Appendix — United States v. Weller
Supreme Court brief1971
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Supreme Court of the United States
OCTOBER TERM, 1969
No. 1082
UNITED STATES OF AMERICA,
Appellant,
=
THOMAS WILLIAM WELLER
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
INDEX
Page
Relevant docket entries ...._-»=-= 1
i SR 2
Motion to dismiss indictment (February 18, 1969)...» 3
Extracts from appellee’s Selective Service file ianeecmnaelon A to
motion to dismiss)... 5
Order ee motion to dismiss indictment ee
19, 1969) - a raedianiae i 31
Notice of appeal (October 17, 1969) 43
Order denying government’s motion to remand and post-
poning further consideration of question of jurisdiction
to hearing on merits (March 23, 1970) _.. 44
ESOL LE COIL LENE TET RE ALY ig
COTE METRE PLETE RR ETE BNE
PP ee
MTR
PPL TEI HH
LI OD POONA CDI OLE! EEGPLEL DIRE tn Oe 0 Cl Le, BEI IDLE Dey th ID
RELEVANT DOCKET ENTRIES
1969
Jan. 15 Filed indictment
Feb. 18 Filed defendant’s motion to dismiss indictment
Apr. 25 Filed defendant’s memorandum in support of mo-
tion to dismiss
May 23 Filed government’s answer in opposition to motion
to dismiss
Sept. 19 Entered order granting motion to dismiss
Oct. 17 Filed government’s notice of appeal
Pat ee a
am
é
5
PPT LE CLEA LIED IV LL ANI EO IP tM AOI, NEC ORS MEL LA LLOLIOOBE DN, AAA EPIL GEL A PB
[Filed Jan. 15, 1969, C. C. Evensen, Clerk]
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
Criminal No. 42614
VIOLATION: Title 50 Appendix, U.S.C.,
Section 462—Refused to Submit to Induction.
UNITED STATES OF AMERICA, PLAINTIFF
Vv.
THOMAS WILLIAM WELLER, DEFENDANT
INDICTMENT
The Grand Jury charges: THAT THOMAS WILLIAM
WELLER, defendant herein, on or about July 10, 1968,
in the City of Oakland, County of Alameda, State and
Northern District of California, did wilfully and know-
ingly fail and neglect to perform a duty required of him
under and in the execution of the Military Selective
Service Act of 1967, and the rules, regulations, and di-
rections duly made pursuant thereto, in that he, having
reported for induction as ordered by his Local Board,
and having been found fully qualified for service, did
then and there refuse to submit to induction into the
Armed Forces of the United States.
A True Bill
/s/ J. Y. Tapley
Foreman
/s/ Cecil F. Poole
CecIL F. POOLE
United States Attorney
[Filed Feb. 18, 1969, C, C. Evensen, Clerk]
FRANCK & HILL
PETER FRANCK, Esq.
2905 Telegraph Avenue
Berkeley, California 94705
Telephone: 845-4123
Attorneys for Defendant
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
No. 42614
UNITED STATES OF AMERICA, PLAINTIFF
v8.
THOMAS WILLIAM WELLER, DEFENDANT
MOTION TO DISMISS INDICTMENT (RULE 12)
TO THE UNITED STATES OF AMERICA, and to
CECILE F. POOLE, Esq. Its attorney:
YOU AND EACH OF YOU, WILL PLEASE TAKE
NOTICE that on the 11 day of March, 1969, or as soon
thereafter as counsel can be heard, the defendant herein
will move the court for its order dismissing the indict-
ment heretofore rendered and filed herein, upon the
grounds that:
i. There is no basis in fact for the denial of defend-
ant’s application for classification 1-O (Conscientious
Objector) ;
2. Defendant’s right to the due process of law as
guaranteed by the Fifth Amendment of the Constitution
“i the United States has been denied to defendant in
that:
a) The Administrative proceedings had prior to
the issuance of an order to report for induction
SEIT CRS TE
— ee Ee
completely failed to apprise the defendant of the
standards and requirements being applied to the
evaluation of his claim;
b) Defendant was denied the right to counsel in
the administrative proceedings;
c) Defendnat [sic] was denied the right to pre
sent witnesses on his behalf; and
d) Defendant and this Court have been denied
the right to make and present a record of the ad-
ministrative proceedings herein.
This motion to dismiss, pursuant to Rule 12 of the
Federal Rules of Criminal Procedure, will be based upon
this Notice, upon Memorandum of Points and Authorities
to be served herein, upon the files and records before this
Court, and upon such evidence and arguments as may
be adduced at the hearing hereon, or prior thereto.
DATED: February 17, 1969.
FRANCK & HILL
By /s/ Peter Franck
PETER FRANCK
Attorneys for Defendant
BE, EVE TILING tia a Ripon cong ber a et LIL ie EPIL LEN. ONE LT OID
eas Gin we
EXTRACTS FROM APPELLEE’S SELECTIVE SERVICE FILE
(EXHIBIT A TO MOTION TO DISMISS)
(Registrant Will Make No Entries on This Page)
————
Minutes of Actions by Local Board
and Appeal Board and on Appeal to —
Dates the President Yes No
May 14 1964 Classified II-S 5 0
May 27 1964 SSS 110 Mailed
Jul 21 1964 Student status form mailed
Oct 29 1964 Classified II-S to 6/65 3 —
Nov 12 1964 SSS 110 Mailed
Jul 5 1965 Student status form mailed, & letter
Oct 27 1965 Classified IA a
Nov 24 1965 SSS 110 mailed
1-83-66 SSS Form 223 Mailed
(Order to report for Phys. Exam.)
1-27-66
3-1-66 Pending waiver
3-30-66 DD form 62 mailed T. REJ. xxy 47
& 88 mailed to Hdq.
Apr 13 1966 Classified I-Y ce
Apr 27 1966 SSS 110 Mailed
Feb 20 1967 SSS Form 127 Mailed
2-28-67 SSS Form 127 Received
3-6-67 Form C-71 mailed.
3-29-67 Form C-71 received.
May 3 1967 SSS Form 223 Mailed
(Order to report for Physical Ex-
amination) (5-22-67)
6-14-67 Pending waiver [illegible]—case on
appeal
6-15-67 DD Form 62 mailed ACC
PPE LATELY LPL NR wy
RELIST OOO LM LT Pe NIH EAP NE EERIE LS RIS NEY RL AE BRIO EY St
H
rf
SELLE OL LILI SLIT A ie
Pate ARIS DIRE RN RE SRD ETA TIT OT EAA
Dates
Minutes of Actions
Vote
Yes No
Jul 12 1967
Jul 18 1967
Aug 4 1967
Aug 10 1967
8-17-67
9-13-67
Sep. 21 1967
10-18-67
10-31-67
11-8-1967
Classification I-A
SSS 110 & 217 Mailed
SSS 150 Mailed
SSS Form 150 Received
Appeal Filed by Registrant
Classification I-A (write letter re
pers app)
SSS 110 & 217 Mailed
Personal Appearance Requested
by Registrant
C-310 mailed to registrant. Personal
Appearance scheduled for Nov. 8,
1967 at 1:00 P.M.
Pursuant to telephonic discussion be-
tween local board members on No-
vember 7, 1967 re: request of regis-
trant through letter from Attorney,
received November 6, 1967, Board
took the action with respect to re-
quests in Attorney’s letter which ac-
tion is set forth in Board’s letter
dated November 7, 1967 to Peter F.
