dependent children must first show that she has cooperated with the local prosecutor by furnishing him information on the whereabouts of the children's father. If so requested by the authorities, she must also file a criminal complaint of non-support against the father, before the children can be considered eligible for welfare benefits. By Federal law, however, all needy children basically are eligible for welfare, as defined by 42 U.S.C. 606. Legal Aid attorneys contend that the Missouri statute violates this provision of the Federal social security act, and also violates the children's right to equal protection of the laws under the 14th Amendment to the Constitution. In a pending suit, a declaratory judgment is being asked for, as well as an injunction against enforcement of the Missouri statute.

COMMUNITY LEGAL EDUCATION

LAW STUDENT PARTICIPATION IN LEGAL AID CLINIC. With the resumption of regular fall classes, another summer of participation in Legal Aid work by advanced law students has been successfully completed. During the summer months, law student enrollees in the Legal Aid clinic received instruction from the director of the program, and also took over all Monday interviewing of new clients each week at the South office. The law students were thus given a unique opportunity for first-hand knowledge.

Under the director's supervision and working in conjunction with professional staff members, each student was encouraged to follow through on the cases in which he had done the initial investigation. This program has the added benefit of helping free staff lawyers from a portion of their heavy intake interviewing, allowing them at least one day a week free of interruption in which to work on cases already undertaken.

TRAINING OF COMMUNITY WORKERS FOR WELFARE FAIR HEARINGS. The Kansas City chapter of the Welfare Rights Organization has recently received a Model Cities grant for setting up a program through which community persons will learn to represent welfare applicants at welfare fair hearings. The Community Legal Education director of Legal Aid has undertaken to offer the basic training course in legal aspects of welfare rights and welfare hearings.

This project will serve several important functions. It will enable members of the community to learn self-help techniques and lessen the community's dependence on outsiders; it will help disseminate legal knowledge into the neighborhoods; and it will offer individuals from the community a unique opportunity for gainful employment in positions in which they can serve their neighbors and earn their respect.

ADMINISTRATIVE LAW

"GOOD MORAL CHARACTER' REQUIREMENT FOR STATE NURSING LICENSE. The case of Beck v. Missouri State Board of Nursing (No. 70,016 before the Missouri Administrative Hearing Commission) concerns the right of a person who has been convicted of a felony to demonstrate rehabilitation and good moral character for purposes of qualifying to take a state nurses' examination. Petitioner had been convicted of second-degree manslaughter in Oklahoma in 1962, for which she was later pardoned by the governor. There were extenuating circumstances surrounding the commission of the crime, and the petitioner since her release has led an exemplary life and has been studying to become a licensed nurse in order to remove her dependent children from welfare rolls.

A 1969 directive of the State Nursing Board holds that any person who has been convicted of a felony is to be considered of bad moral character and therefore cannot qualify to take the examination. Legal Aid counsel for the petitioner argued that she should be allowed to demonstrate her rehabilitation and good moral character since her release. At the hearing before the Administrative Hearing Commission she was allowed to put on evidence of her moral character, and the Commissioner held that she had proved that she was of good moral character. The Nursing Board was therefore ordered to permit her to take the examination upon payment of the proper fees. This decision in effect invalidates the 1969 directive of the Nursing Board.

The Board, represented by the state attorney general's officer has appealed the decision to the Circuit Court of Cole County, Missouri. The phrase "of good moral character" has not been defined by the Missouri courts, and it is hoped that this suit will result in a clarification of Missouri law on that point.

CIVIL PROCEDURE

RIGHT TO RAISE A CONSTITUTIONAL QUESTION FOR THE FIRST TIME ON APPEAL. In Kansas City v. Douglas (No. 25,317 in the Kansas City Court of Appeals), defendant's motion to

JANUARY, 1971

transfer his appeal to the Missouri Supreme Court for determination of a constitutional issue was granted. The defendant had been convicted in municipal court of driving while under the influence, and did not raise the constitutional question at his trial, nor did he file a motion for a new trial in which the constitutional issue was raised. The general rule for civil cases is that any constitutional issue not raised at the first opportunity and preserved in a motion for a new trial is deemed to be waived, and therefore cannot be raised for the first time on appeal.

However, because of the possible jail sentence involved, the Court of Appeals considered this to be a penal case rather than a civil case, and therefore applied the more liberal rule followed in criminal cases, i.e., that a constitutional issue may be raised at any stage in the proceedings.

