Petition for Writ of Certiorari — Washington v. Fox

LIBRARY

SUPREME COURT, U. S.

IN THE

SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1973

me 6Y f, 5

No. ‘ c) —- 5

THE STATE OF WASHINGTON.

Petitioner

vs.

MICHAEL J. FOX and

GUADALUPE M. GAMBOA.

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF

WASHINGTON

ELMER R. JOHNSTON, JR.

407 Drumheller Building

Walla Walla. Washington 99362

Counsel for Petitioner

Of Counsel:

ARTHUR R. EGGERS

JERRY A. VOTENDAHL

407 Drumheller Building

Walla Walla. Washington 99362

IN THE

SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1973

No.

THE STATE OF WASHINGTON,

Petitioner

vs.

MICHAEL J. FOX and

GUADALUPE M. GAMBOA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF

WASHINGTON

ELMER R. JOHNSTON, JR.

407 Drumheller Building

Walla Walla, Washington 99362

Counsel for Petitioner

Of Counsel:

ARTHUR R. EGGERS

JERRY A. VOTENDAHL

407 Drumheller Building

Walla Walla, Washington 99362

Pohl eet > Pee?

Page

OPINION BELOW en ]

JURISDICTION 1

QUESTIONS PRESENTED 2

CONSTITUTIONAL PROVISIONS and STATUTES

INVOLVED 3

STATEMENT 4

REASONS FOR GRANTING THE WRIT 8

1. Petition raises substantial questions concern-

ing Fifth and Fourteenth Amendment rights

of private property owners v. right of attorney

and labor organizer to go upon private prop-

erty without necessity of seeking permission

from the owner or without naming tenant they

desire to visit 8

2. Decision below is not supported by fact nor

law and is contrary to the dictates of the Fifth

and Fourteenth Amendments to the United

States Constitution as well as in conflict with

United States Supreme Court decision on this

question 1]

CONCLUSION 17

APPENDIX A App. |

APPENDIX B App. 9

APPENDIX C App. 10

PADMA SED FU we

ii

CITATIONS

Page

Adderly v. Florida, 385 U.S. 39 (1966) —.................14, 16

Amalgamated Food Employers Union Local No. 590 v.

Logan Valley Plaza, Inc., 391 U.S. 308 (1968) _....... 10

Bell v. Hood, 327 U.S. 684, 90 L. Ed. 944.000.000.000... 12

Berenyi v. Immigration Director, 38 4 U.S. 630

(1967) - Seeaisoueoes dl

Bivens v. Six mabe Federal ‘Meiewhs Agents

29 L. Ed. 619 (1971) .. niet 12

Brooklyn Savings Bank v. O'Neil, 324 U. S, 697 (1964) . Aah

Brotherhood of R.R. Trainmen v. Virginia ex rel

Virginia State Bar, 377 U.S. 1 (1964) —... _.. 13

Carlson v. Washington, 234 U.S. 103 (1913) . 12

Central Hardware Co. v. N.L.R.B., 33 L. Ed. 2d (1972) 10, 14

Creswill v. Grand Lodge, 225 U.S. 246 (1911) ............12

Fiske v. Kansas, 274 U.S. 380 (1926) 0000000... BREE

Franceschina v. Morgan, 346 Fed. Supp. 833

(1972) .. ke eet eM ...7, 9, 10, 13, 14, 15

Folgueras v. Seite 331 Fed. ay 615 (1971) _........9, 10

Graver Mfg. Co. v. Linde Co., 336 U.S. 271 (1949) ........1]

Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) ... ......... 14

Marsh v. Alabama, 325 U.S. 501 (1946) 10, 11

Martin v. City of Struthers, 319 U.S. 141 (1943) 16

NAACP v. Button, 371 U.S. 415 (1963) —............ 13

7 N.L.R.B. v. Babock x Wilcox Co., 351 U.S. 112 (1956) 16

Peterson v. Talisman Sugar Corp., No. 72-2057, Fifth

i Circuit Court of Appeals (1973) 9

Seattle v. Muldrew, 420 P. 2d 702 (Washington 1966) 4

' State v. Shack, 277 A. 2d 369 (New Jersey

i SRI 9, 10, 15, 16

Thompson v. City of Louisville, 362 U.S. 199 (1960) 1]

CITATIONS (Cont'd)

Page

United Mine Workers of America District 12 v.

Illinois State Bar Ass’n., 389 U.S. 217 (1967) ............18

Washington v. U.S., 357 U.S. 348 (1958) ................... nee

CONSTITUTIONAL & STATUTORY PROVISIONS:

United States Constitution, First Amendment . 3 ;

United States Constitution, Fifth Amendment . 3

United States Constitution, Fourteenth Amendment 3

3

ROW DEB GED ...n...0. crceesescs-20.,..

ARE aT ARES

IN THE

SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1973

NO.__-

THE STATE OF WASHINGTON,

Petitioner,

US.

MICHAEL J. FOX and GUADALUPE M. GAMBOA.

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF WASHINGTON

Petitioner prays that a Writ of Certiorari issue to review

the judgement of the Supreme Court of the State of

Washington entered in the above entitled case on May 24.

1973, and which became final on July 17, 1973.

OPINION BELOW

The Opinion of the Washington State Supreme Court.

reproduced in Appendix A hereto, is reported in 82 WD

2d 289 (1973).

JURISDICTION

The Opinion of the Court below was filed May 24, 1973.

Appendix A (infra). In Washington. no separate judgment

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: is entered. A timely petition for rehearing was filed with

i the Washington State Supreme Court, and the Petition

5 for a Rehearing was denied July 17, 1973. (Appendix B).

: Jurisdiction of this Court is invoked under 28 U.S.C..

; $1257(3).

QUESTION PRESENTED

Do the rights and protections accorded to a private

property owner under the common law, the Fifth and

Fourteenth Amendments to the United States Constitution

and state trespass statutes, yield to the First Amendment

rights of would-be visitors seeking entrance upon his property

for the purpose of locating property owner’s employees,

where the owner, in his operation of a farming enterprise.

houses some 200 male migrant employees in open bay

barracks on the same property that he houses his farm equip-

ment, shops and office, notwithstanding the fact that the

would-be visitors are unknown to the property owner, refuse

to name tenants they desire to visit and otherwise refuse to

abide by reasonable rules and regulations set down by

property owner as a condition precedent to entrance upon

his property?

In the event this petition is granted, the petitioner

reserves the right to argue two further questions; i.e.. whether

an attorney at law has a First Amendment right to go upon

private property, uninvited. to seek out prospective clients

residing thereon and, therefore. exempt from prosecuting for

criminal trespass: and whether a farm labor organizer has

a First Amendment right to go upon private property to

seek out laborers who live and work thereon, to join his union,

without first seeking permission from the owner-employer,

or without otherwise showing that he could not reach said

laborers at any other location.

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CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution

Amendment I

“Congress shall make no law . .

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.”

Amendment V

“No person shall . . . be deprived of life.

liberty or property without due process of law; nor

shall private property be taken for public use,

without just compensation.”

Amendment XIV, See. |

“ ... No State shall make or enforce

any law which shall abridge the privileges or

immunities 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

protection of laws.”

Statutes

Washington Revised Statute 9.83.080. Criminal Tres-

pass

“(2) Every person, knowing that he is not

licensed or privileged to do so, who enters or

remains in any public or private place or on any

public or private premises as to which notice against

trespass thereon is given by the owner or someother

authorized person, through (a) actual communica-

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tion to the actor, or (}) posting in a manner pre-

scribed by law or reasonably likely to come to

the attention of intruders or (c) fencing or other

enclosure manifestly designed to exclude intruders,

shall be guilty of criminal trespass, a misdemeanor.

