Appellees Brief — United States v. Weller
Supreme Court brief1971
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OcroBer Term, 1970 ee |
No. 77
<i
Unitep States OF AMERICA,
Appellant,
—V.—
Tuomas WILLIAM WELLER,
Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
pes Sele tI Fae ep
BRIEF FOR APPELLEE
Marvin M. KarpaTKIN
MicHarEL N. PoLuet
Joun E. LeMovutr
1345 Avenue of the Americas
New York, New York 10019
‘PETER FRANCK
2905 Telegraph Avenue
Berkeley, California 94705
Me.vin L. Wuur
ACLU Foundation
. 156 Fifth Avenue
New York, New York 10010
PauL N. HaALvonik é
ACLU of Northern California
593 Market Street, Suite 250
7 San Francisco, California 94105
Attorneys for Appellee
Of Counsel
Ruopa H. Karparkin
CHarLes C. Marson
INDEX
Jurisdiction 1
Constitutional Provisions, Statutes and Regulations
Involved 1
Questions Presented . 2
I I aii iraleceeminencechnicibaiccnmtanenteonssidioss 3
EG Ae COON 7
Point I
The exclusive jurisdiction of this Court to hear
this direct appeal is explicitly mandated by both
the motion in bar and statutory construction pro-
visions of 18 U.S.C. $3731, the Criminal Appeals
Act 14
1. The Ruling of the Court Below Which Dis-
missed the Indictment Prior to Trial, Ending
the Cause and Exculpating the Defendant on
the Basis of Questions of Law Outside of the
General Issue to Be Tried, Is a Motion in Bar
for the Purposes of the Criminal Appeals Act 15
2. The Decision of the District Court Dismissing
the Indictment Is Based Upon the Construction
of the Statute Upon Which the Indictment Is
Founded and Also Confers Jurisdiction in This
Court Upon Direct Appeal ...... ; 19
PAGE
Port I
The selective service regulation which prohibits
the presence of counsel at a local board personal
appearance is invalid because it is a denial of a
traditional procedural safeguard which was not
explicitly authorized by Congress . 5
1. Only Congress Has the Power to Conscript
Armies and to Limit the Procedural Rights of ,
Selective Service Registrants 5
2. The Court Below Correctly Applied the Re-
quirement of Explicit Authorization .................... 7 = «&f
3. Congressional Inaction Does Not Provide the
Required Authorization ............... 29
4. The Argument of Congressional Acquiescence j
Is Not Persuasive ...................... 30 =«
5. The Legislative History of the 1967 Act Is
at Best Ambiguous .. 32
Pornt III
A Selective Service registrant has a constitutional ‘
right to counsel at a local board personal appear-
SIUGED + iirecicccetenipdsereebicadicociaichstaneisniaceiicadiabameies vesaiebiatialisnen 37
1. A Registrant’s Personal Appearance at a Local
Board Is an Adjudicative Hearing Affecting
IE 37
a. Nature of the Personal Appearance ............ 37
b. Incidents of Personal Appearance ................ 42
ce. Adjudicative Character of Local Board
BPMN, Gsiccccstcchesidcskdectnestinnd baktestigcsinneinanpatinue eae 43
ili
d. The Moribund Myth of “Little Groups of
Neighbors”
e. Growing Recognition by This Court of
Adjudicative Powers of Local Boards ........
f. Judicial Recognition of the Unfairness of
Adversary Hearings Without Counsel ........
2. Since a Personal Appearance Is an Adjudica-
tive Hearing Affecting Substantial Rights, the
Prohibition of Counsel Is in Violation of the
Constitutional Right, Arising From the Fifth
Amendment, to Minimum Standards of Due
Process at Such a Hearing .......0222220222202eec-ec2eceee-
a. An Adjudicative Hearing Is Not Lawful Un-
less at Least the Constitutionally Minimum
Standards of Due Process Are Afforded ....
b. The Constitutionally Minimum Standards of
Due Process Require Recognition of the
Right to Appear With Counsel ......0..0.0......
3. Because of the Narrowly Cireumscribed
Judicial Review of Selective Service Classifica-
tion Actions and the Inevitable Criminal Prose-
cution for Induction Refusal Which Follows a
Denial of a Conscientious Objector Application,
a Conscientious Objector Applicant’s Personal
Appearance Before His Local Board Is a
“Critical Stage” of the Pre-Prosecution Events
During Which He Is Entitled to the Right of
Counsel Under the Sixth Amendment
PAGE
45
49
56
56
iv
PAGE
4. Counsel Can Play a Useful and Constructive
Role at Local Board Personal Appearances;
Removing the Present Prohibition Would Cause
No Real Danger of Litigious Interruption ........ 88
5. The Registrant’s Constitutional Right to
Counsel Is Not Satisfied by the Government
Appeal Agents or the Optional Provision of
Advisors to Registrants 93
6. There Is a Corps of Private Counsel Competent
in Selective Service Matters and Available to
Perform These Necessary Functions ................ 97
Me gk | | SRC C RINE InER SNE Senne 99
ConcLusIon e da a aa 100
eS a aaiiaidleniiidiiiidaeaminsieel 101
TABLE or Cases AND OTHER AUTHORITIES
Cases:
Almon y. Morgan County, 245 Ala. 241, 16 So.2d 511
PRP a Sassi ste getrsscieegsch eecahperesaceaneeebsshconplibmeedieilosei aoe 64
Anniston Mfg. Co. v. Davis, 301 U.S. 337 (1937) —.......... 58
Anonymous y. Baker, 360 U.S. 287 (1959) -..............-... 80
Baker v. Carr, 369 U.S. 186 (1962) ....--200c-c-cccccececcceeeveerseres 27
Baldwin v. New York, 399 U.S. 66 (1970) ~...002222-.. 66
Bancroft v. Board of Governors, 202 Okla. 108, 210 P.2d
en pny Reed a RT TD RE 63
Benitez-Manrique v. Micheli, 305 F. Supp. 334 (D. P.R.
ID ccvtctaesthasstnicstteasabdieahdeilcbileteclighinnctcasindiatenianlieiistaaibaliin 4)
)
PAGE
Berk v. Laird, —— F.2d ——, 3 S.S.L.R. 3142 (2d Cir.
IGTO) 2-nnoeccrccrecnecercsserscensenneccennanescceees 27
Berkshire Fine Spinning Associates v. Label, 74 RL
6, 60 A.2d 871 (1948) ......... 63
Billings v. Truesdell, 321 U.S. 542 (1944) 00 31
Blalock v. United States, 247 F.2d 615 (4th Cir. 1957) .. 82
Board of Kducation v. Kennedy, 256 Ala. 478, 55 So.2d
BOE CID accicctecessstestoctncictsicininsinanahintentimsietebbabpiicnapeotianeitiats 64
Bowles v. Baer, 142 F.2d 787 (7th Cir. RIPEN gusdetinindihondinns 61
Bratton v. Chandler, 260 U.S. 110 (1922) 2.202222. 58
Breen v. Local Board No. 16, 396 U.S. 460 (1970) ........ 53
Brown vy. Air Pollution Control Board, 11 Ill.2d 450,
227 N.E.2d 754 (1967) ...... ‘ : 63
Camp v. United States, 413 F.2d 419 (5th Cir.), cert.
denied 396 U.S. 968 (1969) .. si 69
Capobianco v. Laird, 424 F.2d 1304 (2d Cir. 1970) -...... 90
Capson v. United States, 376 F.2d 814 (10th Cir.), cert.
denied 389 U.S. 901 (1967) - 69
Cassidy v. United States, 428 F.2d 585 (8th Cir. 1970) .. 68
Caverly v. United States, 429 F.2d 92 (8th Cir. 1970) 77, 20
Central of Georgia Ry. v. Wright, 207 U.S. 127 (1907) .. 58
Chandler v. Fretag, 348 U.S. 3 (1954) ...00022022..eccccceeoeeee 94
Chaney v. United States, 406 F.2d 809 (5th Cir.), cert.
denied 396 U.S. 867 (1969) Pte 68
Chernekoff v. United States, 219 F.2d 721 (9th Cir.
NTE asraneshiceeini serch ib nce cerca datthds 18
Chin Loy You, Ex parte, 223 F. 833 (D. Mass. 1915) .... 62
Clark v. Gabriel, 393 U.S. 256 (1968) —00000020 0 52, 83
Clay v. United States, 397 F.2d 901 (5th Cir. 1968),
vacated and remanded on other grounds 394 US.
a IT tnich satcihcsnhehinginecniabariitatncieaigaseaaaidssaduniasoisicieaeviceactiaids 48
Coleman v. Alabama, 399 U.S. 1 (1970) .....-.2222.--2---22...
Cox v. United States, 332 U.S. 442 (1947)
Crooker v. California, 357 U.S. 433 (1958)
Czepil v. Hershey, 425 F.2d 251 (7th Cir. 1969), cert.
denied US. , 39 U.S.L.W. 3149 (October 12,
See RARER TER 49
Dandridge v. Williams, 397 U.S. 471 (1970) ~....22... 36, 82
De Remer v. United States, 340 F.2d 712 (8th Cir. 1965) 82
Dickinson v. United States, 203 F.2d 336 (9th Cir.),
rev'd on other grounds, 346 U.S. 389 (1953) -....... 41, 43,
44, 50, 9
DuVernay v. United States, 394 F.2d 979 (5th Cir.
1968), aff'd 394 U.S. 309 (1969) ...... 48
Ehlert v. United States, 422 F.2d 332 (9th Cir. 1970),
cert. granted, —— U.S. TOPO scextsvatasinscthasasie 39
Endo, Ex parte, 323 U.S. 283 (1944) —002. 27, 28, 31
KEsealera v. New York City Housing Authority, 425
F.2d 853 (2d Cir.), cert. denied —— US. ——, 39
USLW 3149 (1970) .............--.-0.c--0-ce- 59
Escobedo v. Illinois, 378 U.S. 478 (1964) 2220. 87, 89
Estep v. United States, 327 U.S. 114 (1946) _..... 42, 49, 50,
70, 74, 82
Federal Communications Commission v. WJR, 337 U.S.
BS eee on oe ;, ; 59
Fleming v. Tate, 156 F.2d 848 (D.C. Cir. 1946) 00... 62
Galvan v. Press, 347 U.S. 552 (1954) 200. ceccneeeee 2
Gault, In re, 387 U.S. 1 (1966) 2200220 .. 12, 60, 61, 74, 75
Gearey v. United States, 368 F.2d 144 (2d Cir. 1966),
cert. dented 389 U.S. 959 (1967) .........-c-c-ccececccccencesees 39
Vii
PAGE
Gee v. Smith, 306 #. Supp. 891 (N.D. Ga. 1969) 2200... 48
Gibson v. Reynolds, 172 F.2d 95 (8th Cir. 1949) _...... 44-45,
Gillette v. United States, 420 F.2d 298 (2d Cir. 1970),
cert. granted, —— U.S. —— (1970) une eeeeeeeeeeeee 39
Girouard v. United States, 328 U.S. 61 (1946) —...... 31, 33
Glasser v. United States, 315 U.S. 60 (1942) 0000. 95
Goldberg v. Kelly, 397 U.S. 254 (1970) _...... 12, 13, 58, 59,
60, 62, 74, 75,
76, 80, 88, 91
Goldsmith v. United States Board of Tax Appeals,
SO: UT I ea tint cla aadeileaehonseciauecedads 58
Gomez v. Heard, 218 F. Supp. 228 (S.D. Texas 1962),
aff'd 321 F.2d 88 (Sth Cir. 1963) .......................... 93-94
Gonzales v. United States, 348 U.S. 407 (1955) ....51, 52,
78, 87
Gonzalez v. Freeman, 334 F.2d 570 (D.C. Cir. 1964) ..28, 58
Greene v. McElroy, 360 U.S. 474 (1959) _...6,9, 22, 25, 27,
28, 29, 31, 36, 42,
57, 59, 60, 79
Groban, In re, 352 U.S. 330 (1957) ...22022..2..222222.-2.-0-- 80, 81
Gutknecht v. United States, 396 U.S. 295 ( 1970) ....28, 30, 53
Hackin v. Arizona, 389 U.S. 143 (1967) 00. 99
Hannah v. Larche, 363 U.S. 420 (1960) ........ 9, 12, 29, 30, 35,
36, 56, 57, 60, 80
Haughton v. United States, 413 F.2d 736 (9th Cir.
POUT dnintelacetiubeGhataeteidaeiieiatetcn te ae. roe |
Haven v. United States, 403 F.2d 384 (9th Cir. 1968)
cert. dismissed 393 U.S. 1114 (1969) oo. 69
Henderson Harris, In re, 69 Cal. 2d
Vili
PAGE
Hunt Foods and Industries, Ine. v. F.T.C., 286 F.2d
803 (9th Cir. 1961), cert. denied 365 U.S. 877 (1961) 30
Hyser \. Reed, 318 F.2d 225 (D.C. Cir. 1963) ........ 62
Hyun vy. Landon, 219 F.2d 404 (9th Cir. 1955) 00... 61
Imboden v. United States, 194 F.2d 508 (6th Cir.), cert.
Bowed SEB TSB. BET CUBR) an caccnscncncsvccccissceceesrenesscees 69
Jessen v. United States, 242 F.2d 213 (10th Cir. 1957) 49
Joint Anti-Fascist Refugee Committee v. McGrath,
ek Rf ee re 57, 66, 85, 86
Kammerer v. Board of Fire and Police Commission-
ers, 44 Ill. 2d 500, 256 N.E.2d 12 (1970) -20202200...... 63
Kent v. Dulles, 357 U.S. 116 (1958) ....................0..... 28, 31
Kent v. United States, 383 U.S. 541 (1966) 200... 60-61, 75
Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) ....58, 59
Lehr v. United States, 1389 F.2d 919 (5th Cir. 19438) ... 71
Lipke v. Lederer, 259 U.S. 357 (1922) 0... 58
Little v. United States, 409 F.2d 1343 (10th Cir. 1969) 18
Londoner y. City of Denver, 210 U.S. 373 (1908) ........ 43, 58
Lowe v. United States, 389 F.2d 51 (5th Cir. 1968) ... 18
McCoy v. United States, 403 F.2d 896 (5th Cir. 1968) 69
McGregor v. Hogan, 263 U.S. 234 (1923) 2022... 58
McKart v. United States, 395 U.S. 185 (1969) ....41, 52-53
Madera v. Board of Education, 386 F.2d 778 (2d Cir.
1967), cert. denied 390 U.S. 1028 (1968) ............ 68, 80, 81
Marsano v. Laird, 412 F.2d 65 (2d Cir. 1969) 2000000... 40
Maryland v. Baltimore Radio Show, 338 U.S. 912 (1950) 26
Mathis v. United States, 391 U.S. 1 (1966) _00... 84, 87
PAGE
Mayor v. Nichols, 79 N.Y. 582 (1880) ..............-.csscsese--+ 64
Mempa v. Rhay, 389 U.S. 128 (1967) -................ 62-63, 86
Menechino v. Oswald, —— F.2d ——, No. 34665 (2d
i: RE Gi TD eccairrciiaciiicenenernidiensinmentcnsbnnsel 62, 92
Merritt v. United States, 401 F.2d 768 (5th Cir. 1968)
69, 70
Moore v. Reid, 246 F.2d 654 (D.C. Cir. 1957) -........... 62
Mora v. McNamara, 389 U.S. 934 (1967) WW... 26
Morgan v. United States, 304 U.S. 1 (1938) ...... 56, 57, 58, 60
Mulloy v. United States, 398 U.S. 410 (1970) ........ 39, 53, 83
Nevarez Bengoechea v. Micheli, 295 F. Supp. 257 (D.
as IE: nsicasiecienioebenseionievnisianinlasiiaiane tee cinghelinisiakagblmpcenaenins 45
Nickerson v. United States, 391 F.2d 760 (10th Cir.),
cert. denied 392 U.S. 907 (1968) .. on 69
Niznik v. United States, 173 F.2d 328 (6th Cir. ), cert.
mma Te TEs TE CY assis ttcicsetieececisee 74
O’Brien v. Resor, 423 F.2d 594 (4th Cir. 1970) _.000000.... 77
Oestereich v. Selective Service Board, 393 U.S. 233
(1968) sginkis cise Leessiactiacbahtanipiceaet 52
Ohio Bell Telephone Co. v. Public Utilities Commis-
sion of Ohio, 301 U.S. 292 (1937) ...... 58
Olvera v. United States, 223 F.2d 880 (5th Cir. 1955) .. 50
Panama Refining Company v. Ryan, 293 U.S. 388
(1935) srnassasesantaacideraieaaateingdblesiniaieiiaeniiattahh 28
Parker v. Lester, 227 F. 2d 708 (9th Cir. 1955) .............. 59
Paszel v. Laird, 426 F.2d 1169 (2d Cir. 1970) .....0000....... 77
Penner v. United States, 399 U.S. 522 (1970), revers-
ing 420 F.2d 344 (10th Cir. 1970)
PAGE
People ex rel. Ellett v. Flood, 64 App. Div. 209, 71
N.Y. Sapp. 1007 ¢ord Dept. 1901) ~.......................... 64
Petersen v. Clark, 289 F. Supp. 949 (N.D. Cal. 1968) .. 64
Peterson v. United States, 173 F.2d 111 (6th Cir.), cert.
denied 337 U.S. 925 (1949) .................. a 73, 74
Powell v. Alabama, 287 U.S. 45 (1932) ......0.0........... 60, 86, 94
Powell v. MeCormack, 395 U.S. 486 (1969) 20022... 7
Railroad Commission of California v. Pacific Gas &
Electric Company, 302 U.S. 388 (1938) -.0.2.2..... 58
Rempel v. United States, 220 F.2d 949 (10th Cir. 1955) 82
Rich v. Hershey, 412 F.2d 65 (2d Cir. 1969) 2022... 40
Schneider v. Smith, 390 U.S. 17 (1968) 220.202... 98
Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S.
IED icc hos paca sicannekelninniAseelioceleananinnh-oiveipein deseewsnstiieieesien 34
Scott v. Commanding Officer, —— F.2d ——, 3 S.8.L.R.
pt Bh a Re Se |, |) SR eee 77
Seeger v. United States, 380 U.S. 163 (1965) 0.0202... 52
Sellers v. McNamara, 398 F.2d 893 (5th Cir. 1968),
cert denied sub nom. Sellers v. Laird, 395 U.S.
III cierto tbenilappebelobipnbcsn cheered 48
Sicurella v. United States, 348 U.S. 385 (1955) -.0........ 39, 50
Simmons y. United States, 348 U.S. 397 (1955) 00... 51, 54
Stanziale, Ex parte, 188 F.2d 312 (3rd Cir.), cert.
denied sub nom. Stanziale v. Paullin, 320 U.S. 797
POMIIEE SchdicaisnibeiiebiiodbieaecasceGeecaahinsebciiiiinnties 70
Steele v. United States, 240 F.2d 142 (1st Cir. 1956) ....94-95
Storey v. United States, 370 F.2d 255 (9th Cir. 1966) 64
Sullivan, Ex parte, 107 F. Supp. 514 (D. Utah 1952) .. 87
Swaczyk v. United States, 156 F.2d 17, cert. denied
Re I I estar doc ncnidictehtneacstiscahadlbiniscaabchcoonte 82
PAGE
Toussie v. United States, 396 U.S. 875 (1970) —...... 31
Truax v. Raich, 239 U.S. 33 (1915) 42
United States v. Abilene & So. Ry., 265 U.S. 27
(1924) a 58
United States v. American Vonskine Ass’ns, 310 U.S.
| ene 30
United States v. Baker, 1 S.S.L.R. 3191 (10th Cir.
