A Victory for the UFW in the “Sour Grapes Case” in 1974

(Thanks to Howard Watkins, Fresno Photographer, Hastings Classmate, and friend for the Gallo March Photo)

 

(Cesar Chavez  in front of UFW  Flag in 1974)

Many California grape growers and Safeway Stores challenged a class action I handled known as the “sour grape case.” They asked the judge to dismiss the case in 400 pages of motions and scheduled a hearing that gave me ten days to respond. The defendants may have thought they could paper me to death since I did not belong to a law firm. I spent many twelve-hour days in the library preparing the opposition and the ACLU provided additional typists to assist for my one-hundred-page response that asked the Court to permit the case to proceed to trial.

Jerry Cohen arrived from Tehachapi to visit before the hearing to read my arguments. He was reassured after he studied my opposing memorandum. Judge Norman Dowds presided in Los Angeles Superior Court class action courtroom. More than twenty management lawyers argued that the court should dismiss the case. After the hour it took for  the war of words, I addressed each of their contentions, distinguished the cases they cited, and demonstrated how the UFW claims derived from valid legal precedents showing how each defendant violated the Agriculture Code and the Consumer Legal Remedies Act. After my thirty minute dissertation the defense replied using their star management attorney. The slick icon of the establishment implored the Court for dismissal, the case would waste valuable judicial time, and the UFW should not benefit from litigation designed to increase legal expenses for their enemies in a labor dispute. Sly and cunning, experienced, and silver-tongued, he attempted to refute my arguments, but used authorities I had already distinguished.

“The defendants request dismissal of this frivolous complaint and sanctions against Mr. Lavery for requiring these distinguished corporations to defend against it. He forced these prominent growers and eminent stores who provide grapes for our nation to spend thousands of hours responding to an inane case. We request Mr. Lavery be ordered to pay defense attorneys fees as a sanction for a gross abuse of process. He improperly filed politically motivated pleadings that are not for legitimate consumer protection and diverted the Court’s and the defendants’ precious time and resources. His malicious purpose was an obvious ploy to support the disruptive boycott.”

Judge Dowds looked at the crowd of attorneys before him and the three-foot stack of legal briefs that covered his desk. He paused, and examined the courtroom full of UFW supporters with their Aztec insignias, and calmly said, “I overrule the demurrers and the motions to strike as to each cause of action and deny the requests for sanctions. Clerk, set the case for trial and notify counsel.”

The crowd shouted respectfully, “Si se puede!” They gathered outside the courtroom to celebrate another victory. As I left the presence of the judge and the UFW, I met Jerry who was present at the hearing and said, “You were hitting on all eight cylinders.”

(Click to expand photo:Dan, Jerry, member of the Press, and Sandy Nathan at the ACLU at a press conference on the legal battle 1974)

Five years ago watching Jerry argue a case in court made me think I could never publicly debate any civil rights issues against lawyers before a judge. After leaving the Navy, I had radically changed my life’s course. Feelings of gratitude and humility emerged for the cause I served. The conflicts I had encountered along my chosen path were negligible compared to the experience they forged into me. Challenging some of the most powerful forces in society with less than a year of litigation experience, I had become an activist for one of the most respected causes in America. Battling for civil rights at the ACLU for the UFW had transformed me from a shy person, afraid to assert himself, into a capable attorney with purpose and tenacity. Having tapped into a source of power of La Causa, and a previously unknown force within myself, had made a difference, rather than the pawn I had been in the military going nowhere fast.

(ACLU hires Dan as the Director of the Farmworker Project; click to expand to read print) a href="http://domainsigma.com/whois/danielclavery.com">Danielclavery.com Trust

Related Images:

McGrath State Beach and Wildlife at the Lake on Mother’s Day

(Click on the top photo to expand the view of mother and daughter on colorful dunes with  McGrath Lake behind)

A surprise of rose petals spelling “Happy Mother’s Day”and more around her mother’s place mat on black-speckled granite island prepared by her daughter, and an avocado/onion/zucchini/cheese-omelette, initiated an astonishing day. Planning a hike to highly-rated McGrath State Beach to bathe naked feet into wet sand and proceed to McGrath Lake where more than 200 bird species lived, many endangered, planted visions of a day in nature to savor. With a picnic lunch of fresh salad greens, left-over baked chicken with much more packed in a cooler bag in the trunk, and three bottles of water, we departed.