The main constitutional issue involved is whether Kansas City Ordinance No. 34,115 is unconstitutional because it provides a higher maximum penalty for a first offense than does Section 564.440 of the Missouri statutes, which covers the same offense committed elsewhere in the state. Legal Aid counsel argues that this higher penalty denies defendant equal protection of the laws.

The Court of Appeals held that, in view of the recent U. S. Supreme Court holding in Waller v. Florida, this question is still open and needs constitutional interpretation by the Missouri Supreme Court.

The appeal was therefore transferred to the Missouri Supreme Court for determination of the constitutional question.

CONSUMER PROTECTION

SUITS ON CONTRACT AGAINST MINOR. Two recent cases handled by a Legal Aid neighborhood office involve suits on a contract against a minor. In one case, a default judgment was taken in magistrate court against a minor. No guardian ad litem was appointed for the minor in the proceedings. Later, the minor sought Legal Aid counsel, who filed a motion with the magistrate court to set the judgment aside because the minor had not

been properly represented in the suit. This motion was denied by the magistrate, whereupon counsel applied to the Jackson County Circuit Court for an injunction. A judge of this court has now issued a perpetual injunction against enforcement of the judgment.

In another contracts case, the minor. had retained a private lawyer to defend the action against her, and the private lawyer had filed an answer raising the defense of minority. However, at the time set for trial of the case, neither the defendant nor her lawyer was present, and a default judgment was taken against the minor. Legal Aid counsel, called in later, attempted unsuccessfully to get the magistrate to set the default judgment aside. An application for certiorari in the Circuit Court of Jackson County is now pending.

UNAUTHORIZED AUTOMOBILE REPAIRS. Aamco Transmissions has been cited by both consumer advocate groups and the Federal Trade Commission for fraudulent and deceptive practices. (The Federal Trade Commission has filed a complaint against Aamco charging the company with "using deceptive means to obtain repair jobs, refusing to reassemble transmissions when customers will not authorize further work, not disclosing when repairs are made with used parts, and certain other illegal practices.") Recently a local Aamco dealer used some of these practices against a client. When the client first took his car in for an inspection and minor adjustments, he was told that the total cost would be $38.00, and his authorization was for this amount. When he went to get his car, he found that the transmission had been rebuilt without his authorization, and the total bill was $187.00. The dealer held his car pending payment of the total bill. Legal Aid counsel filed a complaint with the Federal Trade Commission, and threatened to file a suit for damages which would include damages caused by aggravation of a severe nervous condition of the client. At this point, the parent franchisor, Aamco Transmissions, Inc., of Bridgeport, Pennsylvania, intervened and proposed that our client accept the return of his automobile at no charge whatsoever. This settlement was accepted.

In another recent case involving an Aamco dealer, the facts were basically similar. The client had authorized a $23.00 inspection, but was informed several days later that he could pick up his 1955 DeSoto with its new "custom-built lifetime guaranteed transmission," for $275.00. The client refused to pay and the company held his car. Legal Aid counsel filed a replevin action in magistrate court, which went to trial, but upon suggestion of the magistrate the case was settled before conclusion of the trial. The client paid the $23.00 he had agreed to pay, and the company returned his car to him, with the new transmission.

CRIMINAL LAW

MURDER SUSPECTS KEPT IN JAIL LONG

AFTER THEIR INNOCENCE HAS BEEN ESTABLISHED. Two defendants, L. Russell and R. Johnson, were arrested and charged in April, 1970, with the double killings of Rothschild Turner and Joseph Shelton, two bakery workers who were killed while at work in the bakery at night.

Shortly after their arrest and before either defendant had counsel appointed, each defendant agreed to take a polygraph ("lie detector") test administered by the police department's expert. Johnson's test was completed, and the results as reported by the police expert administering the tests confirmed Johnson's story of innocence. Russell's polygraph tests were begun but not completed, being terminated by the police officials.

In July, 1970, Russell was tried for the murder of Turner and was acquitted by a jury. Immediately thereafter, counsel from the Legal Aid and Defender Society moved to dismiss the other charge of murder still pending against him, in accordance with the U. S. Supreme Court ruling announced in Ashe v. Swenson. This motion was denied by the circuit court. Thereupon counsel applied to the Kansas City Court of Appeals for a writ of habeas corpus, on the ground that subjecting Russell to a trial for the second murder, when the facts would be substantially identical with those presented at the first trial where he had been acquitted by a jury, constitutes double jeopardy in violation of the Sixth Amendment. The Court of Appeals denied the writ without comment. Legal Aid counsel thereupon applied to the Missouri Supreme Court for a writ of habeas corpus on the same ground. This motion was never acted upon by the Missouri Supreme Court. After the Missouri Supreme Court had completed its September session en banc without ruling upon the case, Legal Aid counsel applied to the U. S. District Court for the Western District of Missouri for a writ of habeas corpus for the same reason. This writ was denied because of failure to exhaust state remedies.

