# Petition for Writ of Certiorari — Schmitt v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1110%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 396 U.S. 959 ## Text LF Fe iE: COURT. LI. £ . ; phe . Choe ; SEP 12 1969 : | | ~WHN.F. DAVIS, CLERK - Soupreiie Court of the Gnited States no 8 4 October Term, °1969 - MICHAEL ALLEN SCH MITT, Petitioner, vs UNITED STATES OF AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE | _U. S. COURT OF APPEALS, FIFTH CIRCUIT EDWARD R. KIRKLAND 22 W. Lake Beauty Dr., Suite 104 Orlando, Florida Attorney for Petitioner | INDEX * Poge } ; Page OPINION BELOW eres is 1 GROUNDS FOR JURISDICTION. a / QUESTIONS PRESENTED |... aan CONSTITUTIONAL. PROVISIONS AND STATUTES RM he he ee tae 2. STATEMENT OF THE CASE ... panes are nee 3 ARGUMENT. i ites Minnie ne eet CONCLUSION. Pei kh eget Se CERTIFICATE or SERVICE: — 8 TABLE OF CASES - Cummings v Missouri (1867 dy 4 Wall (US) 277 18 L ad I css ates iansanberete 5 Garner -v Board of Public Works of Los Angeles, 341 US 716, oe Lo 1017. beni site ecntrnlasoce 6 ss — ; . s ey “S - Supreine Court of, the ° | Gnited States S . No. MICHAEL ALLEN SCHMITT, -Petitioner, ' vs. UNITED STATES OF AMERICA, Respondent. . fl ——— ° ae PETITION FOR WRIT OF CERTIORARI TO THE U. S. COURT OF APPEALS, FIFTH CIRCUIT tS Petitioner submits herewith his jurisdictional state- - ment as required by Rule 23 of the Rules of the Suprenie . Court of the United States. ° OPINION .BELOW The opinion. below was decided by the United States Court of Appeals for the Fifth Circuit, Schmitt v. United States, case No. 25882, on Ju une 11, 1969, attached hereto as Appendix. . ee GROUNDS FOR JURISDICTION Petition for Writ of Certiorari to the Supreme Court i of the United on is er ay peal to 28 USC 1254(1).. e | United States Court of Appeals for the Fifth Circuit ‘rendered its opinion on June 11, 1969. Petition for Re- hearing was denied in Order of the:same court on July 14, 1969. Extension of time was granted to Petitioner to file his petition for Writ of Certiorari to September 10, 1969, by Order of this Court on August 24, 1969. QUESTIONS PRESENTED Whether the induction of the petitioner into the Armed Services of the United States pursuant to 50 USCA App. § 456 (c) (2) (d). (1968) contravenes the Constitutional prohibition pursuant to the Constitution of the United _— Article 1, § 9, cl 3. CONSTITUTIONAL PROVISIONS AND STATUTES : INVOLVED Constitution of the United: States, Article. 1, atin | 9, clause : “No bill of attainder or ex post facto law shall “be passed.” ‘ ‘Amendment V 7 “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a ‘presentment or. indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual serv- ices in time of war or-public danger ; nor shall any person be subject for the same offence to be twice put in jeop- ardy of life or limb; nor shall be compelled in any crimi- nal case to be a ‘witness against himself; nor be deprived of life, liberty, or property, without due process of law; ’ nor shall private property be taken for acnad use, with- out just compensation.” | ‘ ny & 5 a 3 “50 1 .S.C.A. App. § 456(c)’ (2) (D)' (1968) “Notwithstanding any other provision of this Act, _ the President, under such rules and regulations as he | ’ may prescribe, may provide that any person. enlisted or’ appointed after October 4, 1961, in the Ready Reserve of any penal in the Army National Guard or the Air National Guard or enlisted in the Ready Reserve of any reserve compo- nent prior to attaining the age of eighteen years and six months and deferred under the prior provisions of this paragraph as amended by the Act: of October 4, 1961, Public Law 87-378 (75 Stat. 807), or under section 262. -.of thé Armed Forces Reserve Act of 1952, as amended . - (former section: 1013 of Title 50), who fails to serve sat- isfactorily, during his obligated “period of ‘service as a | member of such Ready Reserve or National Guard or the Ready Reserve of another reserve component or. the Na-. tional Guard of which he becomes a member, may be selected for training and service and inducted into the . armed force of which such reserve component is a part, prior to the ‘selection and induction of other ‘Persons lia- ble therefor. 