Franck. Contents of this letter were
given orally by telephone to Mrs.
Hermes, Attorney at Law, in Mr.
Franck’s office and letter was mailed
this date. Board this date confirms
the action set forth in letter of No-
vember 7th 1967, refuses to have
Counsel present at Personal Ap-
pearance, refuses to have witnesses
speak orally, on behalf of registrant
at Personal Appearance and refuses
to have stenographer present at pro-
ceedings at Personal Appearance.
3 =
San
Vote
Dates Minutes of Actions Yes No
11-8-67 On pers. appearance. Hold for 10
days for further documents from
Registrant. Pers. App. held this
date 3 —
Dec. 1, 1967 Letter received from Attorney Peter
Franck dated Nov. 30, 1967.
12/13/67 Case Reviewed & I-A retained & case
not re-opened. Board determines that
oral witnesses wil! not be heard and
that stenographic reporter will not
be present. Classified I-A Send to Ap-
peal Board 2—
12-18-67 Letter mailed to registrant.
Dec 21 1967 SSS 110 and 217 Mailed
1-3-68 Letter rec’d from reg with appeal.
1-10-67 [sic] Case reviewed, not reopened & I-A
is retained Send to App. Bd. The I-A
was given this Reg. 9-13-67 & we are
not required to give anew I-A now 3 —
1/24/68 Mailed C-140 to Registrant
1/24/68 Complete file forwarded to Appeal
Board. SSS 120 attached.
5-22-68 Classified I-A by the Appeal Board 4 0
5-23-68 Complete file received from the Ap-
peal Board
May 31 1968 SSS Form 110 Mailed
6-14-68 SSS Form 252 and DD Form 398
Mailed
(Order to Report for Induction)
(7-10-68)
IRC SNL RN De DELL ATRIA BRNO EL YING OR MCI NS Sm ATE IS RR IN EN AN SN RANGE SNE
Vote
Minutes of Actions Yes No
7-19-68 Letter received from Armed Forces
Examining and Entrance Station
Registrant refused to submit for In-
duction.
7-24-68 Complete file forwarded to State
Headquarters for review and deter-
mination whether to report to the
U.S. Attorney as a delinquent.
8-9-68 Complete file returned from State
Headquarters with authority to re-
port to United States Attorney as a
delinquent on SSS Form 301
8-20-68 SSS Form 301 mailed (Delinquent
Registrant Report) to United States
Attorney.
9-19-68 Cover sheet and complete file for-
warded to State Headquarters per
request of September 18, 1968. SSS
Form 1 affixed.
SURAT GRRE ID EG/EC LES NS ESI NE PA
ee 0 DA art Pt ee : Rs EAP CIE! SS e AAO SA
(Received Oct. 18, 1967, Sacramento Local Board Group]
PETER F. FRANCK
Attorney at Law
2890 Telegraph Avenue, Berkeley 5, California
JEANETTE A. HERMES
THornwall 5-4123
FRANCIS HEISLER
Of Counsel
October 17, 1967
Selective Service System
Local Board No. 22
Post Office Building, Rm. 423
8th and I Streets
Sacramento, California 95814
re: Thomas W. Weller
SS No. 4 22 44 351
Gentlemen:
Pursuant to the notice contained in your Form 217,
enclosed please find my client’s request for a personal
appearance before your board.
I will appreciate it if you will inform me as to the
time and place of said hearing.
Very truly yours,
/s/ Peter Franck
PETER FRANCK
PF :h
Encl.
CERTIFIED MAIL—RETURN RECEIPT
SPECIAL DELIVERY.
OTS Le, COORG ie Sen NY eK
caus I
October 16, 1967
10
Selective Service System
Local Board No. 22
Sacramento, California
Gentlemen:
I wish to request an appointment for a personal ap-
pearance before your board with regard to my seeking
classification as a conscientious objector.
Sincerely,
/s/ Thomas W. Weller
THOMAS W. WELLER
Selective Service No.
4-22-44-351
eas : eee WC maa
SELECTIVE SERVICE SYSTEM
Local Board No. 22
Federal Building, Room 423
801 I Street
Sacramento, California 95814
(Local Board Stamp)
October 31, 1967
Thomas W. Weller
2990 Adeline Avenue
Berkeley, California
11
SS No. 4 22 44 351
Dear Sir:
Your request for a personal appearance before your
local board is acknowledged.
We have made an appointment for you to appear be-
fore your local board at the address given above at 1:00
p.m. on November 8, 1967.
Section 1624.2 (b) of the Selective Service Regulations
provides that “At any such appearance, the registrant
may discuss his classification, may point out the class or
classes in which he thinks he should have been placed,
and may direct attention to any information in his file
which he believes the local board has overlooked or to
which he believes it has not given sufficient weight. The
registrant may present such further information as he
believes will assist the local board in determining his
proper classification. Such information shall be in writ-
ing, or, if oral, shall be summarized in writing by the
registrant and, in either event, shall be placed in the
registrant’s file.”
By DIRECTION OF THE
LOCAL BOARD
/s/ Idahleen Thompson
Clerk
12
[Received Nov. 6, 1967, Sacramento Local Poard Group]
PETER F. FRANCK
Attorney at Law
2890 Telegraph Avenue, Berkeley 5, California
JEANETTE A. HERMES THornwall 5-4123
Selective Service FRANCIS HEISLER
Local Board No. 22 Of Counsel
Post Office Bldg. Rm. 423
8th & I Streets
Sacramento, California
95814
Re: Thomas W. Weller
SS. No. 4 22 44 351
Dear Sirs,
My client, Mr. Thomas Weller informs me that you
have sent to him a notice of time and place for his per-
sonal appearance before your board. Please have refer-
ence to my letter of October 17, 1967, wherein I requested
that you forward said notice to this office.
Mr. Weller has requested that I be present at the
hearing, along with his witnesses, to advise him with
respect to his rights.
Further, he wishes to bring with him to the hearing
several people who are well acquainted with him to speak
to you on his behalf, in support of the sincerity and con-
scientiousness of his opposition to war. I have advised
Mr. Weller of the importance of making a good record
of the proceedings, and he requests that, in order that
he be able to concentrate his attention on giving your
Board members the best possible understanding of his
position, he be permitted to bring with him a stenog-
rapher to record the proceedings, for the benefit of his
records, and to aid the deliberations of the appeal board,
in the event that should become necessary.
_
In view of the fact that Mr. Weller’s witnesses, re-
corder, and legal advisor will have to travel to Sacra-
mento for the hearing, it is requested that you grant
permission for their attendance at the hearing in ad-
vance.
13
Thank you very much for your consideration in this
matter.
Very Truly Yours,
/s/ Peter Franck
PETER FRANCK
Satta WA
14
Local Board No. 22
Federal Building, Room 423
801 I Street
Sacramento, California 95814
November 7, 1967
Mr. Peter F. Franck
Attorney at Law
2890 Telegraph Avenue
Berkeley 5, California
Dear Sir:
It appears from your written request, undated, that
Thomas W. Weller, SSS No. 4-22-44-351, has requested
the following to be accomplished at his Personal Appear-
ance, on November 8, 1967.
(1). That Mr. Peter F. Franck be present at the
hearing as his attorney.
(2). That witnesses also be present to speak in his
behalf.