SS kas reas enoncwinbanintinsindereseipncnasncennnenes 89
United States v. Ssdltren, 306 IF. Supp. 385 (N.D. Cal.
1969) RSME On Ree Oe 48
United States v. Blue, 384 U.S. 251 (1966) —......... 15, 17, 18
United States v. Bouziden, 108 F. Supp. 395 (W.D.
BEES A See . 44
United States v. Brock, —— F. Supp. ——, 3 S. S.L.R.
(N.D. Cal. February 26, 1970) 49
United States v. Brooks, 415 F.2d 502 (6th Cir. 1969) 48
United States v. Broyles, 423 F.2d 1299 (4th Cir. 1970) 77
United States v. Burlich, 257 F. Supp. 906 (S.D.N.Y.
1966) 40
United States v. Burns, —— F.2d ——, 3 S.S.L.R. 3191
(10th Cir. 1970) ........ 89
United States v. Cabbage, —— F.2d ——, 3 S.S.L.R.
3179 (6th Cir. July 31, 1970) ........
United States v. Capson, 347 F.2d 959 (10th Cir.),
cert. denied 382 U.S. 911 (1965) .. 69
United States v. Carver, 260 U.S. 482 (1923) 00... 26
United States v. Celestine, 215 U.S. 278 (1909) ........ 15, 16
United States v. Clinton, —— F. Supp. ——, Crim.
No. 31857 (E.D. La. April 21, 1970) -.....0.0...u........... 46-47
United States v. Corliss, 280 F.2d 808 (2d Cir.),
cert. denied 364 U.S. 884 (1960) oo... eeecceeeeeeeeeeeee 82
xil
PAGE
United States v. Covington, 395 U.S. 57 (1969) -...... 15,17
United States v. Deere, 428 F.2d 1119 (2d Cir. 1970) ... 77
United States v. DeLime, 223 F.2d 96 (3rd Cir. 1955) ....96
United States v. DeMareo, —— F. Supp. ——, 2 SS.
L.R. 3204 (N.D. Cal. July 30, 1969) ............................ 49
United States v. Dicks, 392 F.2d 524 (4th Cir. 1968)....71, 72
United States v. Eisdorfer, 396 U.S. 1066 (1970) -........... 23
United States v. Evans, 425 F.2d 302 (9th Cir. 1970) ... 68
United States v. Fisher, 307 F. Supp. 7 (D. Conn. 1969) 49
United States v. Fix, F.2d ——, No. 25216 (9th
i I canines ps andes cncatnripmsecnicpsiesincnarecaniini tla 15
United States v. Foster, 233 U.S. 515 (1914) -........-..... 22
United States v. Freeman, 388 F.2d 246 (7th Cir.
BID © vicorinsieeseseniontevnicnnonhacanasabignacpeananeaielaaaetnid 56, 83, 84, 85
United States v. Gearey, 368 F.2d 144 (2d Cir. 1966) ... 64
United States v. Goldman, 277 U.S. 229 (1928) ............ 15
United States v. Greene, 220 F.2d 792 (7th Cir. 1955) ... 54
United States v. Gustavson, —— F. Supp. , 3
Ee SOD CD. TER, TED) assists 90
United States v. Hark, 320 U.S. 531 (1944) -................... 15
United States v. Harris, 302 F. Supp. 1194 (D. Oreg.
United States v. Harte, —— F. Supp. ——, 3 8.8.L.R.
3193 (N.D. Ill. 1970)
United States v. Heljenck, 275 F. Supp. 579 (E.D. Pa.
United States v. James, 417 F.2d 826 (4th Cir. 1969) ... 77
United States v. Johnson, 302 F. Supp. 584 (M.D. Pa.
United States v. Jones, —— F. Supp. ——, 2 8.8.L.R.
3392 (C.D. Cal. October 14, 1969)
—
xiii
PAGE
United States v. Kovalchick, 255 F. Supp. 826 (E.D.
Pa. 1966) 69
United States v. Lemke, 310 F. Supp. 1298 (N.D. Cal.
1969) 48
United States v. Lemmens, —— F.2d ——, 3 S.S.L.R.
3185 (7th Cir. Aug. 4, 1970) 77
United States v. Machado, 306 F. Supp. 995 (N.D. Cal.
a 48
United States v. McMillan, —— F. Supp. ——, 2 S.S.
L.R. 43 (C.D. Cal. 1969) 49
United States v. Mendoza, 295 F. Supp. 673 (5.D.N.Y.
BOE. quinteuialidinntintccintaestanecaiioats 69
United States v. Mersky, 361 U.S. 431 (1960) ........ 8, 17, 18,
19, 20, 22, 23
United States v. Mientke, 287 F.2d 1009 (7th Cir. 1967),
cert. denied 390 U.S. 1011 (1968) ..... 72
United States v. Miller, 143 F. Supp. 712 (N.D. W. Va. ),
aff'd 239 F.2d 148 (4th Cir. 1956) .. 71
United States v. Murdock, 284 U.S. 141 (1931) 0... 15
United States v. Norman, 413 F.2d 789 (6th Cir. 1969),
cert. dented 396 U.S. 1018 (1970) ou. cececeeceeeee 18
United States v. Nugent, 346 U.S. 1 (1953) ....12, 50, 51, 60,
64, 77, 78, 79
United States v. Nussbaum, 306 F. Supp. 66 (N.D. Cal.
ane, OE IAT OED. Rome ERCON 8 Cea ROE Ra clon 49
United States v. Oppenheimer, 242 U.S. 85 (1916) ue 15
United States v. Pitt, 144 F.2d 169 (3rd Cir. 1944) ....71, 73
United States v. Purvis, 403 F.2d 555 (1968) ................ 52
United States v. Rabb, 394 F.2d 230 (3d Cir. 1968) ....... 18
United States v. Rabinowich, 238 U.S. 78 (1915) ............ 15
PAGE
United States v. Richmond, 274 F. Supp. 43 (C.D. Cal.
1967) 70
United States v. Robel, 389 U.S. 258 (1967) ................. 27
United States v. Sandbank, 403 F.2d 38 (2d Cir. 1968),
cert. denied 394 U.S. 961 (1969) 18
United States v. Schwartz, 143 F. Supp. 639 (E.D.N.Y.
1956) 56, 67, 68
United States v. Seeger, 380 U.S. 163 (1965) —........... 6, 39
United States v. Simmons, 213 F.2d 901 (7th Cir. 1954),
rev'd on other grounds, 348 U.S. 397 (1955) -............... 44
United States v. Sisson, 297 F. Supp. 902 (D. Mass.
1969), appeal dismissed, 399 U.S. 267 (1970) ~......... 39
United States v. Sisson, —— U.S. ——, 38 U.S.L.W.
RIE saigtitibdesnsntannissneninnnin 15, 18, 24
United States v. Spiro, 384 F.2d 159 (3rd Cir. 1967) ... 95
United States v. Stafford, 389 F.2d 215 (2d Cir. 1968) 5
United States v. Stephens, 245 F. 956 (D. Del. 1917),
ON ne IE ID epcvtceistniensnisetacrnomensnimiesiiiniotasings 45
United States v. Sturgis, 342 F.2d 328 (3rd Cir.), cert.
denied 382 U.S. 879 (1965) : 12, 73
United States v. Tantash, 409 F.2d 227 (9th Cir. 1967) 68
United States v. Turner, 421 F.2d 1251 (3rd Cir. 1970) 54
United States v. Wade, 388 U.S. 218 (1967) ....86, 87, 88, 92
United States v. Washington, 392 F.2d 37 (6th Cir.
NE ane hahaa ihenthinreiepctemnnseentniinipenenidiaineisan 77
United States v. Weersing, 415 F.2d 130 (9th Cir. 1969),
cert. denied 396 U.S. 987 (1970) “ 18
United States v. Wierzchucki, 248 F. Supp. 788 (W.D.
SID. diiinsintstncinchitsiaisninineeines ..09, 67, 68, 85, 86
United States v. Williams, 420 F.2d 288 (10th Cir. 1970) 9%
EO EE EE Eee ee ee ee ne eee ee
PAGE
United States v. Willis, 409 F.2d 830 (5th Cir.), cert.
denied 396 U.S. 864 (1969) .. 68
United States ex rel. Berman y. Craig, 207 F.2d 888
(3rd Cir. 1953) 54
United States ex rel. Brown v. Resor, —— F.2d ——,
3 S.S.L.R. 3188 (10th Cir. July 21, 1970) oo. 77
United States ex rel. Castro-Louzan v. Zimmerman, 94
F. Supp. 22 (E.D. Pa. 1950) 62
United States ex rel. Vaccarino v. Officer of the Day,
305 F. Supp. 732 (S.D.N.Y. 1969) 220 54
Walsh v. Local Board No. 10, 305 F. Supp. 1274 (S.D.
N.Y. 1969) <accesnseenenneltiighy OO
Welsh v. United States, 398 U.S. 333 (1970) 0... ~
West Ohio Gas Co. v. Public Utilities Commission
Ohio (No. 1), 294 U.S. 63 (1935) 0. 45, ud
Willner v. Committee on Character and Fitness, 373
Ss PERE IE aCESeS eT P as ee eee cea 58
Wisconsin Telephone Co. v. Publie Service Commission,
232 Wise. 274, 287 N.W. 122 (1939) W000... .-.....2.0.---..-- 63
Witmer v. United States, 348 U.S. 375 (1955) 39, 50
Wong Yong Sung v. McGrath, 339 U.S. 33 (1950) __.... 59
Yates v. United States, 404 F.2d 462 (1st Cir. 1968),
cert. denied 395 U.S. 925 (1969) ... . 18
Yiannopoulos v. Robinson, 247 F.2d 655 (7th Cir. 1957) 62
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S.
ees RTT OL ERR ES AEE 26
PAGE
Constitutional Provisions:
United States Constitution
Article I, §8 9, 25
Article ITI, §2 25
Fifth Amendment ........................ 1, 3, 12, 56, 59, 71, 72, 88
Sixth Amendment .................-.. 1, 3, 7, 12, 69, 72, 81, 86, 88
PAGE
PAGE
Federal Statutes:
EE > ES NCAR ee nen nn eer an aI Par 1, 2, 7,14
I a caller
25 U.S.C.A. §70n 7
Sn
38 U.S.C.A. §3404 ....
42 U.S.C.A. §1975a
45 U.S.C.A. §153j
Oy RE IIIS, 1st atahbeiaibclgiobnaiehiioal
Bd? oe SG”. |) RES enw een Daan ee arte ater «
PIN IN ii ccissseethicasebsnanicelioleseslonabisieicbaandaeans
GE RS Ss | eee eae ae eens a
ER ig | PARR een Denn os eer nee RE 2, 38, 51
50 U.S.C.A. §460(b) 2
50 U.S.C.A. §460(b) (1) 21
50 UB.C.A. $4GO(D) (8) -2222ncecccccecccenceseee 21, 22, 30, 38, 41, 43
50 U.S.C.A. §462(a) 21
State Statute:
N.Y. Education Law, $3214, Subdivision 6c, as
III IRs GUE eciasitciciciecinetnidicnesctssnsesomcecenncinseeiadh 81
XVii
PAGE
Regulations :
a MIN esis nrviitciliiicbopeamaphabeacbiadideilbanede 66
5 C.F.R. §22.601 .. 65
BI IE Weaietacale lh nicehiciionsiiniicivtninstecnaidusssaisbeabicaddnteisnil ts 65
9 C.F.R. §202.11e a
10 C.F.R. §2.713 .. RE PN Ura ieetene t OBE 65
TL Eee eee RC ee mE Ce 66
IE ae a SR aE Tee 66
ESS Ree ee we OO ee 66
14 C.F.R. $13.33 ‘a . 66
ee 66
17 C.F.R. §0.61 ssi liaenesbsaieelvinahioeiaceneedioaadmenistnase 66
I TRIE Shae hse ea I ey 66
Is 66
fe A SES eee ee lan ee De See 66
66
66
66
66
66
66
66
I I is iceicenensncnehcrlenciencnicceeaesehinalone
i I se cetdhllcinndtesieinleiospacnih oe
OI cei ecb ocasnna gece tengttenddsin
21 C.F.R. $2.58 ...............
24 C.F.B. §200.192 .................
28 C.F.R. $201.5 ....... ™
I i ca
Regulations:
RI NI a 73
pe CR cg fe OS OLEATE OT 73
Oe i I ccc 2, 67, 73, 94
TN I ao a oe Ot 2, 42
92 C.FR. $1604.52 (€) ....2.0cceccecceocencscserecenneee 48, 49
CIN I sacs dle cops las 43
xviii
B32 CAPR. $1604.54 on... eeeeecececeneeeeeecencaseenenenennenennsnenences
32 C.F.R. $1604.55 -...
32 C.F.R. $1604.57
32 C.F.R. $1604.58
SE RTE 2, 34, 95
32 C.F.R. §1604.71(d) (5) 95
SS SEED TO Dee een: 43
32 C.F.R. $1621.15 ....... Be a ee ae 2, 43, 76
ne cena 2, 41, 43
i entclanmnianeline 38
EE ANTE ES 38
EEL a 40
a I ssessnenmsantetninlabaad 2, 41
Oe NN iininaenseenormbinn 40
ATA 40
OG ATTN EET nt 40
ON a scouceieecteemainenceec 40
32 CUBR. §1622.40(a)(1)-(9) covooscsccsscccsssssccssssssseeesssessesesen 41
SO CIR. §1622.40(0) (10) cncccncccsscoccccorsosoccecccccereseorsssseseees 41
I ie 4
ESATO: 41
32 CUF.R. §1622.42(b) eoeeecceecnoeen os : 41
SRE 41
eT | | Ree aI 41
32 C.F.R. §1622.43 ; 4
i cssemsncneeneeestinscbiccionuanl 78
Sore ok 2, 31
oes HID... 6,14
32 CPLR. §1624.2 oo.cesessssssceeccesee ; 2, 38, 41
Be A RT |) enone 41
PAGE
out 2p a kf | eee 42
32 C.F.R. §1624.2(e) iiclideadnensanipia 42
32 C.F.R. §1626.1 35
92 C.F.R. $1626.2 ............. ssbbicbuatindbasdabinliaassatisnaigotaaeisien 35
STI dre scrcnacstees rained vskeinadeeliobadarcAssiaagssedlictendlloutdedadala 53
2 CFE iat ..... ip ataiieisedtaalaceiaggididiiaadatndik shies 66
Sa I sachet edited aipgpiaecanind vdeo 66
Ce FBS ECE Soe ee DE TE eR 66
INI CUIIDY sacsasspceninaecabttssnscteibinhesnbibaslecbobasamatiancadlasics 66
I SI cacao aststclacndibchssondenbetiednaesibbliciainiincnibliicainiciee 66
Other Authorities:
ABA Code of Professional Responsibility, [HC4-1
(Adopted by ABA House of Delegates, Aug. 12,
1969, effective Jan. 1, 1970)
ABA Informal Opinion No. 287
ABA Informal Opinion No. 1026 ¢
Air Force Regulation 35-24, §8b(4) (May 1, 1970) .... 79
Army Regulation 135-25, {7b(3) (June 17, 1970)
Army Regulation 635-20, 4b(3) (July 31, 1970)
Coast Guard Commandant Instruction 1900.2, 95 (Oct.
41 Cong. Ree. 2752 (1907)
41 Cong. Ree. 2753 (1907)
113 Cong. Ree. 12503
Davis and Dolbeare, Lirr_e Groups or Neicupors: THE
SeLective Service System (1969)
Department of Defense Directive 1300.6 {VIB4 (May
10, 1968) ...
Department of the Navy Bupers Instruction 1900.5, 3
(July 18, 1968)
PAGE
Executive Order No. 11555, 35 Fed. Reg. 14191 (1970) 49
Federalism and State Criminal Procedure, 70 Harv. L.
ag) a 61
Forkosch, The Constitutionality of the Vietnam Ven-
ture and a Registrant's Right to Counsel Within the
Selective Service System, 22 So. Car. L. Rev. 287
I + scilat ida sdsachal-adebahsinieesbeamaneinnisaei 44, 99
Friedenthal, Government Appeals in Federal Criminal
Cases, 12 Stan. L. Bev. 71 (1960) ....ccccosocccceseecevsccses 16, 23
Gellhorn and Byse, Apministrative Law, 664 (1954 ed.) 93
Handler, Controlling Official Behavior in Welfare Ad-
ministration, 54 Cau. L. Rev. 479 (1966) 00. 92
Hershey, Legal Aspects of Selective Service, 28 (rev'd
En . pcabiadataldediasetiaieiveiaassatacnsesianiienedimaiieade 19, 42, 83
H.R. Rep. No. 267, 90th Cong., Ist Sess., 31 0.0000. 91
Kurland, The Mersky Case and the Criminal Appeals
Act: A Suggestion for Amendment to the Statute,
cis ee bk | ennenemennnereennn 22-23
Layton, Lawyers Cannot Be Informants, 54 ABAJ 153
SID ceteshacionsnaiadelcisanscoiinintealedaeiindiedabnivalbehesincnitddideinieoomnaniacdis 95
Maegill, Selective Conscientious Objection: Divine
Will and Legislative Grace, 54 U. Va. L. Rev. 1355
IIIA pe cicaeacaiticasrtcicatlselan ected sadn taemtoweadnasiladeoapiennatiedsaanisendaiad 64
Marine Corps Order 1306.16B, {7b(4) (June 18, 1969) 79
McKinney’s New York Session Laws 1969 ......000.20....... 81
OEO Pamphlet 6140-2 .20.000.0.u..2...sncsncensoeee 98
Review of the Administration and Operation of the
Selective Service System, An Interim Report of the
Committee on Armed Services of the House of Rep-
resentatives, 89th Cong., 2d Sess., August 4, 1966
RN MI TINE “cinccctieconccnsssthainniecsedonanabeaiidia tidied aniataadammdnate 32, 36
EE SS
PAGE
Review of the Administration and Operation of the
Selective Service System, Hearings Before the Com-
mittee on Armed Services of the House of Repre-
sentatives, 89th Cong., 2d Sess., June 22-24, 28-30,
Re I Be 0 ie ID ititernicericiiaictieiicentcbisecininninsicinsnces 32
Report ory THE Nationa Apvisory ComMMIsSION ON
Setective Service (the Marshall Commission), In
Pursuit or Equity: Wo Serves Wuen Not ALL
RG CID etcceieniteeicnnntiannnthindntemmenndinelad 46, 90, 94, 97
Right of Counsel in the Selective Service System, Hear-
ing Before the Subcommittee on Administrative
Practice and Procedure of the Committee on the
Judiciary, United States Senate, 90th Cong., 2d Sess.,
BE Ts BPP isiietiecnebieiepuasnenttephalitiniptientaibichisinisoiasieiteptaecnapiine 98
Rivkin, GI Ricguys anv Army Justice: Tue Drarrer’s
Guwe to Mivivary Lire anv Law, 360 (1970) 20000000... 99
Smith and Bell, The Conscientious Objector Program
—A Search for Sincerity, 19 U. Prrr. L. Rev. 695
TINUED A cicesessebiganniiatcemehdbiiteias cabinets onl tecelacatads 51, 64, 78, 91
Stern & Gressman, Supreme Court Practice 213 (1969) 26
2 Sutherland, Statutes and Statutory Construction,
Se SUR CIe Ce OD tircneritinisiscinitiliniotnidiearvennnasl 31, 35
Tatum and Tuchinsky, Guipe ro tHE Drarr (1969) 272 99
The Selective Service System: Its Operation, Prac-
tices, and Procedures, Hearings Before the Sub-
committee on Administrative Practice and Proce-
dure of the Committee on the Judiciary, United
States Senate, 91st Cong., Ist Sess., October 29-
PIE els INI aaininsiigriaedechecipicbiaieataleiecsndd 46, 47, 48, 89
In THE
Supreme Court of the United States
OcroserR TERM, 1970
No. 77
>
Unitep States or AMERICA,
Appellant,
—
THomas WitLt1AM WELLER,
Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
~~
BRIEF FOR APPELLEE
Jurisdiction
In appellee’s view exclusive jurisdiction is conferred on
this Court by the Criminal Appeals Act, 18 U.S.C. §3731,
and particularly the motion in bar and statutory construc-
tion provisions of such Act. See Point I, infra, for a full
discussion of the jurisdictional questions.
