Opposition Brief — United States v. Weller

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OF THE

JOHN F. DAVIS, Gite!

Anited States :

OcToBER TERM, 1969

No. #08z~ “7 7

Unitep STATES OF AMERICA, )

Appellant,

VS.

THomas Wi.1AM WELLER,

Appellee.

4

Appeal from the United States District Court

for the Northern District of California

OPPOSITION TO SPREE MOTION TO REMAND TO

THE COURT OF APPEALS FOR THE NINTH CIRCUIT

PETER FRANCK,

2905 Telegraph Avenue,

Berkeley, California 94705,

Attorney for Appeitant. /% “““

Franck, Hitt, STENDER, ZIEGLER & HENDON,

2905 Telegraph Avenue,

Berkeley, California 94705,

is. py

tAY STENDER

amd ADDRESS)

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Table of Authorities Cited

Cases Pages

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Green v. McElroy, 359 U.S. 464 (1959)...............-.2..

Kelly v. Wyman, 294 F. Supp. 893 (S.D. N.Y. 1968).....

Willner v. Committee on Character and Fitness, 373 U.S.

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United States v. Blue, 384 U.S. 251, 254................. 4,5,6

United States v. Eisdorfer, No. 303, this term............ 8,10

United States v. Hark, 320 U.S. 536, 88 L. ed. 296....... 4,5,9

United States v. Mersky, 361 U.S. 431............

United States v. Sisson, No. 305, this term..............

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In the Supreme Court

OF THE

United States

OcToBER TERM, 1969

No. 1082

i

Unitep STATUS OF AMERICA,

Appellant,

VS. 4

Tuomas WILLIAM WELLER,

Appellee.

Appeal from the United States District Court

for the Northern District of California

OPPOSITION TO APPELLEE’S MOTION TO REMAND TO

THE COURT OF APPEALS FOR THE NINTH CIRCUIT

On September 19, 1969, the United States District

Court for the Northern District of California, entered

its order dismissing the indictment against Appellee

for failure to submit to induction into the Armed

Forces in violation of 50 U.S.C. App. 462(a). On

October 17, 1969, the United States filed in the Dis-

trict Court Notice of Appeal to this Court pursuant

to 18 U.S.C. 3731. On December 18, 1969, the United

i a a ae an Re On ors

States filed its Application for Extension of Time to

Docket Appeal, and on December 22, 1969, that appli-

cation was granted. It thereafter filed its motion to

remand.

OPINION BELOW

The opinion of the Court below is reproduced in

full in the Government’s Motion to Remand (Ap-

pendix, pp. 11-24).*

STATEMENT

Appellee concurs with the summary of the United

States with respect to the procedures below. Appellee

cannot concur with the Government in its character-

ization of the decision below as one of statutory

construction lacking Constitutional dimensions. The

opinion below (App., p. 24) concludes as follows:

“Accordingly, this Court is loathe to hold that

the administrative denial of such a right is either

authorized by Congress or its constitutional.”

(Emphasis added)

In its opinion the District Court analyzed modern

constitutional standards of the right to counsel as

applied to analogous proceedings, including the rights

of juveniles (In re Gault, 387 U.S. 1 (1967) ), welfare

recipients, Kelly v. Wyman, 294 F. Supp. 893 (S.D.

N.Y. 1968, three judge court), and Law School grad-

uates seeking admission to the Bar, Willner v. Com-

’

*The opinion below will be cited herein as ‘‘App., p. ....”’.

NF ba sale ag LO POR ARPLE POSIE L FG IO

3

mittee on Character and Fitness, 373 U.S. 96 (1963).

The Court then applied that analysis to the situation

of a Selective Service registrant seeking conscientious

objector status, making a finding that this is a critical

adjudicative proceeding which has only the most

highly circumscribed subsequent review. (App., p. 21.)

The Government itself points out that the issue

presented by this Appeal,

. is an important and recurring one in the

administration of the Selective Service laws, and

should ultimately be resolved by this Court.” (Ap-

plication for Extension of Time for Docketing

this case, p. 2.)

As a matter of law, this appeal belongs only before

this Court. The laudable efforts by the Government,

in its legislative proposals and in recent amendments

to the Selective Service Regulations to eliminate the

confusion, uncertainty and controversy surrounding

the administration of the Selective Service Act can

only be furthered by speedy and dispositive adjudica-

tion of the question presented by this case by this

Court.

DISCUSSION

The United States points out in its introduction to

the Motion to Remand that at the time it filed the

Notice of Appeal to this Court, it believed the deci-

sion below was appealable directly to this Court under

the “motion in bar” section of 18 U.S.C. 3731. It is

manifest that under that view, appeal can lie nowhere

else but to this Court. The Government concedes (p.

