[Document 1. Note: this document is incomplete. It comes
from a paper by professors Edward D. Etherington and Joseph
F. Brodley of Yale Law School.]
PROCEDURAL SUGGESTIONS FOR RAISING THE BIRTH CONTROL ISSUE
(Brodley - Etherington - Yale Law School) May 25, 1950
Raising the Issue in the Court
Little chance of raising it directly--Injunction would be of
little help, especially if it were wished to get case to
Supreme Court--Declaratory judgment might be worth trying
again, making sure that threat of State's Attorney was
unequivocal-- New possibility is to raise issue by
Mandamus--Non-profit corporation would apply to Secretary of
State for charter, and bring mandamus when Secretary refused
to grant charter--Doesn't appear to be executive discretion
in granting such charter--Would not be corporate practice of
medicine--Lack of good faith objection could be met--Most
difficult problem would be meeting argument that legislature
in its discretion chose not to license corporation of this
sort, legal or illegal--But strong counter argument to
this--Improbable that legislature would have intended this
and not said so.
With such large political reasons opposing the
change of the Act in the Legislature, and with
such grave legal doubts hovering over a
referendum, it may be that the best chance of an
alteration in the law is through the
courts.
Even the bare raising of the birth control
issue in the courts represents a very ticklish
question. There seems little chance of raising
it directly. A citizen would not wish to suffer
the sensationalism which might be attached to him
were he to violate the law. This would be
especially true of one who is sick, whose life
is in danger--the very person who would be able
to bring the strongest case. Similarly, a doctor,
fearing the harm that might be done to his
reputation, would be reluctant to participate
as a defendent.
A possible way around this difficulty would be
to find a crusader of the Margaret Sanger ilk, who
would perhaps welcome the martyrdom. She might set
up a booth outside the State Attorney's office and
make appointments for married women at her birth
control clinic; or she might sell prophylactic
kits marked "For prevention of disease."
(This would force the Connecticut Court to meet
the issue raised by the case of Commonwealth v.
Corbett. in Massachusetts.
But the best hopes of attach are by less direct
methods: There are three possibilities here:
injunction, declaratory judgment, mandamus. In the
past the Connecticut Court has not, on this issue,
been overly strict on procedural
[Document 2.]
REQUIREMENTS FOR A TEST CASE
(firm of Wiggin & Dana)
It is essential that:
1. She must have used contrceptives in this state in the
recent past.
2. She must be willing to be a defendant in criminal
proceedings against her. This means she would go through the
form of arrest, but would be forthwith released on bail.
3. She must be willing to confess to the State's Attorney
that she has used contraceptives and to so testify in open
court.
4. She must be willing to risk the possibility that, if the
case is ultimately decided against her, she might at that
time be sentenced to not less than sixty days in jail. A
jail sentence is unlikely, but it could be imposed.
5. She must have used contraceptives on the advice of a
physician that a pregnancy within three years would be
seriously detrimental to her health, or, possibly on the
advice of a physician that if she became pregnant within
three years, her child would be abnormal.
6. The physician must be willing to testify in court as to
his opinion and advice.
It would be desirable if:
7. She had procured her instruction in the use of
contraceptives prior to March 6, 1940 or from an
out-of-state doctor.
8. Her husband were willing to tell the State's Attorney
that she had used contraceptives, and possibly to so testify
in open court.
9. She already had one or more children.
[Document 3. Memorandum from Hartford attorneys John H.
Riege and Buist Anderson to the Planned Parenthood League of
Connecticut, Inc., re: possible legal actions; 1955]
MEMORANDUM
To: Planned Parenthood League of Connecticut, Inc.
Re: Recommendations Concerning Possible Legal Actions.