Constitutional Provisions, Statutes and
Regulations Involved
This case involves the due process clause of the Fifth
Amendment and the assistance of counsel clause of the
Sixth Amendment to the United States Constitution.
2
Pertinent provisions of the Criminal Appeals Act (18
U.S.C. $3731) and $10(b) of the Military Selective Service
Act of 1967 (50 U.S.C. App. §460(b)) are reprinted jn
Appendix A of appellant’s brief, pp. 55-57. The relevant
provisions of §6(j) of the Selective Service Act of 1948
(former 50 U.S.C. App. §456(j)), 65 Stat. 83, are set forth
in Appendix A of this brief, ixfra, pp. 101-102.
Several Selective Service regulations are likewise in.
volved, some of which (32 C.F.R. §§1604.41, 1604.71, 16241
and 1624.2) are reprinted in Appendix A of appellant’s
brief, pp. 57-61. Additional Selective Service regulations
which are involved in this case (32 C.F.R. $§1604.52,
1604.52a(a), 1604.54, 1604.55, 1604.57, 1604.58, 1621.15,
1622.1(c), and 1622.20(a)) are set forth in Appendix A of
this brief, infra, pp. 102-106.
{VIB 4 of the Department of Defense Directive 1300.6,
also relevant, is also set forth in the Appendix, infra, p.
106.
Questions Presented
1. Whether this Court has exclusive jurisdiction over this
direct appeal by the Government from the decision of
the district court which granted a motion to dismiss an
indictment for armed forces induction refusal on the
grounds that the Selective Service regulation prohibit-
ing counsel at local board personal appearances was not
explicitly authorized by statute and is otherwise con-
stitutionally invalid.
2. Whether the Selective Service regulation which pro-
hibits the appearance of counsel for a registrant at a
local board personal appearance is invalid because right
3
:
1
3
of counsel is a traditional procedural safeguard of
which a registrant cannot be divested without explicit
authorization by act of Congress.
3. Whether the Selective Service regulation which pro-
hibits the appearance of counsel at a local board
personal appearance is in violation of a registrant’s
constitutional right to due process under the Fifth
Amendment and to the effective assistance of counsel
under the Sixth Amendment.
Statement of the Case
Appellee concurs with so much of the statement of the
case as appears in the brief for the United States (pp.
3-5) as recites the chronology of developments. Pursuant
to Rule 40(3) of the Rules of this Court, appellee deems it
necessary to set forth the following additional statement
to correct inaccuracies or omissions appearing in the
Government’s statement:
1) The initial request by appellee and his counsel (A.
12)* that appellee’s counsel be present at the personal
appearance hearing was expressly for the purpose, as
stated by counsel, “to advise him with respect to his rights.”
A later communication by appellee’s counsel to the chair-
man of the local board made it clear that:
“TI 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 representation which is all
that the cited regulation bars” (A. 18).
* “A” refers to the Appendix in this Court.
4
The same letter from appellee’s counsel stated as another
reason for allowing counsel to be present the fact that under
the recently terminated Department of Justice hearing
procedures for conscientious objector applicants, counsel
was allowed to be present.
“The appearance before the local board is now the
one and only time wherein a registrant may have any
kind of hearing, present his case in person, present
testimony on his own behalf, and meet his accusers in
the sense that he may determine the reasons for prior
denial of his claim” (A. 19).
Moreover, appellee’s counsel’s letter noted that recent
decisions of this Court had upheld the right to counsel
“where the proceeding involved a matter of the liberty and
substantial personal rights of the individual” (A. 19).
Finally, appellee’s counsel’s letter requested, in view of
the substantially changed circumstances, “whether the
Selective Service System has made a determination of the
validity of the prior requirement with regard to exclusion
of counsel” (A. 19).
The board chairman responded to this letter and dis-
cussed in detail other aspects of the personal appearance,
but made no response or comment whatsoever to the request
for counsel (A. 21-22).
A subsequent communication from appellee’s counsel
enclosed a copy of appellee’s summary of his personal
appearance hearing, expressly disclaimed any waiver of
the prior request for counsel, and made the following com-
ment:
5
“There is a great and probably growing gap between
the generations in our Nation. Communication across
this line is difficult under the best of circumstances.
Young people do not use the same words and language,
or, when they do they may mean quite different 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” (A. 23-24).
The only response from the board (A. 28) was a letter
to appellee, a copy of which was sent to appellee’s counsel,
advising that the board had decided not to reopen appellee’s
classification. Subsequent letters by appellee (A. 30) and
his counsel (A. 29-30) noted express and specific objection
to the board’s denial of counsel.
2. There are sharp disparities between the board’s
‘record’ of what transpired at appellee’s personal ap-
pearance (A. 16-17) and the summary prepared by appellee
(A. 24-27). According to the appellee’s version, consider-
ably more ensued at the personal appearance than that
revealed by the board’s version. To cite one specific in-
stance: if the appellee is correct in his statement that
the chairman or a member of the board advised him that
“it was not their function to judge such legal questions”
as “whether they thought that certain sorts of religious
beliefs and background were necessary...” (A. 24), then
the board clearly acted erroneously and failed to exercise
its mandated duty to hear and det::mine all questions con-
cerning classifications. See Point III, Section 1, infra.
3. These proceedings occurred in November of 1967. At
such time, United States v. Seeger, 380 U.S. 163 (1965) had
6
been decided which gave a broader definition to religious
training and belief than that which had previously pre-
vailed. The record does not contain any statement of
reasons for the board’s action (A. 17, A. 28), and it is not
at all clear that the board followed the proper standards,
Appellee did not have counsel present to assist him in the
presentation of his claim and to insist in the application of
the proper legal principles.
4. The district court ruled that a local board personal
appearance “is a critical stage of an administrative process
at which substantial rights are adjudicated” (A. 32), and
that the holding by this Court in Greene v. McElroy, 360
U.S. 474 (1959), requires explicit congressional authoriza-
tion before any fundamental procedural safeguard may be
denied in such an administrative adjudicatory proceeding.
Ibid. The court carefully reviewed the statute and, finding
no such explicit authorization, ruled that the regulation
which prohibits counsel at a local board personal appear-
ance (32 C.F.R. §1624.1(b)) is invalid (A. 33). Following
Greene v. McElroy, supra, the court held that any argu-
ment of “acquiescence or implied ratification” by congres-
sional inaction was insufficient (A. 33-34). The court below
carefully distinguished other decisions holding that there
was no constitutional right to counsel under the due process
clause for a number of reasons, including that none of
these prior decisions had ruled on the question of explicit
authorization.
The district court also held, tracing recent decisions of
this Court and other courts in other types of administrative
adjudications involving personal and property rights, that
there was a constitutional right under the due process
7
clause to counsel at such adjudications. The Government’s
suggestion (brief, p. 5) that the district court “was careful
to circumvent” deciding the constitutional question, is not
borne out by a reading of the district court’s opinion.
However, the district court did refrain from deciding
whether there is a right of counsel under the Sixth Amend-
ment.
The opinion of the district court also discussed the use-
ful function which could be played by counsel at a local
board personal appearance (A. 39-40), discounted any argu-
ment that counsel’s presence would cause “litigious inter-
ruption” (A. 34-35, A. 39), and noted the inadequacy of the
regulations dealing with optional advisors to registrants
and government appeal agents (A. 40-41).
Summary of Argument
i
After its appeal was filed in this Court pursuant to the
provisions of the Criminal Appeals Act (18 U.S.C. §3731),
the Government changed its position and moved to remand
this case to the Court of Appeals for the Ninth Circuit,
The Government’s motion to remand was denied and fur-
ther consideration of the jurisdictional question was post-
poned to the hearing of the case on the merits.
The decision of the district court brings this appeal di-
rectly within the motion in bar and statutory construction
provisions of the Criminal Appeals Act, thereby confer-
ring exclusive jurisdiction on this Court.
Contrary to the claims of the Government, this Court has
never held that the motion in bar provision is constricted
8
to the common law definition of the term “plea in bar.”
Rather, this Court has held on many occasions that where an
indictment is dismissed prior to trial terminating the cause
and exculpating the defendant on the basis of questions
of law outside of the general issues to be tried, all of the
requisites of a motion in bar have been met. Moreover,
where, as here, the defendant “confesses” to the acts
charged in the indictment (refusal to report for induction)
but “avoids” the consequences of those acts by relying on
extraneous matter (refusal to permit counsel at a personal
appearance before the local board), the jurisdiction of this
Court is clear even under the most restrictive reading of
the motion in bar provision. See United States v. Mersky,
361 U.S. 431, 457 (1960) (dissenting opinion of Mr. Justice
Stewart).
Furthermore, the jurisdiction of this Court is mandated
also by that provision of the Criminal Appeals Act grant-
ing direct appeal where the decision of the district court
is based upon the construction of the statute upon which
the indictment is founded. As in United States v. Mersky,
supra, there is an intimate nexus between the statute and
the regulations declared invalid. The district court’s deter-
mination that the regulation was unauthorized by the Act
necessarily involved a direct construction of the Aet.
Finally, the underlying Congressional purpose of requir-
ing an exclusive appeal to this Court where a district judge
dismisses an indictment because of major constitutional
questions in the construction or validity of an Act of Con-
gress, is properly served by this Court’s retaining juris-
diction, and not acceding to the Government’s contention
that the case should be remanded to the Court of Appeals
for the Ninth Circuit.
9
Thus direct appeal to this Court is mandated by the
Criminal Appeals Act under both the motion in bar pro-
vision and the statutory construction provision.
Il.
Only Congress has the power, under Article I, $8, of the
Constitution, to raise armies, and thus only Congress has
the power to establish the procedures by which men are to
be conscripted. Without congressional authorization, the
President may not establish such procedures at all; and
without the most clearly explicit authorization, he may not
attempt to establish procedures which deny to registrants
traditional procedural safeguards.
The strong statement of this principle enunciated by this
Court in Greene v. McElroy, 360 U.S. 474 (1959), has in no
way been weakened by Hannah vy. Larche, 363 U.S. 420
(1960), or any other subsequent case. In the light of
Greene’s clear statement that such explicit authorization
is not to be found in mere “acquiescence or non-action,”
360 U.S. at 507, the Government is clearly in error in re-
sorting to such an argument.
Moreover, as to the legislative history which is so exten-
sively cited by the Government at pp. 25-31 of its brief, the
most that can be said for it is that it is exceedingly am-
biguous. The views of General Hershey, as expressed in
the Hearings of the House Armed Services Committee,
were later expressly rejected by that Committee; Repre-
sentative Kastenmeier’s remarks on the floor of the House
clearly were addressed only to the procedures followed
at the appeal boards, and had nothing to do with the right
to counsel at personal appearances before local boards;
and finally, the debate on Senator Morse’s amendment to
10
the 1967 Act was patently so confved and so misleading as
to render any “interpretation” based upon it utterly with.
out persuasive value.
III.
The principal constitutional question in this case jg
whether a selective service registrant has a constitutional]
right to the advice and assistance of retained counsel at a
personal appearance before his local board.
When a registrant exercises his guaranteed right to a
personal appearance, it is for the express purpose of con.
testing a classification which the board has previously given
him. The board’s function, in line with statute and regula.
tions, is to “hear and determine” all questions or claims
with respect to classifications, exemptions and deferments,
The broad array of possible classifications, conscientious
objector and otherwise, which a local board must consider
and determine, perforce requires it to engage in a series of
fact-findings, determinations of legal questions, and exer-
cises of discretion.
In performing these functions the local board adjudicates
questions involving personal and property rights, much as
any other administrative agency performing an adjudica-
tory function. Furthermore, the regulations governing local
board personal appearances, such as swearing of witnesses,
subpoena power and burden of proof, bespeak its adversary
character.
A number of court decisions have expressly recognized
the adjudicative character of local board classification ac-
tions, in accord with a host of decisions from other areas of
administrative law which have found that the essence of an
adjudicatory hearing is the process of hearing and deter-
11
mining factual and legal questions. The quaint image of
local boards as non-adversary “little groups of neighbors”
is revealed as a fiction upon analysis of the board’s proc-
esses and functioning. This analysis is buttressed by vari-
ous studies which have been made and a number of deci-
sions which have sought to enforce the oft-violated regula-
tion requiring local board members “if at all practicable”
to be residents of the board’s jurisdictional area.
A review of the history of selective service law decisions
by this court from 1946 to 1970 reflects an increasing rec-
ognition of the essential adversary and adjudicative char-
acter of local board classification action. Moreover, a num-
ber of decisions of lower federal courts have specifically
commented on the unfairness of subjecting registrants with-
out counsel to this adjudicative process.
It is an axiom of administrative law that certain minimum
standards of due process must be met where an agency ad-
judicates personal and property rights. It is no less axio-
matic that one of the most fundamental of these procedural
due process safeguards is the right to be heard, in person,
and to present evidence, and that such right is meaningless
without the accompanying right to the presence, assistance
and advice of counsel. This right has been recognized with
respect to welfare termination hearings, non-criminal ju-
venile proceedings, deportation proceedings, parole revoca-
tion proceedings, license application and revocation pro-
ceedings, and a variety of other proceedings. It was
specifically recognized for twenty years in many thousands
of conscientious objector hearings before Department of
Justice hearing officers.
Many federal agencies expressly recognize right of coun-
sel by statute and/or regulation; a number do not appear
to have any right to counsel regulations; but there is no
12
other agency with an express prohibition analogous to that
of selective service.
There is no rational basis for justifying unique treatment
for selective service personal appearances. The special
treatment mythology which the agency has itself developed
and fostered over the years should be recognized and ended.
Various decisions cited by the Government as supporting
the denial of counsel are all distinguishable, many on the
most obvious grounds, and none of them show any careful
review of the constitutional question involved. This Court's
decisions in Goldberg v. Kelly, 397 U.S. 254 (1970), and
In re Gault, 387 U.S. 1 (1966), which hold that there is a
constitutional right to counsel under the due process clause
in welfare and juvenile proceedings, are plainly and per-
suasively in point. On the other hand, United States v.
Nugent, 346 U.S. 1 (1953), cited by the Government, is
plainly not in point for a number of reasons, including
principally the fact that it was not a right of counsel case
since the registrant had counsel in the very proceeding
involved in that case. Other cases cited by the Government
are also inapplicable because they involved non-final, non-
adversary, non-adjudicatory proceedings which this Court
has always held do not require the same due process rights
as adversary proceedings which adjudicate personal and
property rights. See Hannah v. Larche, 363 U.S. 420 (1960).
In addition to the argument based on Fifth Amendment
due process, appellee contends that there is a right to coun-
sel under this Court’s interpretation of the Sixth Amend-
ment’s right to counsel at every critical stage of the pre-
trial events. It is virtually inevitable that a conscientious
objector applicant whose claim has been denied will refuse
induction and be required to seek judicial review by means
13
of defense to a prosecution for induction refusal. This, com-
bined with the exceedingly narrow scope of judicial review,
makes the local board personal appearance a critical stage
of the proceedings. Unless the right to counsel is afforded
at this critical stage it may well be useless at the trial.
Many of the catalogued abuses of registrants’ rights
which have occurred, either innocently or non-innocently,
might well have been prevented if registrants were per-
mitted to be accompanied by counsel. Counsel’s role of
delineating the issues, assisting in fact presentation, and
safeguarding the registrant’s interest would be essentially
the same as that contemplated by this Court for counsel for
welfare recipients in Goldberg v. Kelly, supra. There is
no reason to fear litigious interruption or delay and, in any
event, the size of the local boards can be increased to cope
with any increase in activity. Moreover, it can be expected
that counsel’s presence will be useful to the agency as well
as to the registrant. Government Appeal Agents, subject
to serious conflict of interest, and optional advisors to regis-
trants have demonstrably not satisfied the registrants’
needs or their constitutional rights for a number of reasons,
of which the principal one is their unavailability. Private
counsel, experienced in selective service law, are available.
Free legal services are available for indigent registrants
both from publicly-funded legal service offices and from pri-
vately organized panels.
VG PNT VL AER NTI AR AE DI BE DOOR BRETT IR
14
POINT I
The exclusive jurisdiction of this Court to hear this
direct appeal is explicitly mandated by both the motion
in bar and statutory construction provisions of 18
U.S.C. §3731, the Criminal Appeals Act. fo
The Appellee, defendant below, moved in the district ve
a eee ; , th
court to dismiss the indictment prior to trial on several
crounds. It was contended by the defendant that the Selec. *
tive Service regulation barring attorneys at personal ap- va
pearances before a local board [82 C.F.R. 1624.1(b)] was iu
either a denial of his constitutional rights or was unau- | ;
thorized by the provisions of the Military Selective Service Be
Act of 1967 (A. 3-4). After hearing the arguments of cou. ”
sel, considering legal memoranda, and reading defendant's [ Bi
entire Selective Service file, the district court dismissed | :
the indictment, holding as follows: ms
“Accordingly this court is loath to hold that the ad- be
ministrative denial of such a right is either authorized co.
by Congress or is constitutional” (A, 42). of
ins
Following the order of the district court, the Government re
filed its notice of appeal to this Court pursuant to the pr
Criminal Appeals Act, 18 U.S.C. §3731, on the grounds that 53
authority for direct appeal attached thereunder (A. 48). (1!