LEEPER. LS MELD HD FERAL IN BOER gmt er eR,

_—— 2 BE PD EM TT ORE ETERS

OOOO at

:

4

5) that “the questions are not free from doubts”,

Appellee has difficulty in seeing the doubt, either

under the motion in har section of the Criminal

Appeals Act, or under the statutory construction

section.

1. The motion of the Government (p. 5) states:

“This Court has never decided the scope of the statu-

tory term ‘‘motion in bar”. This statement is accurate

only in the narrowest sense; the Court has not de-

cided the question of whether an order “ending the

cause and exculpating the defendant” which is based

entirely on matters appearing on the face of the

pleadings is to be considered a motion in bar. It has

decided that where the Court below goes beyond the

pleadings the ruling is treated as one on a motion in

bar. United States v. Blue, 384 U.S. 251, 254:

“Because the dismissal by its own force would

‘end the cause and exculpate the defendant,’

United States v. Hark, 320 U.S. at 536, 88 L. ed.

at 296, rather than merely abate the prosecution

on account of some normally curable defect, one

requisite of a motion in har is met. Whether it

is a further requisite that the motion introduce

‘new matter’ in the fashion of a plea by way of

confession and avoidance need not here he de-

cided, See United States v. Mersky, 361 U.S. 431,

441, 453, 4 L. ed. 2d 423, 431, 437, 80 S. Ct. 459

(separate opinions disagreeing on this point).

For in this instance Blue unquestionably relied

on new matter in alleging self-inerimination, so

the motion qualifies even under the more strin-

gent definition. Thus under either view of a

motion in bar taken in Mersky, this case qualifies

for direct review.” (Emphasis added.)

W

—

That the quoted language could be written in the

present case is clear. The entire Selective Service file

of the Appellee was admitted into evidence and con-

sidered by the Court below. (See App., p. 11.) The

opinion of the Court (App., p. 12) as well as the

record of hearing on the Motion, make it clear that

it was of critical importance to the Court that Appel-

lee had duly applied to his Board for the right to

have counsel present at his personal appearance, that

such application had been made prior to the hearing,

and that such application had been denied by the

Board. Thus there can be no doubt whatsoever that

the order of the Court below goes far beyond the

face of the pleadings, statutes and regulations in-

volved. As in Blue (supra), Weller “unquestionably

relied on new matter...”

5

There is, of course, no doubt that the order below

does “end the cause and [does] exculpate the defend-

ant.” (7S. v. Hark (supra).

The most restrictive view of the “motion in bar”

is that it is identical to the common law plea in con-

fession and avoidance (dissent in U.S. v. Mersky, 361

U.S. 431, 457):

“The plea in confession and avoidance did not

contest the facts alleged in the declaration, but

relied on new matter which would deprive those

facts of their ordinary legal effect. * * * It set

up affirmative defenses which would bar the

prosecution.”

By suggesting that the motion below fails to fall

within this definition the Government must assert

i. RES PAP T PAIGE PEL IS IETS ee

a a Le

6

that the validity of the induction order which was

contested by the motion to dismiss was a matter of

fact and thus that appellant did in fact contest the

facts alleged.

The United States has consistently and successfully

taken the position that the validity of an induction

order is a question of law, and not a question of fact,

and that it cannot therefore be submitted to a jury,

The Government cannot expediently change its posi-

tion on this question for purposes of the present pro-

ceeding. The validity of an induction order is a matter

of law in a trial, and contesting its validity is not a

contest of “fact” for purposes of the motion in bar

section of the Criminal Appeals Act.

Quite clearly the position taken by Appellee below

was that he ‘‘confessed”, that he did not submit to

induction, and sought to ‘‘avoid” that as an act for

which he could be prosecuted by ‘‘relving on new

matter which would deprive those facts of their ordi-

nary legal effect.”

Thus, there can be no doubt that even under the

minority view in Mershy (supra), the decision of the

Court below is in the nature of a ‘‘motion in bar”,

and it is quite clear from the opinion of Justice Har-

lan (who was a member of the Mersky minority) in

U.S. v. Blue (supra), that where disposition of the

motion below ended the cause and exculpated the de

fendant and where the defendant relied on new mat-

ter, the motion in bar element of the statute is fully

satisfied.