I. THE QUESTION
You have asked us to make a study of the possible legal
actions which might accomplish the objective of revoking or
limiting the present Birth Control Law in Connecticut and to
analyze the probability of success in each case,
recommending a case or cases which, in our opinion, would
offer the best chance of success. This study does not
include in its scope other possible means of accomplishing
this end, such as political action, nor does this study
consider in detail the practical problems that may present
themselves in certain of the cases; for example, obtaining
an actual patient or patients as parties in these cases.
II. THE STATUTES INVOLVED
The Birth Control statute in Connecticut with which we are
dealing is Section 8568 of the General Statutes of
Connecticut, revision of 1949, which provides as follows:
``Any person who shall use any drug, medicinal article or
instrument for the purpose of preventing conception shall be
fined not less that $50.00 or imprisoned not less than 60
days nor more than one year, or be both fined and
imprisoned.''
In connection with the types of action we are recommending,
we are also concerned with the following general provisions
of the General Statutes of Connecticut, Revision of 1949:
``Sec. 8875. Accessories. Any person who shall assist, abet,
counsel, cause, hire or command another to commit any
offense may be prosecuted and punished as if he were the
principal offender.''
``Sec. 8876. Conspiracy. Any person who shall combine,
confederate or agree with another or others to accomplish
any unlawful object by lawful means, or any lawful object by
unlawful means, or an unlawful object by unlawful means, if
one or more of such persons shall do any act in furtherance
of such combine, confederation or agreement shall be fined
not more than five thousand dollars or imprisoned not more
than 15 years, or both. No member or officer of any lawful
organization shall be held liable for the unlawful acts of
individual officers, members or agents of such organization
except upon proof of participation in or authorization of
such acts or of the ratification thereof.''
III. BACKGROUND
The present Birth Control Law was originally passed as part
of a general obscenity law adopted by the Connecticut
General Assembly in 1879. This law has since been broken
down into sections of which the present Sections of which
the present Section 8568 is one.
There were no legal developments with respect to the Birth
Control Law in Connecticut until 1939. During this period,
however, the Federal Courts handed down a number of
decisions which in effect said that the Federal Birth
Control Law should not be interpreted to apply to doctors
who prescribed contraceptives for health reasons. The
Federal statute was quite similar to the Connecticut Law,
particularly in that it did not specifically make any
exception for prescriptions by doctors.
In 1938 the Massachusetts Supreme Court upheld a
Massachusetts Birth Control Law which prohibited generally
the Sale of contraceptives. Gardner V. Massachusetts, 300
Mass. 372. The appeal from this case was dismissed by a
unanimous decision of the United States Supreme Court which
simply said that no substantial federal question was
involved. 305 U.S. 559.
In 1939 the first legal action concerning this statute arose
in Connecticut when two doctors and a nurse who were
attached to the Waterbury Clinic were arrested for violating
the Connecticut Birth Control statute, on the grounds that
they were aiding and abetting in the commission of a crime
under the present statute, Section 8875. Upon appeal to the
Connecticut Supreme Court of Errors the Court held that
there was no implied exception in the Connecticut law which
would permit a doctor to prescribe contraceptives for a
patient in the absence of anything beyond danger to the
general health of the patient, and further that the statute
so interpreted was constitutional. State v. Nelson, 126
Conn. 412 (1940). Judges Maltbie and Brown concurred in
Judge Hinman's majority opinion, while Judges Avery and
Jennings dissented. Because of a procedural technicality
this case could not be appealed to the United States Supreme
Court.
In 1942 the case of Tileston v. Ullman, 129 Conn. 84, was
brought as a test case in the form of a declaratory judgment
action. This case was designed to test the law in a
situation where the patient's life was actually in danger.
