Amicus Curiae Brief — Mulloy v. United States

at ee - OBJECTORS, AMICI CURIAE

In THE

a |

Court, US,

Supreme Court of the al

ED

Ocrosrr Term, 1969 Picks Se eae

No: 655 _ APR/13 1970

ree —} — JOHN F, DAVIS, cue

JosepH Tuomas MuLioy, |

Petitioner,

V— ,

Unirep States oF AMERICA, — oe

‘ ; Hake Respondent.

PETITION FOR’ WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

?

%

BRIEF OF AMERICAN CIVIL LIBERTIES UNION AND

CENTRAL COMMITTEE FOR CONSCIENTIOUS

¢

Marvin M. KarpatKiIn

Micwaet N. Potter ~

1345 Avenue of the Americas.

New York, New ‘York 10019

Metvin L. WouLF

> - ‘¢/o American Civil Liberties Union

156 Fifth Avenue

New York, New York 10010

E. Curry First, III -

. ¢/o Central Committee for’ .

, Conscientious Objectors

acs . 2016 Walnut Street

| ; Philadelphia, Pennsylvania 19103

es | Attorneys for Amici Curiae

Of Counsel: a ae : : )

Pau G. CHEvieny

- @/o New York Civil Liberties Union

ed - 156 Fifth Avenue

ae New York, New York ;

INDEX:

ee ; » PAGE.

Interest of Amici a |

c

‘Questions Presented mad : 7 ag 38

Statement of the Case

I. Since petitioner made out a prima ‘fais elaim

_ for conscientious | objector status, he was en-

titled to a reopening of his classification ccpteanen 5

Il. A de facto reopening of petitioner’s classifica-

tion took place by reason of the scope. and. ii-

tensity of the local board’s inquiry. The Court

below erred in not finding that petitioner had

therefore been illegally denied his rights of per- .

‘ sonal appearance and appeal ayetent to such

reopening

III. The Court below jruineaaty applied the “basis

in fact” ‘test in determining whether petitioner

_ was entitled toa reopening of his classification

-

~

ConcLusIoNn

‘Taste or AUTHORITIES

Cases: |

Bailey v. Drexel Furniture Co., 259 U.S, 20 (1922) ...

Barker v. Hershey, 2 SSLR 3390 (W.D. Wise. 1969) ....

Bates v. Commanding = 413 F.2d wis ard Cir,

1969) .........

| Benway v. Barnhill, 300 F. ‘opp. 46 483 (D.B.I. 1969) ..

15

21

ih

2. -

PAGE ©

Cinderella ea and Finishing Schools v. Federal.

Trade Commission, 38 USLW 2517 (D.C. Cir. Mar.’

| 20, 1970) . 21

Crane v.. —. 284 F. Supp. 250 (N. D. Cal. 1968) - 22.

Fleming v. United States, 344 F.2d 912 (10h Cir.

~—- 1965) .. Diab | 14

Davis v. United ‘Stati, 410 F.2d 89° (8th Cir. 1969) .....7, 18,

Gatchell v.. United States, 378 F. 987 (9th Cir. 1967 ) 22

Gomillion v. Lightfoot, 270 F.2d, (5th Cir. 1959) .. 21

’ -Howze v. United States, 409 F.2d,27 (9th Cir. 1969) .... 21

* Hunt v. Local Board, —— F.2d —~ ard Cir. No. 18076 -

March 24, 1970) >... e

Kessler v. United States, 406 F. 2d 151. (5th. Cir. 1969) - 14

a

Lane v. Allen, 307 F. Supp. 881 enone Ohio 1969) .. ial =

Miller - ‘Vv. United States, sel F. od 973 -(9th ‘Cir.

1967) . aeeee 7, 16,17

' Mizrahi v. United States, 409 F.2d 1219 (9th Cir, 1969) 22

Murray v. Blatchford, 307 F. ‘Supp. 1038 (D.B.1.

1969) .. | Reats 9, 19, 22

Owens v. United States, 396 F.2d 540 (10th Cir. 1968) .7, 22

Petrie v. United States, 407 F.2d 267 (9th Cir. 1969) ..21, 22

Pitcher v. Laird, —— F.2d —, No. 28285 (5th Cir.