7

9, In addition to the clear jurisdiction of the

Court under the “motion in bar” section of the

Criminal Appeals Act, it is also quite clear that the

Government’s initial position, in filing Notice of Ap-

peal to this Court, that the decision below is based

upon “the invalidity or construction of the statute

upon which the indictment .. . is founded” is also

clear and governing.

In Mersky (supra), the acts alleged to be crimes

were defined by regulations which were authorized

by a general statute. In coming to the conclusion that

“the construction of one necessarily involves the

construction of the other” (361 U.S. at 438), the

Court looked to the statutory scheme. It pointed

out that, “Here the statute is not complete by

itself, since it merely declares the range of its

operation and leaves to its progeny [regulations]

the means to be utilized in the effectuation of its

command.” (361 U.S. at 437.)

The present case involves a very similar statutory

scheme, Congress authorized the President to

“select and induct into the Armed Forces of the

United States for training and service .. . such

number of persens as may be required to provide

and maintain the strength of the Armed Forces.”

50 U.S.C. App. 454(a).

It further provided that

“the selection of persons for training and service

. shall be made in an impartial manner, under

such rules and regulations as the President may

prescribe...”

300 U.S.C. App. 455(a) (1).

DRS OPE IA

PALO UE PSOE OPER

Thus there can be no question that as in Mersky,

we are dealing with a statute which is not complete

in and of itself, but which authorizes and in fact

requires the promulgation of regulations to fill out

its scheme. The Court below, in applying the test of

Green v. McElroy, 350 U.S. 474 (1959), analyzes the

statutory and regulatory scheme. (App., p. 12.) The

Court first scans the Act to find an express authoriza-

tion for the denial of the right to counsel (App. pp.

13-14), it then scans the Act to find any express dele-

gation of the power to do so. (App., p. 14.) It finds

none in the Act. It then analyzes the Act for possible

sources of implicit delegation of such authority. It

examines Section 1(¢) [50 U.S.C. App. 451(¢)] and

Section 19(b)(3) [50 U.S.C. App. 460(b)(3)], con-

struing them, and finding that they are clearly “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.” (App., p. 14.) To view this analysis of the

Court below as anything other than a construction of

8

the statute, is to bend language beyond reason.

The Government’s attempt to distinguish this case

from U.S. v. Lisdorfer, No. 330, this Term, and from

the positions taken therein both by the Government |

and by the Court, is misleading.

The Government concedes that to apply the Fisdor-

fer rationale here

“. . it is necessary to argue that the issue of

appellee’s classification, which goes to the validity

of the order to report, is encompassed in the

» el PEM EOE AR HS UCR POOPOIR AABN AS NI he EOE G ANE ADEN TORN: AA Ng On

Te be .

9

charge of disobedience to the order and that the

regulations bearing upon the process by which

the local board determined the classification in

turn condition the validity of the classification.”

Further, they concede (p. 9) that the District

Court was justified in dismissing the indictment

(once it found that the process leading to the order

to report for induction was invalid). Yet they try to

suggest that the dismissal was not based on a finding

that the induction order was void. They seem to sug-

gest that the decision of the Court below should be

read as holding that in some metaphysical sense the

order to report for induction was valid, and that

nevertheless the registrant could not he prosecuted

for willful disobedience of it. Even if this was con-

ceptually valid, it is an analysis which would put the

case squarely back in the “confession and avoidance”

category as a motion in bar.

SUMMARY ;

[It is undisputed by either party that the question

of the jurisdiction of this Court does not depend

j upon how the pleading below was filed, but on “the

effect of the ruling sought to be reviewed”. U.S. v.

Hark, 320 U.S. 531, 536. The analysis presented

herein makes it unquestionable that within either the

majority or the minority view of the meaning of the

term “motion in bar”, as used in 18 U.S.C. 3731, the :

order below was an order sustaining a motion in har,

and further that this was a decision construing a

COLI SRS

Hasta

10

statute, squarely within the meaning of that term as

defined by this Court in U.S. v. Mersky, 361 U.S. 431.

It was the Government, not the Appellee which

sought appellate review of this matter. The Govern-

ment is, of course, free to abandon its appeal. How-

ever, so long as it pursues it, it is bound by law to

the exclusive jurisdiction of this Court. As in U.S. vr.

Sisson, No. 305, this Term, and U.S. v. Eisdorfer, No,

330, this Term, a prompt disposition of this matter

by this Court would appear in the interest of all

parties and of the efficient and fair administration

of the Selective Service Act.

Dated, Berkeley, California,

February 27, 1970.

Respectfully submitted,

PETER FRANCK,

Attorney for Appellant.

Franck, HILL, STENDER, ZIEGLER & HENDON,

Of Counsel.