During all of this time both defendants remained in jail. Bond had been denied both defendants until after Russell's acquittal in July, but was then set at $25,000 per defendant. Neither defendant was able to raise this bond, so both remained in jail.

In October, it was finally agreed with the county prosecutor's office that the defendants would be allowed to take another lie detector test, and it was understood that if the results indicated that defendants were telling the truth, then such results could be used by the defense when the cases came to trial. The polygraph tests were made, and confirmed the truthfulness of the defendants' stories.

A short time later, the two murder charges against Johnson and the one remaining murder charge against Russell were dismissed. The defendants were released on October 16, 1970, after having spent six months in jail each.

Both defendants had witnesses establishing their alibis at the time of the murders, and these witnesses had placed thier information in the hands of the proper authorities soon after the defendants were arrested.

STATE PENITENTIARY INMATES SEEK FEDERAL HABEAS CORPUS ALLEGED UNCONSTITUTIONAL CONDITIONS OF CONFINEMENT. The Criminal Division of Legal Aid has been appointed by the U. S. Court of Appeals (8th Circuit) to represent prisoners in the Missouri state penitentiary who are attempting to get a court hearing on allegedly unconstitutional prison discipline and prison conditions. The Missouri Supreme Court has refused to grant a petition for habeas corpus. (Missouri courts have never granted habeas corpus in such cases, but have uniformly dismissed such petitions for "failure to state a claim upon which relief can be granted.")

The narrow legal issue is: Does the state's refusal of state habeas corpus constitute exhaustion of state remedies, for purposes of allowing Federal habeas corpus?

An alternative state remedy, suing the person who did the alleged mistreating, is not available to Missouri penitentiary inmates, because in Missouri convicts are considered legally dead and cannot sue.

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A basic principle of Anglo-American law is that for every wrong there is a remedy. Legal Aid counsel has just completed arguments before the 8th Circuit, urging that the Federal Court grant habeas corpus these cases, so that the charges of unconstitutional mistreatment can be fully heard in a court of law, and an appropriate remedy supplied by the court if there has in fact been a violation of prisoners' constitutional rights.

PRELIMINARY STATISTICS ON 1970 CRIMINAL CASES. Criminal Division attorneys were appointed to represent defendants in 832 felony cases in the Jackson County Circuit Court through December 15, 1970. Case dispositions include 329 pleas of guilty, 191 dismissals, 77 jury trials and 139 miscellaneous case dispositions. Comparing 1970 statistics with those of 1969, there has been a 20% increase in pleas of guilty, a 30% increase in dismissals and a 40% increase in trials. Nineteen cases were argued before the Missouri Supreme Court, 24 briefs on appeal in the Missouri Supreme Court were written, and 8 briefs are in various stages of completion as the year ends.

Defender attorneys also represented the indigent accused in over 1100 misdemeanor cases and preliminary hearings during the calendar year 1970. Federal court statistics are not complete, but preliminary estimates show over 200 felony cases handled during the year in the Federal courts.

ECONOMIC DEVELOPMENT

NEIGHBORHOOD GROCERY-RESTAURANT. Legal Aid attorneys have been assisting in the development of a community grocery store with a small restaurant attached, with rental property in the

same building, in a predominantly black neighborhood. The first step was to obtain a non-conforming zoning permit, for which it was necessary to obtain first a certificate of occupancy in a non-conforming capacity at the time the zoning ordinance went into effect. After obtaining the zoning permit, counsel then put together a comprehensive "package" of materials to enable the enterprise to apply for appropriate financing. Informal presentations have been made to a number of financial institutions and government agencies. At the present time, documents have been put together in order to make a formal presentation and application for a loan to the Small Business Administration.