The Government then changed its mind with respect to the | [)
basis of the jurisdiction of this Court and on January 16, J gy
1970 moved to remand the case to the Court of Appeals | Sf
for the Ninth Cireuit. On March 23, 1970 this Court denied Bl
the Government’s motion to remand and further considera- U.
tion of the jurisdictional question was postponed to the al
U.S. (A. 44).
hearing of the case on the merits.
15
1. The Ruling of the Court Below Which Dismissed the Indict-
ment Prior to Trial, Ending the Cause and Exculpating
the Defendant on the Basis of Questions of Law Outside of
the General Issue to Be Tried, Is a Motion in Bar for the
Purposes of the Criminal Appeals Act.
In claiming that the Criminal Appeals Act does not con-
fer direct jurisdiction upon this Court, the United States is
asking the Supreme Court to adopt the proposition that
the motion in bar provision is limited to its common law
scope (Government’s Brief, pp. 6, 14). This Court has
never accepted that approach. See United States v. Sisson,
site B, » 88 U.S.L.W. 4616, dissenting opinion of
Mr. Justice White, at 4635. Contrary to the Government's
contention, this Court on several occasions has held that
where the dismissal of an indictment by its own force
would end the cause and exculpate the defendant without
subjecting him to double jeopardy, the requisites of a
motion in bar for purposes of the Criminal Appeals Act
have been met. In other words, it is the effect of the ruling
below—and not of how the pleading is styled—that is of
consequence. So long as the ruling below has the effect
of an absolute bar to further prosecution without subject-
ing the defendant to double jeopardy, that ruling consti-
tutes a motion in bar and is directly reviewable in the Su-
preme Court. See United States v. Hark, 320 U.S. 531,
030-36 (1944); United States v. Murdock, 284 U.S. 141
(1931) ; United States v. Oppenheimer, 242 U.S. 85 (1916) ;
United States v. Celestine, 215 U.S. 278 (1909); United
States vy. Goldman, 277 U.S, 229, 236-37 (1928); United
States v. Rabinowich, 238 U.S. 78 (1915); United States vy.
Blue, 384 U.S. 251 (1966) ; United States v. Covington, 395
US. 57 (1969). See also United States vy. Fiz, F.2d
—, No. 25216 (U.S. Court of Appeals, 9th Cireuit, July 1,
16
1970) ; Friedenthal, Government Appeals in Federal Crim.
inal Cases, 12 Stan. L. Rev. 71, 77-78 (1959).
Since the appellee had not yet been brought to trial when
dismissal occurred, there can be no question of double
jeopardy. See United States v. Celestine, supra. Undoubt.
edly, the effect of the district court’s ruling was to end
the cause permanently and exculpate the defendant. Thus,
pursuant to the above cited decisions of this Court, juris.
diction under the Criminal Appeals Act is secure.
Contrary to the contentions of the United States, the
legislative history of the Criminal Appeals Act supports
this interpretation rather than that proposed by the Gov.
ernment of limiting the motion in bar provisions to its
common law ambit. For example, Senator Knox, a former
Attorney General, stated as follows:
“The Government takes the risks of all the mistakes of
its prosecuting officers and of the trial judge in the trial,
and it is only proposed to give it an appeal upon ques.
tions of law raised by the defendant to defeat the trial
and if it defeats the trial.”
41 Cong. Ree. 2752 (1907).
Furthermore, Senator Patterson, one of the sponsors of
the Act, defined a special plea in bar as follows:
“A special plea in bar... is a plea that does not relate
to the guilt or innocence of the defendant in the sense
as to whether he did or not commit the act for which
he was indicted. A special plea in bar is that which
is set up as a special defense notwithstanding the de-
fendant may be guilty of the offenses with which he is
charged; it is for some outside matter; yet it may have
been connected with the case.”
17
41 Cong. Ree. 2753 (1907).
It is obvious from these remarks that the framers of the
Criminal Appeals Act intended a case such as this one to
be included within the motion in bar provisions. The ques-
tions of law raised by appellee prior to the trial defeated
the trial and were based upon matters unrelated to his
refusal to report for induction, the offense for which he
was indicted.
Moreover, jurisdiction in this case obtains under the
motion in bar provision even under its most restrictive
reading. This interpretation was set forth by the dis-
senters in United States v. Mersky, 361 U.S. 431, 457
(1960). Mr. Justice Stewart, joined by Mr. Justice Frank-
furter and Mr. Justice Harlan,' stated that a motion in bar
was identical to the common law plea in confession and
avoidance :
“The plea in confession and avoidance did not con-
test the facts alleged in the declaration, but relied on
new mnatter which would deprive those facts of their
ordinary legal effect. * * * It set up affirmative defenses
which would bar the prosecution.”
361 U.S. at 457.
It is only by strained and convoluted argument that the
Government contends that the motion and ruling below
fails to fall within this definition. It is clear that the ques-
tion of law raised by the motion and by the ruling of the
district court did not appear on the face of the indict-
‘Mr. Justice Harlan delivered the opinions of the court in
United States v. Blue, supra, and United States v. Covington,
supra, both post-Mersky decisions, which upheld direct appellate
jurisdiction.
18
ment and that “new matter” was relied upon, United States
v. Blue, supra, at 254, which insulated the appellee’s refusal
to report for induction from its ordinary legal effect. The
position taken by the appellee was that he “confessed,” that
he did not submit to induction, but that he sought to “avoid”
that as an act for which he could be prosecuted by “relying
on new matter which would deprive these facts of their ordi.
nary legal effect.” Mersky, supra, at 457.
Unlike the defendant in Sisson, supra, however, the “new
matter” relied on by the appellee in this case, and raised
by his motion, did not consist of facts which would neces.
sarily be tried with the general issue in this case. The
primary elements of the offense of a refusal to submit to
induction are refusing to step forward when one’s name is
called the third time and having the required criminal in-
tent. See Chernekoff v. United States, 219 F.2d 721 (9th
Cir. 1955); United States v. Rabb, 394 F.2d 230 (3d Cir.
1968). The crux of the prosecution’s case when the crime
alleged is induction refusal is simply whether or not the
defendant has wilfully refused to submit to induction. The
courts have consistently held that a presumption of regu-
larity attaches to the official acts of local boards, which,
standing alone, is sufficient to uphold a conviction for in-
duction refusal. See Yates v. United States, 404 F.2d 462
(ist Cir. 1968), cert. denied 395 U.S. 925 (1969); United
States v. Weersing, 415 F.2d 130 (9th Cir. 1969), cert. de-
nied 396 U.S. 987 (1970); United States v. Norman, 413
F.2d 789 (6th Cir. 1969), cert. denied 396 U.S. 1018 (1970);
Little v. United States, 409 F.2d 1343 (10th Cir. 1969);
United States v. Sandbank, 403 F.2d 38 (2d Cir. 1968),
cert. denied 394 U.S. 961 (1969); Lowe v. United States,
389 F.2d 51 (Sth Cir. 1968).
rns es OO
_——
19
It is completely incongruous for the United States, in the
light of all these holdings and of the consistent posture
which it takes in the prosecution of Selective Service cases,’
to now argue that the propriety of a Selective Service regu-
lation barring counsel is a “fact” which would be presented
to the jury in trying the general issue. Thus, the motion
below and the ruling of the district court qualify as a mo-
tion in bar for the purposes of the Criminal Appeals Act,
no matter which interpretation is given to that provision.
The Government’s arguments in this case seeking to take
this ruling out of the jurisdiction of this Court make the
comments of Mr. Justice Brennan, concurring in United
States v. Mersky, supra, appropriate here. To adhere to the
contentions put forward by the Government would “unsettle
what has been settled by [the Supreme Court’s] precedents
and re-introduce[s] archaisms into federal criminal pro-
cedure...” United States v. Mersky, supra, at 441.
2. The Decision of the District Court Dismissing the Indict-
ment Is Based Upon the Construction of the Statute Upon
Which the Indictment Is Founded and Also Confers Juris-
diction in This Court Upon Direct Appeal.
In addition to the clear jurisdiction of the Court under
the motion in bar section of the Criminal Appeals Act, it
is also plain that the decision below is based upon the con-
struction of the statute upon which the indictment is
founded, and for that reason as well the Supreme Court has
jurisdiction on direct appeal.
The guidebook published by the Selective Service System to
aid prosecutors states that the Government’s case “is satisfied by
proof that an order to report for induction was issued and the
registrant failed to comply.” L. HersHey, LeGaL ASPECTS OF
SeLectIvE Service, 54-55 (Rev’d ed. 1969).
20
In United States v. Mersky, supra, this Court held that
the construction of a regulation promulgated under a stat.
ute is a construction of the statute for the purposes of the
Criminal Appeals Act. In so holding, the Court said:
“Here the statute is not complete by itself, since it
merely declares the range of its operation and leayes
to its progeny the means to be utilized in the effecty.
ation of its command. * * * The result is that neither
the statute nor the regulations are complete without
the other, and only together do they have any force. In
effect, therefore, the construction of one necessarily
involves the construction of the other.” 361 US. at
437-438.
The present case involves a very similar statutory scheme
to that considered in Mersky. The following provisions of
the Military Selective Service Act authorizing the Presi.
dent to promulgate rules and regulations under that Act
illustrate the close nexus between the Act and the regula-
tions promulgated thereunder: |
“The President is authorized, from time to time,
whether or not a state of war exists, 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. App. §454(a).
“The selection of persons for training and service under
section 4 * * * shall be made in an impartial manner,
under such rules and regulations as the President may
prescribe, * * *” 50 U.S.C. App. §455(a) (1).
—,
21
“The President is authorized—
(1) to prescribe the necessary rules and regulations
to carry out the provisions of this title.” 50 U.S.C. App.
§460(b) (1).
(3) * * * Such local boards, or separate panels
thereof each consisting of three or more members,
shall, under rules and regulations prescribed by the
President, have the power within the respective juris-
dictions of such local boards to hear and determine,
subject to the right of appeal to the appeal boards
herein authorized, all questions or claims with respect
to inclusion for, or exemption or deferment from, train-
ing and service under this title * * * of all individuals
within the jurisdiction of such local boards.” 50 U.S.C.
App. §460(b) (3).
“Any member of the Selective Service System or any
other person charged as herein provided with the duty
of carrying out any of the provisions of this title [sec-
tions 451, 453, 454, 455, 456 and 458-471 of this Ap-
pendix], or the rules or regulations made or directions
given thereunder, who shall knowingly fail or neglect
to perform such duty * * * shall, upon conviction in
any district court of the United States of competent
jurisdiction, be punished by imprisonment for not more
than five years or a fine of not more than $10,900, or
by both such fine and imprisonment * * * ” 50 U.S.C.
App. §462(a).
Indeed, the indictment charging the appellee with an
offense charged him with a wilful and knowing violation of
both the Act “and the ... regulations . . . duly made pur-
22
suant thereto” (A. 2). Thus, there is no question but that
here, as in Mersky, the statute is not complete in and of
itself but authorizes and in fact requires the promulgation
of regulations to fill out its scheme. “When the statute
and regulations are so inextricably intertwined, the dis.
missal must be held to involve construction of the statute.”
Mersky, supra, at 438.*
The court below, in applying the authorization test of
Greene v. McElroy, 360 U.S. 474 (1959), analyzed the statu.
tory and regulatory scheme (A. 12). The court first read
the Act to search for an express authorization for the denial
of the right to counsel (A. 13-14). It then reads the Act to
try to find any express delegation of the power to do so
(A. 14). It found none in the Act. It then analyzed the
Act for possible sources of implicit delegation of such au-
thority. It examined Section 1(¢) [50 U.S.C. App. 451(c)]
and Section 10(b) (3) [50 U.S.C. App. 460(b) (3) ], construed
them, and found 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” (A. 23). To view this analysis
of the court below as anything other than a construction of
the statute is to twist language beyond reason.
It is obvious that where, as here, the issue before the
court is whether a regulation is authorized by a statute,
the judicial determination of that question involves a con-
struction of the statute and authorizes direct appeal under
the Criminal Appeals Act. See United States vy. Foster,
233 U.S. 515, 523 (1914); Kurland, The Mersky Case and
5’ Notwithstanding its position that statute and regulation are
not “inextricably intertwined” in this case, earlier in the Govern-
ment’s brief the combination of statute and regulation is without
much ado characterized as “part of the Selective Service law,”
p. 5.
<- Zl te
t!
23
the Criminal Appeals Act: A Suggestion for Amendment
to the Statute, 28 U. Chi. L. Rev. 419 (1961); Friedenthal,
supra.
Obviously, the purposes of the Criminal Appeals Act are
equally well served when a court declares a regulation in-
yalid as unauthorized by a statute as when a court construes
the statute directly. As this Court stated in United States
y. Mersky:
“It therefore appears abundantly clear that the remedial
purpose of the Act was to avert ‘the danger of frequent
conflicts, real or apparent, in the decisions of the vari-
ous district or circuit courts, and the unfortunate re-
sults thereof’; and to eliminate ‘the impossibility of the
government’s obtaining final and uniform rulings by
recourse to a higher court.’ 20 Harv. L. Rev. 219. More-
over, the desirability of expedition in the determination
of the validity of acts of Congress, which is pointed to
as a desideratum for direct appeal, applies equally to
regulations. In practical operation, correction of a
regulation by agency revision invariably awaits judi-
cial action.” Supra, at 436 (emphasis added).
The Government’s attempt to distinguish this case from
United States v. Eisdorfer, No. 330, 1969 Term, appeal dis-
missed, 396 U.S. 1066 (1970), and from the positions taken
therein both by the Government and by the Court, is unper-
suasive. The Government concedes that to apply the Fis-
dorfer rationale here
‘
‘... it is necessary to argue that the issue of the le-
gality of appellee’s classification, which goes to the
validity of the order to report, is encompassed in the
charge of disobedience to the order and that the regu-
lation bearing upon the process by which the local board
24
determines the classification in turn conditions the ya.
lidity of the classification.” Brief, p. 19.
Further, it is conceded (p. 19) that the district court was
justified in dismissing the indictment (once it fownd that
the process leading to the order to report for induction was
invalid). Yet the Government suggests that the dismissal
was not based on a finding that the induction order was
void. It seems to suggest 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 be prosecuted for
wilful disobedience of it. Even if this theory were 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.
In conclusion, the exclusive jurisdiction of this Court
upon direct appeal, pursuant to the Criminal Appeals Act,
is clearly mandated in both the motion in bar provision and
the statutory construction provision. This is evident not
only from the foregoing analysis, but from a consideration
of the broad statutory purpose of allowing a direct appeal
to this Court from decisions of district courts which dismiss
indictments because of major constitutional questions in the
construction of the statute. See United States vy. Sisson,
supra. The purpose was to bring such decisions of na-
tional impact directly to this Court for review by the highest
constitutional authority.* The decision below, holding that
*“Appeal was to be for the purpose of deciding ‘constitutional
questions’, ‘questions of law’ which if the district judge’s decisions
were permitted to stand could lead to conflict and different treat-
ment under the same criminal statutes in different parts of the
country.” United States v. Sisson, supra, 38 U.S.L.W. at 4631
(dissenting opinion of Mr. Chief Justice Burger).
ore
25
a thirty-year old “part of the Selective Service law,” Gov-
ernment’s Brief, p. 5, whose continuation, we are urged, is
necessary to avoid “constructive paralysis” (p. 46) of the
system, was invalid on constitutional grounds, is plainly
that kind of decision.
POINT II
The selective service regulation which prohibits the
presence of counsel at a local board personal appear-
ance is invalid because it is a denial of a traditional
procedural safeguard which was not explicitly author-
ized by Congress.
1. Only Congress Has the Power to Conscript Armies and to
Limit the Procedural Rights of Selective Service Registrants.
The essence of the decision of the court below is that:
“... nowhere in the Act has Congress expressly denied
the right to counsel or expressly delegated the power
to do so to the President” (A. 33).
Following Greene v. McElroy, 360 U.S. 474 (1959), the dis-
trict court held that the statutory provisions which au-
thorize presidential regulation of local boards
“
. clearly are not ‘explicit action by the Nation’s
lawmakers’ (in this case, Congress) taking the consti-
tutionally-suspect action of removing the right to be
represented by counsel” (A. 33).
The premises underlying the court’s holding are that
only Congress can declare war, Constitution, Article I, §8;
and only Congress can draft manpower. Consequently,
26
only Congress can declare that a selective service regis.
trant shall be denied counsel. These self-evident constity.
tional axioms are, however, questioned by the Government
(Brief, p. 22, n. 7). The incredible suggestion is made—
without any citation of authority—that the President him.
self has power under Article II, §2, of the Constitution—
even without congressional authorization—to deny tradi.
tional safeguards to selective service registrants.*
The Government superimposes upon this argument of
limitless presidential power the contention that the exer.
cise of such power is unreviewable, since it presents “non-
justiciable controversies of a political nature... .”°
With all due respect, the Solicitor General is wrong on
both grounds. This Court has on many occasions reiterated
that there are constitutional limits on the President’s exer-
cise of military powers, even in wartime. See Youngstown
Sheet and Tube Co. vy. Sawyer, 343 U.S. 579 (1952);
5 The implication of the Government’s argument in footnote 7
of its brief is that the President has power—without congressional
authorization or sanction—to promulgate regulations which would
provide for conscription of manpower without any personal ap-
pearances at all, and without any procedural safeguards whatso-
ever. It is not clear if the Government’s argument runs so far as
to claim exclusive presidential power—without congressional au-
thorization—to draft manpower, or even to use his powers as
commander-in-chief of the armed forces to raise an army whenever
and however he deems it appropriate.
*The only authority cited for this dubious proposition is this
Court’s denial of certiorari in Mora v. McNamara, 389 U.S. 934
(1967). It is surprising to find the Solicitor General imputing
substantive significance to a denial of certiorari in the light of the
repeated admonitions by this Court that such a denial “imports no
expression of opinion upon the merits of the case, as the bar has
been told many times.” United States v. Carver, 260 U.S. 482, 490
(1923). See Maryland v. Baltimore Radio Show, 338 US. 912,
917-920 (1950); Stern & Gressman, Supreme Court Practice, 213-
218 (1969).
27
United States v. Robel, 389 U.S. 258, 263 (1967); Galvan
y. Press, 347 U.S. 522, 530 (1954) ; Ex parte Endo, 323 U.S.
983 (1944). Moreover, the “political question” spectre has
been decisively exorcised. See Baker v. Carr, 369 U.S. 186
(1962); Powell v. McCormack, 395 U.S. 486 (1969); com-
pare Berk v. Laird, —— F.2d ——, 3 §.S.L.R. 3142 (2d Cir.
1970).
2. The Court Below Correctly Applied the Requirement
of Explicit Authorization,
The court below correctly applied Greene v. McElroy,
supra, to reach its decision that the regulation prohibiting
counsel was never authorized by Act of Congress (A. 33-
34). This Court held in Greene that the requirement of ex-
plicit congressional authorization before any denial of a
procedural safeguard is constitutionally tolerable is neces-
sary because:
“Without explicit action by lawmakers, decisions of
great constitutional import and effect would be rele-
gated by default to administrators who, under our sys-
tem of government, are not endowed with authority to
decide them.” 360 U.S. at 507.’