“(3) Every person, knowing that he is not

licensed or privileged to remain, who defies an

order to leave public or private places or public or

private premises communicated to him by the owner

of said place or premises or by some other authorized

person, shall be guilty of criminal trespass, a mis-

demeanor.

“It is a defense to prosecution for criminal

trespass under this section that (a)... . or (b)

any place or premises referred to in this section

were at the time open to members of the public and

the actor complied with all lawful conditions

imposed on access to or remaining in the premises

m (e) . <3.

STATEMENT OF THE CASE

Since the court below totally disregarded the facts

of this case as well as the trial court’s uncontroverted

Findings of Fact (which under Washington law are to be

accepted as the established facts of the case. Seattle v.

Muldrew, 420 P.2d 702, 69 Wn.2d 877 [1966]). petitioner

deems it necessary to make a more thorough statement of

the facts than generally recommended in this type of petition.

Rogers of Walla Walla. a food processing company.

hereinafter referred to as “company”. leases certain property

for the purpose of operating an asparagus farm. and within

the boundaries of this property is located housing for its

employees, hereinafter referred to as “camp”. The camp

is used for several purposes. one of which is to house some

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220 migrant male workers in approximately seven open

bay barracks, for a period of approximately six weeks during

the harvesting of the asparagus. The camp is also used the

entire year to house all of the company’s farm machinery,

shop and office, as well as a two-story house wherein a

tenant, other than a migrant worker, resides. (Uncontro-

verted Finding of Fact No. 4). A company man is always

on duty at said camp and a part-time guard is employed

during the weekends and on payday nights to keep order

at the camp, assist the migrant workers with any of their

problems, and assist visitors in locating said workers.

(St. 31, In. 20-29). The camp was used solely for private

purposes and not generally open to the public. (St. 19, In.

11-16). A “No Trespass” sign was posted at the entrance of

the camp and all visitors entering the camp would be met

by the guard, asked their business, and, if they desired to see

a tenant, the name of the tenant, unless the man in charge

was informed earlier that the visitors had permission to

enter the camp. (St. 7, In. 24-26; St. 20, In. 9-12). If

visitors desired to see a tenant, the guard would then locate

the tenant, at which time the tenant and visitor would be

left alone. (St. 8, In. 19-21).

During the night in question, respondents Fox and

Gamboa drove onto the campgrounds, past the “No Trespass”

sign, on a Saturday evening, June 19, 1971, a payday for

the migrant workers. (St. 25, In. 28; St. 30, In. 28; and St.

206, In. 19-22). The respondents, casually dressed, were

accompanied by two young women and another male

companion. (St. 27, In. 1-6). From the testimony of the

respondents, they clearly intended not to cooperate with the

guard on duty, refused to tell them their specific purpose for

being there, and refused to name any of the tenants they

desired to visit. (St. 207, In. 4-12; St. 210, In. 22-30; St.

220, In. 20-25; St. 246, In. 30; St. 247, In. 27: and Un-

controverted Findings of Fact Nos. 17 and 18)

The guard on duty had no prior knowledge of the re-

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—

spondents or their companions, had not seen them prior to

the date in question, and could only rely upon respondents’

own assertations as to their identity and intentions, and was

highly suspicious that they might be thieves or there soliciting

prostitution, or ete. (St. 37, In. 13-17; St. 54, In. 12-20).

Furthermore, no employee-tenant living at the camp had ex-

pressed a desire to see the respondents, nor did any employee-

tenant come forth on the night in question or ever testify dur-

ing the trial of the respondents that they were ever invited to

said camp. (St. 28, In. 9-14).

Since respondents refused to tell the guard the names

of the tenant or tenants they desired to see, and since respon-

dents started through the camp, the guard ordered them to

i leave the premises. Respondents refused to seek permission

: from the company to remain at the camp, refused to name any

; tenants they desired to see and refused to leave stating that

f they had a First Amendment right under a New Jersey deci-

sion by the name of Shack, and did not need to seek permission

from the owner-employer or name any tenants they desired to

see. (St. 27, In. 20-24; St. 36, In. 13-26; St. 229, In. 20-25;

1 St. 230, In. 12-17; St. 246, In. 30-St. 247, In. 7).

; The Walla Walla County Deputy Sheriff was called for

assistance and after the Deputy Sheriff arrived at said camp

and located respondents he inquired of respondents their pur-

pose for being at the camp and was met with the same answer

that was given to the guard. The Deputy Sheriff then informed

them they were trespassing, and unless they complied by the

rules of the company, would have to leave. Respondents re-

fused to comply with said rules and, therefore, were given

five minutes to leave or be subject to arrest for trespassing.

The companions of respondents left the premises, but re-

spondents chose to be arrested, which seemed to be their goal

from the very beginning. (St. 64, In. 19-26; St. 228, In. 19-

; 20; St. 252, In. 19-26; St. 259, In. 12-16: Uncontroverted

; Findings of Fact Nos. 17, 18 and 24).

1

2

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Furthermore, contrary to the Federal District Case,

Franceschina v. Morgan, 346 Fed. Supp. 833 (1972), which

the court below relied upon in reversing the trial court’s judg-

ment against said respondents, the evidence here is clear that

the company rules requiring visitors to seek permission from

the company or name the tenant-employee they desire to visit

were administered in a nondiscriminatory manner. In fact,

no visitor had ever been refused permission to see a tenant-

employee so long as he abided by this rule, and no tenant-em-

ployee was ever denied the right to visit with whomever he

so desired, including an attorney or a union organizer. (St. 33,

In. 19; St. 34, In. 27; St. 23, In. 14-27; St. 58, In. 9-12; and

St. 59, In. 9-26; St. 208, In. 21-24; St. 211, In. 3-4; St. 258,

In. 8-12: St. 261, In. 10-21). Furthermore, the evidence as

well as the trial court’s uncontroverted Findings of Fact Nos.

26 and 32 clearly showed that the company had never in-

terfered with any union organizer or attorney attempting to

visit with employee-tenant, and had the respondents sought

permission from the company to talk with all of the employee-

tenants at said camp. said permission would have been

granted and place made available at a time convenient to all

concerned, (St. 58, In. 13-15; St. 124, In. 18-25).

Upon refusal of respondents to leave said camp, they

were arrested and charged with the crime of Criminal Tres-

pass in violation of RCW 9.83.080. The cases against both

respondents were consolidated and tried together July 9.

1971, before The Honorable Howard J. Martin. Justice of

the Peace. Both respondents were found guilty of the crime

and fined $25.00 each. Respondents appealed to the Superior

Court for Walla Walla County and said cases were tried be-

fore The Honorable Albert N. Bradford. Judge. on December

9 and 10, 1971. Trial court found respondents both guilty of

the crime of Trespass. and entered its Findings of Fact and

Conclusions of Law. Respondents. within the statutory period

of time. filed their notice of appeal to the Washington State

Supreme Court. On October 10. 1972. the Washington State

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Supreme Court heard oral arguments before a “standing room

only” crowd consisting of United Farm Workers. Seven

months later, on May 4, 1973, the Washington State Supreme

Court rendered its decision reversing the trial court’s judg-

ment and dismissing the causes of action against both respond-

ents. Petitioner, within the statutory period of time, petitioned

the Washington State Supreme Court for review, which petition

was denied July 17, 1973, at which time the lower court’s

judgment became final.

REASON FOR GRANTING THE WRIT

I. This petition raises substantial significant

questions concerning the respective rights and

duties of private property owners who house

their employees upon their property.