(3). That a stenographer to record the proceedings be
present.
Under Section 1624.1 (b), of the Selective Service
Regulations it states in part **And provided further,
that no registrant may be represented before the local
board by anyone acting as attorney or legal counsel,
therefore request No. 1 above is refused.
With respect to request No. 2, the local board has exer-
cised its discretion and decided that it will not hear
witnesses at this Personal Appearance. These witnesses
should submit their testimony in writing and it will be
considered by the board.
Under Section 1624.1 (b), of the Selective Service
Regulation states in part. No person other than a regis-
trant shall have the right to appear in person before
the local board, but the local board may, in its discre
tion, permit any person to appear before it with or on
behalf of a registrant**.
be arm rage 8 He be OT.
15
If at the Personal Appearance the Board feels there
is any reason to hear witnesses, it will so advise the reg-
istrant and will set a further date for such purpose,
With respect to request No. 3, the Board in exercising
its discretion denies the request to have a stenographer
to record the proceedings.
Under Section 1624.2, Appearance before Loca] Board,
of the Selective Service Regulation, paragraph (b) states
in part **Such information shall be in writing, or if
oral, shall be summarized in writing by the registrant,
and in either event, shall be placed in the registrant’s
file.**
You may advise Mr. Weller to come prepared with a
written summary of the oral points he wishes to raise
at the Personal Appearance. It will be filed and con-
sidered along with his oral statements at the Personal
Appearance.
Respectfully,
/s/ Ralph T. Lui
R, T. Lui, Chairman
Local Board No. 22
rl /it
ec: Thomas W. Weller
Above telephoned to Mrs. Hermes, this date
16
[Received Nov. 8, 1967, Sacramento Local Board Group]
Local Board No, 22
Federal Building, Room 423
801 I Street
Sacramento, California 95814
November 8, 1967
PERSONAL APPEARANCES
SUBJECT: WELLER, Thomas W.
SS No.: 4 22 44 351
Registrant appeared for his personal appearance before
the Local Board members at the address given above on
November 8, 1967. Board members present: Mr. Ralph
T. Lui, Chairman, Mr. Frank Goldstein, Secretary and
Mr. Alfred I. Scott, member.
Registrant stated he doesn’t belong to any church, has
arrived at his beliefs independently, entire world gov-
erned by a profound religious principle. Registrant
stated:
“There is a certain kind of person I want to be and
there are certain things I can’t do and be that person.
One thing is to be part of organized violence, army is
that sort of thing and I can’t be in that sort of thing.
An Army follows its orders. It is organized to kill at
random and not to make moral judgements.”
“T could not kill unless I could make a moral judge-
ment in each instance.”
“I couldn’t serve as a Medic. At some point, I have
to take a stand and I can’t be part of the Army.”
“IT could imagine that circumstances could arise that
I could use violence in a certain case and my moral sense
would permit me to use it, but in the Army I would be
obligated to use violence in all cases whether my moral
judgement would permit me or not. In the Army one
implicitly accepts the use of violence and this is essential
17
to the nature of serving in it in a combatant or non-
combatant capacity.”
Registrant was read above in quotes and agrees it is
substantially okeh.
Registrant stated: “Where my beliefs come from, I don’t
know. I have in my mind this intuitive idea, mystical,
of what sort of a person I have to be. I attribute that
idea to a religious source, I don’t think the source of
religion is written down, for me at least, or in any reli-
gious body. It is inherent in what I see around me in
the world and how I feel about it. I feel that this feeling
is deep and I’d go to jail if necessary.”
Registrant was read above in quotes and agrees it is
substantially okeh.
The registrant was advised that he has ten days to get
in his written summary of his oral presentation and to
send in letters from persons who wish to give informa-
tion as to his beliefs.
We would then decide whether further oral witnesses
would be permitted.
18
[Received Nov. 15, 1967, Sacramento Local Board Group}
PETER F, FRANCK
Attorney at Law
2890 Telegraph Avenue, Berkeley 5, California
JEANETTE A. HERMES
THornwall 5-4123
FRANCIS HEISLER
Of Counsel
November 14, 1967
Mr. R. T, Lui, Chairman
Local Board No. 22
Federal Building, Room 423
8th and I Streets
Sacramento, California 95814
Re: WELLER, Thomas W.
SS No, 4 22 44 351
Dear Mr. Lui:
Thank you for your letter of November 7, 1967, in
the captioned matter. With regard to request No. 1, the
right to counsel, I would like to make two points for
your consideration.
In the first place, I propose to be present to advise
my client as to his rights, and to aid him in any way
I could with his presentation of his case to your board.
This function is quite distinct from that of representa-
tion which is all that the cited regulation bars, “No
registrant may be represented before the local board. . .”.
Second, and of very great importance, is the fact that
the cited regulation was drawn and enacted at a time
when the law provided for full field investigation of con-
cientious objector claims by the FBI, followed by a de-
tailed review by the Justice Department, including a
hearing before a trained hearing officer in which counsel
was allowed and witnesses were heard and a record was
2 Vane mon ee ee
19
made, As you know, recent amendments to the Selective
Service Act have eliminated the latter procedure. The
appearance before the local board is now the one and
only time wherein a registrant may have any kind of :
a hearing, present his case in person, present testimony
on his behalf, and meet his accusers, in the sense that
he may determine the reasons for prior denial of his
claim.
The Supreme Court of the United States had many
occasions in recent years to construe the due process
requirements of the Constitution with respect to the ques-
tion of the right to counsel, and every case has upheld
that right where the proceeding involved a matter of the
liberty and substantial personal rights of the individual.
Clearly, this is such a case.
SPE INS Bee
In view of the substantially changed circumstances, I
think it would be advisable for all parties if you would
determine whether the Selective Service System has made
a determination of the validity of the prior requirement
with regard to exclusion of counsel.
With respect to what you refer to as request No. 2,
I would like to point out that one of the factors which
your board should be considering most carefully at such
a hearing is the registrant’s sincerity. I do not feel that
there is any basis for assuming that sincerity can be
judged as well from the written word of the witness as
from the oral presentation. Therefore, I would respect-
fully inquire as to the basis of the exercise of the board’s
discretion in this matter.
Re Se OR eR
SEP Pee Pree
With respect to your citation of Regulation No. 1624.2, '
while this authorizes the registrant to summarize the ;
information he provides, it does not provide for recording
of other aspects of the proceedings, including questions
and remarks by the members of the board. It is difficult
for me to understand why this regulation is construed j
to bar what is obviously a preferable procedure for mak- ;
ing a record, so long as the registrant is willing to bear
the extra cost.
I would hope that your board would consider these
matters of constitutional due process very seriously, ob- :
prec. SS OPW Ry LM RENEE he ARE TT RI OT PT Rae DSS Aes p00 AL SOA SEA . oh were,
20
tain appropriate guidance from the Selective Service
System, and the Justice Department, and very seriously
consider our request that you grant my client a hearing
in which the requirements of due process are met.
Thank you for your attention.
Very truly yours,
/s/ Peter Franck
PETER FRANCK
PF :mw
RPE MR iG serena — .
te Ps ERAS RA ete apa areas eae nate SAA IAE SEEN REET PRT ie arc rs
21.