"It is, therefore, difficult to understand how the Government
reads Greene v. McElroy as holding that a denial could be legitima-
tized “either by direct action or by careful and purposeful inac-
tion” (p. 22). Nowhere does the phrase “careful and purposeful
inaction” appear in the cited pages of Greene v. McElroy, 360 US.
at 506-507. The phrase which this Court did use was “careful and
purposeful consideration” as a concomitant of “explicit action.”
This court specifically held that “such decisions cannot be assumed
by acquiescence or non-action.” Ibid. It is a mystery, to say the
least, how the authors of the Solicitor General’s brief can so nimbly
convert “inaction” into its opposite. That this Court meant what
it said when it required “explicit action” is further demonstrated
by the very sharp dissenting opinion of Mr. Justice Clark, 360
US. at 510-524. Pointing to the many instances of congressional
consideration and review of the personnel security program in-
28
This Court’s decision in Greene was not a biological
sport, but merely a continuation of a well-established doe.
trine requiring express congressional approval as a pre.
condition for denial of procedural rights. See Panama Re.
fining Company v. Ryan, 293 U.S. 388, 418 (1935) (regula.
tion invalid because “The Congress left the matter to the
President without standard or rule, to be dealt with as he
pleased.”) ; Ex parte Endo, 323 U.S. 288, 300 (1944) (“We
must assume, when asked to find implied powers in a grant
of legislative or executive authority, that the lawmakers
intended to place no greater restraint on the citizen than
was clearly and unmistakably indicated by the language
they used.”) ; Kent v. Dulles, 357 U.S. 116, 129 (1958) (“We
hesitate to find in this broad generalized power an au-
thority to trench so heavily on the rights of the citizen.”);
Schneider vy. Smith, 390 U.S. 17 (1968); see also Gonzalez
v. Freeman, 334 F.2d 570, 579 (D.C. Cir. 1964).°
The most recent application by this Court of the Greene
doctrine oceurred in Gutknecht v. United States, 396 US.
295 (1970), where a selective service regulation which de-
nied procedural safeguards was held invalid because of
the absence of explicit congressional authorization. In
Gutknecht, however, the proponents of the Government's
position could and did argue that there was some explicit
congressional authorization evidenced by the use of the
volved in the Greene case, and particularly the publication by Con-
gress of all of the regulations in an official directory, Mr. Justice
Clark wrote “In other cases we have held that the inaction of the
Congress, in circumstances much less specific than here, was a clear
ratification of a program as it was then being carried out by the
Executive.” Jd. at 523.
8 In Gonzalez, supra, then Circuit Judge Burger held that in the
absence of specific legislative authority, a statute would not be read
to authorize debarment of a Government contractor without regula-
tions establishing safeguards and a basically fair procedure.
29
word “delinquent” in the statute. In this case, a fortiori,
there is not a single word in the statute which suggests
explicit authorization of the prohibition of counsel.
3. Congressional Inaction Does Not Provide the
Required Authorization.
The Government next suggests (Brief, p. 23) that this
Court modified the Greene v. McElroy rule of explicit au-
thorization by its decision one year later in Hannah vy.
Larche, 363 U.S. 420 (1960). But a reading of Hannah
gives no support to the Government’s desire that “pur-
poseful inaction” be deemed synonymous with “explicit
authorization”. This Court in Hannah was not faced with
the problem of finding explicit authorization for a regula-
tion restricting traditional safeguards at adjudicatory
proceedings. First, as the Court determined, the proceed-
ings of the Civil Rights Commission in Hannah did not
involve the adjudication of personal and property rights.
363 U.S. at 441. See discussion in Point III infra, pp. 37-45.
Second, in HZannah it was abundantly evident that there
were two discrete and contradictory legislative proposals
before Congress, each of which explicitly dealt with the
procedures to be followed by the Civil Rights Commission.
Although both proposals allowed right of counsel and
certain other fundamental procedural rights, that which
was rejected by Congress allowed greater scope to the right
of counsel and broader procedural rights to witnesses
called before the Commission. This Court found that
Congress explicitly rejected the broader proposal and ex-
plicitly aeeepted the narrower proposal. Hannah v. Larche,
363 U.S. at 431-437,
The situation in this case is vastly different. There is
no mention in the statute of a limited right of counsel as
30
was the case in Hannah. There is not even the tangential
use of the word “counsel” in any context relating to a per.
sonal appearance. Compare Gutknecht vy. United States,
supra. Much less is there here any express authorization
to the President to promulgate a regulation denying coun.
sel, or limiting the right of counsel, or authorizing the
President to grant or deny counsel in his discretion. As
we set forth below, the legislative history evinces consider.
able confusion with regard to the role of the government
appeal agent and the advisor to registrants, and to related
selective service procedures. On the other hand, in the
adoption of this very same statute, the Military Selective
Service Act of 1967, Congress knew how to legislate an ex-
press prohibition of that which it feared might cause
“litigious interruption,” and indeed did so in the amend-
ment of Section 10(b)(3) of the Act, 50 U.S.C. App.
§460(b) (3), so as to limit judicial review of local board
classifications and processing.®
4. The Argument of Congressional Acquiescence
Is Not Persuasive.
Finally, the Government argues that the regulation
should be held valid, even if not explicitly authorized, be-
cause of what it regards as long congressional acquies-
cence. Brief, pp. 23-25. A number of cases are cited os-
*“Expressio unius est exclusio alterius.” See Hunt Foods and
Industries, Inc. vy. F.T.C., 286 F.2d 803, 807 (9th Cir. 1961), cert.
denied 365 U.S. 877 (1961). In totally ignoring the obvious impli-
cations to be drawn from the very words of the statute, the Govern-
ment has failed to take account even of the language of Mr. Jus-
tice Reed, in United States vy. American Trucking Ass’ns, 310 US.
534, 542 (1940) : “There is, of course, no more persuasive evidence
of the purpose of a statute than the words by which the legisla-
ture undertook to give expression to its wishes.”
31
tensibly in support of this proposition.’ To begin with,
this Court specifically refused to follow the argument of
acquiescence in Greene vy. McElroy, 360 U.S. at 506-507.
See also Ex parte Endo, supra; Kent v. Dulles, supra. Just
this past term, in T’oussie v. United States, 396 U.S. 875,
95 L, Ed.2d 156 (1970), this Court was urged to find that
failure to register was a continuing offense because
Congress had repeatedly re-enacted selective service acts,
often with substantive changes, but had taken no action
to repudiate the long-standing administrative and judicial
construction. The Court nevertheless refused to find
requisite congressional approval, since this could be found
only in “explicit language of the substantive criminal
statute.” 25 L. Ed.2d at 161.
The teaching of Girouard vy. United States, 328 U.S. 61,
69-70 (1946) is most applicable.
“It is at best treacherous to find in Congressional
silence alone the adoption of a controlling rule of law
...++ The silence of Congress and its inaction are as
consistent with a desire to leave the problem fluid as
they are with an adoption by silence... .”
* All of the cases cited by the Government (p. 25) are subject
to the analysis in 2 Sutherland, Statutes and Statutory Construc-
tion, §5107 (3rd ed. 1943), likewise cited by the Government, that
the theory of “long-standing interpretation” will be followed where
“... reliance has been placed thereon by the public and those
having an interest in the interpretation of the laws.” Jbid. It is
thus significant that most of the cases cited by the Government,
and most other cases which have applied this theory, have dealt
with tax or other fiscal regulations where private individuals are
most likely to have made decisions of great importance in relia
on a continuing interpretation of a governmental regulation. 11:
the lone selective service case cited, Billings v. T ruesdell, 321 U.S.
542 (1944), the theory of long-standing interpretation was invoked
in favor of a private individual and against the Government.
32
5. The Legislative History of the 1967 Act
Is at Best Ambiguous.
The legislative history of the 1967 Act, cited extensively
by the Government at pp. 25-31 of its brief, is not nearly
so persuasive as the Government would have one believe,
Much is made (pp. 25-29) of the testimony of General
Hershey before the House Armed Services Committee, in
response to various criticisms of selective service proce-
dures, including the denial of the right to counsel. (Review
of the Administration and Operation of the Selective Ser.
vice System, Hearings before the Committee on Armed
Services of the House of Representatives, 89th Cong., 2d
Sess., June 22, 23, 24, 28, 29, and 30, 1966 (Doe. No. 75), pp.
9984-9995.) The Government neglects to mention, however,
that in its subsequent Interim Report (Review of the Ad-
ministration and Operation of the Selective Service System,
An Interim Report of the Committee on Armed Services
of the House of Representatives, 89th Cong., 2d Sess., Au-
gust 4, 1966 (Doe. No. 76), hereinafter “Interim Report”),
ater noting the objections which had been raised to exist-
ing administrative procedures, and General Hershey’s re-
plies to those objections’ (Interim Report, pp. 10177-
10189), the Committee most explicitly stated: “However,
the analysis of General Hershey by no means necessarily
reflects the views or conclusions of the Committee on Armed
Services” (Interim Report, p. 10190). Such an explicit
disclaimer of intent to adopt the views expressed by Gen-
eral Hershey on the question of selective service proce-
11 At these same hearings, General Hershey explained his resist-
ance to any change in the statute:
“You can do almost anything under this law, which is more
than you can say for a great many laws that are on the books.”
Id. at 9698.
33
dures, of course, very seriously weakens any presumption
that the Committee’s failure to introduce an amendment in
favor of permitting counsel should be construed as a posi-
tive approval of the denial of counsel. Here, as in Girouard,
supra, one might readily conclude that at most the desire
of the Committee was to “leave the problem fluid.” 328
U.S. at 70.
The Government also offers, in support of its interpreta-
tion of the legislative history of the statute, a substantial
amount of material from the floor debates in both the House
and the Senate. But there is little in it to support the Gov-
ernment’s contention that it demonstrates an explicit con-
gressional intent to permit denial of counsel. How the
criticisms by Rep. Kastenmeier of the procedures before
appeal boards (emphasis in Government’s Brief at p. 28)
can be deemed even to have informed the members of
the House of the lack of counsel at local boards, let alone
to have demonstrated House approval of the procedure,
is not explained by the Government for there is no way it
can be explained.”
The Government also places great reliance on the defeat
of the amendment offered by Senator Morse, on the floor
of the Senate, which would have permitted counsel to reg-
istrants in personal appearances. An examination of the
debate which preceded the vote on this amendment, how-
“Rep. Kastenmeier’s apparent effort was to open up appeal
board proceedings to allow presence of registrant and counsel. In-
deed, so far as appeal boards are concerned, the registran’ has
now, and had in 1967, the right to submit in writing any docu-
ment which he desires to submit, including, if he wishes, memo-
randa or other writings by counsel. Government’s Brief, p. 41,
n. 28. Thus, since the registrant himself does not personally appear
before the appeal board, but is limited to the submission of written
materials, the registrant has the right to counsel to the full extent
of his contact with the appeal board.
34
ever, provides a most illustrative example of the dangers
of which Mr. Justice Jackson was speaking when he issued
his caveat about floor debates in Schwegmann Bros. vy. Cal.
vert Distillers Corp., 341 U.S. 384, 396 (1951) (concurring
opinion), that they are “not always distinguished for candor
or accuracy.” ** Thus, Senator Morse made the argument
that counsel was required because “ ... [T]he appeals
officer does not represent the registrant. He represents the
board. As I stated in my main remarks, we cannot justify
having a prosecutor serve also as an attorney for the de.
fendant.” 113 Cong. Ree. 12503. In reply, Senator Richard
Russell, Chairman of the Senate Committee on Armed
Services, stated:
“T understood [Senator Morse] to say that it would
be the same person in both cases. That is not so. The
appeals agent does not represent both the board and
the registrant in the same proceeding.
“There is a counsel for the registrant, and the ap.-
peals board has an appeals agent in addition. They
are not one and the same person.” Jbid.
The statements of Senator Russell, quoted above, are
in direct contradiction to the provisions of 32 CFR $1604.71
(d)(4) and (5), which require the appeals agent to render
assistance to the local board and to be “equally diligent
in protecting the interests of the Government and the
rights of the registrant in all matters.” Senator Russell
was also obviously confused and in error in his perception
of the availability of “a counsel for the registrant.” See
18 Mr. Justice Jackson argued persuasively that “resort to legis-
lative history is only justified where the face of the Act is in-
escapably ambiguous . . . . Moreover, it is only the words of the
bill that have presidential approval, where that approval is given.
It is not to be supposed that in signing a bill the President en-
dorses the whole Congressional Record ....” 341 U.S. at 396.
35
diseussion of optional advisors to registrant and of divided
responsibility of appeal agents, infra, pp. 93-97.**
This is only one of several misstatements occurring in the
debate on Senator Morse’s proposed amendment.’* The
1* Senator Russell’s statement that “There is a counsel for the
registrant” may suggest that the proper interpretation of the
Senate’s action is that suggested at 2 Sutherland, Statutes and
Statutory Construction, §5015 (3d ed. 1943): “... [S]uch re-
jection may occur because the bill in substance already includes
those provisions. Other interpretive aids may indicate that this
is the case.”
15 (1) Senator Russell stated that the only question involved was
whether a lawyer “should be permitted to go into the local selective
service board when they are making their classifications.” This is
inaccurate, since appellee does not question the power of a local
board to engage in its deliberations in executive session. The ques-
tion of counsel involves presence with the registrant while the
registrant’s case is being presented to the board in an attempt to
persuade the board to adjudicate in the registrant’s favor. (2)
Senator Holland, who actively participated in the debate, was
under the mistaken impression that there is “always an appeal to
the selective service head in the state.” If the Senator was refer-
ring to the state appeal board, this is indeed true, provided that
the registrant files a notice of appeal within thirty days of the
prior classification action. 32 CFR §1626.2. But if the Senator
was referring to an application for the discretionary exercise of
power by the state director of selective service, this is clearly dis-
cretionary. 32 CFR §1626.1. (3) Senator Holland was, likewise,
under the mistaken belief that allowing counsel would subject the
board to lawyers’ arguments “before there were decisions from the
local boards... .” This betrays a fundamental misconception of
the function of the personal appearance. A personal appearance
does not occur, and cannot occur, until after the local board has
already made its classification decision. See Point III, §1, infra.
(4) Finally, Senator Ervin was under the mistaken impression
that a lawyer’s services were already available under existing law,
with the sole exception that “they just don’t let him make an oral
argument.” There was no recognition by Senator Ervin that a
lawyer could not even be admitted for the limited purposes of
rendering advice, which is allowed before the Civil Rights Com-
mission, see Hannah v. Larche, supra, and no recognition that a
lawyer’s function at a personal appearance might be more than
that of oral argument, but would include assistance in fact
presentation and insistence on the regularity of procedures. See
Point III, §4, infra.
36
cumulative effect of the confusion and misunderstanding
casts the most serious doubt on any contention that the
defeat of the amendment may be taken as demonstrating
an informed intent in Congress to ratify the regulation’s
denial of counsel.
Finally, the Government seeks to show from the removal
of the restrictions on Reserve personnel serving as Appeal
Agents (Brief at pp. 31-32) that Congress sought to meet,
“from within the Selective Service System itself, the ree.
ognized needs of registrants for legal advice and as.
sistance...” But, in view of the serious confusion over
the status and duties of the appeal agent introduced into
the floor debate by the material quoted above, and the
House Armed Services Committee’s express rejection of
the views of General Hershey on the necessity or advisa-
bility of permitting counsel (Jnterim Report, supra), it ean
hardly be said that an explicit position on the denial of
counsel was here taken by Congress. Relying, as it does,
on other aspects of the legislative history to lend support
to the latter contention, it is clear that the Government's
argument here is of the very weakest nature. “These
slender threads of legislative comment simply cannot be
woven into a conclusion of legislative sanction.” Dandridge
v. Williams, 397 U.S. 471 (1970) (dissenting opinion).
To conclude this point, the Government’s argument in
opposition to the eminently sound decision of the court
below begins with a misreading of the explicit authorization
requirement of Greene v. McElroy; proceeds to a misunder-
standing of the holding of Hannah v. Larche; and over-
looks the sharp limits which have been placed on the doe-
trine of legislative acquiescence. The Government’s be-
labored argument of legislative history shows simply that
37
General Hershey had sharp views on the question, which
were officially disclaimed by the House Committee; that
the only debate in the House concerned appeal hearings;
that the Senate debate over the Morse amendment was so
thoroughly confused that it cannot fairly be said that any
of the Senators accurately knew what existing regulations
provided. This is obviously leagues away from the explicit
authorization upon which this Court has insisted before
tolerating the divesting of a fundamental right of consti-
tutional dimension.
POINT III
A Selective Service registrant has a constitutional right
to counsel at a local board personal appearance.
1. A Registrant’s Personal Appearance at a Local Board Is an
Adjudicative Hearing Affecting Substantial Rights.
a. Nature of the Personal Appearance:
(1) A personal appearance in selective service law is
a specific and discrete proceeding. It is a matter of right.
Section 1624.1 of the selective service regulations, 32
C.F.R. §1624.1, grants to the registrant an unequivocal right
to a personal appearance after classification action has
been taken by the local board, so long as the registrant
makes a written request for the personal appearance within
thirty days of the notification to him by the board of the
classification action. Thus, the structure of the personal
appearance is such that it subsumes dissatisfaction with
the classification action, and provides a formal method
before the tribunal of first instance, the local board, to
effect a change in the classification. Following the personal
appearance, the local board is charged with the respon-
38
sibility of considering the evidence, documentary and other.
wise, which the registrant presented to it and determining
whether it should adhere to its prior classification decision
or whether the registrant’s contentions that the classifica.
tion should be changed should prevail. 32 C.F’.R. §1624.2,
(2) An analysis of the various types of classification
decisions which local boards make demonstrates that inso-
far as concerns a dissatisfied selective service registrant,
the local board determines questions of fact and law, and
exercises discretion, with the same force and effect, and in
much the same manner, as any other administrative agency
performing an adjudicative function.’”® A review of the
classifications provided by statute and regulation reveals
an enormous array of findings of fact, conclusions of law,
and exercises of discretion in which a local board must
perforce engage to fulfill its statutory function “to hear
and determine . . . all questions or claims with respect to
inclusion ... exemption or deferment....” Military Selee-
tive Service Act of 1967 (hereinafter “Act”), §10(b)(3);
50 U.S.C. App. §460(b) (3).
(a) Conscientious Objectors. The board must determine
if an applicant is a conscientious objector to participation
in war in any form and thus entitled to I-O classification,
32 C.F.R. $1622.14, or if his conscientious objection is lim-
ited to combatant service and training and he is thus entitled
to I-A-O classification, 32 C.F.R. §1622.11; Act §6(j), 50
U.S.C. App. §456(j). In making this determination, the lo-
cal boards must properly apply the legal standards of re-
ligious training and belief as determined by decisions of this
16 See discussion of distinction between agency performing rule
making function and agency performing adjudicative function,
infra, pp. 56-57.