This question that is squarely presented by the facts of

this case, which the lower court did not even consider, sub-

stantially effect the Fifth and Fourteenth Amendment rights

of the landowner-employer, who houses his employees-tenants

on his property; and in particular his right to form rules and

regulations concerning the behavior of his employee-tenants

and would-be visitors who seek entrance upon said property.

The proper resolution of this question not only has great

significance to the landowner. but also to the petitioner who.

as in this case, was summoned to assist the owner-emplover to

evict unknown and unwanted visitors who alleged that if thes

were arrested they would file tort actions against the petitioner

since they have a constitutional right under the First’ Amend-

ment to he there. The determination of this question also has

special significance to the farming communities of our country.

who by necessity if not by habit. have housed their employees

upon their property. Notwithstanding the great) technical

and mechanical advancements that have been made in the

farming industry. there still remains a great need for the

farm laborer in order to harvest certain types of crops. The

soilion

supply of such labor in most farming communities of the north

does not meet the demand of the farmer and, therefore, it is

necessary to search for migrant laborers from the south to fill

this need. In order to enhance the flow of the migrant worker

to these northern fields, the farmer or company not only offers

free housing to the worker, but also provides him with some

degree of protection and security from those unwanted visit-

ors, solicitors or con men who would take advantage of the

hard working and generally uneducated employee who under-

stands very little English.

To open these camps to any would-be visitor would not

only violate the Fifth Amendment of the property owner, but

also violate the right of privacy of the migrant worker, who

works long hours in the fields to harvest the crops and de-

serves to be free from any outsiders during his rest period.

To open said camps to the public would deter the flow of

migrant workers to the northern agricultural communities,

because of the want of security and protection which is now af-

forded to them; and would deter the landowner from offering

free housing if to do so opens his land to the public thereby

interfering with his private farming enterprise.

Recently there have been a few cases decided in the lower

courts regarding privately owned labor camps which house

migrant workers, such as State v. Shack, 58 N.J. 297, 277

A.2d 369 (1971); Folgueras v. Hassle, 331 Fed. Supp. 615

(1971); Franceschina v. Morgan, (1972) and a recent case

out of the United States Court of Appeals for the Fifth

Circuit, No. 72-2057, Peterson v. Talisman Sugar Corporation,

et al, May 3, 1973.

The court below relied upon Franceschina as support for

its decision reversing the trial court and granting to respond-

ents an absolute right under the First Amendment to go upon

private property to seek out potential clients or members for

their organization. The respondents themselves relied heavily

upon the cases of Shack and Folgueras. However, in all of

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these cases the camp owner denied for an arbitrary or diserim-

inatory reason the tenant-employees’ right to have a certain

visitor, who was there generally to render medical or financial

assistance to the tenant. However, even in the Folgueras and

Shack cases, the courts therein held that these camps are not

open to the public and that the camp owner may enact certain

reasonable rules and regulations governing visitation to his

camp, and that the rule requiring a visitor to name a tenant

that he desires to see is, in fact, a reasonable rule and does not

interfere wiith any First Amendment right of a visitor or of a

tenant. The Franceschina case, goes a little farther than Shack

or Folgueras in its application as to who may visit the camp

and allow any would-be visitor to enter the camp regardless

3 of company rules so long as the migrant tenant has no objects.

f This ruling seems to go too far and seems directly in conflict

} with Central Hardware Co. v. N.L.R.B., 33 L.Ed. 2d 122

i (1972), which more or less reaffirmed the private property

i rights to their traditional status and held,

4 “Before an owner of private property can be sub-

4 ject to the commands of the First and Fourteenth Amend-

} ments the privately owned property must assume to some

4 significant degree the functional attributes of public prop-

i erty devoted to public use. The First and Fourteenth

‘ Amendments are limitations on state action, not on action

: by the owner of private property used only for private

purposes.”

\ Franceschina, and the case at bar as held by the lower court

i would allow would-be visitors to roam through the open bay

5 barracks at will, interfering with the privacy of some 200

, other tenant-employees and the privacy of the company merely

i because one of the tenant-employees invited these would-be

visitors to the camp. Furthermore, some lower courts, relying

heavily upon the right of a would-be visitor under the First

Amendment and their interpretation of that Amendment under

Amalgamated Food Employees Union Local No. 590 v. Logan

Valley Plaza, Inc., 391 U.S. 308 (1968), and Marsh v. Ala-

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bama. 326 U.S. 5OL (1910). have held the private property

owner as well as the police agency liable in tort for evicting

the would-be visitors from these premises. Thus. the Logan |

Valley, Marsh. Shack and Franceschina cases have created a

great deal of uncertainty. confusion and misunderstanding

in regard to the respective rights and obligations of private

property owners who house their employees upon their prop-

erty: and in regard to petitioners obligation under the trespass

statute. where the property owner's interests and rights come

in conflict with would-be visitors and, thus create a disturb-

ance. Enormous amounts of lower court time are being taken

to resolve these conflicting interpretations. Arrest for tres-

pass are continuing and officers and landowners alike are

exposing themselves to tort liability for actions that they take

in reliance upon their interpretation of their rights and obli-

gations under the Federal Constitution and state statutes. The

question should be settled by this Court.

Il. This important question was wrongfully decided be-

low.

Although this Court does not generally grant Certiorari

to review evidentiary matter or discuss specific facts, it has

done so when the decision below seems to be shockingly

wrong, or where the decision was totally void of evidentiary

support, or contrary to the Findings of Fact, or where an in-

terpretation of the facts is necessary to determine a consti-

tuitional question, such as a violation of First Amendment

right. Graver Mfg. Co. v. Linde Co., 336 U.S. 271; and cases

cited 339 U.S. 605; Berenyi v. Immigration Director, 385

U.S. 630; Thompson v. City of Louisville, 362 U.S. 199;

Washington v. U.S., 357 U.S. 348. Furthermore, this Court

will review the State’s Court findings, “where a federal right

has been denied as the result of a finding shown by the record

to be without evidence to support it; or where the state court

deprives a litigant of a federal right by omitting to pass on

basic questions of fact;”, Fiske v. Kansas, 274 U.S. 380:

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Creswell v. Grand Lodge. 225 U.S. 246: Brooklyn Savings

Bank v. O'Neil, 324 U.S. 697: Carlson v. Washington. 231

U.S. 103; and where federal protected rights have been in-

vaded it has been the rule from the beginning that courts will

be alert to adjust their remedies so as to grant necessary re-

lief. Bell v. Hood, 327 U.S. 684, 90 L.Ed. 944, Birens v.

Six Unknown Federal Narcotic Agents, 29 L.Ed.2d 619.

The court below disregarded the facts of this case in order

to avoid the only issue presented to the trial court. to-wit: wheth-

er respondents have an absolute right under the First Amend-

ment to enter a company’s private property without the

necessity of seeking permission from the company or naming

the tenant-employee that they intend to visit.

The respondents alleged that under the facts of this case

the company does not have Fifth Amendment rights nor the

protection of state trespass statutes, because it opened its

land to the public by the mere fact that it houses its employees

upon said land (making anology between the camp and the

company town as in the Marsh case); and, therefore, respond-

ents have an absolute First Amendment right to go upon said

property without the necessity of abiding by any rules of the

landowner.

The trial court met this issue headon and held that an

owner of land, who does not dedicate to any significant de-

gree that land to public use, has at least that right to make

rules and regulations governing visitation upon said land so

long as these rules and regulations do not unreasonably in-

fringe upon the right of those tenant-employees residing on

said property. The trial court further held that the rule re-

quiring visitors to name the tenant-employee he desired to

visit can in no way be interpreted as an infringement upon

the tenant-employee or visitors’ rights to any significant de-

gree.