In thirty minutes we arrived at McGrath State Beach in a low hanging fog that reduced the temperature to 68 where a “Tuna” sign sent signals for what might be our evening meal. Parking at the closest street to the beach in Oxnard Shores, famous for high tide heavy surf clobbering, three eager hikers, with water and a few back packs, set off where blue ocean, barely visible, met wet sand sloshing a magnetic attraction.

Soon our feet carried us leaving deep marks in the sand past a few fishermen whose baited lines were beyond mellow waves searching for a meal to take home. Strutting further on the endless shoreline we observed dead sea gulls, other water fowl, and a seal carcass. Brown pelicans flying north in lines of five or more joined many more sea gulls on a similar path towards McGrath Lake and beyond. A congregation of more than fifty white-breasted sea gulls with yellow beaks, scurried away and flew off one-by-one, as we approached.

An officer from the California Department of Parks and Recreation drove by in his black uniform and stopped near a fisherman trying to haul in a fish tugging on his line out beyond the first waves. Thinking he was going to make the man show a fishing license, I walked toward them. His silver badge above a patch identified him as officer Pace, a lifeguard. “What do they catch here?” I asked.

“Perch, corbina, and bass,” he said.

“How far is McGrath Lake?”

"My wife and daughter joined me as he responded, “It’s a good hike. Are you here for bird-watching?”

“Yes.”

“Why are there so many dead birds and a seal lion here?” my daughter asked.

“They are Channel Island debris in nature’s ever-changing process of death, birth, and survival. Scavengers depend on it.”

(Snowy Plover)

“To get to McGrath Lake, go north until you see a power station. There is an entrance that will lead you past dunes where you can view hundreds of species. Just north here is fenced to protect nesting areas for two endangered birds: the least terns and the snowy plover.”

“Thanks officer. You have an awesome job patrolling such a natural wonderland,” I said.

“I’m not complaining.”

North with great anticipation we departed. Two least terns skittered around in front of us outside their protective fencing. White and gray, they moved quickly with bursts of energy. They were no larger than mice. Bubbles from little holes in the sand after ocean water receded indicated sand crabs were underneath. Their tiny shells littered the beach as evidence they were bird meal or used for bait by fishermen.

(Brown pelican and least terns)

Further ahead an estuary, about thirty feet wide, rushed from the east beneath the sand dunes and a natural bridge to the ocean just north of Mandalay Generating Station. Walking south of the swift moving “river’ with some foam in it, sea gulls flitted around looking for food floating. After we passed the power plant we walked back to the ocean on the other side and hiked a half mile north.

The noise of a truck startled us until we noticed Officer Pace who said, “Guess I didn’t make it clear where the Lake is. Jump in and I’ll take you there.” To make room he pulled a large black bag including a billy stick out of the right side of the rear seat and threw it into the back of the truck. I squeezed in fenced off from the driver seat with a security screen, while my wife and daughter doubled up in front. “If you knew where the Lake was you could have walked over those dunes past the protected areas,” he said pointing at a series of multi-shaped dunes covered with colorful wild plants and flowers, “but I would never drive this truck over them.”

  

(click on photo to the right to expand the view and see McGrath Lake in the semi-fog)

Driving back south and turning at an opening we had overlooked, he took us to the power plant where a sand road made by his tires carved a path to the dunes leading to McGrath Lake. He stopped at a vantage point where the entire vista of the Lake spread before us in a spectacle that was mesmerizing. He left us waving goodbye having rescued us from wandering from our goal that lay before us. Moving to the highest dune with a smooth surface, we sat motionless and gazed into a divine wilderness. Each perched above the green and yellow marshes on sand that contained a wide array of colorful wild flowers and plants that flourished in sand! Yellow primrose, white, purple, red, and even orange trumpet-shaped small wildflowers all attached somehow to green or brown foliage and vegetation in a vast amount of color where one expected nothing but sand.

(yellow primrose)

Egrets, brown pelicans, blue herons, sea gulls, glided down to the Lake surrounded by marshes. Croaking of frogs, quacking of ducks added to the diving pelicans and other water fowl who performed gradual rather than the steep ocean plunges they are famous for, because McGrath Lake is shallow in many places.  A never ending landing zone, like at a busy airport, lay before us as birds of prey with the wind behind them entered a glide path that allowed them to coast over the lake looking for a flash of silver. After a bird's first splash they often have a meal.  Many pelicans glided in one after the other, aiming for food on the surface at a low angle of approach, more like a football player tackling another as they hit the water. They spin around with a shallow splash turn that throws water fifteen or more feet.

