Opposition Brief — Taggart v. United States

, Gu the Supreme Court of the Cited States

OcroBER TERM, 1971

No. 70-341

Ronatp Date Tac@art, PETITIONER |

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ee States OF AMERICA

: ON PETITION FOR A _WRIT OF CERTIORARI TO THE UNITED

STATES COURT OP APPEALS FOR THE NINTH CIRCUIT ~

“MEMORANDUM FOR ~~ STATES IN OPPOSITION

- After a non-jury trial in the United States District ;

Court for the Central District of California, peti-

- .tioner ‘was convicted of wilfully refusing to submit

to induction into the armed forces, in violation of 50

U.S.C. App. 462(a). He was sentenced. to six- -months’

2 ~ imprisonment and two years’ probation on the con-

dition, inter alia, that he do work of*national impor-

tance for a period of eighteen months. The court of

appeals affirmed per curiam (Pet. App. A).°

_ Petitioner registered with his local board in Santa

Barbara, California on April 14, 1966 (SSF 1-2). fie

obtained’ a student (II-S) deferment which he held

until J uly 12, 1967, when he was reclassified I-A

(SSF 10, 14). On October 23, 1967, following ‘a pre-

induction physical examination, petitioner was found

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fully acceptable for induction (SSF 10, 16). He was

ordered to report on March 12, 1968 (SSF 10, 42),

but failed to do so. Four subsequent orders to report :

on April 3, 1968 (SSF 10, 46) July 2, 1968: (SSF 10,

55), September 10, 1968 (SSF 10, 74), and October 2,

1968 (SSF 10, 83), respectively, were also disobeyed.

Petitioner was again ordered to report for induc- .

| tion on July 1, 1969 (SSF 10, 88). He. reported, but

* was temporarily rejected for one month; he was sub-

_ sequently ordered to report on August 19, 1969 (SSF:

10, 11, 104). On. Jyly 2, 1969, the local board first

received a request from petitioner for a conscientious -

objector classification. In his completed SSS Form

150 (Special Form for Conscientious Objector), he

. stated (SSF 95-96): :

My beliefs have been formed, for the main part,

through my family, specifically. my parents,

grandparents, and my uncle. My Grandfather,

now deceased, was deeply involved in the church

and was a bible teacher for many years. He

taught .me that life and love for your fellow

man are the most precious and valuable things

in the world. We had many discussions about

God.and his love and how I should try and put

God’s’ love to practice in my relations with

ness upon people is right and to harm people

is a sin. % -

My uncle and parents have influenced my be-

lifs [sie} very strongly in another way. It «was

through them putting me ‘in close contact ?

nature, through camping trips,and nature hikes,

' that I was made more aware 'of my love and

respect for life. I have spent many days with

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~~ other people. That to bestow loving and kind-

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them and by myself observing the beauty and

magnitude of life: It was through these excur-

sions into nature that I developed a greater

insight’ into my belief that the Supreme being |

is manifested: in all and that all life is sacred.

“ During the entire length of my life I -have |

_ never been. involved in any pliysical fight: with

another person. Even when I was in contact

-with a large number of people, such as in junior

high school and high school, I always avoided

getting inté circumstances which would involve

using physical force against someone. In the

few cases in which I was in the position to be

in a fight I backed down because I have no de-

sire to. do another person harm.

Petitioner’s induction was again postponed. On De-

cember 8, 1969, the local board notified him that it had

decided not to reopen his classification because it had

found that there was no change in status resulting

from circumstances beyond his control ‘(SSF 11, 88).

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On December 11, 1969, he was ordered to report: for

induction on December 29, 1969 (SSF 11,.14). After a

further postponem t of one week petitioner reported

on January 5, 1970; he was found fully qualified, but,

when called to step forward, he refused to submit to

induction (SSF 11, 127-129). The instant indictment -

and conviction followed, and =“ court of appeals

affirmed. .*

In the court below, petitioner. unsuccessfully chal-

lenged the validity of the last proviso of 32 C.F.R.°

1625.2—which precludes local boards from reopening a

classification after an induction order has been mailed

unless they first ‘specifically find “a change in the ©

registrant’s status resulting from circumstances over —

which the registrant had no iene —on. the ground |

that it was contrary to congressional policy declared

in the conscientious objector exemption provision of

the statute (50 U.S.C. App. 456(j))., That. same argu- .

ment had been explicitly rejected by this Court only

‘a few. days before the: Ninth Circuit’s decision in the -

instant case in Ehlert v. U nited States, 402 U.S. 99:

Petitioner now asks this Court to reconsider Ehlert. -

He argues that the-assuranee of the General Counsel .~

of the Army, on which this Court there relied (402 U.S.

at 106)—1.e., that the present practice of the Army .

is to entertain conscientious objector claims based on

beliefs. maturing after the mailing of an induction

notice but prior to. actual induction—canhnot serve as

a proper basis for the Ehlert decision since it might

not be followed by the Department of the Army in the:

future. If “that situation. should eventually develop,

however, this Court has already indicated in Ehlert

(402 U.S. at 107) that the appropriate time to review a

general alisregard by. the military of the assurances

given in Ehlert will be when proof of such practice is

befere the Court in a case in which the issue is properly

presented. See our Brief.in Opposition in Farrell and

Roy v. United States, No. 71-77, this Term, at p. 6."

*We know of no case in which: the military has denied a

serviceman a conscientious objector claim because his views

ripened during the “hiatus period” discussed in FAlert. In all

of the authorities cited by petitioner in his supplement to the

"petition (Supp. Pet.,-pp. 4-10), the. military fully considered

the claims and found that the claimants’ beliefs, if they did not..

mature after enlistment or induction, had orystallized—as i in the

_ instant case—well before Selective Service mailed the notice of

- induction. See also Morrison v. Laird, C.A. 9, No. 26,869, decided —

July 28, 1971.

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This is not such a case. Indeed, here the Army was

never presented with petitioner’s conscientious objec-

tor claim beeause petitioner refused to.submit to in-

duction. Moreover, as pointed out by the court below

(Pet. App. A 1), it is plain on the face of petitioner’s °

SSS Form 150 that his objection to war, such as it is,

did not ripen only after the mailing of his induction

_ notice, but existed-much earlier and was simply notthen >

asserted as a basis for exemption. It has long been

recognized that one who sleeps:on his fully-matured

conscientious objector claim until after receipt of

orders to report for induction is not entitled to a re-

opening of his classification. See, e.g., United States °

v. Gearey, 368 F. 2d 144, 149 (C.A. 2); Davis v:

United States, 3T4 F.2d1 (C.A: 5) ; Dugdale v. United

States, 389 F. 2d 482 (C.A. 9); United States v. Uhl,

436 F. 2d 773, 774 (C.A. 9), and the cases there citéd.

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

$ | Erwin N. GRISWOLD,

“Solicitor General.

.Aveust 1971.

U.S. GOVERNMENT PRINTING OFFICE: 1971