Local Board No. 22
Federal Building, Room 423
801 I Street
Sacramento, California 95814
November 17, 1967
Mr. Peter F. Franck
Attorney at Law
2890 Telegraph Avenue
Berkeley 5, California
Subject: Weller, Thomas William
SS No.: 4 22 44 351
Dear Sir:
With reference to your letter of November 14, 1967,
I call your attention to the fact that at the registrant’s
personal appearance on November 8, 1967, he was ad-
vised that he had ten days from November 8, 1967 to
submit the written statements of his witnesses to us.
Also, registrant’s attention was called to the Form C-310
notice mailed to him on October 31, 1967, which states
in part; “Section 1624.2 (b) of the Selective Service
Regulations provides that, ‘At any such appearance, the
registrant may discuss his classification, may point out
. the class or classes in which he thinks he should have
been placed, and may direct attention to any informa-
tion in his file which he believes the local board has over-
looked or to which he believes it has not given sufficient
weight. The registrant may present such further infor-
mation as he believes will assist the local board in deter-
mining his proper classification, Such information shall
be in writing, or, if oral, shall be summarized in writing
by the registrant and, in either event, shall be placed in
the registrant’s file’. The registrant did not come with
the written summary referred to therein, so was asked
to submit this within the ten day period.
The registrant, under date of November 14, 1967, has
submitted two letters of witnesses, but has not submitted
written summary, which he was privileged to submit.
While his failure to submit such written summary will
in no way draw any detrimental inferences by this board,
SURES RU ROSY 9 “ RAE BG PE i OOP AE NEE RE I ETE MAM ATE EES EPI: a
22
I call this omission to your attention so that he may sup-
ply us with such a summation if he desires.
Your current letter of November 14, 1967, proceeds
on an assumption that this board has continued the per-
sonal appearance to a further date beyond November 8,
1967, the day on which it was held, This assumption is
incorrect. The personal appearance was afforded the reg-
istrant on November 8, 1967 and this board has merely
postponed for ten days, its review of the case pending
receipt of the written documents referred to herein. The
board has held open the determination as to whether oral
presentation of witnesses will be permitted, until after
its examination of the written statements. The meeting
at which this determination will be made is not part of
the personal appearance of the registrant, but is part }
of the review by the board of the case after the personal
appearance, during which review the registrant is not
present.
If at this review a determination is made to permit
oral testimony, we will at that time inform you as to
the board’s decision relative to your request in your letter
of November 14, 1967. If the board’s determination is
not to permit the taking of oral testimony, your request
to be present then becomes moot.
We are extending the time within which to submit
any further written matters for our review, to December
7, 1967, after which we will review the file as set forth
herein.
Yours very truly,
FoR THE BOARD
/s/ Ralph T. Lui
RALPH T. LuI, Chairman
Local Board No. 22
23
[Received Dec. 1, 1967, Sacramento Local Board Group]
PETER F. FRANCK
Attorney at Law
2890 Telegraph Avenue, Berkeley 5, California
JEANETTE A. HERMES
THornwall 5-4123
FRANCIS HEISLER
Of Counsel
November 30, 1967
Local Board No. 22
Federal Building, Room 423
801 I Street
Sacramento, California 95814
Re: WELLER, Thomas William
SS No. 4 22 44 351
Dear Sirs:
Enclosed please find the original summary of my
client’s hearing before your Board. If this summary is
in any way incorrect, I will appreciate it if you will so
notify us within seven days so that we may correct the
record.
In submitting this material, we in no way waive the
previous request made for a hearing wherein the basic
performance of due process of law are observed.
In matters such as this one, these are not mere empty
formalities. There is a great and probably growing gap
between the generations in our Nation. Communication
across this line is difficult under the best of circum-
stances. Young people do not use the same words and
language, or, when they do they may mean quite differ-
ent things. In a period when they feel an increased
alienation from the formal] institutions of our society, to
ask them to communicate their deep and heartfelt beliefs
through cold, formal, letters, is unrealistic. Only through
24
a real hearing where there is an opportunity for a regis-
trant and his friends to come and together attempt to
communicate with you the beliefs they hold deeply and
strongly can there be any hope of real communication.
Without real communication there [sic] constitutional
rights to a fair hearing cannot be vindicated.
I trust you will seriously consider these matters.
Very truly yours,
/s/ Peter Franck
PETER FRANCK
PF :mw
Enclosure
The Spokesman or Chairman of the board explained
that he had gotten the letter requesting that I be allowed
to have an attorney, witnesses, and a stenographer pres-
ent at the hearing, and that he had talked to Mrs. Hermes
on the telephone. He explained the board’s reasons for
denying those requests, and gave me a copy of a letter
setting forth those reasons. He suggested that I could
have the witnesses that I had wanted to be present send
letters to the board, and that the board would delay its
decision “a week or ten days” for that purpose. He said
that their function there was to try to form an idea of
what my ideas were like and what kind of a person I
was through an informal conversation; that they would
not be asking any trick questions or trying to change
my mind; that they would permit me to “carry the ball”
as regards to what I felt I should tell them.
I asked them what they thought were valid grounds
for conscientious objection, and whether they thought
that certain sorts of religious beliefs and background
were necessary and what they were.
The spokesman replied that it was not their function
to judge such legal questions.
I said that I felt that I was, as a CO, necessarily in-
volved with those questions, whether they were or not.
2 de ese nNes mena as
25
The spokesman repeated some of his earlier statements
about how the board operated, and said that while it was
probably a clearer case in type case [sic] of a Jehovah’s
Witness or similar religious affliations, in a case like
mine, they were faced with a more difficult problem.
I said that it must be difficult to judge the sincerity
or depth of belief of a person with beliefs of his own
making, as opposed to a person of a conventional reli-
gious affiliation, but that the two beliefs might well be
equally real, to which the board members indicated
assent.
I then said that I could perceive within myself an
image of the sort of person that I should be and that
this image was inconsistent with the sort of person mili-
tary service would require me to be. People in the mili-
tary service prepare, train, and equip themselves for
killing and violence, and must accept as their own the
goals of the military organization, namely, killing and
violence. I stated that I could never take the step of
accepting those goals and that way of life by becoming
a part of a military organization, even as a non-combat-
ant member.
The chairman asked at that point if I was really fa-
miliar with the nature of the medics. He explained that
medics in the field need not accept orders from the combat
command if such orders violated their non-combatant
status, and that in fact medics were not permitted to
carry guns.
I replied that going in the service even in such a case
required pledging one’s loyalty to an organization whose
goals were violent ones and implicitly accepting those
goals thereby.
The spokesman said that he wanted to get as clear as
possible an idea of my views on whether violence was
ever justifiable, and as I spoke he attempted to briefly
paraphrase what I said, repeatedly asking me if his para-
phrase was substantially correct, and writing down his
paraphrase.
I stated that violence would conceivably be justifiable
to me in a situation where the effect and its goal were
perfectly clear, that is, in a situation where I could see
the danger, and exactly what measured use of force
would stop it. This is different from war where, while
the means are generally agreed to be evil, the effect of
the application of these means and the goal are uncer-
tain and very different from the institution of the army
where the soldier necessarily accepts the idea of training
and preparing himself to use violence whatever the goal.
The soldier accepts orders from whoever is in power
whether it be a Johnson or a Hitler, not caring about
the purpose.
The spokesman then asked if there was any more I
had to say, adding that he had to ask that question of
everyone so as to be sure they got a fair hearing.