The Washington State Supreme Court totally disregards

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these facts and issues and rendered a decision in regard to

issues unsupported by fact or law. Petitioner contends that

the court below was influenced by the social and_ political

nature of this case, by the American Bar Association, which

filed its brief as Amicus Curiae, by the office of Economic

Opportunity, which also filed a brief Amicus Curiae, by a

mass showing of force of members of the United Farm Work-

ers Union, which packed the courtroom dwring the oral argu-

ments, by a certain article written |») respondent Fox, which

appeared in the November, 1971, issue of the Washington

Bar News (Appendix C); and not by the facts. This article was

written by Fox after his arrest and prior to the trial on the

facts. It clearly put the petitioner and company in a most

unfavorable light as the oppressors of the poor and makes

the respondents out as the advocates of the poor and oppressed,

Phe Washington Bar News is sent to all of the Justices of

Washington Supreme Court.

The decision of the court below in effect violated the

Fifth Amendment rights of the company by holding that an

attorney and a labor organizer have a First and Fourteenth

Amendment right to go upon private property to seek out

potential clients. The court below cites for its authority.

Brotherhood of R.R. Trainmen v. Virginia, ex rel. Virginia

State Bar, 377 U.S. 1, 12 L.Ed.2d 89, 84S, St. 1113. 11

A.L.R.Bd 1196 (1964); NAACP v, Button, 371 US. 415, 9

L..Ed.2d 405, 83 S.Ct. 328 (1963); United Mine Workers of

America, Dist. 12 v, IMlinois State Bar Assn. 3889 US, 217.

19 1L..Ed.2d 426, 88 S.Ct. 353 (1967). Franceschina v. Mor-

gan, 346 Fed, Supp. 833 (S.D. Ind, 1972). These “right to

counsel” cases are not applicable to the facts of this case.

since they deal with the right of a union or other organizations

to refer personal injury claims of its members to certain union

upproved attorneys and the right of those attorneys to accept

suid cases, The holding in said cases do not concern them:

selves with an alleged right of an attorney, uninvited, to enter

private property against the owner's wishes, to seek out po-

“<TR Stews Dates 4

ee

=—

tential or prospective clients which he had never seen or con-

versed with, and are, therefore, inapplicable.

Without going into the merits of whether or not Fran-

ceschina is good law in light of such cases as Adderly v.

Florida, 385 U.S. 39, 17 L.Ed.2d 149; (1963) Central Hard-

ware; and Lloyd Corporation v. Tanner, 407 U.S. 551, (1972)

it is appellant’s contention that said case is not applicable to

the fact situation of the case at bar. It is true that at first blush

Franceschina appears to be quite similar in point in that the

property in question was an agricultural labor camp owned

by a food processing company which offered free housing on

said camp to migrant workers; and that the would-be visitor

was to some degree, associated with or passed out literature

concerning the United Farm Workers AFL-CIO. However, the

similarity of these cases end at this point. Unlike the labor

camp in Franceschina, which camp was dedicated solely to

house migrant workers, the camp in question housed all of

the owner-employer’s farm equipment, shop and office, as well

as a two-story home where a tenant, other than a migrant

worker, resided. Furthermore, Franceschina was forbidden

access to the camp on the grounds that he had long hair, liberal,

a socialist, and had participated in passing out pamphlets con-

cerning workers’ rights to organize for the purpose of collective

bargaining and other benefits of organization. In the case at

bar no would-be visitor, regardless of race, color, creed, associ-

ation, short hair or long hair, was ever denied access to the

migrant workers to distribute any information they so deemed

proper so long as they abided by the reasonable rules and

regulations set down by the company. In fact the trial court's

uncontroverted Finding of Fact No. 32 showed, “that had ap-

pellants (respondents facts, Fox and Gamboa) sought permis:

sion from the company to talk with anyone or all of said

tenants at said camp, said permission would have been granted

and a place made available at a time convenient to all con-

cerned.” Finally, the facts in Franceschina presented the court

with the question, “whether or not the owner of land may law-

—_—_-

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| PEER LR PIOIAT EATING CTD PY PRLS IED NTI, HET OR AY

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fully prescribe who may talk to his tenants, and monitor any

conversation which may be permitted.” The facts in the

ease at bar ave clearly distinguishable from those which pre-

sented that question in Franceschina. In the case at bar there

has been no contention by respondents nor has there been any

evidence to show that the owner-employer had ever attempted

to limit visitation or discriminate against the visitor of any

tenant or monitor any conversation between the tenant and

visitor. The evidence clearly shows that the only restriction

upon any visitor was merely a requirement that if he intended

to visit with any certain employee-tenant that he name that

employee-tenant in order that he may be located and a space

made available for their visitation which would not interfere

with rights of other employee-tenants or the rights of the

company. Franceschina is, therefore, inapplicable and does not

support the decision below.

One very important fact. which the court below totally

disregarded, should be pointed out and that is that there was

not a seintilla of evidence to show that any tenant-employee

who was present at the camp on June 19, 1971, ever wanted

or invited the respondents to come upon or remain at said

camp or even knew who the respondents were or what they

represented, On the night in question the respondents cited

the case of State v, Shack as their authority to come upon said

camp without the necessity of naming the tenants they desired

to see, Although the facts of Shack are also not applicable to

the case at bar, petitioner contends that Shack is not authority

for respondents position, but rather authority supporting com-

pany’s position to make reasonable rules and regulations in

regard to visitation to his property, It is true that Shack held

that property rights served human value and they are recog:

nized to that end and are limited by it. Title to real property

cannot include dominion over the destiny of persons the owner

permits to come upon his premises. Thus, a man’s right in his

real property is not absolute and one cannot use his property

as to injure the rights of others. What the respondents failed

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to point out and which Shack held is the following:

“It is not our purpose to open the employer's prem-

ises to the general public if in fact the employer himself

has not done so. We do not say, for example. that solici-

tors or peddlers of all kinds may enter on their own; we

may assume for the present that the employer may regu-

late their entry or bar them. at least if the employer's

purpose is not to gain a commercial advantage for him-

self or if the regulation does not deprive the migrant

worker of practical access he needs. And we are mindful

of the employer's interest in his own and in his employees’

security. Hence he may reasonably require a visitor to

identify himself, and also to state his general purpose

if the migrant worker has not already informed him that

the visitor is expected.”

Thus, Shack does not give respondent First Amendment right

to go upon private property.

This court has unequivocally stated that people who want

to propagandize or protest do not have a constitutional right

to do so wherever or whenever or however they please. Adderly

v. Florida. Traditionally (and under Washington Law), a

private property owner’s rights to exclusive possession and

control of his land is protected by state common law and

statutory trespass laws; Martin v. City of Struthers, 319 U.S.

141, and the rights of private property owners, created by

state law, are guaranteed by the Fifth Amendment to the

Constitution of the United States. N.L.R.B. v. Babcock and

Wilcox Co., 351 U.S. 112.

Although respondents do not have a First Amendment

right to go upon company’s camp uninvited, petitioner does

recognize that there will be situations where valid First Amend-

ment rights of would-be visitors or labor organizers or even

attorneys may well come in conflict with the Fifth and Four-

teenth Amendment rights of a private property owner. How-

ever, when said rights do come in conflict with each other

there must be an accommodation made based upon the facts

PANN

= =

of each individual case. The accommodation must be obtained

with as little destruction of one right as is consistent with the

maintenance of the other. The accommodation in this case

was not made by the court below.

This court has clearly established a right of a private

property owner to control conduct on his land, and, therefore,

Certiorari should be granted to review the contrary conclusion

of the court below.

CONCLUSION

For reasons stated above, the Petition for Certiorari should

be granted.

Respectfully submitted

ELMER E. JOHNSTON, JR.

