare its belief that such error was

harmless beyond a reasonable doubt? If it can, even an

x

error of federal constitutional dimensions requires no

automatic reversal. If it cannot, reversal is mandatory.

Chapman v. California, 386 U.S, 18; 17 L. Ed.

(2d) 705

People v. Johnson, 68 A. C. 674

The burden of proof is upon the People to prove to

the reviewing court that federal constitutional error

is harmless beyond a reasonable doubt.

Chapman v. California, supra.

People v. Johnson, supra. —

Applying that test, this Court must ask itself whether

or not the People in this case have proved beyond a

reasonable doubt that the receipt into evidence of the

letter in question was harmless. We answer this ques-

tion in the affirmative. — |

In the first place, the letter did not relate to the con-

dition of the runway on July 6, 1967. But leaving aside

the letter entirely, we are satisfied beyond a reasonable

doubt that the result would have been the same. Appel-

_ lant’s own testimony (apart from the letter) demon-

strates his guilt. He knew before entering the room

that the airport board was in a regularly scheduled ses-

sion. He had. arranged in advance for a court reporter

to be present. He knew that his mere presence” in the

room, without the bucket of gravel, would annoy the

board, so bitter had the differences between the board °

and him become. When he gathered up the gravel and

debris the day before, he anticipated even then that

reporters would be present and that photographs of the

bucket on the desk would be taken. He knew, so he

testified, that the President of the board had “not

hesitated to engage in acts of violence with people with

wth RM

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pus * vot

whom he disagreed, in spite of age and weight differ-

entials.” He testified that -his purpose in bringing the

bucket of gravel into the room was to dramatize his

position, as well as. that of others. He knew he could

have taken a-spectator’s seat, put the bucket on the

floor, and awaited his turn on the agenda. Instead he

strode through the room while the board meeting was in

progress, lifted the bucket up over the manager’s -head

in order to place it on the desk in front of the Presi-

dent, sat, or tried to set the bucket in front of the

President, all with the following intent in mind, as he

testified:

“T intended to dian: the condition of ihe runways

to the attention of the community and the public, .

and the other directors, and the press ‘and the peo-

ple in the audience, and if this incidentally would

‘annoy them, then I suppose you might say my

conduct intended to annoy. them, cag this was not

any primary motive by any means.” (R. T. p. 195).

It is true that in other portions of his testimony ap-

pellant denied an intent to annoy the board, but such

testimony is simply incredible, being totally incompatible

with what he did. Appellant is, and was then, an at-

torney. By his own testimony his differences with the

board, and theirs with him, had reached such an ex-

plosive point that his presence in the room, alone, with-

out more, annoyed them. Add to this the carrying in of

the bucket for the avowed purpose of placing it in front

of the President while a meeting was in progress, the

interruption of the meeting that he knew and hoped

this would entail, the picture taking that he anticipated

with relish, and the other factors already referred to,

and, giving full credence to appellant’s own testimony,

ee

no rational conclusion is possible except that he meant

arid intended to vex: or annoy the Board of Directors.

This in and of itself constituted a disturbance of the

peace. :

Penal Code Section 415.

Penal Code Section 7(4).

Whatever additional public spirited motive appellant —

claims to have had, one of his motives was to annoy

the Board. He succeeded. His conduct by his own ver- -

sion of it was so bizarre, rude, and outlandish, and the

other evidence of his guilt so overwhelming (leaving

aside the F.A.A. letter) that the erroneous receipt. of

- the letter was harmless beyond a reasonable doubt, in —

our opinion. |

There is no merit in appellant’s sécond contention

that the prosecution of the charge against him infringed

upon his constitutional right of free speech. No speech

or speaking was involved. From the time appellant en-

tered the room until he left it he said nothing. Nor can

any sensible argument be made that appellant’s acts

amounted to some sort of symbolic speech, protected

by the First Amendment. |

Adderly v. Florida, 385 U.S. 39.

U.S. v. O’Brien, 20 L. Ed. (2d) 672.

The last point to be considered has to do with the

terms and conditions of probation imposed by the trial _

court. The wide discretion vested in the court in this

connection is. recognized, but some of the conditions

here imposed appear to be unreasonable, for the reasons

hereinafter stated.

The first condition, that appellant “will promptly and

sincerely make a public apology to Donald Prentice and

.

WB rial ee we

edie

‘other members of the Airport District Board of Direc-

tors, and staff, as they existed on July 6, 1967,” is not -

workable. How is an apology in “public” to be ar-

ranged? If it could be arranged, who is to judge wheth-

_er the apology is “sincerely” made? :

Moreover, this being a criminal charge, the offense

. is against the people of the State of: California, ‘not

against any private person or persons. No therapeutic

benefit to appellant could result from his being required

to publicly apologize. Old antagonisms would only be

restirred. This term and condition of probation, being

impracticable and rehabilitatively hurtful, is stricken.

‘The requirement that appellant seek psychiatric treat-

‘ment is one that is felt to have been within the trial

court’s discretion. Such a term of probation in a crimi-

nal case is not unusual, and the only inquiry an appellate

court should make as to such a probationary condition

is whether or not the evidence in the case, and the

demeanor and attitude of the defendant involved, .rea-

sonably indicates that such a condition is appropfiate,

and has some rational relation to the offense. Here the |

trial court is in a better position to judge than we are,

having heard the testimony ‘of the defendant and hav-

ing observed him throughout. The question is not

whether this court would have imposed such a condition

in the first-place. The question is whether the trial court.

abused the discretion vested in it in imposing this con-

dition. A consideration of the entire record before us

leaves us unwilling to say that there was an abuse of

discretion on this score.