 

(two dancing egrets)

A white and blue heron stood peacefully resting on one leg, while dark egrets concentrated in one area that looked like water trees until a head, beak, or long neck moved, or one flew away revealing their camouflage. However, surrounding the marshes was a large area of yellowish green algae that hinted not all was as one would like. An oil spill from a ruptured pipeline in1993 was discovered not far away, but after a clean-up the land is adjusting. Only a strong willed populace prevented the area from being scrubbed as a wildlife habitat.

   McGrath State Beach and Wildlife at the Lake on Mother’s Day  

(McGrath Lake salt grass and pickleweed)               (Photo that expands if you click on it of algae in marsh at McGrath Lake)

Black shouldered kites, northern harriers, ospreys, black skimmers, and peregrine falcon shared the sky and Lake. Weasels, skunks, jackrabbits, opossum, squirrels, tortoises, and gopher snakes call this home. As each water fowl approached the Lake from various locations they added to the wildlife panorama unfolding every moment. We were spellbound by the repetitious and unique flight patterns of thousands of birds near the lush lakeside mass of vegetation including willow, silverweed, saltgrass, pickleweed, and yerba mansa.

(Brown Pelican after fog cleared at McGrath State Beach)

Our hike back seemed extremely short. The fog had lifted. A lonely tall blue heron stood in the effluence of the estuary “river" facing the Pacific Ocean only ten feet away making us wonder what thoughts ran through his mind at such a pivotal spot: probably thinking he had the best place to find any food before it went out to sea. My wife and daughter took off their shoes and walked in the cool sand near the water’s edge with water and sand in, and about, their toes. Soon we were near crowds that gathered with umbrellas and blankets, looking for picnic spots or were moving up and down the beach. In thirty minutes we were back at our car.

We drove to a place Officer Pace suggested, called Surfer’s Cove. There were restrooms and a concession nearby with a grassy field and picnic tables near a boat harbor where thousands of pleasure craft sparkled in the sun. Boats entered and left, pets romped with children, and we enjoyed our lunch discussing the beauty we had just observed, so foreign to our cities. We drove to buy some tuna but by the time we arrived the choice filets were gone. Near home at Sprouts we selected a pound and a half of corbina sea bass, took it home, added butter, lemon juice, caramelized onions, broccoli, zucchini, orange pepper, olive tampanade, wrapped them in parchment paper, and cooked them for a mouth-watering feast of tender wild fish celebrating an unforgettable Mother’s Day.

 

(Sunset at the Santa Clara River just north of McGrath Lake) a href="http://domainsigma.com/whois/danielclavery.com">Danielclavery.com Trust

Related Images:

An Ethereal Eurhythmy Performance by Children and their Mentor

At a Waldorf Children’s school near Lake Balboa

Elementary School Children moved on a matted floor

Performing eurhythmy to vivacious piano music.

Led by their lithe teacher, Brette Elizabeth, arrayed

In red gown with white silk veil gossamer fabric

That flowed when arms spread the flimsy delicate

Garment revealing hands and flat fingers spread

Above red shoes, lavender walls, and orange curtains.

Piano with pink,red, and white flowers and green leaves

Filled auditorium with rhythms as the excited children

Moved their limbs, with hearts glowing at the onset.

Maestro informed audience what seems difficult is simple

For youthful flaming human beings moving together.

Third and fourth graders with arms crossed on shoulders

Circled each other as wild horses in twos, clapping hands,

And charging across floor with their partner changing places.

Proud galloping stallions and energetic circling mares

Smiling faces uplifted hearts enjoyed every race’s moment.

Splendid and free fifth graders spread their arms filled with wind

Under the stability of Mother Earth each with a gold baton.

Tossing their wands to a partner with one hand and catching

With the other, they formed outside those in center of the square.

Longfellow’s words and the harmonic music of Bela Bartok

Greeted four Junior High eurythmysts advancing together,

Running and falling without regret, like a leaf on an illumined

Forest path, or smooth ocean waves rolling to shore

Rhythmically and then receding out to sea once more.

To a Johannes Brahms Intermezzo, mentor Brette Elizabeth

With hands extended gracefully glided, her wispy veil trailing,

Arms pulling in and reaching, filling the space with movement.

Joined by Joshua in yellow robes and shoes,

They adjusted to each others' hands extended effortlessly relocating

In and about, arms pulling in, and then reaching out.

Fingers extended to the sky and arms like wings they

Emulated flying hawks soaring in the blue sky above.

Smiling, confident, enjoying the moment in the pianist’s

Rhythms wafting across the room, they dazzled the audience

With coordinated colorful fluid change of position in perfect unison.