I said that I would like to say more about the origins
of my beliefs. The spokesman carefully paraphrased and
recorded this part also, as above.
I stated that I was not certain of the origin of my
beliefs and their religious nature, but that I was certain
of their depth. Religion for me is no [sic] in written
revelation or in organized religious bodies. It comes from
my living in the world, and what I feel about it. It gives
me an intuitive feeling of what I want to be like and
I feel I must live up to it. There is no way to commu-
nicate to you whether this feeling is shallow or deep, but
I know that it is deep enough that I would go to jail
for it.
A board member asked, since I stressed the importance
of knowing the danger and how a given application of
force would stop it in determining whether violence was
justified, that if I knew what President Johnson knows,
might I not do the same?
I assured him that if I were in Johnson’s position, I
wouldn’t maintain an army, much less a war.
He suggested that that was essentially the case at the
time of Pearl Harbor, when we were “caught with our
pants down”.
I pointed out that if we had not had a military base
at Pearl Harbor, the Japanese would not have bombed
it. I then attempted to make it clear that I categorically
26
denied the possibility of knowing when violence was jus-
tified in the arena of world history. No one ever really
knows enough to say, “if we don’t do A, B will happen”.
So in essence, it is a matter of trading a certain evil
for a possible evil. There has never been enough justifi-
cation for unleashing the terrible distate [sic] of war on
the world.
At this point we mutually agreed to end the proceed-
ings.
27
The foregoing is as accurate a reconstruction of my
hearing as I can make from memory.
/s/ Thomas W. Weller
THOMAS W. WELLER
DATED: November 30, 1967
LI GA OLLIE ATE NET Se DO ARIE ARENA LIE OOPS BD
a te
28
Local Board No, 22
Federal Building, Room 423
801 I Street
Sacramento, California 95814
4 22 44 351
December 13, 1967
Mr. Thomas W. Weller
2990 Adeline Avenue
Berkeley, California
Dear Sir:
From examination of entire case, board determines
that permission is denied to present oral witnesses on
behalf of registrant. Registrant having been afforded
opportunity to present letters of witnesses and a sum-
mary of personal appearance, the board this date has
reviewed the case, has not reopened same, and retains
registrant in his present 1-A classification.
Yours very truly,
FOR THE BOARD
/s/ Ralph T. Lui
RALPH T. LUI, Chairman
Local Board No. 22
ec: Mr. Peter F. Franck
OSE AINE Ne AA BPA ANOLE TRL TERE BE DUCA RNG
29
[Received Dec. 28, 1967, Sacramento Local Board Group]
PETER F. FRANCK
Attorney at Law
2890 Telegraph Avenue, Berkeley 5, California
JEANETTE A. HERMES
THornwall 5-4123
FRANCIS HEISLER
Of Counsel
December 27, 1967
Ralph T, Lui, Chairman
Local Board No. 22
Federal Building, Room 423
801 I Street
Sacramento, California 95814
Re: WELLER, Thomas William
SS No. 4 22 44 351
Dear Mr. Lui:
I am in receipt of your letter of December 13, 1967,
in the captioned matter.
Please note that on behalf of my client, I make excep-
tion to the actions taken by your board as contrary to
law and Selective Service regulations and that it is not
justified under the circumstances. I ask that you recon-
sider these actions.
Whether or not you reconsider these actions, I wish
to draw your attention to the faut [sic] that your action
in “not reopening” and “retaining” the registrant in his
present 1-A classification is incorrect and inappropriate
under the circumstances, Where a claim for conscien-
tious objection is presented, and the board determines not
to grant 1-0 classification, it must take a new classifica-
tion action, albeit, classifying into the samd [sic] 1-A
classification. To fail to do so would appear to be noth-
7
ing other than an attempt to prevent the registrant from
exercising his right to appeal from your board’s decision.
It is requested that you take the appropriate action.
On behalf of Mr. Weller, please take notice that he
hereby appeals from your decision, both as to the proce-
dural matters which we have raised and as to the denial
of the classification 1-0.
30
Very truly yours,
/s/ Peter Franck
PETER FRANCK
PF :mw
[Received Jan. 3, 1968, Sacramento Local Board Group}
December 29[7], 1967
{date not clearly legible]
Selective Service System
Local Board No. 22
Sacramento, California
Dear Sirs:
I have recieved [sic] your letter of December 13. I
appeal to the Appeals Board from your decision not to
classify me 1-0, and from your decision denying me the
right to present witnesses before you, to make a record
of your proceedings, and to have counsel present.
Sincerely,
/s/ Thomas W. Weller
THOMAS W. WELLER
SS No, 4-22-44-351
31
[Filed Sep. 19, 1969, C. C, Evensen, Clerk]
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
No. 42614
UNITED STATES OF AMERICA, PLAINTIFF
v8.
THOMAS WILLIAM WELLER, DEFENDANT
ORDER GRANTING MOTION TO DISMISS INDICTMENT
The Defendant has made a motion to dismiss the in-
dictment against him pursuant to Fed. R. Crim. P. 12.
Defendant contends that his constitutional rights were
violated because his request to have his attorney present
during the personal appearance on his conscientious ob-
jector claim was denied pursuant to 32 C.F.R. § 1624.1
(b) which provides:
... no registrant may be represented before the
Local Board by anyone acting as attorney or legal
counsel.
Alternatively, the defendant contends that the section of
1624.1(b) quoted above is not authorized by the Selective
Service Act of 1967, 50 U.S.C.A. App. § 451, et seq.
The pertinent facts, which are apparent from the De-
fendant’s Selective Service file, are as follows: The De-
fendant requested, received and filed with his local board
a Form 150 (Special Form for Conscientious Objector).
The board classified the Defendant I-A and the Defend-
ant requested a personal appearance. The Board sched-
uled the appearance for November 8, 1967. The Board
received a letter from the Defendant’s attorney on No-
vember 6, 1967 which requested that the board grant
Defendant’s attorney permission to be present at the
personal appearance to advise him with respect to his
rights. Relying on 32 C.F.R. §1624.1(b), the board
denied the requested permission. Following the hearing,
the Defendant’s board declined to reopen his case and
retained him in class I-A. The Defendant then unsuccess-
fully appealed this classification.
82
There is no question that the hearing before the local
board on a registrant’s claim for conscientious objector
status is a critical stage of an administrative process
at which substantial rights are adjudicated. The failure
to sustain one’s claim can result in requiring a registrant
to serve his country in a manner different both in type
(a I-A-O serves in the armed services in a non-combatant
capacity) and in hazard (a I-O performs non-military
alternative service in the national interest).
In Greene v. McElroy, 360 U.S. 474, (1959), the Su-
preme Court held that the administrative denial of tra-
ditional forms of fair procedure, particularily where sub-
stantial constitutional doubts are raised, are not to be
presumed to be authorized “by implication or without
the most explicit action by the Nation’s lawmakers, even
in areas where it is possible that the Constitution pre
sents no inhibition.” The Greene case dealt with the
administrative withdrawal of security clearance causing
the plaintiff’s loss of a job in private industry, and the
procedural safeguards which were missing were the right
to confrontation and cross-examination of those who gave
information adverse to Mr. Greene. Certainly, failing to
establish a conscientious objector claim is as serious as
the impact of loss of the right to have access to classified
information (hardly what most people would consider
to be a “right”). The right to counsel is also a tradi-
tional safeguard, and the only apparent reason it was
not dealt with in Greene is because Mr. Greene was rep-
resented by counsel in all of his proceedings, Indeed, of
what value would be the right to confrontation and cross-
examination without the right to counsel skilled in those
arts? It seems clear that the affirmative denial of the
right to be represented by retained counsel, even in a
“civil” proceeding, where substantial loss of liberty may
be at stake, is subject to grave constitutional doubts.