13 STATEMENT OF THE ‘CASE © Petitioner adopts the Statement of facts of the eaaaia Sd below as follows: On October 23, 1963; gopeliant Schmitt enlisted in the Army National Guard Unit at Cocoa, Florida. He served six months of active duty, attended summer camp for two years, and attended drills for a period of approxi- mately three and one-half years. ponent of the Armed Fofces (other than - under section 511[b] of Title 10), the Army National Guard, or the Air National Guard, prior to attaining age. . ’ of twenty-six years, or any person enlisted or appointed — 79 4 During May of 1965, Schmitt acquired four unexcused absences from meetings of the National Guard. The ab- sences were all attributable to Schmitt’s failure to attend one weekend drill which consisted of four separate drill sessions. Schmitt was recommended for a court’ martial, but after further inquiry the charges were dropped and the absences forgiven in the hope that Schmitt would re- form and continue his soldiering in a more assiduous - manner. In February of 1966 Schmitt missed a weekend trip to Camp Blanding, Florida, and was again carried on the Guard's rolls as having missed four drills. As a result Schmitt was once again recommended for_a court mar- tial’ Since both-the February absence and the May ab- sence of the previous year were, allegedly, the result of a conflict between weekend drills and defendant’s job de- _ livering newspapers, Schmitt now bestirred himself and on March 4, 1966 requested a discharge or transfer due to an incompatible occupation, 32 U.S.C.A. App. § 1101.- 18. This application was denied by the National Guard after consideration at various levels. , Schmitt then acquired unexcused absences on April 2 and 3, 1966, and on May 14 and 15, 1966. He apparently had permission to make. up these absences, but neglected to-do so within the required thirty days. There is some uncertainty in the record on this point as’ defendant claims he was sometimes not credited with make-up work properly performed within the required period. Following these absences” Schmitt was certified by the Natidnal Gaurd as having” performed unsatisfactorily. This certification was sent to Schmitt’s local draft board on DD Form 44 and the'board thereafter ordered him to report for priority induction pursuant to 32 C.F.R. § 1631.8: This regulation, authorized by 50 U.S.C.A. App. § 456(c) (2) (D), instructs local draft-boards that mem- bers of a reserve unit whose performance has been cer- 5 tified as unsatisfactory “shall be ordered to report for in- duction by the local board regardless of the class in which he is classified and without changing his classification.” Acting in accordance with this directive, Local Board: 35 ordered Schmitt to report for priority induction on June 13, 1966. of the 23rd of November, 1966, an indictment was returned by the Grand Jury at Jacksonville charging the Appellant “did fail and neglect to comply with an order of his local board to submit to induction into the Armed Forces of the United States.” The case was transferred to Orlando, Florida where Motion to Dismiss was filed and denied and thereafter was tried on January 4th and 5th, 1968, and Appellant was found guilty. Judgment was entered on the 27th day of February, 1968, and Appeal to the U. S. Court of Appeals, Fifth Circuit filed March 1, 1968. ARGUMENT @ Petitioner submits that his induction into the Armed Services pursuant to 50 U.S.C.A. App. §456 (c) (2) (D) (1968) is nothing more than punisifment by virtue of a bill of attainder or bill of pains and penalities, inasmuch as this legislation punishes a class of individuals without judicial trial. Therefore without a judicial trial, the peti-. tioner has been deprived of his liberty without due pro- cess of law. The acceleration of Schmitt and others pur- suant to this statute into the Armed Forces depends, as the facts of this case demonstrate, upon a certification by the National Guard to the local draft board to report _ for priority induction. As far back as the case of Cummings v. Missouri (1867) 4 Wall (US) 277, 18 L ed 356, this Court defined a bill of attainder which includes bills of pains and ead alities as follows: y 6 “But in the sense of the Constitution it seems that bills of attainder include bills of pains and penalities, for the Supreme Court has said a bill of attainder may affect life of an individual or may confiscate his property, or both. In such cases the legislature as- sumed judicial magistry, pronouncing on the guilt of the party without any of the forms and guards of . a trial, and satisfying itself with-proofs, when such proofs are within its reach, whethek they are con- formable to the rules of evidence or not. In short, in all such cases, the legislature exercises the highest powers of sovereignty and what may very properly be deemed an irresponsible, despotic, discretion,. be- ing governed solely by what it deems political nec- essity or expediency.” In the case of Garner v. Board of Public Works of Los Angeles, 341 US 716, 95 L ed 1317, this Court further defined an attainder as follows: ; Bills of attainder are legislative acts . . . that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict pun- ishment on them without a judicial trial . ... United. States v Lovett 328 US 303, 315, 90 L ed 1252, 1259, 66 S. Ct 1073 (1946) . . Whether legislative actions curtailing a privilege previously enjoyed amounts to punishment depends upon ‘the circum- stances attending and the causes of the deprivation’ . (Annition, 90 Led 1267, 4 L ed2d 2157) Upon ‘the circumstances of this case there are no safeguards against capricious or arbitrary determina- tions since the adjudication of what is “satisfactory” is not submitted to a judicial tribunal. In this day and age in the time of war on foreign soil it is little solace | to the petitioner and others like him to remain in the -reserve component of gthe National Guard if he can 7 s 7 . | easily be swept to the front lines by a mere certification of the reserve component to local draft. board. Common sense would dictate in the circumstance presented by this case that acceleration into the armed services is a punishment when a privilege is denied on the grounds of deterrhinations of such a vague word as “satisfactory.” At this point we cease ‘to be governed by laws and are governed by men. With this type of action condoned a man is completely at the mercy of his superior officer and has no forum in which to be heard! The court-martial ‘which: sould have been held was left in. limbo because they khew they were wrong. There is no appeal from the certificate of priority induction. There is no appeal of classification. There is no Court action that can be brought _ the Appellant. Such an Hitlerian concept of military justice is completely abhorent to the American concept of — » CONCLUSION For the .aforesaid. reasons, Petitioner respectfully requests this ‘Court to grant the Petition for Writ of _Certiorari. YA Respectfully submitted, Edward R. Kirkland 8 I HEREBY CERTIFY that three copies of this Peti- tion have been served upon the Solicitor General, Depart- ment of Justice, Washington, D.C. 20530, this day of September, 1969. Edward R. Kirkland 22 W. Lake Beauty Dr.,~Suite 104 Orlando, Florida - Attorney for Petitioner ra ‘*. v. APPENDIX . ADEA INE OER lS + ‘ Gite uemmrmeesnens MICHAEL ALLEN — Appellant, versus | ne UNITED STATES OF AMERICA, , Appellee. Appeal from the United States District Court for the Middle District of Florida (June 11, 1969 Before WISDOM, THORNBERRY and. GOLDBERG, Circuit Judges. ! GOLDBERG, Circuit J udge: This is another selective service case. Michael Allen Schmitt seeks deliverance - from his conviction for willful failure to submit to in- duction into the Armed Forces of the United States. 50°U.S.C.A. App. § 462. On detober 23, 1963, appellant Schmitt enlisted in the Army National Guard Unit at Cocoa, Florida. He serv- ..:., MICHAEL ALLEN SCHMITT v. U.S.A. — ed six, months of active duty, attended summer camp for two years, and attended drills for a period of ap- ' proximately three and one-half years. pea » During May of 1965, Schmitt acquired four unex- cused absences from meetings of the National Guard. ° The absences were all attributable to Schmitt’s failure to attend one weekend drill which consisted of four separate drill sessions. Schmitt was recommended for ~a court martial, but after further inquiry the charges ‘ were dropped and the absences. ae the hope that Schmitt would reform and continue hi in a more assiduous manner. soldiering ™ In February of 1966 Schmitt missed a weekend trip to Camp Blanding, Florida, and was again carried on the Guard’s rolls as having missed four drills. As a re- sult Schmitt was once again recommended for a court martial. Since both the February absence and the May absence of the previous year were, allegedly, the result’ . of a conflict between weekend drills and defendant’s job delivering newspapers, Schmitt now bestirred him- self and on March 4, 1966 requested a discharge or transfer due to an incompatible occupation. 32 U.S.C.A. ‘App. § 1101.18. This application was denied by -the National Guard after consideration at various levels. Schmitt then acquired unexcused absences on April 2 and 3, 1966, and on May 14 and 15, 1966. He ap- parently had permission to make up these absences, but neglected to do so within the required thirty days. There is some uncertainty in the record on this point “as defendant claims he was sometimes not creditéd / —— — , MICHAEL ALLEN SCHMITT v. U.S.A. 3 with make-up work properly performed within the re- quired period. : -Following these absences Schmitt was certified by ‘the National Guard as having performed unsatisfactori- ly. This. certification was sent to Schmitt’s local draft board-on DD Form 44 and the board