In another 3-2 decision the Supreme Court of Errors held
that no exception of any kind could be read into the
Connecticut Birth Control Law, even where life or serious
injury to health was involved. Judges Maltbie and Brown
concurred in Judge Ells' majority opinion, while Judges
Avery and Jennings again dissented. This case was appealed
to the United States Supreme Court where the appeal was
dismissed on the procedural issue that the doctor was not
the proper party to raise the question of the patient's life
or health. The court was careful to point out in its opinion
that it was not considering the question of whether or not
there was a genuine case or controversy such as is essential
to the exercise of jurisdiction by the United States Supreme
Court. 318 U.S. 44 (1942)
Since 1942 an attempt has been made in each session of the
legislature to modify or revoke the Birth Control Law. In
spite of careful planning and the expenditure of
considerable time and money, all of the proposed bills have
been defeated or allowed to die in committee. In the face of
this reaction the League has decided once again to consider
the advisability of Court action.
IV. OPINION
In our opinion there are three types of cases which offer
the greatest probability of accomplishing your purpose. They
all involve a direct attack upon the constitutionality of
the Birth Control Law and would all squarely present the
issues to the courts. These action are, first, a criminal
case involving the actual arrest of a doctor and named
patients; secondly, a declaratory judgement action brought
in the Connecticut courts by a doctor and named patients;
and thirdly, an action by a doctor and named patients in the
Federal District Court to enjoin the State's Attorney, the
local prosecuting attorney and possibly the Attorney General
from enforcing the Birth Control Law.
(a) Criminal Action. There is little doubt that the
criminal action would present your case most forcefully
and would be the most difficult for the courts,
particularly the United States Supreme Court, to
sidestep. The case could arise in any one of a variety
of ways, and might, for example, result from the opening
of a Birth Control Clinic by a doctor who offers birth
control information only to patients whose lives would
be endangered by pregnancy. A patient, or preferably
patients, would be referred to the clinic by other
doctors and the statute would subsequently be violated
by the doctor and patients. At this point the local
prosecuting officer would presumably step in, make the
arrests, the defendants would be bound over to the
Superior Court and the State's Attorney would enter the
picture. A full trial should be had in the Superior
Court, rather than moving the case up to the Supreme
Court on reservations, so that all the necessary facts
will be developed fully.
As we will point out more fully later on, there is no
accurate way of predicting the decision of the
Connecticut Supreme Court of Errors. We must assume,
therefore, that the case will be lost and appealed to
the United States Supreme Court. It is our feeling that
the United States Supreme Court should decide the case
and that if they do so, the case would probably be won
(See Section V. below). It is possible, perhaps even
probable, however, that the Court would refuse to decide
the case, dismissing it for lack of a substantial
federal question, as was done in the earlier
Massachusetts case (Gardner v. Massachusetts, 305 U.S.
559, 1938). It does not seem to us that the Court could
duck the case on the grounds of ``improper parties'', as
in the Tileston Case, nor on the grounds that there was
no real ``case or controversy'' but the ``federal
question'' argument is a real possibility. To be sure,
the Gardner case can be distinguished. In addition, the
fact that the Tileston case was not dismissed for lack
of a federal question, even though this was urged by
State's Attorney Ullman in his statement against
jurisdiction, can be said to indicate that the court
recognized the presence of a federal question. We feel
it is more likely that the court merely took the easiest
way out and still has the ``federal question'' as
ammunition to use should another case be submitted to
them.
Actually, in view of the character of the present United
States Supreme Court, we cannot safely predict that the
case would be decided by that Court although it is our
opinion that there is a substantial federal question
involved and also that all of the other prerequisites
for jurisdiction would be present.
Regardless of the above questions, however, we must
hesitate to recommend this type of action because of the
danger of prosecution of the parties under the
Connecticut Conspiracy statute, particularly since we
feel there is another possibility open to you. It is our
opinion that the prosecution in this criminal case could
be made under either or both of the Accessory and the
Conspiracy laws. In Connecticut there is no merger of
the Conspiracy charge in the crime once committed, and,
in fact, it is recognized that the penalty under the
Conspiracy statute may be greater than the penalty for
the crime committed. We do not wish to overemphasize
this danger, and if a doctor and patients an be found
who are willing to assume whatever risk is involved,
this type of case would still present your strongest
argument. In a situation such as you are confronted
with, however, where the statute has been interpreted by
the highest state court in a decision which leaves
little question as to what constitutes a violation, and
where the State's Attorney may be under pressure to
prosecute vigorously, we feel there is sufficient danger
to all the parties involved in the case so that we
cannot recommend the criminal action.