In re Gault, 387 U.S. 1 (1967).
In spite of the fact that the Greene court did not de-
cide that the plaintiff had a constitutional right to con-
frontation and cross-examination, the court held that
plaintiff had such rights because the “Nation’s lawmak-
ers” did not explicitly authorize their withdrawal by the
Defense Department. Accordingly, in the case at bar,
33
the only “lawmakers” who could explicitly authorize the
denial of counsel in hearings before the local draft boards
are Congress, not the President, since the President could
not raise an army, through induction, without the au-
thority of Congressional legislation." However, nowhere
in the Act has Congress expressly denied the right to
counsel or expressly delegated the power to do so to the
President. The only possible sources of such a delegation
are Section 1(c) which states that service should be “in
accordance with a system of selection which is fair and
just... .,” and section 19(b) (3) [sic: should read “10
(b) (3)”] which provides “such local boards . . . shall,
under rules and regulations prescribed by the President,
have the power ... to hear and determine. . . all ques-
tions and claims with respect to... exemption. .. .”
These sections clearly are not “explicit action by the
Nation’s lawmakers” ‘in this case Congress) taking the
constitutionally-suspect action of removing the right to
be represented by counsel.
In Greene the argument was made that delegation of
the power pruning the traditional procedural rights
should be found because of Congressional and Presiden-
tial acquiesence in the program. The court dismissed the
contention as follows:*
If acquiescence or implied ratification were enough
to show delegation of authority to take actions with-
1While under Article 2 §2 of the Constitution the President
is Commander in Chief of the Armed Forces (See Cafeteria
Workers v. McElroy, 367 U.S. 886), under Article 1 § 8, Congress,
not the President, (See Swaim v. United States, 28 Ct. Cl. 173,
Aff. 165 U.S. 553 (1893); 6 Op. Atty. Gen. 10 (1853)), is given
the power to provide for the common defense, to declare war, to
raise and support armies, to provide and maintain a navy and to
make all laws necessary and proper for the execution of those
powers. It is pursuant to these Congressional powers that the
Selective Service Act of 1967 was passed, and it was obviously
upon the premise that only Congress could raise an army that
Congress found it necessary to authorize the President “to select
and induct into the Armed Forces of the United States for train-
ing and service in the manner provided in this title. . . such number
of persons as may be required to provide and maintain the strength
of the Armed Forces.” 50 U.S.C.A. App. § 454(a).
* 360 U.S. at 506, 507.
ST 4
2
in the area of questionable constitutionality, we
might agree with respondents that delegation has
been shown here. . . . We deal here with substantia]
restraints on employment opportunities of numerous
persons imposed in a manner which is in conflict
with our long-accepted notions of fair procedures,
Before we are asked to judge whether, in the context
of security clearance cases, a person may be de-
prived of the right to follow his chosen profession
without full hearings where accusers may be con-
fronted, it must be made clear that the President or
Congress, within their respective constitutional pow-
ers, specifically has decided that the imposed proce-
dures are necessary and warranted and has author-
ized their use. . . . Such decisions cannot be assumed
by acquiescence or non-action . . .. They must be
made explicitly not only to assure that individuals
are not deprived of cherished rights under proce-
dures not actually authorized . . . but also because
explicit action, especially in areas of doubtful con-
stitutionality, requires careful and purposeful con-
sideration by those responsible for enacting and im-
plementing our laws. Without explicit action by law-
makers, decisions of great constitutional import and
effect would be relegated by default to administrators
who, under our system of government are not en-
dowed with authority to decide them.
[Emphasis added. |]
Greene, therefore, is persuasive authority for the propo-
sition that 32 C.F.R, § 1624.1(b) is not authorized by
the statute.
Six years prior to Greene the Supreme Court decided
United States v. Nugent, 346 U.S. 1 (1958) (5-to-3
decision), The defendant contended that the requirement
of a “hearing” under the then-existing section 6(j) of
the Selective Service Act meant that he should be entitled
to cross-examine those who gave statements to the F.B.I.
deliterious [sic] to his claim. The Court denied this
claim, feeling that the “6(j) hearing” was not a “deter-
minative” one and that there was “no time” for “litigious
34
— BESS RRS RPE TLE IEE TE NE ED SPREE” A Sah AS OB PMR:
interruption.” The first reason is not applicable to our
situation because now the hearing before the board is
determinative. Reason two is not persuasive and was not
followed in Greene. If litigious delays of potential mem-
bers of the armed forces are of concern, a fortiori such
delays regarding those already in the service are of equal .
if not greater concern, Yet, counsel participate in hear-
ing with respect to members of the army who claim 4
conscientious objector status, Army Regs. 635-20, para.
4(d) (Jan, 22, 1969). Finally, Nugent was not a “right
to counsel” case, and the governmental interest in pro-
tecting sources of confidential information is more com-
pelling that [sic] preventing a possible slight delay caused
by the presence of retained counsel at a registrant’s per-
sonal appearance. Indeed, counsel was permitted to par-
ticipate in the “6(j) hearings”. Storey v. United States,
370 F.2d 255 (9th Cir. 1966).2 As Mr. Justice Frank-
furter so eloquently stated in his dissent: :
35
Pts ee
2Jt is interesting to note that following the Greene case Presi- :
dent Eisenhower, in Executive Order 10,865, set up a security
clearance procedure which included the opportunity to be represented
by counsel. Exec. Order No. 10,865, 25 Fed. Reg. 1583 (1960), as
amended in 3 C.F.R. §512 (1968). The Nugent case was subse-
quently followed in Gonzales v, U.S., 364 U.S. 59 (1960). Petitioner
claimed denial of due process because he was denied, at trial, the
right to have the Justice Department hearing officer’s report, as
well as the original report of the F.B.I. The Court rejected this
claim, holding that neither was relevant at trial as the case “cen-
tered entirely on the Department’s recommendation, which peti-
tioner repudiated, but which both the appeal board and the court
below found supported by the record.” 364 U.S. at 64. Although
“following” Nugent, the Court concluded that: “This is not to say
that there might not be circumstances in a particular case where
fairness in the proceeding would require production. No such
circumstances, as foundation for a claim of actual unfairness, are
before us.” 364 U.S. at 65. [Emphasis added.] Therefore, the hold-
ing in Gonzales is not persuasive in deciding the case at bar, because
it was based wholly on the Court’s conclusion that the facts demon-
strated that Gonzales suffered no unfairness due to the denial of
production of the documents. The reasoning of the Greene court,
to the contrary, is much like the present case, because the pos-
sibility of unfairness to petitioner Greene—certainly no greater
than to defendant Weller—led the Court to hold that the denial of
traditional safeguards was not to be inferred, but rather required
explicit authorization.