thereafter ordered him to report for priority induction pursuant to 32 C.F.R. § 1631.8. This regulation, authorized by 50 U.S.C.A. App. § 456 (c) (2) (D), instructs local draft boards that members of a reserve unit whose per- formance has been. certified as unsatisfactory “shall be ordered to report for induction by the local, board - regardless of the class in which he is classified and without changing his classification.” Acting in ac- cordance with this directive, Local Board 35.ordered ~ Schmitt to report for priority induction on June 13, 1966. | Schmitt states that the certification of unsatisfactory performance which generated his induction order was caused by the fact that he stood up for his rights in | the preliminary stages of court martial proceedings - then pending against him. He had.at the tithe retained a lawyer to defend him in those proceedings. He al- leges that shortly after his lawyer obtained affidavits from two of his superiors at the newspaper substan- tiating his claim of a conflict between his job and the National Guard meetings, the certification of unsatis- factory performance was mailed to his draft board. Schmitt thereby. implies some kind of ulterior motive on the part of the National Guard in certifying his performance as unsatisfactory. 4 MICHAEL ALLEN SCHMITT v. USA. On June 13, 1966, Schmitt reported to the induction station as ordered and proceeded through the normal procedures, passing all tests. In the ceremony room, however, he refused to take the step forward which symbolized entrance into the Armed Services. He ased his refusal on the grounds that his induction as improper and that he was awaiting word from his attorney who was seeking a ‘writ of habeas corpus. The. officer in charge of the swearing: in advised Schmitt of the consequences: of po Seve and again asked him if he would submit to induction. He refused. At this point, Schmitt was turned over to the Com- _ manding Officer of the induction station. The Officer read Schmitt the regulations which explained the con-. sequences of his refusal to submit to.induction, and offered him another opportunity to accept. Schmitt a- gain refused, explaining to the Officer that his attorney acksonville was attempting. to procure a writ of. habeas corpus. The Commanding Officer, after consul- . tation with his’ superiors, then gave Schmitt approxi- mately’ two.hours in which to contact his attorney. -When no developments occurred during that time,’ Schmitt was given yet one more opportunity to submit to induction, and after his refusal he was sent home. On this appeal Schmitt argues that even if his con- duct as a guardsman was militarily lackadaisical, he was still a member of the Armed Forces on his inde :- tion date and therefore not assimilable through the Selective Service System. He tries to propound this riddle: how can .one who is-already in the Armed Forces be subject to the draft and be tried for refusal a - MICHAEL ALLEN SCHMITT v. U.S.A. ) of induction? Schmitt suggests that the only proper way to induct a recalcitrant guardsman is first to dis- charge him from the National Guard and then to induct him from his Civilian status. Schmitt misconceives the status and obligations of a guardsman under the Universal Military Training and ‘ Service Act.' The Act stipulates in part that “Except as otherwise provided in this title ... every male citizen _of the United Siates ... who is between the ages of 18 years and 6 months and 26 years : . . shall: be: liable for training and service in the Armed Forces of the United States.” [Emphasis added.] 50 U.S.C.A. App. § 454. The term “Armed Forces” is defined in 50 U.S.C.A. App. § 466(c) of the Act to incluge “the Army, the Navy, the Marine Corps, the Air Force, and the Coast Guard.” The Army National Guard_is not included in the term “Armed Forces” as used i in the Act; 2 ‘consequently up until 1963 persons who enlisted in the National Guard between the ages of 18-1 /2 and. 26 were not immune from induction under the Univer- sal Military Training and Service Act. See 1963 U. S. - 1In 1967, Congress amended the Universal Military Training and Service Act. The Act is now_known as the “Military Selective Service Act of 1967.” 50 U.S.C.A- App. § 451(a). Schmitt, how- ever, refused induction prior to the 1967 amendment and was .- therefore tried ‘and- convicted under the old Universal Military Training and. Sefvice Act. 2The “National Guard” as used in the Act is included within the larger Gefinitional category “reserve components of the armed . forces’ defined in 50 U.S.C.A. App. § 466(i). The meaning of the term “National Guard” is more extensively defined at. 10 U.S.C.A. § 101(9) and § 101(10) and is-also distinguished there from the definition of the term “Armed Forces.” 