39
Court. See, e.g., Welsh vy. United States, 398 U.S. 333
(1970) ; Seeger v. United States, 380 U.S. 163 (1965) ; Sicu-
rella v. United States, 348 U.S. 385 (1955). It must deter-
mine if the applicant is conscientiously opposed to partici-
pation in all wars or whether he is a “selective” conscien-
tious objector. See United States v. Sisson, 297 F. Supp. 902
(D. Mass. 1969), appeal dismissed for lack of jurisdiction,
399 U.S. 267 (1970) ; Gillette v. United States, 420 F.2d 298
(2d Cir. 1970), cert. granted, U.S. (1970). It must
determine, in many instances, if the application of a
claimant for conscientious objector status makes out a
prima facie ease. Mulloy v. United States, 398 U.S. 410
(1970). In the case of an application presented after an
induction order, special rules must be applied in terms of
the time and manner of maturation of the registrant’s
views. See Gearey v. United States, 368 F.2d 144 (2d Cir.
1966), cert. denied, 389 U.S. 959 (1967); Ehlert v. United
States, 422 F.2d 332 (9th Cir. 1970), cert. granted, ——
US. (1970). In making these determinations, a
large number of questions of fact must be evaluated, such
as the weight to be given possible factual inconsistencies.
See Witmer v. United States, 348 U.S. 375 (1955). This
Court has reiterated on many occasions that the most
significant factual determination is whether the applicant
is sincere. Witmer v. United States, supra; Welsh v. United
States, supra. Sincerity is a question of fact which must
be determined in every case. United States v. Seeger,
380 U.S. at 185.
(b) Occupational Deferment. Although the regulations
have changed from time to time over the years, the
essential determinant in applications for occupational
deferment in Class II-A was whether the employment is
in the national health, safety and interest. 32 C.F.R.
40
§1622.22. The definition of deferable employment contained
in Section 1622.23 of the regulations reveals a large num-
ber of factual and mixed legal/factual determinations
which the board must make. Section 1622.20(b) enjoins
the board that occupational deferments cannot be granted
on a mass basis, but only “upon the basis of the status of
such individual.”
(c) Student Deferments. Determination of whether a
student is entitled to I-S classification as a “student
deferred by statute,” pursuant to Section 1622.15, is
obviously a legal question. See Marsano vy. Laird, 412 F.2d
65 (2d Cir. 1969); compare Rich v. Hershey, 408 F.2d 944
(10th Cir. 1969). Whether a student is entitled to a II-S
classification involves determination of such questions as
whether he has “requested” the deferment, whether he is
“satisfactorily pursuing a full-time course of instruction,”
whether the institution which he attends is a “college,
university or similar institution of learning,” definition of
the “academic year” in terms of fixing the date of “the
beginning of his course of study,” and whether satisfactory
progress is being made towards his degree. Section 1622.25.
(d) Hardship Deferments. In the case of a registrant
who seeks a III-A classification, the board must decide the
mixed legal/factual question of whether his induction would
result in “extreme hardship;” the factual questions of
whether the allegedly dependent person is “physically or
mentally handicapped” and whether the registrant has
“assumed in good faith” the support of such dependent
person; and in many instances whether a person claimed
to be a “child” meets the proper definition in the regula-
tions. Section 1622.30. See United States v. Burlich, 257
F. Supp. 906 (S.D.N.Y. 1966).
41
(e) Other Classifications. Similar determinations of
factual and legal questions must be made by the board to
determine if a registrant is entitled to a veteran’s classifica-
tion under Class IV-A, 32 C.F.R. §1622.40(a)(1)-(9); or
whether the registrant is entitled to such classification as
a “sole surviving son.” Section 1622.40(a)(10). See Mc-
Kart v. United States, 395 U.S. 185 (1969). Questions of
law are essentially involved in determining whether a
registrant is a public officer deferred by law (e.g. “judge of
a court of record”) under Section 1622.41. The same is
true when the board must determine if a registrant is
entitled to a IV-C classification as being in one of those
categories of aliens who are not obligated to perform mili-
tary service under the law. Section 1622.42(a), (b), (e), (d).
Whether a registrant is entitled to a IV-D classification as
a “regular minister of religion,” a “duly ordained minister
of religion,” or a student “preparing for the ministry”
who meets certain other requirements involves many ques-
tions of law and fact. Section 1622.43. See Dickinson v.
United States, 346 U.S. 389 (1953); Cox v. United States,
332 U.S. 442 (1947).
(3) All of these questions and many others must be
decided by the local board whose statutory task is “to hear
and determine, subject to the right of appeal to the appeal
boards herein authorized, all questions or claims with
respect to inclusions for, or exemption or deferment from,
training and service under this title, of all individuals
within the jurisdiction of such local boards.” Act, Section
10(b)(3); 50 U.S.C. App. §460(b)(3); 32 C.F.R. §1622.1
(c); see §1622.20(a) (“On the local board is placed the re-
sponsibility, under applicable rules and regulations, of
deciding which men should be deferred because of their
civilian activities.”). See Section 1624.2, paragraphs (b),
42
(d), and (e), each of which recognizes the hearing and
determinative function of the local board.
This Court has explicitly recognized that the local board
is an agency with “authority to hear and determine all ques.
tions of deferment or exemption.” Estep v. United States,
327 U.S. 114, 120 (1946). It is argued infra, that where
an administrative ageney performs adjudicative functions
with regard to personal or property rights, any hearing
before it is an adversary proceeding. See infra, pp. 58-59,
However, even on the most obvious level, determination
that one registrant rather than another is to be unwillingly
stripped of an occupational deferment clearly involves an
adversary proceeding affecting his right to employment."
See Truax v. Raich, 239 U.S. 33 (1915); Greene v. Me.
Elroy, 360 U.S. 474 (1959). As Mr. Justice Brandeis
pointed out in a ease involving a determination as to
which of two carriers would get a more favorable rate,
“Every proceeding is adversary in substance if it may
result in an order in favor of one carrier [registrant]
as against another.” United States v. Abilene & So. Ry.,
265 U.S. 274, 289 (1924).
b. Incidents of Personal Appearance.
The adjudicative and adversary character of a local
board personal appearance is further demonstrated by the
provision, in the selective service regulations, of a large
number of features which customarily accompany adjudica-
tive hearings before administrative agencies. The com-
position of the local board, 32 C.F.R. $1604.52; the cireum-
stances under which a local board may be divided into
* It is the official position of the Selective Service System that
“In determining deferment claims, its [the local board’s] pri-
mary interest must be the national defense rather than the wel-
fare or necessities of the registrant,” L. HersHey, Legal ASPECTS
OF SELECTIVE SERVICE 28 (Revised ed. 1969).
43
panels, §1604.52a; the jurisdiction of each local board,
§1604.54; and the grounds of disqualification of local board
members, $1604.55, are clearly delineated. Section 1604.57
mandates the administration of a specific oath to “every
person testifying” before the local board. The oath refers
specifically to the giving of “evidence” and designates the
proceeding as a “hearing.” The board is required to keep
minutes, §1604.58. The board has subpoena power, $1621.15,
under which it can require “any person” to appear before
it, to produce papers and records, and to testify under
oath, and compliance with the subpoena is enforceable in
a United States court. See Dickinson v. United States,
346 U.S. at 396.°° Section 1622.1(¢) places the burden of
proof upon the registrant: “Each registrant will be con-
sidered as available for military service until his eligibility
for deferment or exemption from military service is clearly
established to the satisfaction of the local board.”
ce. Adjudicative Character of Local Board Function.
It is thus apparent that the local board hears and
determines, Act $10(b) (3), just like any other administra-
tive agency performing adjudicative functions. See, e.g.,
West Ohio Gas Co. v. Public Utilities Company of Ohio,
294 U.S. 63, 70 (1935) (“suitable opportunity through
evidence and argument” to challenge a rate); Londoner v.
City of Denver, 210 U.S. 373, 386 (1908) (tax assessment
requires full and fair opportunity to be heard on objections,
including oral argument and proof); Hornsby v. Allen, 326
F.2d 605, 608 (Sth Cir. 1964) (“licensing consists in the
** Perhaps an even more compelling demonstration of the recog-
nized adversary nature of board proceedings is the provision in
§1613.14 which requires a selective service registration official to
contest, contradict and report in writing answers to questions be-
lieved to be incorrect or false.
44
determination of factual issues and the application of
legal criteria to them”). “No matter how this language is
examined, ‘hear and determine’ has ordinarily and usually
implied but one thing, where no qualifying language is
explicitly used, namely, an adjudicative, judicial-type, trial
proceeding, whether in the courts or administrative
agencies.” Forkosch, The Constitutionality of the Viet.
nam Venture and a Registrant’s Right to Counsel Within
the Selective Service System, 22 So. Car. L. Rev. 287,
326-328 (1970).
That the local board’s classification process is one of
fact finding, evaluation, and determination “analogous to
what occurs in a court trial or administrative quasi-judicial
type hearing,” Forkosch, supra, at page 332, is revealed in
a number of cases. Thus, one Court of Appeals, in discuss-
ing a local board’s function in evaluating the sincerity of a
conscientious objector, speaks of “best evidence,” and of
“credibility and demeanor,” and recognizes the board as
“the fact finding agency.” United States v. Simmons, 213
F.2d 901, 904 (7th Cir. 1954), rev’d on other grounds,
348 U.S. 397 (1955). Another Court of Appeals recognizes
that “The board had the same right to evaluate the testi-
mony of a witness before it as has a trial court.” Dickinson
vy. United States, 203 F.2d 336, 345 (9th Cir.), rev'd on
other grounds, 346 U.S. 389 (1953).
Several courts have explicitly recognized that “the
function of the draft board is quasi-judicial.” See United
States v. Bouziden, 108 F. Supp. 395, 399 (W.D. Okla.
1952). The Eighth Circuit has held that draft board mem-
bers are “quasi-judicial officers rather than in a purely
ministerial or executive position.” Gibson v. Reynolds, 172
45
F.2d 95, 98 (8th Cir. 1949)."° Accord, Dodez v. Weygandt,
173 F.2d 965, 966 (6th Cir. 1949); Nevarez Bengoechea v.
Micheli, 295 F. Supp. 257, 258 (D.P.R. 1969) (“Draft
board proceedings are quasi-judicial and as such must
conform to basie principles of due process of law.”);
Benitez-Manrique v. Micheli, 305 F. Supp. 334, 338 (D.P.R.
1969). See also United States vy. Stephens, 245 F. 956,
963 (D. Del. 1917) (“The boards undoubtedly possess dis-
cretionary or quasi-judicial powers ... .”), aff'd 247 U.S.
504 (1918).
d. The Moribund Myth of “Little Groups of Neighbors.”
In the light of the foregoing demonstration of the powers,
functions and processes of local boards, it is sheer fiction
to contend that a personal appearance before the board is
an informal “non-adversary and non-judicial” encounter
between a registrant and his neighbors. See Government’s
brief, pages 36, 39. If it were ever true that local boards
consisted of “little groups of neighbors” getting together
informally with a young man from the neighborhood, whom
they all had known since infancy, for the purpose of
arriving at a mutual consensus on what is best for him and
best for the country, it has been conclusively demonstrated
that those haleyon days are gone.
* The court analogized draft board members to a variety of other
administrative officials, including members of the United States
Parole Board, Warden of a Federal Penitentiary, Director of
Bureau of Prisons, officials of the Home Owners Loan Corpora-
tion, Chairman of the Tariff Commission, and Deputy Fire
Marshal. It held local board members and other draft personnel
to be quasi-judicial officers because they “must fairly, fearlessly,
freely and conscientiously determine the personal destinies of a
sector of the American people, probably greater in number than
the combined number of all of those affected by the discharge of the
oor duties of all of the officers first above enumerated.” 172
2d at 98.
46
This myth was exploded by the Rerort or THE NaTionar
Apvisory Commission ON SELEcTIVE Service (the Marshall
Commission), Ixy Pursvir or Equiry: Wuo Serves Wuey
Nor Att Serve? (1967) (hereinafter “Reporr’”’), which
revealed that the comfortable concept of personalized treat.
ment by boards of neighbors has withered in our increas.
ingly technological and urbanized society:
“However universally valid this personalized con-
cept might have been in the past, only in rural areas
does it appear to be true today. Urban board members
usually work in anonymity—and indeed seem to look
upon that anonymity as an advantage. Rarely it would
seem do those on such a board actually know the men
whom they are classifying on the basis of their
records—and vice versa. After taking an extensive
look into local board operations in one state, a team of
researchers reported to the Commission: ‘Very little
evidence exists to suggest that the fact of drafting by
local boards has more than symbolic significance, if
that, in urban settings.’” Report, p. 20.
The abandonment of the “little groups of neighbors”
concept was repeatedly pointed out in The Selective Service
System: Its Operation, Practices, and Procedures, Hear-
ings before the Subcommittee on Administrative Practice
and Procedure of the Committee on the Judiciary, United
States Senate, 91st Cong., Ist Sess., October 29-November
13, 1969 (hereinafter “1969 Senate Hearings”). Included
in the Record of those hearings was a study performed by
Gary L. Wamsley entitled SeLective Service anp A CHanc-
inc America (1969). In his study, Mr. Wamsley described
how the “local” board concept had rapidly eroded in urban
areas:
47
“In the six months encompassed by this study there was
no instance observed in which board members knew a
registrant or his family.” (1969 Senate Hearings, p.
780).
A study by two staff members of the Marshall Commis-
sion, James W. Davis, Jr., and KennetH M. Do.peare,
LittLe Groups oF Neicupors: THE SELECTIVE SERVICE Sys-
rem (1969) (also printed in the Record of the 1969 Senate
Hearings), cites many of the factors which depersonalize
these so-called “local” boards. Aside from the wide gap
between members and registrants in age, occupation and
attitude, Davis and Dolbeare identified the residence of
board members as a factor:
“One indicator of the validity of the little groups of
neighbors image might be the extent to which local
board members reside in the local board area. The
study by Wamsley found that fully one-third of local
board members did not live in their jurisdictions and
only a few lived in a location that could be loosely
construed as ‘in the area.’” (1969 Senate Hearings,
p. 765).
In the urban setting, where racial and ethnic homogeneity
is usually a more important definition of “neighborhood”
than geographical boundaries, the prevalence of white
board members on draft boards in black neighborhoods
makes a mockery of the “neighbors” concept. Wamsley
illustrated this problem in his report:
“A major departure from the ‘friends and neighbors’
concept was found in a board covering a Negro neigh-
borhood. There were no Negro members on the board
and none of the members lived in the jurisdiction. The
48
Chairman who was the oniy member residing even ip
the ‘vicinity,’ lived in perhaps the last ‘all-white block’
to be found near the neighborhood, and had stated on
numerous occasions that he would resign before he
would allow a Negro to sit on the board.” (1969 Senate
Hearings, p. 781).*°
Registrants claiming prejudice by this procedure of
classification by non-neighbors of different racial back.
ground have been unable to obtain relief because of the
concept that even if improperly constituted such local
boards have de facto authority.”
Because the regulation requiring that members of local
boards “if at all practicable” be residents of the area
where the board has jurisdiction (32 C.F.R. §1604.52(c))
was widely violated, there are many cases holding that
improperly constituted local boards lack jurisdiction to clas-
sify registrants. United States v. Cabbage, —— F.2d —,
3 S.S.L.R. 3179 (6th Cir. July 31, 1970); United States v.
Beltran, 306 F. Supp. 385 (N.D. Cal. 1969) ; United States
v. Machado, 306 F. Supp. 995 (N.D. Cal. 1969); United
States v. Lemke, 310 F. Supp. 1298 (N.D. Cal. 1969) ; United
20The Marshall Commission reported that there were no Negro
members of local boards in the states of Alabama, Louisiana, or
Mississippi, where the Negro percentages of the population were
respectively 30.06, 31.9, and 42.0.
21 DuVernay v. United States, 394 F.2d 979 (5th Cir. 1968),
aff'd by equally divided court 394 U.S. 309 (1969); Clay v.
United States, 397 F.2d 901 (5th Cir. 1968), vacated and re-
manded on other grounds 394 U.S. 310 (1969); Sellers v. Me-
Namara, 398 F.2d 893 (5th Cir. 1968) cert. denied sub nom. Sellers
v. Laird, 395 U.S. 950 (1969) (see dissenting opinion of Mr. Jus-
tice Douglas) ; see also United States v. Brooks, 415 F.2d 502 (6th
Cir. 1969) ; Uniied States v. Johnson, 302 F. Supp. 584 (M.D. Pa.
1969) ; Gee v. Smith, 306 F. Supp. 891 (N.D. Ga. 1969).
49
States v. Clinton, I’. Supp. , Crim. No. 31857 (E.D.
La. April 21, 1970); United States v. Jones, F. Supp.
—, 2 S.S.L.R. 3392 (C.D. Cal. October 14, 1969) ; United
States v. DeMarco, —— F. Supp. , 2 S.S.L.R. 3204
(N.D. Cal. July 30, 1969) ; United States v. McMillan,
F. Supp. —, 2 8.8S.L.R. 43 (C.D. Cal. 1969) ; United States
y. Brock, —— F. Supp. ——, 3 S.S.L.R. 3125 (N.D. Cal.
February 26, 1970).
Other courts, however, have refused to require that the
residency requirements in the regulations be enforced.
Czepil v. Hershey, 425 F.2d 251 (7th Cir. 1969) cert. denied
— US. , 09 U.S.L.W. 3149 (October 12, 1970) ; Jessen
y. United States, 242 F.2d 213 (10th Cir. 1957); United
States v. Nussbaum, 306 F. Supp. 66 (N.D. Cal. 1969) ;
United States v. Fisher, 307 F. Supp. 7 (D. Conn. 1969).
The answer of the Selective Service System to this raft
of litigation has been simply to rescind the residency
requirements of §1604.52(c) of the regulations. Execu-
tive Order No. 11555, 35 Fed. Reg. 14191 (1970), has deleted
the requirement that local board members shall “if at all
practicable” be residents of the area where the board has
jurisdiction. Where the “little groups of neighbors” concept
was previously a rapidly dissolving illusion, it is now
officially abolished. The myth should not be allowed to
survive.
e. Growing Recognition by This Court of Adjudicative
Powers of Local Boards.
The history of selective service decisions by this Court,
from the World War II era to the present, demonstrates an
increasing recognition of the sweeping adjudicative powers
of local boards and the adversary nature of a personal
appearance. In Estep v. United States, 327 U.S. 114 (1946),
50
this Court insisted that selective service orders must be
subject to some measure of judicial review in order to
protect registrants against an “order which may be con.
stitutionally invalid, or unauthorized by statute or regula.
tion, or issued by mistake, or issued solely as the result of
bias and prejudice.” 327 U.S. at 126 (concurring opinion,
Murphy, J.). In United States v. Nugent, 346 U.S. 1 (1953),
it was ruled that a conscientious objector applicant was
entitled to “a fair resume of any adverse evidence,” id. at §
(emphasis added), because conscientious objector claims
involve “difficult analyses of facts and individualized judg.
ments, and there is always a possibility that such a claim
has been misjudged by the local board.” Jd. at 8. In Dickin-
son v. United States, 346 U.S. 389 (1953), the court noted
the great leeway given local boards in hearing and con-
sidering different categories of evidence and invalidated
local board action that was based on suspicion and specula-
tion.