"3 ERD ILLES ERIE ALLEL BIOTEC BN AME BD SSR SY NEE Se SESE OO
Ae ee ee
axe iY hn ae At Atte a oe
MELT Fk IIE ten 8 82 aa ape cae nem 5 sss! 8 oth Ine NRE
7 —_ POSS A HA MEU
36
Considering the traditionally high respect that dis-
sent, and particularly religious dissent, has enjoyed
in our view of a free society, this Court ought not
to reject a construction of congressional language
which assures justice in cases where the sincerity of
another’s religious conviction is at stake, and where
prison may be the alternative to an abandonment of
conscience. The enemy is not yet so near the gate
that we should allow respect for traditions of fair-
ness, which has heretofore prevailed in this country,
to be overborne by military exigencies.
346 U.S. at 12, 18. [Emphasis added.]
The right to counsel has been considered increasingly
important in recent years. Indeed, the Supreme Court
has held it to be such a fundamental right that even in
juvenile proceedings, supposedly non-adversary, the youth
has a constitutional right to counsel of his own:
The juvenile needs the assistance of counsel to cope
with problems of law, to make skilled inquiry into
the facts, to insist upon regularity of the proceed-
ings, and to ascertain whether he has a defense and
to prepare and submit it. The child ‘requires the
guiding hand of counsel at every step in the pro-
ceedings against him.’
In re Gault, supra., at 36. [Citations omitted. ]
Even though the right to counsel has been so consid-
ered, lower federal courts have consistently taken the
position that there is no right to be represented by re-
tained counsel at Selective Service hearings. Nickerson
v. United States, 391 F.2d 760 (10th Cir.), cert. denied
892 U.S. 970 (1968); United States v. Dicks, 392 F.2d
524 (4th Cir. 1968); United States v. Capson, 347 F.2d
959 (10th Cir. 1965); Tantash v. United States, 409
Fed. 2d 227 (9th Cir. 1969); Haven v. United States,
403 Fed.2d 384 (9th Cir. 1968). In most of the cases
in which the matter has been raised, the courts have
either dismissed it with no discussion, placed their reli-
ance on the fact that the personal appearance of the
registrant before the board is not at a criminal proceed-
— NN LOLS DOOLEY IN LCL EE DIED ESE LI ANTILLES DOORN NAD Ch DAB Nl
37
ing within the ambit of the 6th Amendment, or held that
failure to request counsel deprived the registrant of
standing to raise the issue. (E.g., Haven, supra.) In
still other cases the Court’s language has merely been
dictum. See Tantash, supra; Haven, supra. No case
cited to the Court by the government or found by this
Court has addressed itself to the apparent lack of specific
authorization in the Selective Service Act for the denial
of counsel before the local boards.
The often-abbreviated and sometimes-cryptic treatment
of this traditional procedural safeguard has persisted in
spite of the many significant procedural developments in
other areas of the law. While conscientious objector
status may be a “privilege” and not a “right” (See
Uffelman v. United States, 230 F.2d 297 (9th Cir.
1956)), it is now established that the government may
not distribute its largesse in a manner which ignores
traditional procedural safeguards. Although the issu-
ance of a liquor license would hardly be considered by
most a “right”, nevertheless an applicant for a liquor
license has far more procedural rights than a Selective
Service registrant whose life may ultimately be placed
in jeopardy. See Hornsby v. Allen, 326 F.2d 605 (5th
Cir. 1964). Likewise a welfare recipient has more pro-
cedural rights than a Selective Service registrant, see
Kelly v. Wyman, 294 F.Supp. 893 (S.D. N.Y. 1968)
(three judge court), as does an applicant for admission
to the bar. See Willner v. Committee on Character &
Fitness, 373 U.S. 96 (1963). In the area of juvenile
proceedings the arguments that a juvenile has a right
“not to liberty but to custody,” that proceedings are
“civil” rather than “criminal’’, and that the proceedings
are non-adversary were advanced in order to justify
elimination of the right to counsel. Although the consti-
tutionality of the juvenile court laws had been upheld
in over 40 jurisdictions, nevertheless the Supreme Court
rejected these justifications. In re Gault, supra. When
the reasoning of the Gault case was advanced in the se-
lective service context, one court of appeals cited two
pre-Gault court of appeals cases and one 1911 Supreme
Court ease dealing with abridgment of freedom to con-
‘s
Soe .
ee ye ius Te de Foal he OE EE ES ae en Cite Sore ae ce) a ee a —
= ey x ; Wea ae i RT Lee Fk kab R
ey eene aerate,
EILEEN LLLP OLE L ELLE LLL LLL TO
a
tract to hold “it is well settled that there is no Constitu-
tional right to counsel in administrative proceedings
under the Selective Service Act.” United States v. Dicks,
supra, The court so decided despite the fact that the
vague standards, burdensome volume, and restricted re
view in the Selective Service System cases lend them-
selves to precisely the same kind of abuse which Dean
Pound in 1937 found should be surrounded by more
formal procedural safeguards and the Supreme Court in
1967 held required the right to counsel. Gault, supra at
18-19. See also Report of the National Advisory Com-
mission on Selective Service.* It has even been held that
in small claims proceedings which are clearly “civil” and
may even be classified as “de minimus” [sic], the right
to have counsel make a meaningful appearance some
where in the proceedings cannot be withdrawn. Mendoza
v. Small Claims Court, 49 C.2d 668, 321 P.2d 9 (1958);
Prudential Ins. Co. v. Small Claims Court, 76 C.A. 2d
379, 173 P.2d 38 (1946).
Cases such as In re Groban, 352 U.S. 330 (1957)
(5-to-4 decision) and Madera v. Board of Educ., 386
F.2d 778 (2nd Cir. 1967), cert. denied, 390 U.S. 1028
(1968), do not compel a different result. In the Groban
case it was held that a witness was not entitled to be
assisted by retained counsel when giving testimony be
fore a Fire Marshal. In Madera a parent and child were
denied permission to be represented by counsel at a guid-
ance conference involving their child pursuant to a Board
of Education Regulation. If a person is not entitled to
be represented by counsel before a Fire Marshal, before
a Grand Jury or before guidance counselors, it is because
these proceedings are preliminary in nature and in no
way result in a final adjudication. Madera, supra at
788; In re Groban, supra at 334. If a charge imperiling
an individual’s liberty were to arise from one of these
hearings, a trial would ensue at which the government
would have the burden of proof, and the defendant, with
the aid of counsel, could attack the substance of any
conclusions tentatively reached at the preliminary hear-
38
3 Government Printing Office (1967).
aN Oa ean Teena Ge Cet ee ae Lae MIRE Ch) OTR Ie
39
ing which resulted in the charge. The Madera court’s
reliance on the failure of the court in Dixon v. Alabama
State Bd. of Educ., 294 F.2d 150 (5th Cir. 1961) to add
right to counsel to its outline of a fair proceeding prior
to suspension of a student is misplaced, since the plain-
tiffs in their pleadings did not request the right to coun-
sel. Dixon, supra at 151, n.1. Furthermore, to the ex-
tent that the Madera case relies on Selective Service
cases for authority it is for present purposes circular.
In contrast to the preliminary nature of the above
proceedings, a registrant’s personal appearance before
his local board is in every sense an adjudication at which
the registrant should be awarded traditional judicial safe-
guards. See Hannah v. Larche, 363 U.S. 420 (1960).