50 — U.S.C.A. App. § 1014). 6 MICHAEL ALLEN SCHMITT v. U.S.A. Code Cong. and Adm. News, p. 845. In 1963, however, Congress enacted Public Law 88-110, 77 Stat. 134,® which amended 50 U.S.C.A. App. § 456 (c) (2) to per- mit the deferment* of a member of the National Guard “so long as he performs satisfactorily ... .” 50 U.S.C.A. App. § 456 (c) (2), (A) (iii). In order to emphasize that the deferment remained in force only so long as the guardsmah, conscientiously fulfilled his obligations, Congress enacted a penalty provision which provided for the priority induction of any guardsman whose performance was certified by the National Guard as unsatisfactory. 50 U.S.C.A. App. § 456 (c) (2) (D)5 3See 1966 U. S. Code Cong: and Adm. News, p. 147-149. 4A member of the National Guard receives a 1-D deferment “so long as he continues to serve satisfactorily as such member... ’.’ 32 C.F.R. § 1622.13. 550 U.S.C.A. App. § 456(c)(2)(D) (1968): Notwithstanding any other provision of this Act, the President, under such rules and regulations as he may prescribe, may provide that any person enlisted or appointed after October 4, 1961, in the Ready Re- serve of any reserve component of the Armed Forces (other than under section’ 511(b) of Title 10), the Army National Guard, or the Air National. Guard, prior to attaining age of twenty-six years, or any person enlisted or appointed in the Army National . Guard or the Air- National Guard or enlisted in the Ready Reserve of any reserve component prior to attaining the age of eighteen years and six months and deferred under the prior provisions of this paragraph as amended by the Act of October 4, 1961, Public Law 87-378 (75 Stat. 807), or under sectidén 262 of the Armed Forces Reserve Act of 1952, as amended [former section 1013 of Title 50], who fails to serve satisfactorily during his obligated period of service as a member of such: Ready Reserve or National Guard or the Ready Reserve of another reserve com- ponent or the National Guard of which he becomes MICHAEL ALLEN SCHMITT v. USA. 7 ‘ale 32 C.F.R. § 1631.8. Neither the penalty provision \ a member, may be selected for training and service and inducted into the armed force of which such re- serve component is a part, prior to the selection and induction of other persons liable therefor. 632 C.F.R. § 1631.8 (1969): Registrants who shall be inducted without calls. (a) Notwithstanding any other provision of the © regulations in this chapter, any registrant enlisted or ' appointed after October 4, 1961, in the Ready Reserve of any reserve component ofthe Armed Forces (other than under section 511(b) of title 10, United States Code), the Army National Guard, or the Air National Guard, prior to attaining the age of 26 years, or any registrant enlisted or appointed in the Army National Guard or the Air National Guard prior to attaining the age of 18 years and 6 months and prior to September 3, 1963, and deferred under the provi- sions of section 6(c)(2)(A) of the Universal Military Training and Service Act, as amended, which were in effect prior to September 3, 1963, or any ‘registrant enlisted in the Ready Reserve of any reserve com- ponent of the Armed Forces prior to attaining the age of 18 years and 6 months and prior to August 1, 1963, and deferred under section 262 of the Armed Forces Reserve Act of 1952, as amended, who fails to serve satisfactorily during his obligated period of service as a member of such Ready Reserve or Na- tional Guard or the Ready Reserve of another reserve component or the National Guard of which he becomes a member as certified by the respective armed force, shall be ordered to report for induction by the local board regardless of the class in which he is classified and without changing his classification. Any regis- trant who is ordered té report for induction under this paragraph shall be forwarded for induction at the next time the local board is forwarding other registrants for induction or at any prior time when special arrange- ments have been made with the induction station, without any calls being made for the delivery of such registrants. Whenever the local board desires to deliver such a registrant specially, it shall request the State Director of Selective Service to make the special REPRO Ne 8 MICHAEL ALLEN SCHMITT v. USA. itself, nor its legislative history indicates that a guards- man muS&t be discharged before priority’ induction be invoked. See 1966, U. S. Cong. and Adm. News, pp. 147- 148 and 844-850. In fact, a regulation of the National Guard clearly dictates to the contrary. The regulation provides that a delinquent guardsman :nay not be dis- charged pending certification to his local draft board: “(1) Individuals inthe Army National Guard with a remaining service obligation under the Universal Military Training and Service Act, as emended who cannot participate with the unit for the\reasons shown below will not be discharged from the Army National Guard but will ‘be transferred to the Inactive National Guard for the remainder of their enlistment. (i) Continuous and wilful absence from military — ** * “(2) The removal of the above individuals from an active Army National Guard status arrangements for the “gene and place at which the registrant may be delivered for ‘induction.’ (b) At the induction station, each registrant on as is forwarded for induction under paragraph (a) of this section shall be inducted into the armed force of © which the reserve component in which the registrant is a member is a part. (c) Notwithstanding any other provision - of law, any registrant who has failed or refused to report for induction shall ‘continue to remain liable for induc- tion and when available shall be immediately in- ducted. Prd Se MICHAEL ALLEN SCHMITT v. U.S.A. 9 will be reported to the local board on DD Form 44 (Military Status of Individual).”” In addition to this regulation, a number of cases have indicated on their facts that a formal discharge from a reserve component is not a preconditjon to priority. induction. Cf./In Re McBee, S.D.Calif. 1968, 287 F.Supp. 926, 927; Mader v. Clifford, No. “48,612. (N.D. Calif. Jul. 26, 1968) 1 SSLR 3185. Other’ cases in this same area indicate by their silence on the dis- charge issue that formal severance from a reserve component is not-a prerequisite to the priority induc- tion procedure. Cf. United States v. Lonstein, 2 Cir. 1966, 370 F.2d 318, 319; United States v. Smith, D-Mont. 1967, 266 F.Supp. 309, 309-310. In fact, discharge could aceomplish no useful. purpose not also achieved by certification. The certification procedure advises the local. board that the guardsman’s services are no longer desired and no longer satisfactory. This procedure proclaims that he has breached the conditions of his deferment and is once more at the disposal of the Selective Service System. Such a procedure does not depend _ in any way upon an express pee from a reserve component. A guardsman or reservist is not a player of now you are in and now you are out, nor do the relevant statutes prescribe a game of occupational shuttlecock with military life at one terminus and civilian life at the other. All that Congress intended by 50 U.S.C.A. App. § 456 (c) (2) (D) was to foreclose 7This regulation may be found at 32 U.S.C.A. App. § 1101.18(d-3). AS, 10 MICHAEL ALLEN SCHMITT v. U.S.A. the use of the National Guard and other reserve pro- grams as escapist havens for ex parte soldiering. This Congressional purpose was accomplished by the simple expedient of granting conditional deferments to those in reserve components. Once such a deferment is lost, the guardsman or reservist in question, with or without a discharge, is once more a part of the Selective Service manpower pool. From that moment until the expiration of his statutory obligation under: the Act, he is once more vulnerable to induction. Schmitt presents no argument to suggest that this analysis is-in error. He merely contends that the Na- tional Guard should have discharged him contrary to its own regulations’ because he is already in the Armed Forces and therefore. not liable for induction. -This argument has already been demonstrated to be untenable. A guardsman enjoys no immunity under the Universal Military Training and Service Act apart from his deferment. Violation of the condition of his de- ferment places him in no better position than his civilian contemporaries.® ' Schmitt also contends that his case presents a juris- dictional conflict between military and civilian author- ities. He argues that because a court martial proceed- ing is still pending against him, the district court had no jurisdiction under 50 U.S.C.A. App. § 462 and 18 U.S.C.A. § 3231 to try him for refusing induction. 8In fact, violation of the conditions of his deferment places the delinquent guardsman in a worse position than his civilian contemporaries because of his liability to placement in a priority induction group. 