Two years later, on March 14, 1955, this Court decided
four cases dealing with the selective service laws and their
administration.” In Witmer v. United States, 348 U.S. 375,
381-382 (1955), the Court outlined the differen. types of
“objective facts” and other evidence relevant to a determin-
ation of a conscientious objector applicant’s “veracity.”
Sicurella v. United States, 348 U.S. 385 (1955), demon-
strated that local boards can commit errors of law in
interpreting the proper legal criteria for determining
22 Chief Judge Hutcheson hailed “the four cases just decided...
[as] a new Magna Charta of liberties in conscientious objector
cases, a turning back from conviction by administrative absolutism
to conviction only in accordance with the tradition of due process
and the law of the land....” Olvera v. United States, 223 F.2d
880, 882 (5th Cir. 1955).
51
conscientious objector classification. Simmons v. United
States, 348 U.S. 397 (1955), and Gonzales y. United States,
348 U.S. 407 (1955), concerned the statutory right then in
existence” of a conscientious objector applicant to a Depart-
ment of Justice hearing. The court held it must be a
“meaningful hearing,” Gonzales, 348 U.S. at 415, where the
registrant would be entitled to receive in advance a fair
resume of the unfavorable evidence in order to enable him
to “defend against the adverse evidence—to explain it, rebut
it, or otherwise detract from its damaging force.” Simmons,
348 U.S. at 405. Moreover, the registrant was entitled to a
copy of the Department of Justice recommendation to the
appeal board so that he could “muster his facts and argu-
ments to meet . . . [the Government’s] contentions.”
Gonzales, 348 U.S. at 414. A fair hearing, this court held,
was “a fundamental safeguard” to which the registrant is
entitled. Simmons vy. United States, 348 U.S. at 406.*
8 Section 6(j) of the Universal Military Training and Service
Act of 1951 provided for referral to the Department of Justice
of all claims for conscientious objector classification which were
denied by local boards and appealed. The Department was di-
rected to conduct an “appropriate inquiry” and then “hold a
hearing with respect to the character and good faith of the objec-
tions of the person concerned . . .” 65 Stat. 83. The Military
Selective Service Act of 1967 completely eliminated this procedure.
*It is significant to note that all four of these 1955 decisions,
as well as the 1953 Nugent decision, involved Department of Jus-
tice hearings under the pre-1967 statute. The right to appear
with counsel at such hearings was acknowledged from the be-
ginning. See United States v. Nugent, 346 U.S. at 4, footnote 3,
and Record in Nugent case, page 54. See also, Smith and Bell,
The Conscientious Objector Program—A Search for Sincerity,
19 U. Pirr. L. Rev. 695, 702 (1958). Thus, all of the discussion
and ruling in conscientious objector cases prior to June 30, 1967,
oceurs in a context where the right to counsel is recognized at a
hearing which is a significant part of the process. See discussion,
infra, p. 73.
52
The next selective service decision by this Court was the
second Gonzales v. United States, 364 U.S. 59 (1960). The
court held, 5-4, that a conscientious objector applicant was
not ordinarily* entitled to a copy of the hearing officer's
report to the Department of Justice. The majority decision
was essentially a close analysis of the factual questions
before the board and an evaluation of whether there was
basis in fact for the board to have regarded some of the
registrant’s statements as inappropriately exaggerated,
In Seeger v. United States, 380 U.S. 163 (1965), this
Court construed the statute to apply new criteria for
qualification as a conscientious objector, thus providing
a new legal test for boards to invoke. At the same time
this court reiterated the importance of evaluating “the
threshold question of sincerity,” “a question of fact.” 380
U.S. at 185.
Oestereich v. Selective Service Board, 393 U.S. 233, 238
(1968), in the course of striking down lawless reclassifica-
tion action for punitive reasons, recognized that the
customary activity of a local board is the “exercis[ing] of
discretion . . . in evaluating evidence and in determining
whether a claimed exemption is deserved.” The companion
per curiam decision of Clark v. Gabriel, 393 U.S. 256, 258
(1968), emphasized the local board’s function, in conseien-
tious objector classifications, of fact determination and
exercise of discretion. McKart v. United States, 395 US.
2° As the court below observed, A. 35, fn. 2, the majority opinion
in the second Gonzales case recognized that production of the
hearing officer’s report might be required under other cirecum-
stances where its withholding would result in “actual unfairness.”
364 U.S. at 64. Applying Gonzales, the Second Cireuit held that
fairness required production in United States v. Purvis, 403 F.2d
555, 562 (1968).
53
185 (1969), listed a number of selective service classifica-
tion questions which involved local boards in the exercise
of discretion, 395 U.S. at 198, and ruled that the board
had in this ease made an incorrect legal interpretation of
the statutory exemption for a sole surviving son.
This past term in Gutknecht vy. United States, 396 U.S.
995 (1970), and in Breen vy. Local Board No. 16, 396 U.S.
460 (1970), this Court struck down the delinquency regula-
tions, 32 C.F.R. Part 1642, pointing out, inter alia, that their
invocation by local boards involved determinations of fact
and law totally without due process protections. In Welsa
y. United States, 398 U.S. 333 (1970), the legal criteria by
which boards must hear and determine claims of conscien-
tious objection were further refined, and in Mulloy v.
United States, 398 U.S. 410 (1970), this Court referred to
the work of the board as being that of “evaluative deter-
mination” and pointed out that “Because of the narrowly
limited scope of judicial review available to a registrant,
the opportunity for full administrative review is indispen-
sable to the fair operation of the Selective Service System.”
398 U.S. at 416.
We respectfully submit that this brief review of the
sixteen selective service decisions by this Court which have
dealt with local board functions over the past twenty-five
years reflects an increasingly critical observation of some
of the low visibility decision-making processes of selective
service local boards, and a corresponding articulation of
procedural rights requisite to making an adversary adjudi-
cative hearing into a fair hearing. It is particularly sig-
nificant, in the light of the repeated admonitions by the
Government that allowing the right of counsel would cause
untold litigious interruptions and a “constructive paralysis”
of the operations of the Selective Service System (Brief,
54
page 45), that these same arguments were repeated and
reiterated in virtually every one of the prior cases, but
uniformly rejected by this Court.
f. Judicial Recognition of the Unfairness of Adversary
Hearings Without Counsel.
No decision of this Court has discussed the problem
arising from the denial of counsel to a registrant at a
personal appearance. However, a number of decisions by
courts of appeals and district courts have recognized the
inherent unfairness to the selective service registrant of
the juxtaposition of adversary hearings with the pro-
hibition of counsel. In United States ex rel. Berman y,
Craig, 207 F.2d 888, 891 (3rd Cir. 1953), the court criticized
the local board for treating registrants “as though they
were engaged in formal litigation assisted by counsel.”
(Cited with approval by this court in Simmons vy. United
States, supra.) The same court, seventeen years later,
criticized a local board for exhibiting “an adversary policy
towards the defendant, as if he were an antagonist against
whom the board was on guard rather than a young man
dealing with his own government without the aid of
counsel... .” United States v. Turner, 421 F.2d 1251, 1254
(3rd Cir. 1970). Accord: United States v. Greene, 220
F.2d 792, 794 (7th Cir. 1955); United States v. Stafford,
389 F.2d 215 (2d Cir. 1968).
Judge MacMahon, of the Southern District of New York,
in two widely reported cases, has excoriated the denial of
counsel and the Selective Service System view that the
informal nature of the proceedings makes counsel un-
necessary. United States ex rel. Vaccarino v. Officer of the
Day, 305 F. Supp. 732, 736 (S.D.N.Y. 1969) (a “labyrinth
of statutes and regulations, which are inscrutable not only
—
55
to laymen but also to most lawyers ...”)** In Walsh v.
Local Board No. 10, 305 F. Supp. 1274, 1279 (S.D.N.Y.
1969), Judge MacMahon berated “the draft board’s over-
zealous, high-handed and erroneous handling of this young
man’s plight... .””
The frustrating dilemma facing district court judges
reviewing local board files, and noting the harmful effect
upon a registrant’s rights of the prohibition of counsel when
accompanied by limited judicial review, was aptly noted
by Judge Doyle in United States vy. Wierzchucki, 248 F.
Supp. 788, 790 (W.D. Wise. 1965) :
“It appears that the time may have come for re-
evaluation of the constitutional implications of the
closed circuit outlined above....
“This court considers that this motion to dismiss
presents a true dilemma, that the issue it raises is
** Judge MacMahon observed that it would take “a skilled
lawyer” to “glean from the murky language” that @ certain no-
tice had informed petitioner of his rights to a personal appearance
and an appeal. 305 F. Supp. at 735. Cf. United States v. Harris,
302 F. Supp. 1194, 1196 (D. Oreg. 1968).
27 Judge MacMahon observed further:
“(I]t is this kind of mistreatment which has alienated the
youth of the nation, bred disrespect for law, sparked the dis-
orders which have torn a gap between generations and ripped
open the very structure of society. It feeds the clamor for
abolition of the whole selective service system, from top to
bottom, not only yy mounting numbers of defiant young men,
but also by the President and many members of congress,
where no less than 43 bills to change the draft law are pend-
ing. At the very least, those entrusted with the awful power
of conseripting the nation’s young men into the armed forces
in time of war or other military venture owe a duty of the
most searching examination of the facts, scrupulous fairness,
sensitive care, compassionate hearing, patient consideration,
cautious action and deliberate and rational decision within
the law. We afford no less to the worst criminal in our so-
ciety.” Id.
56
genuine and profound, and that the resolution of the
underlying issue cannot and should not be avoided.” *
2. Since a Personal Appearance Is an Adjudicative Hearing
Affecting Substantial Rights, the Prohibition of Counsel |;
in Violation of the Constitutional Right, Arising From the
Fifth Amendment, to Minimum Standards of Due Process
at Such a Hearing.
a. An Adjudicative Hearing Is Not Lawful Unless at Least
the Constitutionally Minimum Standards of Due Process
Are Afforded.
(1) We have demonstrated above that a _ personal
appearance is substantially similar in all vital respects to
any other adjudicative hearing by an administrative
agency. This Court, on numerous occasions, has declared
that certain minimum due process rights are constitution-
ally guaranteed to “those who are brought into contest with
the Government in a quasi-judicial proceeding aimed at the
control of their activities.” Morgan v. United States, 304
U.S. 1, 18 (1938). Chief Justice Warren, writing for the
court in Hannah v. Larcke, 363 U.S. 420, 442 (1960), held:
“. .. when governmental agencies adjudicate or
make binding determinations which directly affect the
legal rights of individuals, it is imperative that those
agencies use the procedures which have traditionally
been associated wit’: the judicial process.”
“This Court has been zealous to protect these rights from
erosion ... not only in criminal cases . . . but also in all
28 Cited with approval in United States v. Freeman, 388 F.2d
246 (7th Cir. 1967). See also United States v. Schwartz, 143 F.
Supp. 639, 640 (E.D.N.Y. 1956) (failure to provide legal advisors
“for counsel as to his rights,” as required by regulation then in
effect, deprives registrant of valuable rights and requires finding
of not guilty).
57
types of cases where administrative and regulatory actions
were under scrutiny.” Greene v. McElroy, 360 U.S. 474,
497 (1959). It was pointed out in Hannah v. Larche, supra,
that the well-known distinction in administrative law
between administrative agencies acting in a rule-making or
investigative capacity, and agencies performing an adjudi-
catory function, had specific due process consequences.
Consequently, the Court ruled that certain due process
rights were not available in the investigatory and fact-
finding proceedings of the Civil Rights Commission, since
such rights were not customarily available “when Govern-
mental action does not partake of an adjudication.” 363
U.S. at 442.° The court elaborately discussed the dif-
ferences between the two kinds of proceedings and ex-
plained that the traditional safeguards of due process which
were held requisite in Morgan y. United States, supra;
Greene v. McElroy, supra; and Joint Anti-Facist Refugee
Committee v. McGrath, 341 U.S. 123 (1951), were all be-
cause “the government agency involved in each was found
by the Court to have made determinations in the nature of
adjudications affecting legal rights.” Hannah v. Larche,
363 U.S. at 451.
It could hardly be contested that a selective service
registrant at a personal appearance before his local board
is involved in a “proceeding aimed at the control of [his]
activities.” Morgan v. United States, supra. It is, likewise,
indisputable that a local board at a personal appearance
makes “binding determinations which directly affect the
legal rights of individuals.” Hannah v. Larche, supra.
_ * A limited right of counsel, including the right to appearance
in person with the person called before the Commission, and to
render advice concerning constitutional rights, was nevertheless
recognized by the Commission. Jd. at 431.
58
(2) That an administrative agency, for all its uncireun.
scribed rule-making or investigatory power, cannot adjudi-
cate personal or property rights without providing the
essentials of a fair hearing is virtually a first principle
of administrative law. This principle has been applied in
a large variety of administrative proceedings by this Court
and by lower federal courts. See, e.g., Goldberg v. Kelly,
397 U.S. 254 (1970) (termination of welfare benefits);
Londoner v. City of Denver, 210 U.S. 373 (1908) (tax
assessment) ;*° Goldsmith v. United States Board of Tar
Appeals, 270 U.S. 117 (1926) (license rights) ;** United
States v. Abilene € So. Ry., 265 U.S. 274 (1924) (pub.
lie utility rates) ;** Gonzalez v. Freeman, 334 F.2d 570
(D.C. Cir. 1964) (debarment of Commodity Credit con-
tractor) ;** Kwong Hai Chew v. Colding, 344 U.S. 590
°° See also Lipke v. Lederer, 259 U.S. 557 (1922); Central of
Georgia Ry. v. Wright, 207 U.S. 127 (1907); ef. Anniston Mfg.
Co. v. Davis, 301 U.S. 337 (1937) ; McGregor v. Hogan, 263 US
234 (1923).
51 See also Willner v. Committee on Character and Fitness, 373
U.S. 96 (1963); Bratton v. Chandler, 260 U.S. 110 (1922);
Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964).
32“Nor was the proceeding under review any the less an ad-
versary one because the primary purpose of the Commission was
to protect the public interest. ...” 265 U.S. at 289, per Cardozo, J.
33 See also Railroad Commission of California v. Pacific Gas &
Electric Company, 302 U.S. 388 (1938) ; Morgan v. United States,
supra; Ohio Bell Telephone Co. v. Public Utilities Commission of
Ohio, 301 U.S. 292 (1937); West Ohio Gas Co. v. Public Utilities
Commission of Ohio (No. 1), 294 U.S. 63 (1935).
’¢Then Circuit Judge Burger pointed out that “debarment is
not intended to punish but is a necessary ‘means for accomplishing
the congressional purpose’ of Commodity Credit to ‘aid in the
development of foreign markets for, agricultural commodities.’”
Id. at 577. This is a succinct refutation of the baseless contention
made in the Government’s brief (p. 39) that due process rights
need not be afforded selective service registrants because the pur-
pose of the personal appearance and classification is not “puni-
tive.”
59
(1953)** (deportation of alien) ;* Escalera v. New York
City Housing Authority, 425 F.2d 853 (2d Cir.), cert. denied
— US. —, 39 USLW 3149 (1970) (termination of
public housing tenancy and imposition of additional rent
charges); Parker v. Lester, 227 F.2d 708, 716 (9th Cir.
1955) (termination of merchant seaman’s employment:
“When it is proposed to take from a citizen through ad-
ministrative proceedings some right which he otherwise
would have, it has always been held that the constitutional
requirement is that he shall be afforded notice and an op-
portunity to be heard.”).*”
In the light of the foregoing, the suggestion in the
Government’s brief (p. 36, n. 25) that due process might
be satisfied without an opportunity to appear in person
appears almost incredible. This Court, in Goldberg v.
Kelly, supra, expressly held that the due process clause of
the Fifth Amendment guaranteed certain procedural rights,
the most fundamental of which was the right to be heard
and to be heard in a meaningful manner. 397 U.S. at
267-268.**
so“. . not even Congress may expel him without allowing him
a fair opportunity to be heard.” 344 U.S. at 598.
*° See also Wong Yong Sung v. McGrath, 339 U.S. 33, 50 (1950)
(“When the Constitution requires a hearing, it requires a fair
one, one before a tribunal which meets at least currently prevailing
standards of impartiality.”)
** See also Greene v. McElroy, supra.
* The case cited in the Government’s brief (at n. 25), Federal
Communications Commission v. WJR, 337 U.S. 265, 275-77 (1949),
presumably in support of its suggestion that a personal appearance
could be dispensed with entirely, is specifically distinguished by
this court in Goldberg v. Kelly, supra, n. 15, as one not involving
fact-finding or fact determination.
60
b. The Constitutionally Minimum Standards of Due Prog.
ess Require Recognition of the Right to Appear With
Counsel.
(1) The indisputable place of counsel in the adminis.
trative adjudicatory process is so widely acknowledged
and recognized that it is unusual to find a modern case*
where a court is called upon to rule on this question. Most
cases involving due process rights before administrative
agencies involve a factual setting where some right to
counsel was acknowledged or assumed, and the questions to
be decided were what additional due process rights were
required.” In Goldberg v. Kelly, supra, this Court held,
without any elaboration, as if to signify that it was virtually
self-evident, that any enunciation of the due process rights
of welfare recipients would be meaningless unless the right
to counsel were included. 397 U.S. at 270.
Decisions of this court dealing with the due process
rights of juveniles have made it very clear that even in
these noncriminal proceedings the right to counsel was
absolutely necessary to insure fair treatment. See Jn re
Gault, 387 U.S. 1 (1966); Kent v. United States, 383 US.
5° As long ago as 1877, it was stated that “... however much
the forms of proceeding or the nature of the tribunal may be
changed, due process of law must necessarily include each and
all of these requisites” [including “right to counsel”]. Srory oy
THE CONSTITUTION (Cooley Ed.), at 668.
#9 See, e.g., Greene v. McElroy, supra; Hannah v. Larche, supra;
Morgan v. United States, 304 U.S. at 16; United States v. Nugent,
346 U.S. at 4, n. 3 (1953).
‘41 The Government’s brief, after unconvincingly attempting to
distinguish Goldberg v. Kelly (p. 48), then proceeds to criticize
the decision, particularly the court’s citation of Powell v. Alabama,
287 U.S. 45 (1932), p. 48, n. 39.
61
541 (1966). This Court held in Gault that “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 proceedings ... .” 387 U.S. at 36. It is
respectfully submitted that the selective service registrant,
whether an 18- to 20-year-old “juvenile” or a 21- to 26-year-
old “adult,” likewise needs the assistance of counsel for
these very same purposes. In Kent v. United States, supra,
a decision rendered by this Court prior to the declaration
of full due process standards in Gault, the Court observed
that it might even be sufficient for a hearing in a juvenile
case to provide a lesser degree of due process than “the
usual administrative hearing ;” but the court made it clear
that even under this lesser standard the right of counsel was
so primary that it must be recognized. 383 U.S. at 561.”