ARTHUR R. EGGERS

JERRY A. VOTENDAHL

407 Drumheller Building

Walla Walla, Washington 99362

Counsel for Petitioner

de PES OE ae tie De ack ete

APPENDIX

APPENDIX A

(No. 42339. En Banc. MAY 24 1973

THE STATE OF WASHINGTON, kespondent, v. MICHAEL J. FOX et al.,

Appellants.

{1} Landlord and Tenant--Relationship--Inhabitant of Work Camp--

Invitees. Workers living in a work camp have the rights of

tenants in the matter of inviting others onto the premises.

(2) Attorney and Client--Constitutional Law--Right to Counsel--Basis.

The first and fourteenth amendments to the federal constitution

assure the right to counsel.

(3) Labor Relations--Labor Organizations--Activities--Access to

Workers. Under RCW 49.36, which deals with lavor unions in

general, reasonable contact with workers by a union represcnt-

ative for any lawful purpose is an activity protected from

prosecution.

Brachtenbach, J., did not participate in the disposition of this case.

Appeal from judqments of the Superior Court for Walla Walla

County, Nos. 60010, 60011, Albert N. Bradford, J., entered February

28, 1972. Reversed.

Prosecution for trespass. The defendants appeal from convictions

and sentences. : late

App. 1

tae, are etnies _ —

te v: it ex CARS Anh ah eric PROT ReecoRKesTeN amuerenenes

FEMS PLY DPN MS Re |

aM SYP BIS mA

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, )

)

Respondent, ) No. 42339

)

)

) EN BANC

v. )

MICHAEL J. FOX and GUADELUPE )

M. GAMBOA, )

)

Appellants. ) FILED MAY 24 1973 ,

WRIGHT, J. -- This action is an appeal from a conviction

for trespass, a misdemeanor. Appellants were convicted in

district court in Walla Walla County and fined $25 each. They

appealed to the Walla Walla County Superior Court and were again

convicted after a trial to the court without a jury and received

the same fine. Following the conviction in superior court, appellants

appealed directly to the supreme court.

Appellant Michael J. Fox is an attorney at law. He

was employed full time by the Seattle-King County Legal Aid

App. 2

FEO PIO RTE SE CHM

42339/2

Bureau, Inc. In that capacity he rendered legal services to

persons who were unable to pay for such services. He charged

the client nothing and was compensated only by his salary.

Appellant Guadalupe M. Gamboa is an organizer

employed by the United Farm Workers Organizing Committee,

AFL-CIO, a labor organization for migrant farm workers.

Appellants will hereinafter be referred to as "Fox"

and "Gamboa". Rogers Walla Walla, Inc. is a corporation engaged

in farming, and will hereinafter be referred to as Rogers".

Rogers leases a tract of land about three miles south

of Walla Walla, known as Rogers Labor Camp. In the camp in

June of 1971, were housed about 220 male migrant workers who

had come from Texas to work harvesting asparagus. Most of the

workers spoke Spanish and few, if any, had any significant

knowledge of English.

The workers were employed by contract for a season

of 6 to 8 weeks. They lived in the camp and paid $2.75 per day

for board and room. Located within the camp area are the

company office, a mess Mall, store, recreation room, laundry

facility, shop, shed to house the company's farm machinery, and

a house occupied by a tenant who was not one of the migrant workers.

The only telephone in the camp was located in the

company office. Any worker desiring to use the telephone had

to seek permission, The workers were transported to and

App. 3

eas

42339/3

from the fields in company trucks.

On June 15, 1971, Gamboa and other union representatives

went to the camp and talked to a number of the workers, including

one Alfonso Romo. Gamboa had a discussion with Romo about the

latter's legal rights under his employment contract. Gamboa

suggested that Romo talk to an attorney, and Romo agreed. Several

of the workers asked Gamboa to return as soon as possible because

they wanted to have matters about a bonus and other problems

clarified before their return to Texas. On that date, Gamboa

and at least one other union representative identified themselves

at the company office and talked to a Mr. Mendeza, the company

supervisor on duty. They had no difficulty and were not asked

to leave.

On June 16, 1971, Gamboa went to Seattle and contacted

Fox, informing him the workers were desirous of having a lawyer

come to the camp. Fox agreed to go and proceeded to read the

contract and other documents which were furnished him. He also

read applicable case law.

On Saturday, Yune 19, 1971, both Fox and Gamboa entered

the property leased by Rogers at about 5:10 p.m. That was at a

time when it was daylight, but was not during working hours.

Appellants were accompanied by Irwin Nash, a journalist and

photographer, and by Sandy O'Brien and Patricia Cope, 2 young

ladies who were employed by the union during the summer months.

App. 4

NTT ha MORN ‘ ' Baia th is

42339/4

They were in an automobile belonging to Fox,

Upon turning off the public road, appellants and the

other occupants of the automobile went past a "No Trespassing"

sign and proceeded up a dirt road between an eighth and a

quarter of a mile to the camp. There they were met by a Mr. Bernard

J. Lang, who was a supervisory employee of Rogers. Lang also

appears to have held a commission as a special deputy sheriff.

Mr. Lang met the automobile, noted the license number,

and conversed with Gamboa. Gamboa said he wanted to talk to

some people and walked away. Fox showed Lang his Washington State

Bar Association card and stated he was an attorney and had come

to see some people who had asked to see an attorney.

There was some argument between Lang and Fox, in which

argument Lang asked Fox if he had the permission of the company

to be present, and whom he wished to see. Fox stated he did not

need permission to be present and was not required to state whom

he wished to see. He cited some case law on the matter,

After some discussion, Lang called his company superior

and was told that if the appellants did not have permission from

the company to be present, they would have to leave. Lang

communicated this to Fox, who continued to remain on the premises.

Lang then called the sheriff's office. Two deputy sheriffs came

and told Fox and Gamboa to leave. The others, Miss O'Brien,

Miss Cope and Mr. Nash, left the premises. The arrest of Fox

App. 5

42339/5

and Gamboa soon followed,

In view of our disposition of this case, it will not

be necessary to consider all of appellants’ contentions, The

workers paid for the right to live in the camp and enjoyed the

status of tenants. Franceschina v. Morgan, 346 F.Supp. 833

(S.D. Ind. 1972). As such, they had the right to invite others

onto the premises. Konick v, Champneys, 108 Wash, 35, 183 P. 75

(1919).

The other and more important issues are whether Fox,

as an attorney, had a right to go where he could consult with

potential clients, and whether Gamboa, as a labor organizer,

had a right to go where he could contact workers,

With regard to Fox, the cases are many in which it

has been held that First and Fourteenth Amendment rights include

the right to counsel. Brotherhood of R.R, Trainmen v, Virginia

ex rel. Virginia State Bar, 377 U.S. 1, 12 L. Ed, 2d 89, 84

S. Ct. 1113 (1964); N.A.A.C.P. v. Button, 371 U.S, 415,

9 L. Ed. 2d 405, 83 S. Ct, 328 (1963); United Mine Workers of

America, Dist. 12 v. Iflinois State Bar Ass'n, 389 U.S, 217,

19 L. Ed. 2d 426, 88 S. Ct, 353 (1967).

In the present case Fox merely remained on the Rogeis

premises and waited for Gamboa to find the men who wished to

talk to him. Under such circumstances, Fox had a lawful right

to be there.

App. 6

42339/6

With regard to Gamboa, the law is clear that a union

organizer has a right to go where necessary to meet with

workers, as long as his exercise of that right is reasonable.

The right here was exercised outside of working hours and

during the daytime,

The law relative to the right of labor organizers is

set forth in Franceschina v. Morgan, supra. In addition to

numerous cases from the federal courts and from other states,

there is one case in Washington worthy of note, Kimbel v. Lumber

& Saw Mill Workers Union, 189 Wash. 416, 65 P.2d 1066 (1937).