HOUSING

SUIT FILED ALLEGING INADEQUATE INSPECTION BY FHA AUTHORITIES. In a recent suit filed in U.S. District Court, Legal Aid attorneys are attempting to get a court order requiring FHA inspectors to make adequate inspection of residences being sold to low-income families under Section 235 of the 1968 Housing Act before approving the real estate loan. Legal Aid counsel is representing some 30 clients who claim that the property they have bought has needed major repairs, although it was presumably "inspected" by FHA authorities.

FHA inspectors customarily make an appraisal of Section 235 property and at the same time inspect it for defects calling for repairs. It is charged in this suit that the FHA appraisals are often considerably in excess of the actual market value of the property, in addition to the complaint that major defects are not noted by the inspectors.

A low-income family making a real estate purchase under Section 235 is encouraged by real estate brokers to rely on the FHA appraisal as an indication of the true market value of the property, and to rely on the FHA inspection to disclose any major repairs needed. A low-income family may exhaust all of its cash and credit in making the down payment and moving into the residence it has bought, expecting it to be in livable condition, and then find that the home needs a new furnace, or that the plumbing leaks and must be repaired immediately. The position of the FHA office is that owes no duty to the purchaser its inspection is only for the purpose of protecting the government's interest in the loan guaranteed by FHA. However, few low-income persons are aware of this fine distinction, and do in fact rely on the FHA inspection.

Both the statute passed by Congress and the regulations implementing it require that Section 235 homes must comply with the local housing codes. Legal Aid attorneys argue that in approving loans on homes which do not comply with local housing code standards, FHA authorities are in dereliction of their official duty.

In this suit, the plaintiffs are asking for an injunction against further operation of the Section

235 program until the matters complained of have been litigated. Plaintiffs are also requesting a writ of mandamus to require FHA inspectors to do their duty and make adequate inspections to assure that property purchased under Section 235 meets local housing code standards. Plaintiffs are also asking for damages.

About 30 clients with similar complaints against FHA are being represented in this suit, and there are eleven named plaintiffs. Before filing suit, Legal Aid attorneys have unsuccessfully attempted to obtain relief through administrative channels.

Early in December, information compiled through client complaints was forwarded to Washington at the request of Rep. Wright Patman of the House Banking and Currency Committee, which is investigating the operation of the Section 235 program. In the first week in January, this committee issued a report condemning practices of FHA officials nationwide, and quoting from the submitted Kansas City materials in an appendix to the report. The committee report appeared a few days after Legal Aid attorneys filed suit in these cases.

JUVENILE

RIGHT TO JURY TRIAL IN JUVENILE COURT. In a pending case, a 10-year-old boy has been charged in juvenile court with the equivalent of first-degree murder. Legal Aid counsel for the child have demanded a jury trial to determine the factual question of whether the boy did in fact commit the act complained of. Jury trials in juvenile court are not presently authorized by Missouri statutes, and the request for jury trial was denied by the juvenile court. Mandamus to compel the granting of a jury trial was refused by the Kansas City Court of Appeals. The Missouri Supreme Court has also refused to issue a writ of mandamus, but has nevertheless issued a stay order against further proceedings in juvenile court until it reviews the case further, to determine whether an alternative writ of mandamus will issue. It is

expected that the case will be reviewed in January. The same question is now pending in the United States Supreme Court on several cases from other jurisdictions.

MISDEMEANORS

DOES A STARTING PISTOL QUALIFY AS A CONCEALED WEAPON? In a recent case in Independence, defendant had been convicted in municipal court and sentenced to 50 days for carrying a concealed weapon. The "weapon" was in fact a starting pistol which fires blanks. Legal Aid counsel appealed and obtained a trial de novo in the county circuit court. Counsel pointed up the absurdity of the conviction by purchasing two toy pistols in the dime store and then questioning the police officer on the stand as to whether carrying these toys in his pocket would be a breach of the ordinance. The court ruled that the ordinance did not cover toy pistols or starting pistols, and the charges against the defendant were dismissed.

SELECTIVE SERVICE

COURT ORDERS INDUCTEE TO BE DISCHARGED FROM ARMY. A client had been originally classified as 1-A by his draft board, but later presented evidence to the draft board to establish a hardship deferment. The draft board refused to consider the new evidence or reopen the case, and the young man was inducted into the army. Within a few minutes after his induction, Legal Aid counsel had obtained an ex parte order from U. S. District Court restraining the Army from removing him from this jurisdiction until the merits of the case could be heard. Three weeks later the same court, after considering all of the facts presented, ordered the Army to discharge the inductee. The court stated that the draft board should have reopened his classification and considered the new evidence before ordering him to report for induction.