# Appellees Brief — United States v. Weller > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0006%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellees Brief - **Published:** January 1, 1971 - **Citation:** 401 U.S. 254 ## Text =“FILE COPY 4 ‘i OcroBer Term, 1970 ee | No. 77 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. 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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. decided in the courts, normally as a prosecution when tne registrant fails to report or submit to induction.” Memorandum from the New York City Diree- tor of Selective Service to the Selective Service Appeals Board, October 10, 1967 (emphasis in original)." Cf. Mathis v. United States, 391 U.S. 1, 4 (1966) (“.. . tax investigations frequently lead to criminal prosecutions, just as the one here did”). 84 The juxtaposition of limited judicial review with denial of right of counsel at the local board personal appearance has produced agonizing frustration for large numbers of conscientious objector applicants, a frustration which ap- pears to be shared by some federal courts. As the Seventh Cireuit stated in United States v. Freeman, supra: “The danger posed by this narrow scope of review is particularly acute when a claim for conscientious ob- jector status is made [citation omitted]. A sincere claimant for conscientious objector status cannot turn to the habeas corpus remedy because his religious be- lief prevents him from accepting induction under any circumstances. As a result he is limited to seeking review in a criminal trial for refusal to submit. In this criminal proceeding, as in any proceeding review- ing a draft classification, his defense of invalid classi- fication is tested by the ‘basis in fact’ formula. Under these circumstances conviction is almost inevitable, since the Board’s refusal to grant the conscientious objector classification is based on an inference as to *1 A copy of this unpublished memorandum is in the possession of counsel for the appellee. 85 the sincerity of the registrant’s belief and there will almost always be something in the record to support an inference of lack of sincerity.” 388 F.2d at 248-249, Accord, United States v. Wierzchucki, 248 F. Supp. 788, 789 (W.D. Wise. 1965) (“... eriminal conviction is virtually inevitable because the die has been cast irrevocably in the administrative proceedings. ...”) That many other federal judges have been troubled by the same “closed circuit” that provoked Judge Doyle’s opinion in Wierzchucki, id. at 790, is revealed in the cases cited supra at pp. 54-55. In effect this “closed cireuit” emasculates a federal court in redress- ing a miscarriage of justice, unless it can find some way of escaping its jurisdictional confinement. We respectfully submit that the result is not only a denial of justice in many eases, but perhaps even more profoundly a denial of the appearance of justice. See Mr. Justice Frankfurter, con- curring in Joint Anti-Fascist Refugee Committee vy. McGrath, 341 U.S. 123, 149, 172 (1951), stressing “the feel- ing, so important to a popular government, that justice has been done.” In a footnote, Mr. Justice Frankfurter quoted with approval the thoughts of others to the same effect: “In a government like ours, entirely popular, care should be taken in every part of the system, not only to do right, but to satisfy the community that right is done.’ 5 The Writings and Speeches of Daniel Webster, 163. The same thought is reflected in a recent opinion by the Lord Chief Justice. A witness in a criminal case had been interrogated by the court in the absence of the defendant. Quashing the conviction, Lord Goddard said: ‘That is a matter which cannot possibly be justi- fied.... Time and again this court has said that jus- tice must not only be done but must manifestly be seen 7 Bg to be done. ...’ Rex v. Bodmin Justices [1947] KB 321, 325, [1947] 1 All Eng 109.” 341 U.S., fn. 19 at 172. 86 In the face of this human and judicial frustration, a pos- sible exit from the maze is suggested by the trend of this Court’s recent decisions on right to counsel under the Sixth Amendment. The right to counsel in a criminal proceeding is, of course, not limited to the trial. See Coleman v. Ala- bama, 399 U.S. 1 (1970). This Court held in United States vy. Wade, 388 U.S. 218, 226 (1967): «|. [T]he aceused is guaranteed that he need not stand alone against the State at any stage of the prose- cution, formal or informal, in court or out, where coun- sel’s absence might derogate from the accused’s right to a fair trial.” The principle of Powell v. Alabama, 287 U.S. 45 (1932), and its progeny, “requires that we scrutinize any pretrial confrontation of the accused to determine whether the pres- ence of his counsel is necessary to preserve the defendant’s basic right to a fair trial . . . and to have the effective as- sistance of counsel at the trial itself.” United States v. Wade, 388 U.S. at 227 (Emphasis added). This Court has also noted “that certain legal rights may be lost if not exercised” at the critical stage. Mempa v. Rhay, 389 U.S. 128, 135 (1967). Compare: United States vy. Wierzchuckti, supra: “When criminal conviction is virtually inevitable be- cause the die has been east irrevocably in the admin- istrative proceedings ... the right to counsel in the criminal proceeding may be a hollow thing.” 248 F. Supp. at 789.