Therein at page 419, we said: "Under the law, workmen have the

right to organize and form unions." Following that statement is

@ quotation from a statute which is now codified as RCW 49,36.010:

Unions legalized. It shall be lawful for

working men and women to organize themselves into,

or carry on labor unions for the purpose of lessening

the hours of labor or increasing the wages or bettering

the conditions of the members of such organizations;

or carry out their legitimate purposes by any lawful

means.

(Emphasis supplied.) Another statute which is pertinent to the

problem is RCW 49,36.030, which reads:

Prosecutions prohibited. No person shall be

indicted, prosecuted, or tried in any court of this

state for entering into or carrying on any lawful

arrangement, agreement, or combination between them-

selves made with a view of lessening the number of

hours of labor or increasing wages or bettering

the conditions of working men and women, or for any

lawful act done in pursuance thereof,

(Emphasis supplied, )

App. 7

Breet iPad hoe

42339/7

Upon the authority of modern constitutional, decisional

and statutory law, we hold the appellants herein had a lawful

right to be at the labor camp at the time they were arrested.

They committed no crime and therefore the judgment of conviction

is hereby reversed and the charges against appellants are

_ Ligh

dismissed.

MALE, Cod.

FINLEY, J,

RUSEALINI, J.

HUNTER, J,

WeeILTOu, J.

STAVFORD, J.

ureea, 3.

App. &

APPENDIX 6

In the Supreme Court

or Tux y

ra bs Fy ime

STATE OF WASHINGTON v "See

Ms ' f

a | ate) No, 42239

snpeaniiiiigeerie . Departmen:

v ORDER

DENYING

PETITION FOR REHEARING

The Court having considered the respondent's petition for

rehearing herein,

It is ordered that the petition be and it is hereby denied.

Dated this (7, day of July, 1973.

By the Court:

App.

62 Wn.2d 289 ove

| rc ut) Net

A

Volume 25, Number 10

APPENDIX C November 1971

| __ WASHINGTON STATE BAR NEWS _

RELA IA EAE BLS ETE

bers 3S

FARMWORKERS IN THE YAKIMA VALLEY

App. 10

By Michael Fox

I should say at the outset that I don't represent

the United Farmworkers Organizing Committee.

1 am not a spokesman for the union and any

comments | make should not be interpreted as

the union's official position on any matter. How-

ever, | have been very closely associated with a

large number of members of the union and have

worked on several cases which have been brought

because of labor law problems.

In order to lay a littke background, | would just

like to make a few remarks on what the fate of

the farmworkers in the Yakima Valley is and to

attempt to lay a litthe groundwork so that you will

understand how the union movement came into

creation there and what has gone on in the past

year.

The farm work in the Yakima Valley is largely

done by various groups or divisions of people. The

first is the racial division, being the Chicano tarm-

workers and the Anglo farmworkers. They para-

doxically enough work on different crops. You

will very rarely find a crew of farmworkers at a

particular ranch that is genuinely multi-racial

unless they are perhaps Chicanos and Blacks

{here are very few work crews that will be, say,

half Anglo and halt Chicano.

The Chicanos in the Yakima Valley primarily

work in the much more difficult and in the much

more back-breaking work, They work in hops. |

don't know if you have ever seen a hop field but

Excerpts from a speech delivered by Michael Fox,

a staff attorney for Seatte-King County Legal

Services, at the September 15, 1971, luncheon of

the SACBA Young Lawyers Section.

FARMWORKERS IN THE

VAKIMA VALLEY

it has poles about as high as this room and long

strings between the poles. The vines grow up and

down these strings. It is very difficult work cutting

them off and loading them into the truck and

bringing them back to the shed.

They also work on beets, which is stoop labor.

It consists mostly of thinning beets. There is also

the picking of asparagus, which is very difficult

back-breaking work. The worker has a little blade

and goes out, stoops down, and cuts the asparagus

from the ground.

The Anglos in the Yakima Valley work primarily

in tree crops: peaches, pears, cherries, and apples,

for example. It is a higher pay type of work and

it is a type of work that is often done by authentic

migrants who spend their lives following the

harvest. In fact, during the apple season, you will

find a lot of Anglo migrants sleeping on mattresses

in the open down by the Yakima River.

It is an incredible life which I'm sure a lot of

you here have never seen. It's something that | had

never seen, | have seen migrant labor camps in the

South and in other parts of the country, but | had

never seen some of the ways that white Anglo

migrants live in the Yakima Valley

The other division is between the permanent

residents and the migrants. A lot of the people who

do tarm work inthe Yakima Valley are permanent

residents. They are not really migrants, Some of

them live in migrant labor camps part of the year

Others travel from state to state, primarily from

Texas up through Colorado or Calitornia. Then

its back down again, The journey is repeated over

and over, This ts just their lite. bask you to imagine

the effeet that this incessant travel has on the

schooling of their children

App. 11

a

hy

£4 4

The heaviest

permanent con-

centration of Chi-

canos in the state

is in the Yakima

Valley and the

Columbia Basin,

Primarily between

the cities of Y aki-

ma and Pasco.

Little towns like

Sunnyside, Grang-

er and Outlook

are where you find

a heavy concen-

tration of Chican-

os, many of whom

work in farm labor during some time of the year.

Some have other jobs in other times of the year.

However, the typical pattern for a resident farm-

worker is that he is employed during part of the

year on some of these crops and will be on welfare

for the rest of the year.

It's a very vicious cycle, especially when you're

in the migrant situation. There is really no exit

from it. During the major crops, such as hops, a

large amount of hand labor is required in contrast

to the crops which demand very little hand labor

like wheat, which is all done by mechanical com-

bine. During the harvest of major hand labor

crops, you will find a very heavy influx of migrants

into the Yakima Valley. At this time, hops are

being harvested in the Yakima Valley and you will

find the population of the Chicano farmworkers

in the Yakima Valley is increased by more than

1,000 just due to hops and hops is a comparatively

small crop when you compare it to something like

asparagus, where major corporations like Del

Monte, Stokeley and Libby will hire several

thousand migrants.

4,

Michael Fox

The Yakima Chief Hop Ranch

Now to explain what happened on Labor Day

of 1970 when union organizing really began.

Workers were engaged in working at the Yakima

Chief ranch, the largest hop ranch in the Yakima

Valley in terms of acreage. One day, two of the

workers were talking during a lunch break about

how it was not the best type of life to work seven

days a week, 11 hours a day and to get a $1.60

an hour. Those were the wages at the Yakima

Chiet hop ranch during the 1970 harvest.

Shortly after that they talked with other workers

6 WASHINGTON STATE BAR NEWS November, 1971

fa Sal? ad oi f

and a strike broke out. All 200 workers at the

ranch went out on strike, Anyone who knows

anything about labor history will agree that that is

a pretty amazing way for a strike to begin. The

Yakima Chief workers did not have trained or-

ganizers coming in, telling people about unions

and telling them what they could get when they

struck. That's not how it happ Ith

because workers were so fed up with the conditions

that they were being forced to live in year after

year. They just went out on strike.

Perhaps misery is the best organizer. That is

the only message that | can come up with. Shortly

after that there was a leadership that developed

among the workers. They contacted our office

about some kind of assistance. So I went out to

the Yakima Valley about four or five days after

this first strike had occurred. By then the strike

had spread to several other ranches.

By that time agreements had been reached with

seven or eight of the ranchers. Their agreements

would make any lawyer laugh. They were written

on old pieces of paper. They said “I promise to

do this,” and they were only signed by one party.