Other federal agencies where the question of the right
to be represented by counsel has been raised have, with the
sole exception thus far of the Selective Service System,
been uniformly admonished by the courts to allow the
presence of counsel. See Bowles v. Baer, 142 F.2d 787, 789
(7th Cir. 1944) (Circuit Judge, later Mr. Justice, Minton
held it essential as part of any hearing that “The parties
are entitled to be present in person and by counsel... .”).
Accord: Hyun v. Landon, 219 F.2d 404, 406 (9th Cir. 1955),
aff'd 350 U.S. 990 (1956) (deportation proceeding; “ ... in-
dispensable to a fair hearing are reasonable notice, the
“The primacy of the right to counsel was emphasized by Mr.
Chief Justice Schaefer of the Illinois Supreme Court, in Federal-
ism and State Criminal Procedure, 70 Harv. L. Rev. 1, 8 (1956) :
“Of all the rights that an accused person has, the right to be
represented by counsel is the most pervasive, for it affects his
ability to assert any other rights he may have.”
62
right to examine witnesses and to testify and to present
witnesses and to be represented by counsel ... .”).*
In a series of cases involving the rights of parolees at
parole revocation hearings, the Court of Appeals for the
District of Columbia has held that the statutory right of a
parolee to appear before the parole board for such purpose
would be totally ineffective and meaningless without the
right to counsel. Fleming v. Tate, 156 F.2d 848 (D.C. Cir.
1946) ; Moore v. Reid, 246 F.2d 654 (D.C. Cir. 1957) ; Hyser
v. Reed, 318 F.2d 225 (D.C. Cir. 1963). In Fleming v. Tate,
supra, the court reversed an administrative practice of
denying parolees the right to counsel which had been in ex.
istence since 1910. “The long administrative practice would
be compelling upon us if we did not consider the statute
plain and the issue vitally important.” 156 F.2d at 851.
Fleming v. Tate is often described as being based simply on
the words of the statute and without any constitutional
gloss. See Hyser v. Reed, supra. However, the court in
Fleming v. Tate gave explicit constitutional content to its
holding: “These two features, the presence of counsel and
the receipt of evidence, are the basic characteristics of our
whole system of administration of justice.” Id. at 850.“
43 See also Yiannopoulos v. Robinson, 247 F.2d 655, 657 (7th
Cir. 1957) ; ef. United States ex rel. Castro-Louzan v. Zimmerman,
94 F. Supp. 22, 26 (E.D. Pa. 1950); Ex parte Chin Loy You,
223 F. 833, 838-839 (D. Mass. 1915) (although no absolute right
to counsel in deportation proceedings, where counsel “seasonably
requests the privilege of being present . . . during the taking of
the evidence,” refusal of the request denied a fair hearing.)
44In Menechino v. Oswald, —— F.2d , No. 34665 (2d Cir.,
August 5, 1970), a majority of the Second Circuit held that the
acknowledged right of counsel in New York State parole revocation
proceedings could not be extended to allow counsel at parole appli-
cation hearings. Circuit Judge Feinberg dissented, holding that
there was such a right under Goldberg v. Kelly, supra, and Mempa
63
In accord are a number of decisions of state courts, in-
eluding the Supreme Court of Illinois, which held:
“Even if the statute did not provide a right to coun-
sel in a proceeding such as here, which could affect
one’s property rights, the right to counsel would be un-
deniable. Administrative as well as judicial proceed-
ings are governed by fundamental principles and re-
quirements of due process of law.”
Brown v. Air Pollution Control Board, 11 11).2d 450, 454, 227
N.E.2d 754, 756 (1967); cited with approval in Kammerer
y. Board of Fire and Police Commissioners, 44 Tll.2d 500,
956 N.E.2d 12, 14 (1970, per Mr. Justice Schaefer). See
also In re Henderson Harris, 69 Cal.2d ——, 446 P.2d
148 (1968) (civil commitment proceedings); Bancroft v.
Board of Governors, 202 Okla. 108, 210 P.2d 666 (1949)
(In hearing where Board has power to revoke dentist’s li-
cense, dentist may be represented by counsel.) ; Berkshire
Fine Spinning Associates vy. Label, 74 R.I. 6, 60 A.2d 871
(1948) (In proceeding under State Workmen’s Compensa-
tion Law, employee could have counsel if requested.) ; Wis-
consin Telephone Co. v. Public Service Commission, 232
Wise. 274, 287 N.W. 122 (1939) (A legislative act conferring
power upon Public Service Commission to issue order af-
fecting rights of citizens without opportunity to be heard
is invalid and the right to hearing includes counsel.) ;
v. Rhay, 389 U.S. 128 (1967). However, the entire court agreed
that the right to counsel was an essential ingredient of procedural
due process under the following circumstances:
“The type of interest protected by procedural due process
... is usually one presently enjoyed, e.g., welfare benefits . . .
occupation of premises .. . attendance at school ... status as
an alien immigrant . .. employment .. . or existence as a
charitable organization. ...” Slipsheet Opinion at 4089 (cita-
tions omitted).
64
People ex rel. the Mayor v. Nichols, 79 N.Y. 582, 588 (1880)
(“[{I]n no other way could the person sought to be removed
[from office] have a due hearing or ‘opportunity to be
heard’.”) ; People ex rel. Ellett v. Flood, 64 App. Div. 209,
71 N.Y. Supp. 1067 (3rd Dept. 1901); Almon v. Morgan
County, 245 Ala. 241, 16 So.2d 511 (1944) (Procedural due
process, whether in administrative authority or court, in.
cludes right to counsel if desired.); Bd. of Education y,
Kennedy, 256 Ala. 478, 55 So.2d 511 (1951) (In hearing
before Board of Education for dismissal of teacher, due
process includes right to counsel.).
Until June 30, 1967, there was an acknowledged right to
counsel for conscientious objector applicants appearing in
person before the Department of Justice hearing officer.
See United States v. Nugent, supra, 346 U.S. at 4, n. 3;
Storey v. United States, 370 F.2d 255 (9th Cir. 1966) ; Smith
& Bell, The Conscientious Objecior Program—A Search
For Sincerity, 19 U. Pirr. L. Rev. 695, 702 (1958); ef.
Petersen v. Clark, 289 F. Supp. 949, 952 (N.D. Cal. 1968)
(counsel allowed to appear at local board). The right to be
accompanied and advised by counsel at hearings occurring
at this vital stage*® of adjudication of conscientious objector
claims may well have ameliorated to some extent the pro-
hibition against counsel at the local board personal appear-
ance. Since mid-1967, however, a selective service regis-
trant has been totally stripped of any right to be accom-
4s “Observers sympathetic to the problems of the conscientious
objector have recognized that this provision in the statute im-
proves the system of review... .” United States v. Nugent, supra,
346 U.S. at 9. “As a result, a more objective and disinterested
approach to granting exemptions can be expected.” United States
v. Gearey, 368 F.2d 144, 148 (2d Cir. 1966). See Maegill, Selec-
tive Conscientious Objection: Divine Will and Legislative Grace,
54 U. Va. L. Rev. 1355, 1380, n. 98 (1968).
65
panied and advised by counsel when he is face-to-face with
those who must decide his fate.
(2) Without any real specification or explanation, the
Government argues at various places in its brief (p. 38,
p. 40, p. 47) that the right to counsel should not be recog-
nized for selective service registrants because of some no-
tion of selective service exceptionalism. Without identify-
ing the nature and dimension of the exception, much less
justifying it, the Government argues that regardless of
the due process standards which may be applicable to other
agencies, selective service is somehow different.
We respectfully submit that the Government is defending
a totally baseless myth which was created by the Selective
Service System for its own bureaucratic convenience. As
we have shown above, in all material respects selective
service local boards make decisions affecting personal and
property rights no differently from any other administra-
tive agency. Yet, because of the sedulous propagation of
selective service mythology, the Selective Service System
alone, of dozens, even hundreds, of federal administrative
agencies, appears to be the only administrative agency
whose regulations presume explicitly to prohibit the appear-
ance of counsel. We list in the footnote** thirty-four federal
** The right to be represented by counsel is guaranteed by stat-
ute in proceedings before the Civil Aeronautics Board, 49 U.S.C.A.
1481; Civil Rights Commission, 42 U.S.C.A. 1975a; Indian Claims
Commission, 25 U.S.C.A. 7@n; Interstate Commerce Commission,
49 U.S.C.A. 17(12) ; Longshoremen’s and Harbor Workers Compen-
sation Board, 33 U.S.C.A. 919; National Railroac Adjustment
— 45 U.S.C.A. 153 j; Veterans Administration, 38 U.S.C.A.
Regulations acknowledge the right to counsel in the Atomic
Energy Commission, 10 C.F.R. 2.713; Board of Immigration Ap-
peals, 8 C.F.R. 3.1; Building and Defense Services Administration,
BDSA Reg. 5, Sec. 8; Civil Service Commission, 5 C.F.R. 22.601;
66
administrative agencies where the right to counsel is guar.
anteed by statute and/or regulations. Moreover, appel.
lee’s counsel respectfully advise the court that an exhans.
tive study has been made of the various federal agencies
and there does not appear to be a single instance, other
than selective service, where the right to counsel ig ex.
pressly prohibited. “This near-uniform judgment of the
Nation,” see Baldwin v. New York, 399 U.S. 66, 72 (1970),
should, in logic, place some reasonable obligation upon those
who would justify this unitary exception to come forward
and provide cogent reasons for its existence.” But, as we
Civil Service Commission (Voting Rights Program), 45 C.FR.
801.308; Commodity Exchange Commission, 17 C.F.R. 0.61; Dela-
ware River Basin Commission, 18 C.F.R. 401.42; Employees Com-
pensation Appeals Board, 20 C.F.R. 501.11; Federal Aviation Ad-
ministration, 14 C.F.R. 13.33; Federal Communications Commission,
47 C.F.R. 1.22; Federal Deposit Insurance Corporation, 12 C.F R.
308.2; Federal Housing Administration. 24 C.F.R. 200.192; Federal
Maritime Commission, 46 C.F.R. 136.07-35; Federal Power Com-
mission, 18 C.F.R. 1.4; Federal Reserve Board, 12 C.F.R. 263.3;
Federal Tariff Commission, 19 C.F.R. 201.15; Federal Trade Com-
mission, 16 C.F.R. 4.23; Federal Water Pollution Control Adminis-
tration, 18 C.F.R. 606.8(d); Food and Drug Administration, 21
C.F.R. 2.58; Foreign Claims Settlement Commission, 45 C.F.R.
500.1; National Labor Relations Board, 29 C.F.R. 102.38; Packers
and Stockyards Act—Hearings Under Department of Agriculture,
9 C.F.R. 202.11¢; Patent Office, 37 C.F.R. 1.31; Securities Exchange
Commission, SEC Rules of Procedure #2; Small Business Ad-
ministration, 13 C.F.R. 103.13; Subversive Activities Control
Board, 28 C.F.R. 201.5; Tennessee Valley Authority, 18 C.F.R.
301.2(f) 2.
*7 Cf. Mr. Justice Frankfurter’s concurring opinion in Joint
Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 149, 172
(1951) :
“That a hearing has been thought indispensable in so many
other situations, leaving the cases of denial exceptional, does
not of itself prove that it must be found essential here. But
it does place upon the Attorney General the burden of show-
ing weighty reason for departing in this instance from a
rule so deeply imbedded in history and in the demands of
justice.”
67
believe we have demonstrated, there does not exist any basis
for this exception in law or in fact.
Nevertheless, given the existence of some twenty years
of selective service mythology, it is not surprising that a
body of case law has developed which is said to be suppor-
tive of the selective service exception. See Government’s
brief, pages 36-38. It is surprising, however, how little real
discussion and analysis there is in any of these cases and
how readily distinguishable they are for a number of rea-
sons.
(3) The cases cited by the Government appear to be an
impressive array in support of the proposition that the
Constitution does not compel that a registrant be permitted
an attorney in Selective Service proceedings. Upon closer
examination, however, this array becomes much less im-
pressive ; indeed, none of the cases cited by the Government,
and none which counsel for appellee have been able to dis-
cover, can be said to have devoted to this issue any sem-
blance of the serious consideration which it requires.
Both United States v. Schwartz, 143 F. Supp. 639 (I.D.
N.Y. 1956), and United States v. Wierzchucki, 248 F. Supp.
788 (W.D. Wise. 1965), alleged by the Government to con-
tain dicta in support of its contentions, should properly be
read in precisely the opposite light. Schwartz dealt with a
defendant who asserted that he had been prejudiced because
his local board had failed to post the names of advisors to
registrants, at a time when Section 1604.41 of the Regula-
tions (32 C.F.R. 1604.41) made the appointment of advisors
and the posting of their names mandatory. The court held
that, because of the denial of counsel before the local board,
the registrant “must depend on the advisors for counsel
68
as to his rights to a proper classification,” 143 F. Supp,
at 640, and that failure to comply with the regulation was
thus so prejudicial as to require a finding of not guilty,
No opinion expressing such scrupulous concern that the
registrant have proper advice as to his rights can be taken
to support the contention that the registrant may be denied
counsel even where the appointment of advisors has be.
come discretionary.
Likewise, United States v. Wierzchucki, discussed supra
at p. 55, can hardly be said to support the Government's
position; the court merely notes the fact of denial of coun-
sel, and suggests great dissatisfaction with it. Finding the
record insufficiently developed, however, the court asserts
that it is unable to reach a decision on the point, and does
not do so.
A substantial number of the cases which the Government
cites devote not more than a sentence or two to the counsel
issue, often a mere conclusory statement. Perhaps most
extreme is United States v. T'antash, 409 F.2d 227, 228 (9th
Cir. 1967), in which the entire discussion of the point is as
follows: “Appellant was not entitled to be provided with
legal assistance in the selective service process. 32 C.F.R.
1624.1(b).” Other cases disposing of the counsel question
in a similarly cavalier manner, occasionally offering one or
two supporting precedents, but giving the issue no discus-
sion whatever, include Cassidy vy. United States, 428 F.2d
585 (8th Cir. 1970); United States v. Evans, 425 F.2d 302
(9th Cir. 1970) ; United States v. Willis, 409 F.2d 830 (5th
Cir.), cert. denied 396 U.S. 864 (1969); Chaney v. United
States, 406 F.2d 809 (5th Cir.), cert. denied 396 U.S. 867
(1969); Madera v. Board of Education, 386 F.2d 778 (2d
Cir. 1967), cert. denied 390 U.S. 1028 (1968), which was not
69
a selective service case;* United States v. Mendoza, 295
F. Supp. 673 (E.D.N.Y. 1969); United States v. Heljenek,
975 F. Supp. 579 (E.D. Pa. 1967) ; United States v. Koval-
chick, 255 F. Supp. 826 (E.D. Pa. 1966).
Others of these cases appear to deal only with the right
to counsel in the selective service appellate process, such
as both the Capson eases, United States v. Capson, 347 F.2d
959 (10th Cir.), cert. denied 382 U.S. 911 (1965), and Capson
y. United States, 376 F.2d 814 (10th Cir.), cert. denied 389
U.S. 901 (1967); and Imboden vy. United States, 194 F.2d
508 (6th Cir.), cert. denied 343 U.S. 957 (1952).
Moreover, the Capson cases both dealt only with the ques-
tion of whether the right to counsel in criminal cases
guaranteed by the Sixth Amendment extended to selective
service proceedings; this is made clear at the very outset
of the earlier of the two, United States v. Capson, supra, in
the court’s statement that Capson’s claim was “That he was
denied the assistance of counsel, as guaranteed by the VI
Amendment...” 347 F.2d at 960. Other cases considering
only the Sixth Amendment contention include Camp v.
United States, 413 F.2d 419 (5th Cir.), cert. denied 396
U.S. 968 (1969) ; McCoy v. United States, 403 F.2d 896 (5th
Cir. 1968) ; Haven v. United States, 403 F.2d 384 (9th Cir.
1968), cert. dismissed 393 U.S. 1114 (1969); Merritt v.
United States, 401 F.2d 768 (5th Cir. 1968); Nickerson v.
United States, 391 F.2d 760 (10th Cir.), cert. denied 392
U.S. 907 (1968).
In none of these cases is serious attention given even
to the Sixth Amendment contention. See infra, pp. 81-88.
Typical of the opinions is that in Merritt, asserting that
““Furthermore,” as the court below correctly noted, “to the
extent that the Madera case relies on Selective Service cases for
authority it is for present purposes circular.” A. 39.
70
“The procedure under the draft law and classification by a
local board is in no way penal, nor is it a criminal trial
with the right to be represented by counsel, and to call, ex-
amine, and cross-examine witnesses.” 401 F.2d at 769.
There is no discussion of the many quasi-judicial and ad-
judicatory functions which are in fact performed by the
local board, as discussed supra pp. 43-45; the language
is directly traceable to dictum in Ex parte Stanziale, 138
F.2d 312, 314 (3rd Cir.), cert. denied sub nom. Stanziale y.
Paullin, 320 U.S. 797 (1943), a wartime case which ex-
pressed no opinion as to the constitutionality of the denial
of counsel, but merely was acknowledging the existence of
the regulations and the state of war.
In some of tiie cases, it was held that denial of counsel
could not be alleged as a ground of prejudice, because no
request for counsel had been made at the time of appear-
ance; this is so in United States v. Richmond, 274 F. Supp.
43 (C.D. Cal. 1967); elsewhere, not only had counsel not
been requested, but the registrant did not allege that lack
of counsel had prejudiced him. In many of the latter cases,
as in Stanziale, supra, the courts cannot be said to have
expressed any opinion on the constitutionality of the denial
of counsel; they merely recited the existence of the prohibi-
tion in outlining the situation faced by the registrant.
Representative of the utterly gratuitous remarks on counsel
*°TIt should further be remembered that this 1943 case, which
the Government cites repeatedly (Brief pp. 38-39) as its standard-
bearer, was decided at a time when there was virtually no judicial
review of selective service cases; Estep v. United States, 327 US.
114, was not decided until three years later. The completely dif-
ferent jurisprudential world prevailing at the time of the Stanziale
decision is vividly demonstrated by the court’s remarks that the
Government had won all but three cases since the adoption of
the Act in 1940—and that the Government had enjoyed the same
statistical experience with the World War I draft act. 138 F.2d at
314, n. 5.
_—
occasionally to be found in this area is that in United States
y. Pitt, 144 F.2d 169, 172 (8rd Cir. 1944) :
“While a denial of the right to counsel in a judicial pro-
ceeding would constitute a denial of due process, the
proceedings before the selective service agencies are
not within that category. It will be observed moreover
that ... he at no time requested the Board to permit
counsel to appear in his behalf. He does not assert that
his lack of counsel is evidence of denial of due process.”
(emphasis added.)
71
Similar to Pitt in the immateriality of their remarks on
counsel are Lehr v. United States, 139 F.2d 919 (Sth Cir.
1943), and United States v. Miller, 143 F. Supp. 712 (N.D.
W.Va.), aff'
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