32 C.F.R. § 1631.8. MICHAEL ALLEN SCHMITT v. U.S.A. 11 _ The government responds to this argument by point- ing out that refusal of induction is a civilian crime, and that offenses aginst laws of the United States are triable in United States District Courts even when they involve military personnel. Peek v. United States, 9 Cir. 1963, 321 F.2d 934, cert. denied, 376 U.S. 954, 84 S.Ct. 973, 11 L.Ed.2d 973; United States v. Canella, S.D. Cal. 1945, 63 F.Supp. 377, aff'd, Canella v. United States, 9 Cir. 1946, 157 F.2d 470. The fact that an offender may be answerable to a court martial for his Civilian offenses does not absolve him before civilian courts. Kennedy v. Sanford, 5 Cir. 1948, 166 F.2d 568. Schmitt cannot therefore prevail even if he has his argument both ways. If he is still subject to military: justice, he is nonetheless responsible for non-military crimes be- fore civilian courts. If,on the other hand, he is not subject to military justice, then he can find no refuge in any claim to the exclusivity of military law. There is furthermore no chance that Schmitt ‘will be tried twice for the same offense. The National Guard has no authority to try him for refusal of induction. See 50 U.S.C.A. App. § 462;° Billings v. Truesdale, 1944, 321 U.S. 542,-64 S.Ct. 737, 87 L.Ed. 917. The court martial pending against Schmitt is not for refusal of induction, but for unexcused absences from required military drills. There is consequeritly no direct conflict 9 “. . . No person shall be tried by court martial in any case arising under this title [said sections] unless such person has been actually inducted for the training and service prescribed under this title [said sections] or unless he is subject to trial by court martial under laws in force prior to the enactment of this title [June 24, 1948]... .° 50 U.S.C.A. App. § 462. . EE ae Pa thee ad § Z ——” 12 MICHAEL ALLEN SCHMITT v. U.S.A. 7 of jurisdiction between the military and civilian auth- orities with respect to the offense here under review. : > Schmitt also contends that the district court com- mitted reversible error in finding a basis in fact for the National Guard’s certification of his unsati§fac- tory performance. He claims that the only basis for the certification was the personal pique of his superior of- | ficers. They were angered, he contends, by his submis- sion of affidavits that were filed with the National Guard in anticipation of his pending court martial. The affidavits allégedly angered Schmitt’s superiors because they contradicted the testimony of a fellow officer. / The government argues that this court may not con- sider the possibility of personal bias or whimsy by the National Guard in our review of the lawfulness of ‘Schmitt’s induction order, though it is conceded that the induction order is based almost entirely upon the certification. 32 C.F.R. § 1631.8. The government re- lies upon United States v. Lonstein, supra, at 320, for the .proposition that certification is within the exclu- sive province of the National Guard and therefore not reviewable by the courts. We must disagree. The precise reasoning of Lonstein on the certifica- tion issue is not entirely clear, but it appears to be based largely upon the view that the role of. draft | boards in certification cases is purely “ministerial.” | Since reclassification of a guardsman is not required where his performance hfs been-certified as unsatis- factory, 32 C.F.R. § 1631.8, whether or not there is Sees ALLEN .SCHMITT v. U.S.A. 13 any basis in fact for the- certification is said to be a matter “for the Army,” and not for the draft board. United States v. Lonstein, supra. ; . Sac One difficulty with the Lonstein approach is its char- acteyization of the role of draft boards in certification ) which indicates that draft boards do possess dis- cretion when considering certification cases. See Quaid v. United States, 10 Cir. 1967, 386 F.2d 25, Lurie v. United States, 5 Cir. 1968, 402 F.2d 297. Still other. cases indicate that where this discretion is invoked, and_ : . the registrant is reclassified, he becomes entitled by ht to an appeal of his new classification. United States v. Bricker, No. 41,239 (N.D. Cal. 1967); Mader v. Clifford; No. 48,612 (N.D. Cal. 1968), 1 SSLR 3185. Another difficulty with Longtein is suggested by Estep v. United States, 1946, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567. The Court there expressed concern with induction orders that might be based on bias or dis- crimination, or might otherwise be contrary to law.'? 10Since Estep, Congress has provided for judicial review of “the classification or processing of any registrant . . . only’ when there is no basis in fact for the classification assigned to such registrant .. .” 