In 50 U.S.C.A. App. § 460(b) (3) Congress has substan-
tially insulated the factual determinations of local and
appeal boards. Review of such determinations in a hear-
ing at which counsel is present is restricted to habeas
corpus after, or criminal prosecution for refusal of, in-
duction. The scope of review is limited to the question
whether there was any “basis in fact” for the classifica-
tion assigned. While judicial review is thus substantially
restricted, the decision of the local board obviously has
a dramatic impact on the registrant’s life and liberty.
It is contended that since a conscientious objector
hearing is an inquiry into the registrant’s state of mind,
the presence of counsel would not only be of no assistance
but, because of the probability that he would make vexa-
tious objections to questions and testimony, counsel’s
presence would be to the registrant’s disadvantage. It
is unrealistic to assume that an attorney who is familiar
with the very limited scope of judicial review available
would do anything which would antagonize a local board
or leave it with an impression other than one of complete
candor. Also, the registrant will be more able to present
his case if he is articulately represented by counsel.
Counsel will also act as a deterrent to possible abrupt
or summary treatment of the registrant’s claim (Cf.,
United States v. Wade, 388 U.S. 218 (1967)). He may
also bridge potential hostilities which result from the
difference in ages between the board members (who are
. . - PE DROS BRL AR RRS.
PUD OARE BES DO et ait Bent TINE A AIM + EE oe ~
Ph
40
between 30 and 75 years old, 32 C.F.R. § 1604.52(c),
(d)) and the registrant. Through questioning or argu-
ment, counsel can clear up any inconsistencies or vagaries
in the registrant’s testimony before the board which, if
uncorrected, might lead the board to decide against an
otherwise qualified registrant. Counsel would be very
familiar with the requisite statutes, regulations, and in-
terpretative cases. The registrant may never have pre-
viously been required to articulate his beliefs and he may
omit or confuse critical aspects of his beliefs. The pres-
ence of counsel would be crucial to leaving the board with
a complete portrayal of the registrant’s relevant beliefs.
Finally, a brief summary by counsel may focus the board’s
attention on the elements of a conscientious objector claim
and relate them to what the registrant has said, point-
ing out why the registrant should be believed. For a
review of some of the difficulties encountered in passing
on conscientious objector claims, see United States y.
Houghten, 9th Cir. No. 23,556, June 19, 1969. All of
the above roles are ones in which attorneys commonly
operate, but with which a registrant is likely to have
little familiarity. Of course, a registrant is always free
to appear without counsel if he concludes that this would
be to his advantage. Finally, a local board is not without
power to terminate a hearing which is being unduly
extended by counsel.
It could be argued that 32 C.F.R. § 1604.41, providing
that “Advisors to registrants may be appointed . . . to
advise and assist registrants in the preparation of ques-
tionnaires and other selective service forms and to advise
registrants on other matters relating to their liabilities
under the selective service law” supplies such procedural
safeguards as to remove from 32 C.F.R. § 1624.1(b) the
taint of doubtful constitutionality.* This does not follow.
432 C.F.R. § 1604.71 provides as follows regarding these ad-
visors (appeal agents) :
(c) Each government appeal agent and associate government
appeal agent shall be, whenever possible, a person with legal
training and experience.
[Footnote continued on page 41]
Samal CRC RR PN DRE ie Pa 2p PRAIA BL AED ORD Rig FBR RD,
PS
41
Even assuming that the appeal agent would be legally
qualified, 32 C.F.R. § 1604.71(c), there is no provision
for his appearance before the board except when the
board so requests. 32 C.F.R. § 1604.71(d) (2).
Furthermore subsection (d) (5) injects such a conflict
of interest ® into any representation the appeal agent may
provide that it is doubtful that he could act for the
registrant in the role of an attorney.° He certainly can-
not claim to represent the best interests of the registrant
| and still be in compliance with subsection (d) (5). |
+ [Continued]
(d) It shall be the duty of the government appeal agent... .
(1) to appeal . . . from any classification of a registrant by
the local board which is brought to his attention and, in his
opinion, should be reviewed by the appeal board.
(2) To attend such local board meetings as the local board may
request him to attend.
(3) To suggest to the local board a reopening of any case
where the interests of justice, in his opinion, require such
action and to submit to the local board, with such suggestion,
the information obtained by his investigation of the case
which has caused him to arrive at his decision that the case
should be reconsidered... .
(5) To be equally diligent in protecting the interests of the
Government and the rights of the registrant in all matters.
[Emphasis added.]
5In an August 20, 1968 letter, written at the direction of the
Board of Governors of the State Bar of California by Staff
Attorney Mary G. Wailes, to all members of the Bar serving as
Government Appeal Agents, it was stated: “The Board wishes
you to be advised, however, that in its opinion in acting as an
appeal agent you may be exercising dual responsibilities that could
put you in a position of representing conflicting interests.”
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*“To permit the inroad of a class of legal advisers being used
as undisclosed informants for the Federal Government will confirm
the suspicion and distrust with which some laymen approach ful)
disclosure of their vital interests to their lawyers .... The ill-
considered directive of General Hershey, already disavowed by
government legal specialists, is clearly improper.” Lawyers Cannot
be Informants, 54 A.B.A.J. 153, 154 (1968).
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42
Accordingly, this Court is loathe to hold that the ad-
ministrative denial of such a right is either authorized
by Congress or is constitutional.
The motion to dismiss is granted.
Dated: Sept. 19, 1969.
/s/ Robert F. Peckham
United States District Judge
DIN OL IIT ARO RC A ENE fF EIDE OLDE LEA ELVEN AIR
, —
[Filed Oct. 17, 1969, C. C. Evensen, Clerk]
43
CEecIL F. POOLE
United States Attorney
COLEMAN BRESEE
Assistant United States Attorney
Attorneys for Appellant
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
Criminal No. 42614
UNITED STATES OF AMERICA, APPELLANT
Vv.
THOMAS WILLIAM WELLER, APPELLEE
NOTICE OF APPEAL
Notice is hereby given that the United States, plain-
tiff above, hereby appeals to the Supreme Court of the
United States from the Order of the United States Dis-
trict Court for the Northern District of California en-
tered on September 19, 1969, dismissing the captioned
Indictment pursuant to defendant’s pre-trial motion, said
motion and order being made pursuant to Rule 12, Fed.
R.Crim.P.
The Government certifies that this appeal is not taken
for the purpose of delay and is not frivolous,
Respectfully submitted,
CECIL F. POOLE
United States Attorney
/s/ Coleman Bresee
COLEMAN BRESEE
Assistant United States
Attorney
DATED: October 17, 1969.
SUPREME COURT OF THE UNITED STATES
No. 1082, October Term, 1969
UNITED STATES, APPELLANT
Vv,
THOMAS WILLIAM WELLER
APPEAL from the United States District Court for
the Northern District of California.
The statement of jurisdiction in this case having been
submitted and considered by the Court, further consid-
eration of the question of jurisdiction is postponed to
the hearing of the case on the merits and placed on the
summary calendar.
March 23, 1970
JOURNAL ENTRY (March 23, 1970):
APPEALS—JURISDICTION NOTED OR POSTPONED
No. 1082. United States, appellant, v. Thomas William
Weller. Appeal from the United States District Court
for the Northern District of California. The motion to
remand is denied. Further consideration of the question
of jurisdiction in this case postponed to the hearing of
the case on the merits and case placed on the summary
calendar.
ov. &. GovERnmEnT pRintine OFrice; 1970 366110 740
a
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.