Andrew and Madame Eva read Shel Silverstein’s poem

“The Meehoo with an Exactlywatt” Brette and Joshua performed

Like a pantomime. What?Yes! Hilarity for all who gave

A thunderous praise for an ecstatic eurhythmy exhibition.

 

Related Images:

“Jane Fonda in the Court of Public Opinion”

 

This moving two hour play was a re-creation of a 1988 confrontation between Jane Fonda and a group of Vietnam Vets in an Episcopal church in Connecticut who opposed her plan to shoot a movie with Robert Dinero in their city. The play used video of various historical events from newscasts (Ho Chi Minh's victory in Dien Bien Phu in 1954 over the French occupiers of South Vietnam, the Diem regime, My Lai, Kent State, Gulf of Tonkin, Hue rebellion, Lyndon Johnson and Richard Nixon on why we were in Vietnam and how we were going to bomb them into submission, Jane in Hanoi, and film of many of these events).

 

The vets lambasted her for their understanding of what she had done. She informed them she was there to verify whether the US planes had bombed the dikes that historians and experts said would kill over 200,000 Vietnamese civilians and destroy their rice, a staple for their culture used three times a day, and refuted the lies about her: 1)Exposing the prisoners to torture that had ended before she arrived in 1972 by all accounts) 2) Taking notes from prisoners and returning them to the prison guards to harm the prisoners: “Once a lie starts and you keep saying it, people will believe it.” 3)She never aimed an anti-aircraft gun at the sky to show her support for the enemy although sang a song in Vietnamese that shows they adopted a part of our Declaration of Independence and wanted many of the things we did when we rid the British of their domination over our early country trying to develop our independence.

  “Jane Fonda in the Court of Public Opinion”

The Vietnamese used a photo-op to fool her into sitting on a chair of an AA gun she realized later looked bad and offended many while our military was in an undeclared war against the Viet-Cong and Ho Chi Minh's North Vietnamese Army.  She asked them to forgive her for her lack of sensitivity on how it would look to men fighting in such a conflict, but then explained her concern for the lives of everyone in the conflict, not just Americans. She insisted the gun was not loaded, never had her hand on any trigger, and never aimed it anywhere as it was stationary and unarmed. Nevertheless, she regretted having allowed herself to be used by the North Vietnamese and asked to be forgiven for her naivety.

One of the vets admitted to having killed innocent civilians and had believed the lies about Jane, but now, after hearing her explanation, realized her intent was to stop the killing. He forgave her saying, “Let's move on.”

Two would never forgive her and claimed she was a traitor: “We are always supposed to follow our president's orders without question—that’s what patriots do.”

 

The minister ended the play by pointing to the cross on the wall of the church and saying, “Jesus said something applicable, ‘Forgive them Father, for they know not what they do.’”

The actors came out to a standing ovation. I was moved to tears over an old memory revived by the graphic scenes and heart-wrenching dialogue and production. Peace. Let it be. Dan

Related Images:

Early Shades of Conscience and a Conversation/Confrontation with Dad

 

(Dan when a Freshman at Duke with Chip at the Naval Academy; click to expand)

Each NROTC midshipman had to swear allegiance to the United States Constitution and to follow the orders of superior military officers to protect our country against all enemies, foreign, and domestic. He must agree willingly, and not under any force or coercion.

The coercion from my Dad’s pressure about the decision made matters worse. Time was closing in on me. In twenty-four hours, I had to pursue an eight-year contract, or drop out. Recalling the professor on the train to Florida who said the National Guard could shoot civilians at civil rights demonstrations when they refused to follow police orders,  made me feel a dread the Navy would soon own me. These thoughts crashed into my mind and left me in a sweat in bed that evening.

The next morning my meeting with the counselor occurred. “Follow your conscience,” he said after interviewing me at length. “Only you can make your own life’s choices. No one should feel they must do what their father wants. Consider what your father and family will think and all the alternatives.”Then he looked me squarely in the eye like my grandmother would when anyone she loved faced a serious life decision. “Many parents believe they owe their sons and daughters a good education without coercion about choice of study, but not all can afford Duke, so it makes an NROTC scholarship desirable,” he offered placing the ball in my court.

Staring out into space as if my mind had encountered an impenetrable fog, I realized he understood my dilemma. Mortified and unnerved, “Thanks. You’ve helped me,” I said.

Considering my options on my knees, I discussed them with Steve, and decided to change my life’s course. The pre-ministerial program offered me the best option and that left open the possibility of baseball if I excelled at Duke.

 

(Duke Chapel at West Campus)

An hour before the swearing in ceremony I arrived at the NROTC office. “I can’t attend the ‘swearing in ceremony’ due to religious beliefs, will enter the pre-ministerial program, and drop my NROTC scholarship,” I said to the officer in charge.