50 U.S.C.A. App. § 460(b)(3). While a delinquent guardsman need not be formally reclassified prior to induc- tion, 32 C.F.R. 1631:8, it has been held that he “has the same rights in court as he would have if-he had been reclassified by the Selective Servide System.” United States ex rel. Goldstein v. McNamara, E.D. ‘Pa. 1967, 270 F.Supp. 892, 893, A guards- a 14 MICHAEL ALLEN SCHMITT v._.U.S.A. It would seem that a certification order based upon the same unlawful considerations would also taint the induction ‘order and that courts should not be fore- closed from exploring such allegations. “If a local board ordered a:member of Con- gress to report for induction, or if it classified a registrant as available for military service, be- cause he was a Jew, or a German, or a Negro, it would act in defiance of the law. If a local- board refused to reopen on the’ written re- quest of the State Director a registrant’ s class- ification and refused to cancel its order to re- -port for induction, it would be acting in the teeth of the regulations. In all such cases its ~ action would be lawless and beyond its juris- diction. “We cannot read § 11 as requiring the courts to inflict punishment on registrants ‘for violat- ing whatever: orders the local boards might , issue. We cannot believe that Congress intend- ed that criminal sanctions were to be applied to orders issued by local boards ne matter how flagrantly they violated the rules and regula- tions which define their jurisdiction. We ‘are dealing here with a question of personal liberty. A registrant who violates the Act commits a man would not enjoy the same rights as those reclassified if the lawfulness of his induction was not open to review, or if a wholly arbitrary certification order was an adequate “basis in fact” for an order of induction. Cf. United States ex rel. Goldstein v. McNamara, supta, at 895. o ye § _MICHAEL ALLEN SCHMITT v. U.S.A. 15: felony. A felon customarily suffers the loss of substantial. rights. Section 11, being silent on the matter, leaves the question of available de- fenses in doubt. But we are loathe to resolve those doubts against the accused. We canhot readily infer’ that . Congress departed so far from the traditional concepts of a fair trial when it made the actions of the local boards ‘final’ as to provide that a citizen of this coun- try should go to jail for not obeying an unlaw- ful order of an administrative agency. We are loathe to believe that Congress reduced crim- ‘ inal trials under the Act to proceedings so bar- ren of the customary safeguards which the law has designed for the protection of the ac- cused.” 327 U:S. at 121-122. The trial judge in the case at bar, ‘perhaps also “loathe to dispense with the customary safeguards which the law has designed for the protection of the’: accused,” heard testimony on the certification issue in chambers, out of the presence of the jury. In adopt-. ing such a procedure, he appears to have followed the practice established in Cox.v. United States, 1947, 332 US. 442, 68 S.Ct. 115, 92 L.Ed. 59, for. the determina- tion of the lawfulness of a registrant’s classification, and also adopted in United States ex rel. Goldstein v. McNamara, E.D. Pa. 1967, 270 F.Supp. 892, for the determination of-the lawfulness of a reservist’s certi- fication. We commend the tria] judge’s adoption of such a procedure. It enabled him to make an informed judgment concerning the lawfulness of Schmitt’s in- duction and gave substance to his conclusion that there . 16 MICHAEL ALLEN SCHMITT v. U.S.A. was .a basis i in fact for the National Guard’s certifi- cation. Considering that appellant had incurred at least eight unexcused absences from required drills, we certainly cannot say that-the court was in error. In fact, by disabusing the spectre of capriciousness or arbitrariness which appellant had declared to be the -basis of the Guard’s. certification, the court placed the certification and the subsequent induction order upon even firmer ground. Thus buttressed, the certification became an‘unconditional fiat not subject to jury im- peachment. ‘ Schmitt next contends that he was never given the opportunity to accept induction into the Armed Forces in accordance with the procedures described in Special Regulation 615-180-111 He interprets, Chernekoff v. 11See Chernekoff v. United States, 9 Cir. 1955, 219 F.2d 721, 724, n. 12:- ’ “23. Induction. — The following procedure will pe followed in the induction of all registrants into the * -Armed.- Forces: > _ “a. Registrants who have been determined to be _ + fully qualified for induction in all respects will be “assembled. The inducting officer will inform them of the imminence of induction, quoting the following:: “You are about to be inducted into the Armed Services of the United States, in the Army, the Navy, or the Air Force, as in- dicated by the service announced following your name when called. You will take one _step forward as your name and service are