Most of them were not even legal contracts. What

they did do was to provide for an increase ot

wages to $2 an hour. In certain cases, there were

specific demands tor removal of certain foremen

with whom the workers didn’t get along very well.

The one strike to which | was a witness was

just incredible. | had never seen anything like it

in my life. The union leadership rolled up to a

particular ranch, got out and started yelling “huel-

ga,” “huelga” — which means “strike,” “strike.”

It took just about 15 minutes for all the workers

at that ranch, none of whom knew the strike

organizers, to leave the fields. The strike was

concluded in about four hours because the hops

were sitting on the vines and they spoil in about

three days. Shortly after this strike the workers

voted to affiliate with the United Farmworkers

Organizing Committee (AFL-CIO), which ts led

by Cesar Chavez.

One episode that 1 did personally participate

in was assisting the union leadership draft up a

small contract with two particular growers who

were engaged in a cooperative harvest. 1 went

with them when they negotiated it, One of the

growers signed the contract. After that was done

I left the valley and came back to Seattle

What subsequently occurred at that particular

ranch later gave rise to a very significant lawsuit,

Garza v, Patnode (Benton County Superior Court

No. 25255], which we tried in January of this

App. 12

year. When the farmworkers’ representatives came

back to negotiate this contract with the other

grower — the one who had not already signed —

they found themselves thrown off the property.

As soon as they were thrown off, both of the

growers and some of the Anglo employees armed

themselves with shotguns. They took these shot-

guns and they paraded around the area of the

hop processing plant where their workers were

concentrated. That was the end of any union at

this particular ranch. That was the end of the

strike and that was the end of all organizational

activity at this ranch.

The complaint in Garza v. Patnode alleged that

by these actions, the two growers involved had

interfered with the organizational rights of the

farmworkers. This is pretty clear. The only prob-

lem is that farmworkers are not covered by the

National Labor Relations Act which grants all

workers the right to organize free of employer

harassment and there is no comparable act in the

State of Washington.

We were able to file this case because of the

landmark case of Krystad v. Lau, 65 Wn.2d 827,

400 P.2d 72 (1965), won by Hugh Hafer of Seattle,

which said that all workers in the State of Wash-

ington really have a right to organize free of

har t by virtue of the policy

declaration section of the little Norris-LaGuardia

Act [RCW 49.32.020}.

When we filed this case, we didn’t expect to

break any new legal ground but we were breaking

some new political ground in that farmworkers

had never sued growers in the Yakima Valley on

a problem like this. Growers thought that they

could do anything they pleased.

There was a two-week trial and a permanent

injunction was eventually obtained prohibiting

the growers from interfering with the organizational

rights of their employees. The decision somewhat

changed the atmosphere in the Yakima Valley,

where now every grower knows that if he intimi-

dates his workers when they are attempting to

organize a union, he can be slapped with an

immediate lawsuit with damages and injunctive

reliet.

It certainly has not changed the atmosphere to

any dramatic degree, however. You will find that

since the strike last year there is now blacklisting

going on in the Yakima Valley. If an individual

was prominent during the strike, he will often

show up and ask for work and he will find that

there is no work for persons named Garza or

Gonzales because they will know that that particu-

lar family participated in the strikes of 1970.

Rogers Walla Walla Company

In June of this year, Lupe Gamboa, who is the

prime organizer for the union along with Roberto

Trevino, came to our office in Seattle and told us

about the camp at Rogers Walla Walla Company

in Walla Walla. They had been there the week

before and had been confronted with a great mass

of legal problems. The most shocking was the

arbitrary denial of what is called “bonuses,” which

the migrant workers at Walla Walla were supposed

to get. By contract they were supposed to get a

bonus of ten cents an hour if they stayed till the

end of the harvest and if they did their work.

That's about all the contract says. This system is

really not a bonus system but a device the growers

use to keep their labor forces in their employ for

the duration of the harvest.

The elimination of the bonus system in the hop

fields was one of the big issues during the harvest

in the valley in 1970. it_was

meeting, when he told us about this, that we would

SO OUCAMTTOOK into This and determine i any Tegal

action could be taken,

T drove out to Walla Walla on a Saturday

morning and picked up Gamboa along the way.

He had already been to the camp. We picked up

several other people and went down to Walla

Walla. When we drove into this camp, the first

thing we saw was a man in a sheriffs uniform

with a holster and gun on his side.

I was a bit curious as to what he was doing

there. He immediately confronted us and asked us

what we were doing and I said that I was a lawyer

and showed him my bar card. I stated that | was

there to see people who Fequested legal assistance.

He wanted Lsaid | wouldn't

give him their names, Vitis wats beciauscnual the fact

that workers who have

in oar ways by 2 al ares

is fellow in the sheriffs uniform, we later

heard, was not a sheriff but was working for the

Rogers Walla Walla Company and was given

permission by the sheriffs department to wear the

sheriffs uniform. We learned at our Justice Court

trial that he was carrying the pistol without a

permit,

We began talking in Spanish with the workers

about the bonus system. They were telling us how

names were posted in the dining hall of those

who would be denied the bonus, say for sleeping

App. 13 ?

ie

Dy

4

¢

i

h

in over an hour. This was not in the contract. We

thought that we had a pretty good case.

About five minutes after we started talking to

these workers, the Walla Walla sheriff's department

car drove up. Two officers got out and asked who

was in charge. Gamboa said he was. They started

interrogating him and | remembered that this

other fellow with us had a tape recorder in his

brief case. | told him to take it out and the rest we

have on tape.

| don’t really want to go into what was said at

that point because we are going to have another

criminal trial very shortly.

We were arrested [on June 19, 1971]. After that

it really takes on the air of Alice's Restaurant. A

law enforcement attorney for Walla Walla County

came down and he wanted to know why we

were there and why we had the nerve to drag

him away from his Saturday afternoon martini on

the veranda. At that | just about passed out. Here

is this guy sitting there in his pink bellbottoms,

drawn away from his dry martini on the veranda

while these farmworkers are out there eating this

slop in the camp and where I had been arrested

because | was trying to speak with the workers

about their legal problems. And he really wanted

to know why we dragged him away by having the

audacity to get arrested because we wanted to go

there to talk to the workers about the problems

8 WASHINGTON STATE BAR NEWS November, 1971

Interior of a Walla Walia Rogers Company Migrant Labor Camp Shed

App. 14

they had.

‘gto Siok a oi fea tga

the next day. This is the interior of a Walla Walla

Rogers Company migrant labor camp shed. There

are forty people who live in this room. If you are

not shocked by this, | am surprised. This room is

a metal quonset hut. It sits out in the middle of an

open field where the temperature gets to about

95° and it beats on that metal and the temperature

inside is about 120°. I have never seen anything

worse in any labor camp I have ever been in.

After I had been released on my personal

recognizance by the Walla Walla County Sheriff's

Department and after I got back to Seattle, I called

Don Horowitz, who is the chief attorney general

for the State Social and Health Services Division.

1 told him that | thought there were probably some

health violations at this ranch. Don saw that an

inspection team visited the Rogers Walla Walla

labor camp shortly thereafter, and | have a copy

of the attorney general's inspection report.

To show you what the atmosphere is in these

communities, the attorney general's office was

willing to do this but the Walla Walla County

Health Department didn’t want any part of this.

They really had to be bullied into doing it by the

attorney general's office and the State Social and

Health Services Division. Here we have a camp

with 190 men, all brought up from Texas and they

live in this place for three months without families

and without any individual kitchen facilities in

the barracks. They go to a mess hall where they

pay for their meals every day. However, as the

report points out, no detergent is used for washing

the dishes; they are cleaned by force of water. That

doesn't do much for the germs that are on the

plates. That's some idea of what this place is like.