(b) Declaratory Judgment Action. Although the Tileston
case involved a declaratory judgment action and failed
to evoke a decision from the United States Supreme
Court, we do not feel this necessarily precludes the
successful use of this type of action. If such a case is
brought, both a doctor and named patients should bring
the action. The strongest part of the case, in fact,
would probably be built around the claims of the
patients. The opportunity for the type of dismissal
which occurred in the Tileston case would, we believe,
be eliminated by thus joining the actual patients whose
lives would be endangered by pregnancy.
In this type of action, as in the criminal case, we must
assume that the Connecticut Supreme Court of Errors will
decide against the doctor and patients. This is not to
say that there is no possibility of a favorable decision
in the Connecticut court. With the precedent established
by the Nelson and Tileston cases, however, the present
court would be reluctant to render an opinion which
would overrule the earlier decisions. The power to
overrule is used sparingly and the doctrine of stare
decisis - the reliance on decisions in earlier cases -
is an important one. It played, in fact a prominent part
in Judge Ells' decision in the Tileston case. With the
substantial change in the court personnel, however,
which has occurred since 1942, there is more room for
optimistic speculation as to the outcome of such
proposed action and even though, as Judge Ells stated,
``a change in personnel of the court affords no grounds
for reopening a question which has been authoritatively
settled'' we do feel there is some slight chance of the
present court overruling the Tileston decision.
There is, of course, the possibility that the
Connecticut Supreme Court of Errors would decide that a
declaratory judgment type of action is not the proper
procedure to test the law. This possibility was in fact
raised and left undecided in the Tileston case. It seems
to us that all of the necessary elements for a
declaratory judgment as established by the Connecticut
Statute and Rules as well as prior cases could be
present in such a case, but in view of the question
raised by Judge Ells in the Tileston case, the
possibility does exist that the court would hold that
there is no ``actual bona fide and substantial question
or issue in dispute or substantial uncertainty of legal
relations which requires settlement between the
parties''.
The possibility that the United States Supreme Court
would duck the issues involved as presented in a
declaratory judgment action, we believe, is somewhat
greater than in the criminal action. There is the same
possibility of side-stepping the case on the grounds
that no substantial federal question in involved as in
the criminal case. If the court believes the issues are
similar enough to those raised in the Gardner case, and
that their decisions in the four cases cited in the
dismissal of that case constitute authority for such a
dismissal, the court could again dismiss this action on
that ground. (see Powell v. Pennsylvania, 127 U.S. 678,
685; Jacobson v. Massachusetts, 197 U.S. 11, 26-27;
Groves v. Minnesota, 272 U.S. 425, 248; Lambert v.
Kellowhey, 272 U.S. 581, 596.)
In addition, there is the possibility that the United
States Supreme Court would dismiss the appeal on the
grounds that it does not involve a ``case or
controversy'' such as is a prerequisite to the exercise
of its jurisdiction. This possibility was definitely
considered by the United States Supreme Court in
dismissing the Tileston case when it stated that ``since
the appeal must be dismissed on the ground that
appellant has no standing to litigate the constitutional
question which the record presents, it is unnecessary to
consider whether the records show the exercise of the
jurisdiction of this court''. 318U.S. 44, 46. This
gratuitous statement may have had reference to the fact
that the record indicated only that the State's Attorney
``claims or may claim'' that the actions of the doctor
would constitute a violation of the law, and the Court
may have felt this was more in the nature of a
hypothetical question inasmuch as there was no actual
threat that the State's Attorney would claim a
violation. The declaratory judgment action has received
rough treatment at the hands of the United States
Supreme Court, and although the decisions of that court
in these types of cases have been severely criticized,
this attitude must still be recognised in assessing the
possibilities of a decision in this particular action.