“Are you sure?” he asked with a quizzical look.

“Absolutely.”

His expression became stern, “You must speak with your father before the ceremony and report the outcome to me.”

During the next thirty minutes I wrote a script of what I should say to Dad, knowing he would try to change my mind and criticize me. Shaking from nerves, I called the Commanding Officer of Military Sea Transportation Service in Washington, D.C.“Captain Lavery will answer from his office,” an office worker said.

(Captain Richard J. Lavery, Jr. USN)

(Click to expand)

“Hello, Dan.”

“Dad, I’ve decided to drop my NROTC scholarship…

“You did what?” blasted my ears from Dad’s shrill interruption.

…and enroll in the pre-ministerial program at Duke.”

Outraged, he tried to interrupt, but I continued my first sentence.

“Why have you done this immature thing?”

Taking a deep breath and trying to sound calm and rational, but with my hands and legs shaking, and my voice wavering with emotion, “I prayed about this decision, Dad.”

“You’re throwing away a future as a naval officer.”

“An adviser warned me of the consequences.”

“Have you lost your mind?”

“He felt sure you wouldn’t support my decision.”

“This is unacceptable.”

I took a breath, “He emphasized I should follow my conscience.”

“You’re about to make the worst decision of your young life,” Dad said in a gasp.

“He warned me I would face criticism for waiting so long.”

“Damn it Danny, you’ll live to regret this.”

“He said I should do what I want to do in my life; not what anybody else wants.”

“The hell with him. You mustn’t do this.”

“I’m sorry I led you to believe a naval career was what I wanted for my future.”

“Do you understand me?"

“I know you and Chip chose the Navy.”

“You can’t do this.”

“The Duke Football team pays for my meals.”

“You’ll be throwing away an extremely valuable scholarship.”

“I’ll only need to pay for my books and room.”

“You’ll cost me money I don’t have.”

“Please accept I’ve made up my mind.”

“I can’t afford Duke.”

“Duke will pay my tuition.”

“You must reconsider now before it’s too late.”

“I have to make my own choice.”

“You’ll cost me much more than you think.”

“I have decided.”

“You’re acting selfish.”

“The officer in charge stated I had to speak to you...

“You’ll regret this for the rest of your life.”

…before I inform him of my final decision.”

“Take out a piece of paper.”

“I’m sorry you don’t agree with me …”

“Write the cost to me of everything caused by you dropping the scholarship.”

“…but, I’ve made the decision.”

“No, I won’t accept this.”

“I’m going to inform him I’ve spoken to you…”

“You’ve made a very foolish decision.”

“…and you’re not happy with it…”

“You’ll regret this.”

“…But I’ve decided what I must do.”

“How could you throw away this scholarship?”

“I must leave now as the ceremony begins shortly.”

“Danny, Don’t…”

“Goodbye, Dad, I have to go.”

Turning and walking to the officer in charge, I said shaking from my father’s attack, “I have told my father of my decision to drop the NROTC scholarship.” His angry expression told me to leave his office.

“Very well Mr. Lavery, I’m sure a happy replacement will fill your spot. Stay here for awhile. You must sign papers to make your decision official.”

My body trembled as I signed the documents. Running to my dorm to release the stress, I informed Steve of the conversation. He tried to help calm me down, but waiting until the last minute made the situation as bad as possible. Unequipped to buck Dad’s plans for me until an intelligent counselor focused my mind to face the consequences, I felt confident the NROTC was not right for me and needed to explore my options without Dad’s coercion. Abandoned by my father when I had finally asserted myself to follow my conscience against his plan for me, I was still unsure of my future. To the officer in charge and my father, I had disrupted the routine of the conveyer belt that moved military men into endless mechanical motions before they had a chance to grasp their freedom. Now my future would depend on my decisions as I had dodged an eight year train to the military life.

Dad wrote a series of nasty letters to me from that day for the next two months. The first three demanded details for every dime he had to pay from my decision. He referred to me as immature, unable to make decisions, unstable, and a failure. The barrage came at a time I needed to take charge of my future, prepare for an adventure in advanced academics, seek intellectual stimulation, and embrace personal discovery. Instead, he bombarded me with critical letters and phone calls repeating the drumbeat of my failings. After grueling football practices, I was depressed instead of enthusiastic.

(Click twice to read: Post card to Grampa after Duke Finals,Note in the Duke Paper about varsity baseball prospects, and Dan at Athens the next month as Merchant Marine)

Related Images: