Petition for A Writ of Certiorari — Nix v. United States

SUBJECT INDEX

Page

Comite Rebew wi... a ee 1

FURIE aiaitsnchgparstninnncetteennannaaiiceamamiaaimaes 1

Questions Presented siiasiesiciningesidiipiiiii sill Nahanni sane 2

Statutory and Regulatory Provisions Involved ........ 2

StRAEORE OF GND CONS nce cscicccsinnoautin 2

Reasons for Granting the Writ .............................- oa

RII, a sciirseiiietennrinctnssth thch os bienililabeaasip ATT iat 4

Recent Decisions of This Court Cast Doubt Upon

the Validity of Regulation 1625.2 and Thus

Indicate That the Ninth Circuit’s Decision in

This Case Implicitly Holding the Regulation

Valid and Authorized Is an Important Ques-

tion of Federal Law Which Has Not Been but

Should Be Decided by This Court .................. 4

Cees 5-25 eee eet 29

Opinion of the United States Court of Appeals for

the Ninth -Gisowtt * 3.3...80000. App. p. 1

ii.

TABLE OF AUTHORITIES CITED

Cases Page

Boyd v. United States, 269 F. 2d 607 ............ 13, 18, 23

Breen v. Selective Service Local Board No. 16, 396

RM ME Shea bin ceckaccantolaelsuace 5, 9, 19, 22, 24

Davis v. United States, 374 F. 2d 1 -..0000.2.22 2... 23

Dugiale v. United States, 389 F. 2d 482 .............. 17

Ehlert v. United States, 422 F. 2d 332, cert. granted —

PEF TI MO eviieindescick 2, 12, 13, 23, 29

Gutknecht v. United States, 396 U.S. 295 .............. ;

pee 4, 5, 6, 8, 9, 11, 12, 16, 19, 20, 22, 24, 25, 28

Keene v. United States, 266 F. 2d 378 ............ 13, 23

Kent v. Dulles, 357 U.S. 116 .......02.00000 0. 12

Lockhart v. United States, 420 F. 2d 1145, 2

es IN oe BEE, 8 ste NP REPL prt ee RPP 26

Mulloy v. United States, 398 U.S. 410 ........ 8, 13, 15

Oestereich v. Selective Service Local Board No. 11,

393 U.S. 233, 1 SSLR 3215 ................ 5, 11, 19, 24

Olsen v. United States, 423 F. 2d 929, 2 SSLR

BE xis tie ea Bk ish ie idanial 20, 22

Paszel v. Laird, 426 ME eI eksckckcdanvaconestenpees 17

Quaid v. United States, 386 F. 2d 29 ............00.... 20, 22

Sherbert v. Verner, 374 U.S. 398 ~...0.00002000002..2..... 27

Toussie v. United States, 397 U.S. 112 ................ 5, 19

fa i dataswaialin 20, 22, 24

United States v. Beaver, 309 F. 2d 273 .............. 13, 23

United States v. Cassarino, 314 F. Supp. 813 ...... 17

United States v. Clark, 105 F. Supp. 613 ........

Paes ee te Oe .....9, 10, 21, 22, 23

United States v. Crawford, 119 F. Supp. 729 ....

piialiahiditidinsnensbawihninccditanbennsnssceivanatel 9, 10, 21, 22, 23

Page

United States v. Eisdorfer, 299 F. Supp. 975 ...... 24

United States v. Freeman, 388 F. 2d 246 ............ 25

United States v. Gearey, 368 F. 2d 144 0000.

wnsdilehtdecnttetbdestth sxcsblidibanck 10, 12, 13, 16, 17, 23, 29

United States v. Jennison, 402 F. 2d 51, SSLR

3211, cert. den., 394 U.S. 912, reh. den. 394

UB) DSS vvsesucithnhewiitieinicbiadatsbantnchd 23

United States v. Kroll, 400 F. 2d 923 .................. 13, 23

United States v. Palmer, 223 F. 2d 893 ............ 12, 13

United States v. Robel, 389 U.S. 258 .............022.... 25

United States v. Schoebel, 201 F. 2d 31 ..22, 23, 24, 28

United States v. Taylor, 351 F. 2d 228 .................. 23

United States v. Underwood, 151 F. Supp. 874 ....

cinpagaimnns sc tikestoheisliaassnapeinseat octane’ 10, 18, 21, 22, 23

United States v. Walker, 403 F. Supp. 115 ............ 13

United States v. Walker, 424 F. 2d 1069 ........ 13, 23

Miscellaneous

Executive Order No. 10594 002.222... ...ccceeccceceeeeeeeseeeee 6

House Report No. 267, May 18, 1967 .................. 14

Rules

Federal Rules of Criminal Procedure, Rule 21(b) .. 29

Statutes

Code of Federal Regulations, Title 32, Sec. 1611.

TR Be BG, Bie 5

Code of Federal Regulations, Title 32, Sec. 1611.

He) secs cae A ee El 19

Code of Federal Regulations, Title 32, Sec. 1622.

18 ii. éch..osd.,.ueds.,.02-.sbis:..clnd.aiedeebet 14

iv,

Page

Code of Federal Regulations, Title 32, Sec. 1625.2

csssscsdy 5, 6, 7, 8B, 9, 10, LL, 12, 13, 15, 16, 18

psahesecenieitanibitiasaipiiantins anise 20, 21, 22, 23, 24, 28

Code of Federal Regulations, Title 32, Sec. 1631.

<BR as sree biiad | 14

Military Selective Service Act of 1967, Sec. 1(c) .. 28

Military Selective Service Act of 1967, Sec. 3 .... 19

Military Selective Service Act of 1967, Sec. 6(c)

WN 20, 21

CON: dn SRE es a 19

Military Selective Service Act of 1967, Sec. 6(j)

see > 2, 7, 8 9, 10, 14, 19, 20, 21, 22, 23

Military Selective Service Act of 1967, Sec. 10

SLE SE TER Se ia EE Ps Sac pe: ee

Military Selective Service Act of 1967, Sec: 10

CONE) cacti neti atetltni sin visits 2, 6, 7, 12, 20, 21

Military Selective Service Act of 1967, Sec. 10(b)

I -s, anecinneigneesipengsiaapeacrnanrignectensneenpocpannnspsinacatininen 10

United States Code, Title 18, Sec. 3231 ............... 3

United States Code, Title 28, Sec. 1254(1) ........ 1

United States Code, Title 50, App., Sec. 456(j) ..4, 20

Page

United States Code, Title 50, App., Sec. 462(a) .... 3

United States Code, Title 50, App., Sec. 453 .......... 19

United States Constitution, First Amendment ..... g

Textbooks

54 California Law Review (1966), p. 443 .......... 27

54 California Law Review (1966), p. 2123 ........ 26

81 Harvard Law Review (1968), p. 1439 ........ 27

Selective Service Local Regulations, Practica! Man-

ual, Par. 1048.1, note 10 2.000000... Batis 26

United States Code, Congressional and Adminis-

trative News (1967), p. 1334 -2000....00- cece 14

39 Washington Law Review (1964), p. 4 .............. 27

40 Washington Law Review (1965), p. 10 ........ 27

Ziegler, Selective Service Meets Massive Resistance,

New York Magazine, June 29, 1970, p. 28 .... 14

IN THE

Supreme Court of the United States

October Term 1970

RE

PauL “J” NIX, Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

Petitioner, Paul “J” Nix, prays that a Writ of Cer-

tiorari issue to review the judgment of the United

States Court of Appeals for the Ninth Circuit entered

on February 3, 1971. .

Opinions Below.

The District Court did not enter an opinion in this

case. The opinion of the Court of Appeals is not yet

reported. It is set forth in the Appendix to this Peti-

tion.

Jurisdiction.

The judgment of. the Court of Appeals was entered

on February 3, 1971. Petitioner timely applied to Mr.

Justice Douglas for an extension of time in which to

file the Petition for Writ of Certiorari, which extension

was granted to and including April 4, 1971. The juris-

diction of this Court is conferred by 28 U.S.C. § 1254

(1).

=

Questions Presented.

Is 32 C.F.R. § 1625.2 which denies petitioner’s claim

to be heard by his local board authorized by § 10(b)(1)

of the Military Selective Service Act of 1967 and con-

sistent with that section and § 6(j) of the Act?

Statutory and Regulatory

Provisions Involved.

50 U.S.C. App., Section 456(j):

“(j) Conscientious Objectors——Nothing con-

tained in this title shall be construed to require

any person to be subject to combatant training

and service in the armed forces of the United

States who, by reason of religious training and

belief, is conscientiously opposed to participation

in war in any form.”

Selective Service Regulations, 32 C.F.R. Section

~ 1625.2:

“The classification of a registrant shall not be re-

opened after the local board has mailed to such

registrant an Order to Report for Induction. . .

unless the local board first specifically finds that

there has been a change in the registrant’s status

resulting from circumstances over whic’ the reg-

istrant had x:0 control.”

Statement of the Case.

The petitioner, Paul “J.” Nix, was issued an in-

duction order by Selective Service Board No. 116 of

Los Angeles County, California, on February 28, 1969.

On March 21, 1969, the defendant wrote to the board

and requested a Selective Service System Form 150

(Special Form for Conscientious Objector). This Form

ilies

was subsequently mailed to the defendant and the de-

fendant completed it and returned i: to the board on

March 24, 1969. On April 4, 1969, the board met and

granted the defendant a “courtesy interview” under the

provisions of Local Board Memorandum 41 (in force

at the time). During the interview, the local board

members asked the defendant a variety of questions in

an attempt to ascertain the type of belief he claimed

to hold and his sincerity in holding such beliefs. In

the interview summary prepared by the local board it

is noted that Petitioner had been a conscientious ob-

jector for some time prior to the date on which he

made a claim for such classification. The Local Board

determined that Petitioner’s beliefs had not changed

due to circumstances beyond his control, refused to

consider his request for consideration for conscientious

objector classification and re-ordered Petitioner to re-

port for induction.

On June 30, 1969, the Petitioner reported to the

Los Angeles Armed Forces Entrance and Examining

Station as ordered by his board but refused to submit

to induction as ordered by Army personnel.

Petitioner was indicted in the District Court of the

Central District of California for refusing to submit to

induction in violation of Section 12(a) of the Military

Selective Service Act of 1967, 50 U.S.C. Appendix

§ 462(a). (Jurisdiction of the district court was pur-

suant to 18 U.S.C. § 3231.) Petitioner pleaded not

guilty and he was tried by the Honorable Judge Irving

Hill, sitting alone, and was found guilty as charged and

sentenced to custody of the Attorney General for three

years on the condition that he be confined in a jail for

six months and thereafter be required to perform twen-

ty-four months of alternate civilian service.

—

REASONS FOR GRANTING THE WRIT.

Introduction.

Certiorari should be granted in this case since it

raises a question which affects a substantial number

of cases currently in various stages of litigation. This

case deals with an interpretation of the statutory

rights of registrants who are seeking and might seek

- to acquire conscientious objector status and whose

claims are denied consideration by an unwarranted

administrative regulation which denies consideration

of a claim not presented within the timeliness require-

ment of that regulation.

Recent Decisions of This Court Cast Doubt Upon the

Validity of Regulation 1625.2 and Thus Indicate

That the Ninth Circuit’s Decision in This Case

Implicitly Holding the Regulation Valid and Au-

thorized Is an Important Question of Federal Law

Which Has Not Been but Should Be Decided by

This Court.

This Court, during its October 1969 Term, made it

abundantly clear that Selective Service Regulations are

not sacrosanct, and that they cannot create obligations

which are not within the statutory scheme of the Mili-

tary Selective Service Act of 1967. This Court held in

a criminal case, and the week thereafter in a pre-

induction civil case, that when a regulatory provision

is unauthorized by, and/or in conflict with the statute

under which it was promulgated, it is invalid.

Thus in Gutknecht v. United States, 396 U.S. 295

(1970) this Court invalidated Selective Service Regu-

lations relating to “delinquency”. (32 C.F.R. pt. 1642.)

The Court found the delinquency regulations to be

—

unauthorized by statute and in conflict therewith. Then,

in Breen v. Selective Service Local Board No. 16,

396 U.S. 260 (1970) this Court extended Gutknecht’s

invalidation of the delinquency regulations to a situ-

ation involving preinduction review.’ And finally, in

Toussie v. United States, 397 U.S. 112 (1970) this

Court refused to apply Selective Service Regulation 32

C.F.R. § 1611.7, imposing upon registrants a continu-

ing duty to register, in a situation involving applica-

tion of the statute of limitations. The Government

argued that the statute of limitations only began to run

when a registrant’s continuing duty to register (as

contained in the regulation) was at an end; i.e., at

the age of 26. But this Court rejected the Govern-

ment’s contention and held that the absence of a

provision in the statute making the failure to register

a continuing offense, necessitated a finding that it was

not a continuing offense for that purpose, and there-

fore, that the statute of limitations began to run after

the registrant’s intial failure to register, as defined by

the statute, i.e., six days after attainment of the age of:

18.

The above cases demonstrate the manner in which

conflicts between statute and regulation are to be re-

solved—the statute (by its clear language or “statu-

tory scheme”) takes precedence over the conflicting

regulation. In a similar manner, Selective Service Reg-

ulation 32 C.F.R. § 1625.2 is invalid because it is

1Gutknecht and Breen thus concluded the process of invalidat-

ing the delinquency regulations, which had been begun in

Oestereich v. Selective Service Local Board No. 11,393 U.S. 233,

1 SSLR 3215 (1968), wherein the Court for the first time up-

held the superiority of a statutcrily-conferred draft status over

a conflicting regulatory provision which operated to deprive the

registrant of that statutory status.

a

both unauthorized by, and in conflict with the selective

service statute.

Regulation 1625.2 as relevant herein, provides as

follows:

. . . the classification of a registrant shall not

be reopened after the local board has mailed to

such registrant an Order to Report for Induction

(SSS Form No. 252) or an Order to Report for

Civilian Work and Statement of Employer (SSS

Form No. 153) unless the local board first spe-

cifically finds there has been a change in regis-

trant’s status resulting from circumstances over

which the registrant had no control.

Regulation 1625.2 ws adopted in its current form,

by the President in Executive Order 10594, on Janu-

ary 31, 1955. According to the official annotation of

1625.2, it is authorized by § 10(b)(1) of the Act,

which, in both its present form, and 1955 form, pro-

vides that:

“the President is authorized—(1) to prescribe the

necessary rules and regulations to carry out the

provision of this title.”

In Gutknecht, the Government had also attempted

to argue that the regulations involved (the delinquen-

cy regulations) were authorized by § 10 (b) (1) of the

Act. But this Court rejected that contention per force:

Section 10, however, relates neither to selection

(§ 5) nor to deferments and exemptions (§ 6),

but simply to the administration of the Act as

delegated to the President .

#22

nities

. there is nothing to indicate that Congress

authorized the Selective Service System to reclas-

sify exempt or deferred registrants for punitive

purposes and to provide for accelerated induc-

tion of delinquents. Rather, the Congress reaf-

firmed its intention under § 12, to punish delin-

quents through the criminal law.

396 USS. at 301-2.

Similarly, § 10(b)(1), dealing with the administra-

tion of the Act, cannot be said to relate to the exemp-

tion for conscientious objectors provided for in § 6(j)

of the Act. Nor is there anything to indicate that

Congress authorized the Selective Service System in

Regulation 1625.2 to impose a “change circum-

stances” requirement upon a conscientious objector ap-

plicant whose claim is made after the mailing of an

induction order; rather in § 6(j) “Congress reaf-

firmed its intention” that:

nothing contained in this title shall be construed

to require any person to be subject to combatant

training and service in the armed forces of the

United States, who, by reason of religious training

and belief, is conscientiously opposed to participa-

tion in war in any form.

Thus, by the terms of the Act itself, a registrant who

is a conscientious objector is not to be subjected to

military service, notwithstanding any other provisions

of the Act—and this would include § 10 of the Act,

giving the President general powers of administration

over the Selective Service System.

stillet

Part of the basis of the decision in Gutknecht was

the effect of the regulation. The Court viewed dimly

the attempt, in the delinquency regulations, to delegate

powers that might be used to infringe individual liber-

ty: |

Where the liberties of the citizen are involved,

we said [in Kent v. Dulles, 357 U.S. 116, 128]

that ‘we will construe narrowly all delegated pow-

ers that curtail or dilute them.’

When drait boards are allowed to dispose of con-

scientious objector claims without considering them on

their merits as envisioned in the statute (and thus

denying the conscientious objector classification to

many registrants who are admittedly conscientious ob-

jectors within the purview of § 6(j)), by making the

discretionary, nonreviewable (either judicially or ad-

ministratively) deterr-‘nation that reopening is improp-

er, on the basis of 1625.2,’ registrants may easily be

deprived of their liberty—and as importantly, their

cherished right to the free exercise of their religious

beliefs, protected in unqualified terms in § 6(j) of the

Act (and arguably, in the First Amendment of the

Constitution )—without due process of law. Hence the

2See the recent case of Mulloy v. United States, 398 US.

410 (1970) for an analysis of the reopening process. In that

case, this Court held that a local board had abused its discre-

tion by refusing to reopen the classification of a registrant who

had presented a prima facie claim for reopening (and reclas-

sification). The Court noted:

$22

Because of the narrowly limited scope of judicial review

available to a registrant, the opportunity for full adminis-

trative review is indispensable to the fair operation of the

Selective Service System. Where a prima facie case for re-

classification has been made, a Board cannot deprive the reg-

istrant of such review by simply refusing to reopen his

file. 398 U.S. at 414, 416; [footnotes omitted].

= ve

attempted delegation of powers in 1625.2 must be

viewed suspiciously, in accordance with the mandate

of this Court in Gutknecht and Breen.

Even if one were to concede the possibility that § 10

of the Act was so broad as to provide a sufficient

authorization for Regulation 1625.2, one would im-

mediately be met with another problem: the Regulation,

as applied to conscientious objectors such as Petitioner

is in conflict with § 6(j) of the Act, as quoted above.

The statutory command in § 6(j) is quite clear. Noth-

ing in the Act is to be construed so as to require a

conscientious objector to be made subject to combat-

ant training and service. Yet 1625.2 may act to deprive

those registrants whose claims of conscientious objec-

tion are raised “late,” of the recognition which § 6(j)

intended to have.

The argument is relatively simple: Section 6(j) pro-

vides for an unqualified, absolute right to exemption

for conscientious objectors. Insofar as this non-statutory

regulation (1625.2) would act to limit the unqualified

statutory right, when applied to conscientious objec-

tors who first claim their exemption after the issuance

of an induction order, the regulation may not be

applied lawfully.

The above argument was accepted by the first

courts to hear it. United States v. Clark, 105 F. Supp.

613 (W.D. Pa. 1952);* United States v. Crawford,

8In Clark, the local board, by labelling its unfavorable action

on Clark’s claim as a refusal to reopen, effectively denicd him

his statutory rights of appeal, including a Justice in-

vestigation. The court held that this restriction on ’s statu-

tory appeal rights, through the application of the Selective Serv-

ice Regulations limiting appeal rights to cases in which there has

been a reopening (and reclassification) was unlawful.

a

119 F. Supp. 729 (N.D. Calif. 1954);* and United

States v. Underwood, 151 F. Supp. 874 (E.D. Pa.

1954) all protected the statutory rights of conscientious

objectors’ against attempted infringement by .the ex-

ercise of nonstatutory regulations.

Aside from its conflict with § 6(j) of the Act, regu-

lation 1625.2 conflicts as well with the Congressional

policy affording the maximum in procedural safeguards

to conscientious objector claimants:

The long history of exempting conscientious ob-

jectors coupled with specific statutory right of

appeal, indicate to us a strong Congressional pol-

icy to provide meticulous procedural protections

to applicants who claim to be conscientious ob-

jectors, and indeed to grant deferments in ap-

propriate cases.

United States v. Gearey, 368 F. 2d 144, 150

(2d Cir. 1966).

4In Crawford the situation was similar to that in Clark, which

was favorably cited by the court, as it held: |

“. . . the sole legal question before this court is whether

an. executive regulation may circumvent the clear language

of the statute. To pose the question is to answer it... .

While Regulation 1625.2 is not invalid on its face, it can

have no applicability to a claim of conscientious objection

whenever made, so as to deprive the objector of a hearing

at which he may prove his good faith.”

Id. at 730. Emphasis supplied.

5Until the amendments to § 6(j) worked by the Military Se-

lective Service Act of 1967, conscientious objectors were afforded

three such rights: (1) exemption; (2) appeal of unfavorable local

board action; and (3) a Department of Justice investigation and

Hearing (upon a tentative, unfavorable decision by the a

board). Note that implicit in (2) above, was an additional right

to “local board action” i.e., a hearing of the claim on its merits,

prior to any appeals. This implicit statutory right was incorporat-

ed in the regulations.

The 1967 amendments to § 6(j) eliminated the Department

of Justice proceedings, and the reference to appeal rights (how-

ever such a right is also included in § 10(b)(3) of the Act.)

The right to exemption from military service still remains in

§ 6(j), however.

oniiiias

Notwithstanding the above policy, pursuant to the

application of 1625.2, conscientious objector claim-

ants such as Petitioner here who fail to comply with

the regulation’s timing requirement (i.e., claiming ob-

jector status prior to the mailing of an induction or-

der)—-a mere procedural defalcation—find that they

must satisfy an additional substantive requirement for

achieving entitlement to conscientious objector status

(i.e., demonstrating a change in circumstances beyond

their control).

Another Supreme Court case, cited with approval

in Gutknecht, Oestereich v. Selective Service Local

Board No. 11, 393 U.S. 233 (1968), is also relevant

here. In that case a registrant was deprived of a statu-

tory exemption as a divinity student by use of the

selective service regulations on delinquency. In a fore-

telling of what was later to come in Gutknecht,

this Court denied the lawfulness of the use of the de-

linquency regulations:

There is no suggestion in the legislative history

that, when Congress has granted an exemption

and a registrant meets its terms and conditions, a

Board can nonetheless withhold it from him for

activities and conduct not material to the grant

or withdrawal of the exemption.

393 U.S. at 237 (emphasis supplied. )

A registrant’s compliance or non-compliance with a

procedural regulation such as 1625.2, is conduct which

is not material to the merits of a conscientious objector

claim; such conduct is in no wise indicative of the un-

derlying merits of the registrant’s claim for exemption

as the statute and judicial gloss require: sincerity,

Welsh-type “religiosity” and opposition to participation

in war in any form.

aie

Even if § 10(b)(1) of the Military Selective Service

Act might be sufficiently specific to provide authoriza-

tion for a regulation dealing with exemptions (rather

than administration of the act), and even if regulation

1625.2 were not in conflict with the enabling act—

even if all that were true, 1625.2 would still be invalid

because it fails to meet the standard of necessity set

out in § 10(b)(1).* Regulation 1625.2 is not only un-

necessary, but unreasonable as well.

Most of the decisions dealing with 1625.2 have dealt

with the alleged “reasonableness” of the regulation (as

if “reasonableness” were equivalent to “necessity”).

It might, therefore, be useful to evaluate the underlying

reasons sought to justify the requirements of the regula-

tion. It must be kept in mind, however, that even the

most- valid of reasons underlying a regulation would

still not be enough to warrant a conclusion that the reg-

ulation is lawfully authorized, in the absence of such

authorization.‘

Under the guise of reasonableness it has been al-

leged that rules are needed to insure the “orderly func-

tioning” of the Selective Service System, and that

1625.2 is a rule reasonably adapted to that end;°

*Section 10(b)(1) of the Act authorizes the President to “pre-

scribe the necessary rules and regulations to carry out the pro-

visions of this title.” Emphasis supplied.

7See Gutknecht, supra, where Petitioner conceded that the

delinquency regulations served a “reasonable purpose,” but was

still able to argue successfully that notwithstanding their reason-

ableness, insofar as they restricted a statutory right, they were

unauthorized and had to fail. See, e.g., Brief for Petitioner, at

26-27. The lesson from Gutknecht is that even “reasonable”

regulations may frustrate Congressional will, and therefore can-

not be allowed to stand. Cf. Kent v. Dulles, 357 U.S. 116

(1958).

8See, e.g., Gearey and Ehlert. See also United States v.

Palmer, 223 F. 2d 893 (3rd Cir. 1955).

(This footnote is continued on the next page)

sili

and in the absence of such a regulation, registrants

will be able to force delays in their induction by raising

frivolous conscientious objector claims.’ However valid

this “delay” argument may once have been, it is no

longer valid in view of the profound amendment of pro-

See also Keene v. United States, 266 F. 2d 378 (10th Cir.

1959), relying on Palmer, and United States v. Beaver, 309

F. 2d 273 (4th Cir. 1962).

*The “delay” argument is raised in Gearey, Ehlert, and

Keene, and also in Boyd v. United States, 269 F. 2d 607 (9th Cir.

1959), United States v. Kroll, 400 F. 2d 923 (3rd Cir. 1968) and

United States v. Walker, 424 F. 2d 1069, (1st Cir. 1970),

aff'd. United States v. Walker, 403 F. Supp. 115 (D. Mass.

1969); pet. for cert. pending.

The opinion in Kroll, as well as the district court opinion in

Walker, both quote identical language from Gearey regarding the

“reasonableness” of 1625.2 as a means of preventing delays:

we can see no sound reason why a regulation may not

require that claims for deferment should be advanced as

soon as they have matured. If young men eligible for the

draft are permitted endlessly to challenge their status and

to claim review of adverse determinations, the effect on the

Selective Service System would be chaotic for manpower

quotas could rarely be met with any degree of certainty.

This is especially true when the claim for deferment is based

on a conscientious objection since a protracted process of

Justice Department investigation and hearing is required

. it is essential and proper for an administrative agency,

particularly one as large and complex as the Selective

Service System, to require that claims be raised within rea-

sonable time limits or be forfeited.

368 F. 2d at 149.

Even without regard to the propriety of a “forfeiture” or

“waiver” theory in this area, the above-quoted portion of Gearey

is basically irrelevant now in view of the changes in procedures

relating to conscientious objection claims to be discussed and the

impact of the “reopening” requirements specified in Mulloy

(infra).

In any event, one “sound reason why a regulation may not

require” a “reasonably ‘imely” advancement of claims to statu-

tory deferments or exemptions, is that it may have the effect of

depriving registrants entitled to such classifications, of their statu-

tory rights, or, alternatively, that the delay in asserting these

claims may have arisen by virtue of the inadequate (or non-

existent) affirmative information responsibilities of the System,

which leaves many registrants in ignorance of their rights, until

the last moment.

=" ae

cedures applicable to conscientious objector claims in

§ 6(j) of the Military Selective Service Act of 1967,

which eliminates the protracted Department of Justice

investigation and hearing, which had often led to de-

lays in excess of two years.”°

The number of “frivolous” claims that will still be

made will hardly result in any additional disruption of

the Selective Service System, above and beyond that

which the system already tolerates or otherwise allows

to exist." And the minor increment in disruption which

See House Report No. 267, May 18, 1967, in U.S. Code

Congressional and Administrative News, 1967, p. 1334.

‘It can scarcely be overemphasized that the Selective Service

System is traditionally used to a large amount of disruption or

delay, even with respect to registrants, who have been ordered

to induction. Thus the System has developed the practice of or-

dering an excessive number of registrants to induction to com-

pensate for postponements. See 32 C.F.R. § 1631.7(b). For ex-

ample, in 1969, New York City Local Boards sent induction no-

tices to nearly 14,000 registrants, to fulfill a need for only

7,700 draftees. See, Ziegler, “Selective Service Meets Massive

Resistance,” New York Magazine, June 29, 1970, p. 28. This

is further illustrated by the fact that over 15% (54,524) of the

registrants ordered to induction in 1968 were rejected at the in-

duction center on physical grounds. “Supplement to Health of

the Army: Results of the Examination of Youth for Military

Service, 1968.” Medical Statistics Agency, Department of the

Army (1969).

In addition, there is much delay even before registrants or-

dered to induction, reach the induction center. College students

ordered to induction receive either I-S deferments (32 C.F.R.

§ 1622.15), or informal postponements of induction. State Di-

rector Advice No. 763, as amended October 2, 1969, 2 SSLR

29. Doctors and allied specialists may also receive postpone-

ments of induction in certain circumstances (See Local Board

Memorandum 91). Postponements to allow the taking of pro-

fessional examinations (e.g., bar examinations) may also be ob-

tained (See Local Board Memorandum 44). Inductions may be

postponed when they fall on relizious holidays (see Local Board

Memorandum 2; Operations Bulletin 81). Certain registrants in-

tending to enter into active service, or the reserves may also

have their inductions postponed until the services make decisions

on their applications (See Local Board Memorandum 104; Oper-

ations Bulletin 287). Finally, inductions may be postponed in ac-

=

might result if 1625.2 were completely invalidated, can

scarcely be urged as making it “necessary” to infringe

upon the conscientious objector’s unqualified statutory

right to exemption, in the manner in which 1625.2

now does so.

Furthermore, it should be noted that this Court has

recently rejected the “delay” argument with respect to

pre-induction notice requests for reopening. In Mulloy

v. United States, 398 U.S. 410 (1970) the Court

notes:

The Government argues that if the local board must

reopen whenever a prima facie case for reclassifi-

cation is stated by a registrant, he will be able to

postpone his induction indefinitely and the ad-

ministration of the Selective Service System will

be undermined. But the board need not reopen

where the claim is plainly incredible, or where

even if true, it would not warrant reclassification,

or where the claim has already been passed on,

or where the claim itself is conclusively refuted

by other information in the applicant’s file. More-

over, a registrant who makes false statements to

his draft board is subject to severe criminal pen-

alties. 50 U.S.C. App. § 462(a).

398 US. at 418.

cordance with the order of a federal court, in a civil action for

injunctive relief (See Local Board Memorandum 103).

With all these instances of postponements and delay already

existing (and accommodated for), the System hardly has stand-

ing to argue that it cannot accommodate the relatively infinitessmal

number of registrants ordered to induction, who have claims

to raise which they are currently restricted from raising because

of 1625.2. If allowing would-be lawyers to delay their induc-

tions, or doctors, dentists, etc. to do the same, does not work

such intolerable delays upon the system, how can it be main-

tained that allowing “late” conscientious objector claimants to

have similar delays, in order that their claims might be con-

sidered, will create intolerable burdens | »on the System?

a

Those same severe criminal penalties would also ap-

ply to registrants who furnish false information, for

purposes of delay, after the mailing of induction no-

tices. The belief that some misguided delay-seeking reg-

istrants are willing to break the law to achieve their

purposes, however, should not be considered a valid

reason to deprive legitimate late claimants of conscien-

tious objector status of their rights to reopening, re-

classification, or administrative appeals. Cf. Gutknecht

v. United States, supra.

In any event, it is doubtful that regulation 1625.2

will be able to prevent the supposed onslaught of false

conscientious objector claims, made only for the pur-

pose of delaying induction. If a registrant is only

seeking delay, and is lying about his conscientious ob-

jection (and thereby breaking the lew in the process)

there is no reason to suppose that he could not also

fabricate an application for conscientious objection

which meets the Gearey requirements of late crystal-

lization. In fine, the insincere delay-seekers are still able

to achieve their goal, while the only registrants penal-

ized by the “late crytallization” requirement are those

sincere applicants, whose claims may not have matured

after the issuance of an induction order, but who some-

how failed to get their claims in on time, and who are

then unable to cover up this lack of late crystallization

as cleverly as their less sincere (and perhaps more artic-

ulate), delay-seeking fellow registrants.

Indeed, if we are to talk about reasonableness, and

burdens on the Selective Service System, it can be ar-

gued that more of a burden is placed on the system

under the Gearey late-crystallization rule, than there

would be with a total elimination of 1625.2. Under

= on

the Gearey rule, not only must the local boards deal

with the difficult decision on the merits of the con-

scientious objection claim, but they must also make a

decision on a new, threshold question—i.e., whether

the beliefs of the registrant matured or “crystallized”

after the mailing of the induction order. Cf. e.g., Du-

giale v. United States, 389 F. 2d 482 (9th Cir. 1968).

This essentially theological question is a very difficult

one to answer for lawyers and judges; and yet, typical-

ly it is made by the laymen who constitute local boards,

who, experience teaches, are opposed to conscientious

objectors generally, and who also have quotas to fill

and thus are immediately placed in a position adversary

to that of the registrant.

The disagreement of registrants with local board de-

cisions on the late crystallization question has already

led to much litigation, and the courts themselves have

had difficulties formulating proper standards for local

board action and judicial review.” By striking down

12These difficulties are typified by the recent case of Paszel v.

Laird, 426 F. 2d 1169 (2d Cir. 1970). See especially part I

of Judge Friendly’s opinion, and the cases cited therein. At

one point Judge Friendly notes that:

when the alleged change in status is a recently crystallized

conscientious objection, there are but four possible com-

binations of [local board] findings: (1) conscientious ob-

jection both before and after notice of induction: (2) no

conscientious objection either before or after; (3) con-

scientious objection before but not after; and (4) no

conscientious objection before but conscientious objection

after. Of these only the fourth would permit the board to

reopen.

426 F. 2d at 1164.

In disposing of the case, Judge Friendly ultimately ordered

that the matter be remanded to the district court for a hearing

at which the local board would be called upon to explain the

grounds for rejecting Paszel’s request for reopeni But cf.

United States v. Cassarino, 314 F. Supp. 813 at 815. (D.N.H.

(This footnote is continued on the next page)

—18— —

Regulation 1625.2, the local boards and the courts will

not have to deal with this difficult problem of deter-

mining the time of maturation of a registrant’s belief;

they will only have to deal with the merits of each

application, whenever made. This will certainly con-

sume less time than is now the case.

Aside from the attempt to find a specific statutory

authorization for 1625.2, another theory—that of im-

plicit Congressional approval—has been raised. In Boyd

v. United States, 269 F. 2d 607 (1959) the Ninth

Circuit countered the reliance in Underwood, supra,

on “the failure of Congress to set forth anywhere that

the registrant must claim his exception before notice of

induction if he intends not to waive his right to the privi-

lege,” with the following:

We are of the opinion that Congress tacitly ap-

proved of those regulations which were in exist-

ence at the time that it added the [conscientious

objector] exemption from military service. 269 F.

2d at 612.

What the court in Boyd meant was that Congress,

by periodically re-enacting the Selective Service Act

(in substantially the same form), also implicitly ap-

proved those regulations which were in existence at

the time of the re-enactment. Such a “tacit approval”

theory does sound logical and is appealing. However,

1970), where the court refused to order a second hearing in

similar circumstances).

Can it be maintained that the procedure in Paszel—from lo-

cal board decision on reopening, to district court, to Court of

Appeals, and back to District Court, where the local board mem-

bers would again be required to testify, is less wasteful of the

resources of both the Selective Service System, and the courts,

than a procedure eliminating 1625.2’s artificial “cut-off” date

and requiring all conscientious objector claims to be considered

on their merits, without additional hearings on reopening, etc.?

— an

Oestereich, Gutknecht, Breen, and even Toussie, make

it clear that such a theory is invalid. These cases stand

for the proposition that when Congress has explicitly

manifested an intent to provide certain substantive

rights to draft registrants (such as the right to exemp-

tion from combatant training and service in § 6(j) of

the Act), there must be an equally explicit Congres-

sional intent to limit those rights before the Supreme

Court will allow a limitation regardless of whether a reg-

ulation accompanying or authorized “pursuant to” a

Statutory provision has been extant prior to the re-enact-

ment. An alleged implicit Congressional approval of

such a limitation will no longer suffice.

In Gutknecht and Breen, even though there was an

explicit mention of the term “delinquents” in § 6(h)(1)

of the Act, this Court refused to imply a Congres-

sional acceptance of the delinquency regulations flow-

ing therefrom. In Toussie the Court was faced with the

problem of defining the nature of the offense of failing

to register—for purposes of computing the time when

the statute of limitations began to run. Section 3 of the

Act (50 U.S.C. App. § 453) authorizes the President

to provide for registration for the draft on specified

days. Pursuant to this authorization, Selective Serv-

ice Regulation 32 C.F.R. § 1611.7(c) sought to es-

tablish a continuing duty to register. But despite the

seemingly legitimate, and rather specific authorization

for the regulation in question, this Court refused to

treat the failure to register as a continuing offense as

the regulations would make it:

Since such offenses are not to be implied .. .

we think this regulation should not be relied upon

. unless the statute itself, apart from the regu-

lation justifies that conclusion. 397 U.S. at 121.

cane penns

Hence we have instances in three of this Court’s

most recent Selective Service cases, in which this Court

has refused to accept the validity or applicability of

two different regulations under the “implicit approval”

theory; and in those cases, the arguments for an im-

plicit approval of the regulations involved were stronger

than the arguments for such an implicit approval of

1625.2; for unlike the regulation imposing delin-

quency in Gutknecht, the “timeliness” requirement of

1625.2 is not even mentioned in the Act. Nor, as

with the Regulation providing for promulgation of

times to register which thus impose the statutory duty

to register in Toussie, is there any specific authoriza-

tion for the provisions of 1625.2."

‘For a further illustration of the great reluctance of courts

to accept “implied approvals” of regulations limiting statuto

rights, in the absence of “ statutory authorization for suc

regulations, see Olsen v. United States, and Quaid v. United

States, supra. In those cases, the statutory right involved was

also the conscientious objector exemption in § 6(j). The regula-

tion limiting the statutory right was 32 C.F.R. § 1631.8, provid-

ing for the priority induction of unsatisfactorily-participating re-

servists, “notwithstanding any other provision of the regulation

” This regulation was allegedly authorized in the Act by

§ 6(c)(2)(D) which states that “the President, under such rules

and regulations as he may prescribe, may provide . . .” for

the priority induction of reservists who fail to serve satisfactori-

ly, “notwithstanding any other provision of this Act, .

Although §$ 6(c)(2)( D) gave the President the power to pre-

scribe rules and regulations in a very specific area (unlike

§ 10(b)(1)). and 32 C.F.R. $ 1631.8 seemed to be within that

specific area, the courts in Quaid and Olsen nevertheless found

$1631.8 to be invalid because it violated “the emphatic, impera-

tive provision of § 456(j) that a conscientious objector shall not

be required to serve in the armed forces . . .” Quaid v. United

States, 386 F. 2d at 29, cited in Olsen v. United States, 423

F. 2d at 929, 2 SSLR at 3639. [Emphasis supplied].

In reaching this conclusion, the courts noted the difference

in language used in § 6(j) and § 6(c)(2)(D) was “nothing

shall . “ whereas the language in § 6(c)(2)(D) was

“nothing . may ” Thus § 6(j) was imperative, and took

once: over § 6(c)(2)(D). which was only “discretionary. ™

This same semantic difference again arises in comparing § 6(j)

aniline

Previously it was mentioned that the earliest cases

dealing with the interaction of 1625.2 with § 6(j) of

the Act, were decided in a manner which upheld the

superior, statutory rights under § 6(j). In Clark, the

registrant was being deprived of his right to appeal the

denial of conscientious objector classification—a right

then conferred in § 6(j) of the 1948 Act. The situatior

arose when Clark’s local board, acting under the au-

thority of regulations promulgated pursuant to § 10 of

the Act, refused to reopen his classification, and then

refused to allow him to appeal the refusal to reopen.

The court noted the conflict with the Act:

This section |6(j)| does not indicate any re-

strictions or limitations on the right of appeal . . .

An act of Congress creates that right without

any express limitation . . . 105 F. Supp. at 614,

615. Clark was followed in Crawford.

Together, Clark and Crawford established a pat-

tern showing the appropriate relationship between par-

ties and regulations: statutes took precedence over

conflicting regulations. In Underwood this pattern was

again followed in a case where 1625.2 was used to

bar a post-induction order claim of conscientious ob-

jection. The court noted that 1625.2 was clear, but

that § 6(j) of the Statute was equally clear—and that

the two of them were in conflict. Once again the con-

flict was resolved in favor of the statutory provision:

It is plain that a person meeting the conditions

of the above section of the Act [§ 6(j)] is not

to be subjected to combatant training and service.

151 F. Supp. at 876.

with the authorizational capacity of § 10(b)(1), the alleged statu-

tory authority for regulation 1625.2. Section 10(b)(1), just as

§ 6(c)(2)(D), uses the discretionary word “may”. Since $ 6(j)

is still imperative, it must take precedence over $ 10(b)(1), or

any regulations promulgated under that section.

analiinn

These early decisions recognized what the courts in

Olsen and Quaid have more recently labeled as the

“emphatic: imperative” nature of the provision in § 6(j)

that “nothing” is to be construed to require con-

scientious objectors to serve in the armed forces. Un-

fortunately, the recognition of this principle of statu-

tory supremacy in the Underwood cases was ignored,

and soon forgotten. But today Gutknecht, Breen and

Toussie have vindicated and revitalized the rationale

of the decision in Underwood et al.—the insistence

of the shpremacy of statute over regulations, and of

statutorily-created rights over conflicting regulatory

provisions, which would eliminate, or otherwise limit

the statutory rights. Therefore, courts should follow

the Underwood cases and deny the validity of the at-

tempt, in regulation 1625.2, to impose upon registrants

an additional requirement (timeliness) for classification

as a conscientious objector, and at the same time,

reject, as will be argued below, the poorly-reasoned

cases commencing with United States v. Schoebel on

another independent ground.

In the me period during which Clark, Crawford,

and Underwood were being decided, another case, in-

volving a somewhat similar set of circumstances and

legal questions was decided to the contrary (without

reference to Clark, which had been decided several

months earlier). In this case—United States v. Schoebel,

201 F. 2d 31 (7th Cir. 1953)—the Court of Appeals

for the Seventh Circuit upheld the conviction of a reg-

istrant who had first attempted to assert a conscientious

“djection claim after he had received an induction or-

der. The registrant was challenging the refusal of his

local board to reopen his classification, but the court

held such refusal proper, as being in accord with Regu-

ee

a

ulation 1625.2. Although the registrant argued that

§ 6(j) of the Act contained no time limitations, the

court rejected this, on a “waiver” theory, holding that:

Deferment being a privilege, it may be abandoned

like any other personal privilege. 201 F. 2d at 32.

Schoebel was deemed to have “abandoned” his “priv-

ilege” when he failed to meet the burden of establish-

ing his claim—said burden including a timely filing of

the claim. The court did not discuss the Statutory au-

thorization, vel non, for the regulation, nor its con-

flict with the Act; rather, its validity and authorization

were assumed. And under this assumed legitimacy of

the regulation, the court further held that conscientious

objection could not be a change in status over which a

registrant had no control.* In retrospect, we can see

the deep significance of Schoebel, for it became the pro-

genitor of a line of cases’® which have upheld the valid-

ity of regulation 1625.2 in the face of repeated, and

more direct, statutory attacks, and further which have

questioned, albeit without explicitly overrufing, the Clark,

Crawford, and Underwood line of cases. It therefore

“This holding is contrary to Gearey, in accord with Ehlert.

See e.g., Keene v. United States, 266 F. 2d 378 (10th

Cir. 1959), Boyd v. United States, 269 F. 2d 607 (9th Cir.

1959), United Siates v. Beaver, 309 F. 2d 273 (4th Cir. 1962),

cert. denied, 371 U.S. 951 (1963), Davis v. United States,

374 F. 2d 1 (Sth Cir. 1967), United States v. Kroll, 400 F.

2d 923 (3rd Cir. 1968), cert. denied, 393 U.S. 1069 (1969),

United States v. Gearey, 368 F. 2d 144 (2nd Cir. 1966), United

States v. Walker, 424 F. 2d 1069 (1st Cir. 1970). All of these

cases ultimately rely on Schoebel, and must share its weaknesses.

See also, United States v. Jennison, 402 F. 2d 51, SSLR 3211

(9th Cir. 1968), cert. denied, 394 U.S. 912 (1969) rehearing

denied, 394 U.S. 955, United States v. Taylor, 351 F. 2d 228

(6th Cir. 1965), and Ehlert, supra, (9t: Cir. 1970). These

cases also upheld the validity of regulation 1625.2, but without

directly considering the issue of the conflict between the regula-

tion and the statute.

pan, ae

becomes important to examine the validity of Schoebel

and the cases which followed it, especially in terms of

the perspective cast by the recent opinions of the Su-

preme Court in Gutknecht, Breen and Toussie.

The post-Schoebel decisions have followed its basic

“waiver” theory: that « failure to adhere to procedural

regulations for the assertion of the “privilege” of ex

emption as a conscientious objector, can result in a

waiver or abandonment of that “privilege.” Gutknecht

makes it clear that such a waiver theory is invalid.

Selective Service Regulations may not be used, in dis-

regard of the structure of the Selective Service Act, to

deprive registrants of their statutory entitlements.’® This

Court in Gutknecht, cites with approval the following

from United States v. Eisdorfer, 299 F. Supp. 975, 989

(E.D. N.Y. 1968).

The delinquency regulations, moreover, disregard

the structure of the Act; deferments and priori-

ties-of-induction, adopted in the public. interest,

are treated as if they were forfeitable personal

privileges. 396 U.S. at 303.

Schoebel and its progency do exactly what Gutk-

necht and Ejisdorfer say they may not do: they allow

1625.2 to operate in complete disregard of the struc-

ture of the Selective Service Act, and they treat an

absolute, unconditional statutory exemption as a for-

feitable personal privilege.

16This term “entitlements” would cmbrace exemptions, de-

ferments, and induction priority positions. See Oestereich, Breen

and Gutknecht, supra, involving respectively, an “exemption,”

a “deferment,” and an “inductrion priority position.” For this

latter entitlement, 32 C.F.R. § 1631.7 sets out order-of-call priori-

ties which this Court implicity accepted, as effecuating the

statutory scheme, in striking down the delinquency regulations

(32 C.F.R. pt. 1642) in Gutknecht.

ay 1,

Even without Gutknecht, the validity of a waiver

theory in this area would be highly questionable.

Conscientious objector claimants in the Armed

Forces, on the other hand, may have their claims con-

sidered from within the service, under AR 635-20 (if

they become conscientious objectors while in the serv-

ice), even though it is long past the time when they

were mailed an induction order.

The above situation is far too haphazard a way

to deal with young men who assert a right to serve

their country consistently with their consciences and re-

ligious beliefs—beliefs traditionally afforded a high de-

gree of protection in our society, and rooted in the earli-

est history of this country. A system which allows this

on the basis of the tenuous claim that such treatment is

“necessary” for purposes of “national defense,” is at

the least, not “fair and just,” and the price to be paid

is far too great, in a democratic, free society. As this

Court noted in United States v. Robel:

The concept of ‘national defense’ cannot be deemed

an end in itself, justifying any exercise of legisla-

tive power designed to promote such a goal. Im-

plicit in the term ‘national defense’ is the notion

of defending those values and ideals which set this

Nation apart. 389 U.S. 258, 264 (1967).

Generally, a waiver theory is only applicable when

there is knowledge and full disclosure, and when great

unfairness will not be worked upon its imposition.”

17Cf., the following from United States v. Freeman, 388

F. 2d 246, at 250 (7th Cir. 1967):

“, , the awesome responsibility carried by Local Boards

in ‘balancing between the demands of an effective system

of mobilizing the nation’s manpower in times of crisis and

(This footnote is continued on the next page)

a

Full disclosure is usually the exception rather than the

rule in the Selective Service area;’* and with its massive

complexities and confusions, imposition of the waiver

doctrine here is not apt.’® These complexities make it

the demands of fairness toward the individual registrant’

cannot justify denial of basic fairness. Simmons v. United

States, 348 U.S. 397, 403, .. .”

See also the dissent in the en banc decision in Lockhart v.

United States, 420 F. 2d 1145, 2 SSLR 3436 (9th Cir. 1970),

discussing “waiver” in a situation where a registrant failed fully

to exhaust administrative remedies:

“the test to be applied is that of waiver—‘an intentional

relinquishment or abandonment of a known right or privi-

lege.’ Johnson v. Zerbst, 304 U.S. 458, 464 (1938). The

registrant may be denied judicial review of his classification

only if he understandingly and knowingly forewent the priv-

ilege of seeking to vindicate his claim before the state board.”

18See e.g., United States v. Hosmer, Crim. No. 70-21, (D.

Me., March 31, 1970) (Gignoux, J.), slip opinion at 10:

It is settled in this Circuit, as elsewhere, that the- Selec-

tive Service System is under no affirmative obligation to

provide a registrant with ‘free advice and assistance either

in preparing questionnaires and forms for submission to his

local draft board or with respect to other matters Yelating

to his liabilities under the selective service law.’ The only af-

firmative duty of a Selective Service official is not to mis-

lead, and to give clear and correct information and advice

when requested to do so. (Citations omitted).

See also, Comment, The Selective. Service System: An Adminis-

trative Obstacle Course, 54 Calif. L. Rev. 2123 (1966).

19See note 17, supra. See. SSLR Practical Manual, { 1048.1,

note 10:

A presumption that an important right is lost by failure to

assert it seems particularly unfortunate in this field. The

right to take an appeal in a criminal case, which if not as-

serted seasonably is usually held irredeemably lost, has been

held not to have been .voluntarily waived by one who was

not shown to have made a considered choice to forego it.

Fay v. Noia. The Supreme Court has emphasized time and

again that & constitutional right may not be foregone with- ~

out a deliberate choice—an intentional relinquishment of a

known right: Of course, the conscientious objector exemp-

tion is statutory in the first instance, although the free exer-

cise clause may compel Congress to recognize it. [citations

- omitted]. 7

(To the argument that some may make that SSS Form 100

(the initial Classification Questionnaire) provides the would-

be conscientious objector with knowledge of the availability of

=p

oe

virtually impossible for the lawyer, need alone the lay-

man, to acquire the full knowledge that would be re-

quired for an intelligent, knowing waiver.”

The waiver theory might also have been based on the

once-respected doctrine which set up a dichotomy of

“rights” and “privileges.” “Rights,” on the one hand

could not be waived; but “privileges,” on the other

hand, being mere matters of legislative grace, and sub-

ject to the whims of the authority governing their dis-

pensation, could be waived—could be far more severely

conditioned or restricted than “rights.”

But the waiver theory, on this ground, too, has been

resoundingly repudiated during this past decade for the

access to governmental benefits, even those customari-

ly (though perhaps mistakenly) denominated “privi-

leges,” may not be denied by a method or under a stand-

ard which the Bill of Rights interdicts.

Statutorily-conferred Selective Service classifications

are entitled to such protections; to hold otherwise vio-

lates due process of law. The denial of access to con-

scientious objector status, imposed upon registrants by

the refusal of draft boards to reopen classifications,

based on findings of the absence of “circumstances be-

_yond the registrant’s control,” as required by regulation

such status, the reader is directed to study the form with care,

« + and to note that the space provided for the assertion of the

_ claim is totally lacking in any explanation as to the availability or

meaning of conscientious objector status; rather the form merely

promises to send another form if the registrant signs the terse,

and “strictly religious” statement in Series VIII of the form).

20See Sherbert v. Verner, 374 U.S. 398 (1963); Van Alstyne,

The Demise of the Right-Privilege Distinction in Constitutional

Law, 81 Harv. L. Rev. 1439 (1968); Linde, Justice Douglas

on Freedom in the Welfare State: Constitutional Rights in th:

Public Sector, 39 Wash. L. Rev. 4 (1964), 40 Wash. L. Rev.

‘~- 10 (1965); O'Neil, Unconstitutional Conditions: Welfare Bene-

fits with Strings Attached, 54 Calif. L. Rev. 443 (1966).

o*

=

1625.2, is fundamentally deficient in those basics of

procedural fairness which are constitutionally required.

In sum, the waiver theory may not be applied here

because (1) it is not applicable without a showing of

knowledge, disclosure, and fairness; (2) Gutknecht

vitiates the “privilege theory” of classification which un-

derpins the Schoebel waiver theory; (3) access to the

“right” or “privilege” (exemption from combatant serv-

ice as a conscientious objector) is severely restricted

by procedures which themselves are violative of the

due process clause.

Section 1(c) of the Military Selective Service Act of

1967 provides that:

The Congress further declares that in a free so-

ciety the obligation and privileges of serving in

the armed forces and the reserve components there

of should be shared generally, in accordance with

a system of selection which is fair and just . .

(Emphasis supplied).

Notwithstanding the above requirement of “fairness”

and “justice” regulation 1625.2 effectively denies, for

a large number of conscientious young men, their right

ever to assert a successful claim for the time-honored

classification of conscientious objector—a right absolute-

ly guaranteed within the statutory scheme of the Selec-

tive Service Act.

The true conscientious objector’s only recourse is to

refuse induction, and, if courts continue to uphold the

validity of regulation 1625.2, to be sentenced to prison

—thus creating a system not to provide men for the

military, but for the federal penitentiaries.

nll

The present situation with respect to late conscientious

objector claims is rife with anomalies. Depending upon

the location of a registrant’s board, or perhaps his trial”

(i.e., whether it is within an “Ehlert” or “Gearey” ju-

risdiction), he may or may not be allowed to have his

late claim considered.

Conclusion.

In view of the above reasons, Petitioner respectfully

requests that this Honorable Court issue a Writ of Certi-

oriari to the Court of Appeals of the Ninth Circuit to

review its decision in this case.

WILLIAM G. SMITH,

MICHAEL E. SOMERS,

DANIEL KALLEN,

Don Ross Bay,

Attorneys for Petitioner.

21In United States v. LaForge, No. CR 70-158 (N.D. Calif.

1970) the registrant’s local board was located in Connecticut

(a Gearey jurisdiction) but the registrant refused induction in

California (an Ehlert jurisdiction) thus creating a unique conflict

of laws problem to be contended with at trial: by which Circuit’s

standard was the conduct of LaForge’s board to be governed?

See Defendant’s Trial Memorandum at 16-24. The court was

able to avoid the problem by transferring the case to Connecticut

under Rule 21 (b) of the Federal Rules of Criminal Procedure,

as strongly urged by defendant’s counsel. Dismissal has been

recommended by the United States Attorney in Connecticut.

ee eee ee EE ate te Mee Cen ee ee ee ee Dy ER oe i

APPENDIX.

Opinion of the United States Court of Appeals

for the Ninth Circuit.

United States Court of Appeals, for the Ninth Cir-

cuit.

United States of America, Appellee, vs. Paul “J”

Nix, Appellant. No. 25,871.

[February 3, 1971]

Appeal from the United States District Court

for the Central District of California

Before: BARNES and DUNIWAY, Circuit Judges,

and SOLOMON, District Judge.

PER CURIAM:

Paul Nix was convicted in a court trial for his refusal

to be inducted into the armed forces in violation of 50

U.S.C. App. § 462. In this appeal he contends that

his local board denied him due process (1) by refus-

ing to reopen his classification when he requested a

Conscientious Objector’s classification after he received

a notice of induction and (2) by constructively reopen-

ing his classification without allowing a Selective Serv-

ice appeal.

Nix was reclassified 1-A on February 5, 1968. Dur-

ing the summer of 1968 he became interested in the

Jehovah’s Witnesses. Nevertheless, on July 18, 1968, he

enlisted and was inducted into the Naval Reserves to

report for duty on November 14, 1968. On that day

he reported, but was discharged for the convenience of

the government, apparently because he admitted in a

questionnaire that he had experimented with marijuana.

*Honorable Gus J. Solomon, United States District Judge,

District of Oregon, sitting by designation.

a ae

On February 28, 1969, the local board mailed Nix

an order to report for induction on March 25, 1969.

Shortly before that day, Nix requested and received

Conscientious Objector Form 150, which he completed

and returned to the local board on March 24, 1969.

The board postponed Nix’s induction and scheduled

an interview for April 4, 1969. Before the board in-

terviewed Nix, he signed a statement that he understood

that the interview was neither a personal appearance

nor a reopening of his classification. During the inter-

view Nix stated that he had been against war since he

was a child; that he became a Jehovah’s Witness during

the summer of 1968; and that he became a conscien-

tious objector shortly after he began studying the Bible.

On April 8, 1969, the board notified Nix that it had

not reopened his classification because it found that

there was no change in his status resulting from cir-

cumstances beyond his control.

On June 30, 1969, Nix refused to submit to induc-

tion. He was later inducted and convicted.

Nix contends that the board’s refusal to reopen his

classification in response to his Form 150 denied him

due process. He argues that this Court’s recent en banc

decision in Ehlert v. United States, 422-F.2d 332 (9th

Cir. 1970), cert. granted 397 U.S. 1074 (1970),

should be reversed. :

In Ehlert this Court held that the crystallization of

conscientious objection between the time a notice of in-

duction is mailed and the time induction is scheduled,

is not a change in status resulting from circumstances

beyond the registrant’s control within the meaning of

32 C.F.R. § 1625.2.

ee oes

This is not a case of a late crystallization of belief

after the receipt of notice to report for induction.

Rather, it is a case of the late filing of a previously

matured conscientious objector’s belief. Therefore, the

board was not permitted to reopen Nix’s classification.

United States v. Uhl, .... F.2 .... (9th Cir., Dec. 23,

1970); Dugdale v. United States, 389 F.2d 482 (9th Cir.

1968).

Nix’s next contention, that the board constructively

reopened his classification, is dependent upon our find-

ing that the board could have properly reopened his

classification. Since we find that the board had no such

authority, we must reject this contention even if Nix

had not signed a waiver.

Nix also contends that the local board was not prop-

erly constituted since not all of its members resided

within the local board’s jurisdiction. The same conten-

tion was considered and rejected in Czepil v. Hershey,

425 F.2d 251 (7th Cir. 1970), cert. denied, .... U.S. ....

(Oct. 13, 1970); United States v. Reeb, .... F.2d ....

(9th Cir., Oct. 27, 1970).

Nix’s last contention that he did not have the req-

uisite intent to be guilty of a Selective Service Act

violation is wholly without merit. Harris v. United

States, 412 F.2d 384 (9th Cir. 1969).

The judgment of conviction is affirmed.