The United States Supreme Court is particularly strict
in its requirements when a constitutional question is
involved, as would be the situation in this case. We
believe the case could be arranged in such a way that
all of the necessary elements would be present,
including an actual threat of prosecution, but we also
feel that it is impossible to be certain that the United
States Supreme Court will not refuse to exercise
jurisdiction in an arbitrary manner.
It is our opinion, therefore, that although the
declaratory judgment action is a safer way to test to
the law than the criminal case, it offers the United
States Supreme Court, and perhaps also the Connecticut
courts, a greater opportunity to avoid rendering a
decision.
[Document 4. Letter from Hartford attorney Bruce W.
Manternach, of Hartford's Robinson, Robinson & Cole, to
Planned Parenthood League of Connecticut Inc. (Aug. 1, 1958)]
Robinson, Robinson & Cole
750 Main Street
Hartford, Connecticut
August 1, 1958
Planned Parenthood League of Connecticut
Connecticut, Inc.
48 Trumbull Street
New Haven, Connecticut
Gentlemen:
Early in 1953 your organization, acting through Mrs.
George P. Milmine and others in office at that time, retained
us to bring an action in the Superior Court to test the
constitutionality of the Connecticut Statute proscribing the
dissemination of bith control information, Sections 8568 and
8875 of the General Statutes.
After considerable study and discussion it was
decided that we would proceed immediately when the League had
found suitable persons to act as paries plaintiff. Efforts
were made in this connection by your organization but you
were unable to procure any suitable plaintiff who was willing
to undergo the publicity attendant upon a court action.
Efforts were continued and pending the results we withheld
submission of our statement.
We have now been informed through the newspapers that
four plaintiffs have brought action in New Haven County, all
for the purpose of testing the constitutionality of birth
control law, from which we that our services are no longer
required. Accordingly, we submit our statement herewith, the
amount has been substantially reduced because of your status
as a non-profit, public welfare organization.
Sincerly yours,
Bruce Manternach
[Document 5. Letter from New York attorney Harriet Pilpel to
Yale Law School Professor Fowler V. Harper, critiquing a
brief (July 6, 1959)]
GREENBAUM, WOLFF & ERNST
285 Madison Avenue
New York 17, N.Y.
July 6, 1959
Professor Fowler V. Harper
Yale University Law School
New Haven, Connecticut
Dear Fowler:
Thanks for your letter of June 18th. We shall be most
interested to see the state's briefs and gather they have not yet arrived. And, of course, we continue to stand ready to help with the reply in any way we canst
talk with you. Please let us know if there is anything
further we can do at this time.
So far as the Buxton brief is concerned, may I recapitulate
and to some degree repeat what we have said at various
previous times in conferences and letters. The thrust of
attack in this case, the due process attack, must be grounded
on the arbitrary and irrational impact of the law. This, we
feel, calls first and foremose for a factual presentation, to
establish the medical signifigance of availability of
contraceptive advice for health purposes. If we were doing
it, we would endeavor to make as impressive as possible a
showing on this ground. We would precede this by reference to
Butler v. Michigan, England v. Louisiana State Board,
Consumers Union v. Walker, the federal contraception cases
and others which create an appropriate frame of reference.
Someof these cases are cited in the present brief, but they
aren't argued or developed in such a way as to move the
reader. It is imparitive, in our opinion, to use all possible
case and factual material to prove the arbitrary impact of
this law.
In this connection, we think that you might also be able to
bring in the malpractice point. I attach a copy of a memo on
malpractice which we drafted in connection with the New York
hospital birth control controversy. This material is
adaptable, we think, to the purposes of the Buxton brief on
the following principle: if failure to prescribe bith control
in a proper case could subject a physican to malpractice
charges in a state which does not forbid prescription of
contraception, it is prima facie arbitrary for a state to
forbid such presciption.
-2-
Professor Fowler V. Harper July 6, 1959
We have previously discussed the relevance of the community
standards argument derived from Roth v. United States. This
approach depends, on showing that notwithstanding the
Tileston case, this statute does derive from the obscenity
law. In any event, we think that the community standards
concept can be brought in as one of the bases for the court's
consideration of the factual material- support by medical
opinion, religious groups, etc. The argument could be, in
part, that where the most of society and most medical
specialists concur, the foundation for legislative
prohibition is dubious.
The chief point we urge about the Buxton brief is the need
for development of the argument - factually and case-wise -
and for a full presentation in appropriate places.
As to the ministers' complaints. We went over some of this
when we talked but again I put it down as I remember it:
1. For the reasons we discussed, the inclusion or reference
to specific texts would be helpful. I mentioned the Consumers
Union pamphlet already passed upon by the Court of Appeals
for the District of Columbia, the Hines book "Practical Birth
Control Methods" already passed on by the Federal Court of
Appeals for the 2nd Circuit, the Latz book on the "rythm"
method, and the Fishbein and Burgess "Successful Marriage"
which contains a detailed chapter by Dr. Abraham Stone.
2. We believe the distinction between advocacy and action
which you and I discussed should be made clearly. The theory
of freedom to advocate is distinct from the theory of freedom
to act and rests on stronger foundations. We think it would
be desirable to seperate these theories.
The United States Supreme Court last Monday, June 29th, as
you know, made clear the greater latitude allowed to advocacy
than to action, stating in the "Lady Chatterley's Lover"
case: "What New York has done, therefore, is it to prevent
the exhibition of a motion picture advocates an idea - that
adultery under certain circumstances may be proper behavior.
Yet the First Admendment's basic guarantee is of freedom to
advocate ideas. The State, quite simply, has thus struck at
the very heart of constitutionally protected liberty".
Actually, I believe this case may have an important bearing
on both the Buxton, and the patient cases also, and should be
studied with this in mind as well.
3. It would be well to allege that plaintiff has in mind the
counselling of particular parishoners, who stand in specific
need of such advice.
4. For stated reasons, it might be - we think would be -
possible to make more specific the principles of the various
churches vis-a-vis contraception and family planning and it
would be well to emphasize the religious basis of these
principles. Reference should also be made to the Catholic
position in favor of planned parenthood - its dissent being,
of course, only on the ground of method.
-3-
Professor Fowler V. Harper July 6, 1959
5. We wonder why there is no reference to the Connecticut
conctitution. With kindest regards to you as always.
Yours,
/s/
cs
Harriet F. Pilpel
P.S. I have been in touch on this matter with a lawyer member
of the Executive Comittee of the Planned Parenthood
Federation of America, Inc. namely, Francis A. Goodhue, Jr.,
Esq., a member of a firm of Dewey, Ballantine, Bushby, Palmer
and Wood and with a former Vice-President of the National
organization, Fifield Workum, Esq., a member of the firm of
Simpson, Thatcher and Bartlett. They are both in accord with
this letter and with the other recommendations we have made.
[Document 6. Letter from Fifield Workum, of New York's
Simpson, Thacher & Bartlett, to Dr. William Vogt, of the
Planned Parenthood Federation of America, critiquing a brief
(July 8, 1959)]
(Simpson, Thacher & Bartlett)
120 Broadway,
New York 5, N.Y.
July 8, 1959
Dr. William Vogt,
Planned Parenthood Federation,
501 Madison Avenue
New York 22, N.Y.
Dear Bill:
Mrs. Pilpel sent me a copy of her letter
of June 22 addressed to you and Mrs. Campbell,
with which was enclosed a copy of the letter dated
June 18 from Professor Fowler Harper to Mrs.
Pilpel.
I can sympathize with Miss Roraback's
desire to be in complete charge of the Connecticut
Legal proceedings. I am also glad to note that Mr.