The food storage is another item that is men-

tioned in here. It’s put a little bit politely in the

report (“rodent-infested food" | , but in fact the food

was full of rodent crap. That's just another example

of what this place is like.

The men paid for these meals and room, by the

way. They were not provided by the Company.

The men also had an opportunity to become

intimately acquainted with their bed linen. They

were not given any change for three months.

Mattress covers were not issued. They were re-

quired to be furnished by state law. They were not

provided at all.

Mr. Gamboa and I were tried in Justice Court

in Walla Walla and were found guilty of criminal

trespass [on July 9, 1971]. Our argument was basi-

cally that we had a right to be there and we

didn’t have to have the permission of the Company.

Property rights must take a back seat when in con-

flict with first amendment rights, i.e., the right to

association, free speech, and the right to civil

counsel. Property rights must take a back seat to

these types of associational rights. Luhink these

two et cases will develo into major test

pe

= v. 1971, in Walla Walla.]

The right to organize — which is the victory we

won last January — really means very little from a

practical labor law point of view if labor organizers

cannot go in and see the farmworkers in order to

organize them. There ar al_ U.S. Supr

Court cases construin, the National Labor Rela-

g. The same argument can now be made by

virtue of state law

The issue involved in my own case is the right

for anyone to see a lawyer or the right of a lawyer

from_a ally funded legal assistance gram

to go in to see people who are eligible tor and who

have requested his services. 1 don't think that's

going to be a very difficult argument to prevail

upon in a higher court.

We decided to use one other vehicle to try to

establish these rights of free access to labor camps

.

as well and since the time of my arrest | have

sued [on June 25, 1971] in Federal Court in my

own capacity both the Rogers Walla Walla Com-

pany and the Sheriff's Department in Walla Walla

alleging a federal civil rights conspiracy; our allega-

tions are that these agencies, under the color of

state law, worked together to deprive both me and

the migrants of certain rights that are guaranteed

us by the Constitution, primarily the First

Amendment.

Question and Answer Period

Ed Raftis: Do the migrant workers have any

trouble getting legal representation

from the Walla Walla or Yakima

Bar?

Fox: Well, in auto accidents, they don't.

John Darrah: Mr. Tonkoff said they had no dif-

ficulty in getting an attorney.

Fox: In what kind of case? Would he

represent a migrant worker in a

labor case?

John Darrah: No minorities had any trouble in

getting any representation.

Fox: That may be true in a lot of

traditional-type cases. For in-

stance, an auto accident case. I do

want to say, however, that there

has been no labor law litigation

and no quasi civil rights litigation

on behalf of Chicanos in the

Yakima Valley, save that initiated

by the ACLU project that was in

the Yakima Valley several years

ago and by my office. None of

this has been done.

One thing you have to realize

is that these cases are not fee-

generating. The damages in a

labor 1aw case, where say an em-

ployee has been discharged, are

going to be minimal. They are

going to be the amount of his

wages lost. It is going to be very

difficult, first of all, for the Chi-

canos to get a lawyer to represent

them against what are really the

main clients in the Yakima Valley,

the growers. That is where the

conflict is. It is with the growers.

The Bar out there, face facts,

lives on'the grower. As a Yakima

Valley lawyer has remarked to

9

App. 15

%

$e

me, “Every dollar that comes into

the Yakima Valley comes down

the irrigation ditches.”

I think that the lawyer who

decides he is going to start repre-

senting the Chicano farmworkers

against growers is going to have a

very tough time staying in business.

Why isn’t there OEO Legal Serv-

ices in the Yakima Valley?

It is my understanding that an

application was submitted this

past year by a fellow named

Tomas Villanueva from the Yaki-

ma Valley who has been very

active in the Chicano community.

But it was turned down by the

National Legal Services Program,

although the Yakima Valley was

recommended by National Legal

Services officials as the area in the

country that is most sorely in need

of a Legal Services Program. It

was turned down, as I understand

it, for lack of money on the part

of the National Legal Services

Program.

When I was over there in 1968

for a short time, realizing that |

would be leaving, | developed

some contacts with lawyers in an

attempt to try to get them to pick

up where I had left off and to take

on some of the cases that needed

to be brought.

In several cases, there were

lawyers sympathetic to us and to

what we were trying to do. It came

back to me and they told me that

their partners were going to be

offended if they undertook some-

thing like this. This was because

their partners represented the

growers and the friends of the

growers who would be sued in

this case.

You have to realize that the Y aki-

ma Valley is a totally agricultural

area. There is really very little

industry, save Boise-Cascade be-

tween Pasco and Walla Walla.

Everybody depends on agriculture.

Once you get into a situation

where there is this type of conflict,

10 WASHINGTON STATE BAR NEWS November, 1971

App. 16

PAN TEE ote AG AL &

Charles Ehlert

John Darrah:

Fox:

John Darrah:

Fox:

there is a real problem in getting

representation, especially because

the law firms are so small.

This is one of the best arguments

that I can think of against having

a judicare plan over there. A judi-

care program in a community like

that would probably produce a

fair number of divorces and maybe

even wage recoveries but it is

very unlikely it would bring about

any institutional change.

In my office, we are not attempt-

ing to provide a case service

approach to the Yakima Valley.

We are not handling any divorces.

We are not handling any kind of

minor cases. The only cases we

are handling are those cases which

we think are going to have some

kind of effect on institutions in the

Yakima Valley, specifically those

cases which are going to have a

daily effect on farmworkers.

It seems to me that this is a project

in which the Bar might very well

be interested. The economic fact

that people in this Valley cannot

get lawyers seems to me to be a

State Bar Association concern of

the greatest magnitude.

You are going to find that the

Bar in Yakima is going to disagree

with you. They will say that

“certainly they can get lawyers”;

“I have eight Chicano clients

now”; and they will be on those

kind of cases that they want to

handle.

Right, but you have the lawsuit

going in federal court and the Bar

may be of great support in that,

especially in light of what hap-

pened at the annual meeting in

Portland.

Let me ask you, is there any

problem coming on you or your

office from the OEO?

Jack Kent is right in back of you.

Why don’t you ask him? He is an

OEO official. I really don’t know.

I've never received any pressure

from anybody in OEO. The only

(Continued on page 28)

Farmworkers In the Yakima Valley

(Continued from page 10)

Charles Ehtert:

type of pressure that | have re-

ceived has been from people like

from the growers, who make these

statements in the press to the

effect that the farm worker's union

and all people associated with it

are communists and their lawyer

wears a red arm band and things

like that — because | was wearing

a red arm band to identify myself

as a non-grower during the strike.

Somehow that makes me a Red

or something.

This past weekend, a fellow

from the Yakima Bar came up to

me at the Bar convention and

looked at my nametag and said,

“You know, you don't look like

such a bad guy. The lawyers out

there think you are the devil

incarnate.”

If they do, I guess that is just

what | have to live with. But I

haven't really felt any pressure

from them and I don't think any-

one in our office has.

There was a study done by a com-

mittee of the Washington State

Bar Association in 1968, about

the need on a statewide basis for

legal services. A report was pre-

pared which recommended against

this. It would be very interesting

reading for everyone interested.

It concluded that the Legal Serv-

ices Program that was provided

in the city areas was not needed

in rural areas because the rural

poor were not a threat to the com-

munity. This is a very interesting

posture for the Bar Association

to be in,

stoicism.”

“The rural indigent, however, presents a

different problem. He is generally not a

threat to the community, and his needs,

while just as desperate, are borne with

Report of WSBA Special

Committee on Legal

Assistance Programs

September 1968

28 WASHINGTON STATE BAR NEWS November, 1971

App. 17

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