Probation condition Number 4 reads as follows:

“Defendant will tender his resignation to the Board

of Directors of the Santa Maria Public Airport District,

— 7 a

and the matter of acceptance’of such resignation will

be"up to the discretion of the board. The defendant

will seek no other public office during the period of

probation, and will refrain from engaging in any- pub-

licity seeking activities, including radio and television,

‘and newspapers. The defendant will request a consulta-

tion with the Santa Barbara Bar Association, Lompoc-

Santa Maria Chapter, to discuss his conduct mentioned

‘in this opinion, with the view that defendant will here-

after comply with all recommendations of the Bar As-

sociation designed to insure that defendant conducts his

business and affairs in an ethical and professional man-

ner, avoiding violation of the Rules of Professional

Conduct of members of the bar.”

This term and condition of probation is stricken. |

We have in mind that appellant was elected to the Air-

port District Board of Directors by the electors of that

district after the offense here involved. We can fairly

assume from the record that the incident was given

extensive newspaper publicity in the district, and that

the electors were. aware of it. It is not for the courts

to overrule the result of this election. Nor is it for the

present Board of Directors to be given the right to do

so. Appellant stands convicted of a misdemeanor. Such

a conviction entails no loss of civil rights and no loss

of the right to hold public office. This condition of

probation bears no reasonable relation to the offense, and

constitutes an unwarranted interference with the elec-.

~ toral process.

The requirement that appellant go to the Lompoc-

Santa Maria branch of the County Bar Association is

likewise uncommendable. The court is not a legal ethics

disciplinary tribunal. Should the court in effect tell ap-

?

;

GOA re Vv er tt

a om

pellant to go to the Bar Association to find out what

the bar might want to do about the incident, such a

directive would lend itself to a suggestion from the

court. that the bat should act. Whether the discipli-

nary committee of the bar should take action. in a given

case is the bar’s business. Not that courts are uncon-

cerned about the ethics of the legal profession—a judge

of any court is free to personally ask the bar to investi-

gate and act upon any professional :impropriety, as iS

anyone else. But to require an attorney probationer to

initiate such an inquiry himself, as a condition of pro-

bation, is to use the probationary power of the court

to officially condemn him before the bar in advance.

The bar, both state and local, is fully equipped to dis-

cipline its own members. - It either is aware, or can

readily be made aware, of this case, and is free to take

such action as it chooses. On this we express no opinion

one way or the other. he |

The judgment is affirmed. The order on probation is ~

affirmed, except as herein modified. 7

Dated this 17th day of December, 1968.

/s/ John A. Westwick,

John A. Westwick, Judge of the

Appellate Department of the

Superior Court.

We concur: /s/ C. Douglas Smith, Presiding Judge

of the Appellate Department of the Superior Court.

/s/ Percy C. Heckendorf, Judge of the Appellate De-

partment of the Superior Court.

ee

APPENDIX C.

Denial of Application for Transfer.

In the Appellate Department of the Superior Court

of the State of California in and for the County of

Santa Barbara. |

ORO! 5 PERILS POS (DPE ALE TS

The People of the State of California, Plaintiff and

Respondent, vs. Ted Bushman, Defendant and Appel- i

lant. No. 82816.

Appellant’s application for a transfer of this case to _

the Court of Appeal is denied.

Dated: January 13, 1969. —

C. Douglas Smith

C. Douglas Smith, Presiding Judge of

the Appellate Department of the

Superior Court.

John A. Westwick

John A. Westwick, Judge of the

Appellate Department of the Superior

Court. ‘

Percy C. Heckendorf

Percy C. Heckendorf, Judge of the

Appellate Department of the Superior

Court.

)

(SB arent nisenirniire oh Oo te

- —20—

APPENDIX D.

Defendant’s Instruction No. &

When you are considering the evidence in this case ©

that pertains to the conduct of the defendant at the

time he is alleged to have disturbed the peace and quiet

of Donald M. Prentice and the Board of Directors of

the Santa Maria Public Airport District, in your effort

to determine whether or not the defendant’s conduct was

tumultuous and offensive it is essential that you keep

these following principles in mind:

The vitality of the civil and political institutions in

our society depends on free discussion. It is only

through debate and free exchange of ideas that govern-

ment remains responsive to the will of. the people and

peaceful. change is effected. The right to speak freely

and to promote diversity of ideas and programs is there-

fore one of the chief distinctions that sets us apart

from totalitarian regimes.

Accordingly, a function of free speech under our sys-

tem of government is to invite a disturbance. It -may

indeed best serve its high purpose when it induces a

condition of -unrest, creates dissatisfaction with con-

ditions as they are, or even stirs people to anger.

Thus, though you may find from.the evidence in this

case that the peace and quiet of Donald M. Prentice and

the Board of Directors of the Santa Maria Public Air-

port District was disturbed, or may even find that. one

or more were stirred to anger by the conduct of the de-

eng

—21— 7

_ fendant, this in of itself, would not warrant you find-

ing the defendant guilty. You must go further and

examine the conduct of the defendant and determine -

whether his conduct was tumultuous and offensive and

in addition thereto, whether he performed - maliciously.

Terminiello vs. Chicago, 337 U.S 1, 93 L. Ed. 1131.

3 Given,

Refused, f _

/s/ AJ

Judge.

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PPR ONE DSA AE IS NNR PUN MIT # FOE ead

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