Harper reports her as welcoming suggestions from
Mrs. Pilpel's office. I would expect this kind of
cooperation to work out well, in the usual manner
that counsel work together when they have clients
with the same interests, to present the very best
possible case.
A couple of weeks ago, I went over the
Buxton brief and felt that the presentation could
and should be greatly strengthened in at least
two respects. First, I would place much emphasis
on the acceptance by the medical profession of
birth control for health purposes. The reasons for
this are that I believe that Courts are hesitant
to strike down accepted medical views in
construing a statute, and these views relate to
the due process point. Second, I believe the brief
would be much more persuasive if it explained why
the principles in the Nelson, Tileston and Gardner
cases whould not apply in the Buxton case or
should be overruled.
-2-
Dr. William Vogt July 8, 1959
The end of last week, Mr. F.A. Goodhue,
Jr. and I called on Mrs. Pilpel to exchange ideas.
We discussed letters of April 16 to Mr. Harper and
May 14 to Miss Roraback, and the draft of a
further letter to Mr. Harper still be sent. I am
much impressed with the validity of the points she
raised in those letters, which in my opinion would
greatly strengthened the legal presentation.
I think that the Federation needs prompt advice
from Miss Roraback as to whether these further
points can and will be added in her case; also,
what the status and time schedule are for the
State's brief and the reply brief. It seems to me
that it is unwise to run any risk by failing to
prevent all the possible arguments to the State
Court. If they are not added, I consider that the
Federation may have no choice but to ask the
Court's permission to file and amicus brief,
because the successful outcome of the Connecticut
actions, onced they were commenced, is so
important to our cause in the rest of this
country and abroad.
Enclosed is a copy of this letter for Mrs.
Campbell. I am sending a copy to Mrs. Pilpel. Mr.
Goodhue has seen a draft.
Sincerely yours,
/s/
Fifield Workum
(Enc.)
[Document 7. Letter from New Haven attorney Catherine G.
Roraback to John de J. Pemberton Jr., executive director of
the American Civil Liberties Union, discouraging national
organizations' submission of amici briefs in Connecticut
courts (April 22, 1963)]
Catherine G. Roraback
Attorney at Law
185 Church Street
New Haven 10, CONN.
April 22, 1963
John de J. Pemberton, Jr., Executive Director
American Civil Liberties Union
156 Fifth Avenue
New York 10, New York
Dear Jack:
This is in response to yours of April 15th, which I
do not think quite corrctly states my position.
As I attempted to express to you over the telephone,
I do not think a brief from the CCCL would be a good idea in
the Connecticut proceedings, if it is not filed by
Connecticut counsel on behalf of Connecticut persons. If
filed by non-Connecticutites, it would , in my opinion, have
"at worst...a neutral effect", only if it were filed in
connection and in conjuction with other briefs filed by local
Connecticut grounds.
On the other hand, I think that such a brief would
have an adverse effect if filed alone, and/or, in conjunction
with those of other national organizations. Thus the problem
raised by the CCCL proposal would not be cured, in my
opinion, by the filing of a brief by the National ACLU.
Rather, it would only compound my reluctance to have a brief
from a national organization such as CCCL, without a local
organization taking such action.
I know that my feelings in this matter are something
of an enigma to those who have practiced in other
jurisdictions. However, as I tried to express to you over the
telephone, the filing of amicus briefs in the Connecticut
Courts is not a very frequently used procedure, and, may I
say also, the Court does not welcome them generally.
I would hope that the CCCL would be interested in
participating at the U.S. Supreme Court level, and I do hope
that you can explore that for us. I fully expect that the
case will end there, and not in Connecticut in any event, so
that exploration of this possibility even at this seemingly
premature moment would not be wasted effort.
John de J. Pemberton Jr. -2- April 22, 1963
Since I assume you have discussed this with Harriet
Pilpel, I am sending a copy of this letter to her for her
information.
Thank you again for all you have done in this regard.