Sa 1970) eu pees

*

. Se ae pe 7 PAGE

Robertson v.‘United States, 404 F.2d 1141 (5th Cir.

-1969) rev’d en hanc on other grounds 417 F.2d 440 ..7;18

§.E.C. v. Chenery Corp., 318 U.S. 80 (1943) ..

‘Townsend v. Zimmerman, 287 F.2d 376 (6th Cir. 1956) ae me

United States v. Baker, SSLR 3017 (EDNY. 1968) 9,17,

. 21-22 .

United States v. ‘Bilditiaeie, 304 F. Supp. 822 (W.-D. 7

_* Tex. 1969) 22 =.

United States v. Bornemann, — F.: 2a —, No. |

' 33716 (2nd Cir. Jan. 5, 1970) . 13

United States v. Bryant, 293 F. Supp. 922 (N.D. Ark.

1968) 7 10...

United States v. Burlich, 257 F. Supp. 9 (8. D.

1966) ‘ A » 8, 21, 22

: - United States v. Clark, 105 F. Supp. ba (W. D. Pa. -

1952) ee

United States v. Delfin, 419 F.2d 226 (2nd Cir. 1969) . Mate | ae

United: States v. Freeman, 388. F.2d : (7th Cir.

1967) ‘ani cts 7, 9, 21

United States v. Gearey, 368 F. 2d 144 (2nd Cir, 1966)

(Gearey I) ...... 4,13

United States v. Gearey, 379 F.2d 915 (Qnd Cir. 1967)

(Gearey IT) 7 4, 7, 8, 13, 21.

- .United States v. Grier, 415 F.2d 1098 (4th Cir, 1969) mh a

, ‘21

‘United States v. Hawley, 2 SSLR 3113 (D. Minn. 1969) ‘=

United States v. James, 417 F.2d 826 (4th Cir. 1969) .. ~ 10

- United States v. Levy, 419 F.2d 360 (8th Cir. 1969) - oa ae

United States. v. Melrose, —— F. Supp. —, Cr.

68-1248 (D.S.D. December 4, — ’ 18

iv

SER yee ; . “PAGE

United States v. Pence, 410 F.2d 557 (8th Cir. 1969) ... 14

United States v. Powers, 413 F.2d 834 (1st Cir. 1969) 21:

_ United States v. Ransom, 223 F.2d 15 (7th Cir. 1955) .. 22.

United States v. Rempel, 220 F.2d 949 (10th Cir. 1955) 13

United States v. Seeger, 380 U.S. 163 (1965) sibdaiattiei 9,14

United States v. - Stoppelman, 406 F.2d 1ge (st Cir. *

1969) |

United States v. Stout, 415 F.2d 1190 (4th Cir. 1969). 9-

United States v.: ‘Turner, — F.2d —., No. 17685

(3rd Cir. Feb. 10, 1970) -... 7, 9,10, 11

United States v. Westphal, 304 F. Supp. 951 (D.S. oe

1969) . 18

- United States - White, jas FOS, No. a (5th

Cir. Dec. 3, 1969) 14

oe United States. rel. Berman v. Craig, 207 Fd 888

(3rd_ Cir.’ 1953) 7, 10

United States ex rel. Brooks v. Clifford, 409 F.2d 700

(4th Cir. 1969) 14

United States ex rel. ‘Wilkerson v. Cémigninding Officer, as eae

286 F. Supp. 290 (S.D. ¥, 1968) ....... > Dies

Vitarelli v. Seaton, 359 US. 535 (1959) a 29

Walsh v. Local Board No. 10, 305 F. Supp. 1274 (S.D..

N.Y. 1969) .... 2,7

Witmer v. United States, $48 U.S. 315 (1964) aks 20 ,

Ciimentitadionel Provisions:

iol -Gtates Constitution... > Ca che a

'. First Amendment .. . : et: Tee

Fifth Amendment ............. aebial 1°

*

Other Authorities:

Hershey, Legal Aspects of Selective Service, 35 (1969) 20

Hershey, Legal. Aspects of Selective Service, 36 (1969)

Letter ‘of February 21, 1968 from General Counsel of —

‘the Selective Service System to the Massachusetts

State Director of Selective Service, 1 SSLR Pee

_ Selective Service System Local Board M emorandum 41

(as amended July 30, 1968), 1 SSLR 2174 ....... ;

.

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Pere fee PAGE

Federal Regulations: : oe.

32- CFR. $1624 ess pn HS, 0 -

82 C.F.R. §1625.2 ......... eS 7,16

32 C.F.R.*§1625.11 - sen a aa 15

32 C.F.R. §1625.13 Jace -...15, 20

32 C.F.R. §1626 ........ ) ts 15, 20

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Supreme Gout of te Hated tates

Ocroser: TzRM, 1969 ,

: No. 655

JosEPH THOMss MuLLoy,

Petitioner,

—V.—

Unrrep Staves or AMERICA, MESES

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT ;

>

BRIEF OF AMERICAN CIVIL LIBERTIES UNION AND-

_ CENTRAL COMMITTEE FOR CONSCIENTIOUS —

| OBJECTORS, AMICI CURIAE

eee

arte) :

Interest of Amici* ‘

Interest of American Cwil Liberties Union

7 For half a century the American Civil Biberties Union -

has defended the fundamental rights ‘afforded-by the Bill

of Rights. In particular, it has represented those who have.

~ asserted the rights of conscience and religious liberty pro-

tected by the First Amendment and the-right to due process .

of law as gu&ranteed by the Fifth Amendment, against

governmental | infringement. Indeed, the ACLU was

? - e writen consents by the attorneys for both parties have been

- filed with the Clerk.

SN nc MPD

»

ft

founded i in ‘the crucible of the First World War to defend

- the rights of conscientious objectors.

In accord with our commitment to the protections of con- F

a

}

seience and due process the ACLU is.now‘heavily engaged # —

in the representation of young men charged with alleged —

violations of the draft laws. As one Federal Court has

_ recently stated, “Those entrusted with the awful power of

_ conseripting the riation’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 faéts, scrupulous fair-

ness, sensitive care, compassionate hearing, patient con-

sideration, cautious action and deliberate and rational de-

cision within the law. We afford no less to the worst crim-

inal in our society.” Walsh v. Local Board No. 10, 305

F Supp. 1274, 1279 (S.D.N.Y. 1969). a pee

We file this brief in order to present to the Court our |

arguments of law which a enpport those principles.

i

Interest of the Central ihscnadttns

for ic oreo Objectors

¢ . :

The Central Committee for ‘Conscientious Objectors

(CC€O) is.a non-profit service organization founds in

- 1948 to assist persons who find themselves facing conflict :

with the power of the State as a result. of conscientions

objection to participation in war. In’ "1968, amicus coun-

seled over 10,000 young mcn with problems relating to

compulsory military service. The counseling services are

national in scope; CCCO has, aside from its headquarters

in Philadelphia, regional offices in San Francisco and Chi-

cagé. In addition, CCCO has cooperating counselors and

cooperating attorneys in every state and is widely recog-

8

—

_ nized as one of the most expert and experienced draft coun-

seling agencies. Of the registrants counseled by CCCO in .

1968, the majority were considering or seeking conscientious

objector status or student, medical, hansehip or other de-

ferments. \

CCCO. diarieie no fees for its services: to reginttasihé, at-

torneys, or any other persons. Its views on various ques-

tions relevant to its expertise have, from time to time

been solicited by officials of the Selective Service System

and by members of Congress. |

Because the procedures relating to the ‘pilates of re-.

opening a Selective Seryice classification are involved and -

complex, CCCO deVotes a substantial amount of time— .

preparation of memoranda, responding to telephone and

mail inquiries, and direct counseling—to these activities.

CCCO has counseled and continues to counsel numerous

~ eonscientious objectors. CCCO, thus has a direct interést

in preserving the rights of Niteer eo objectors.

Questions Presented

1. Whether the Courts below erred in holding that peti-

tioner was not entitled toa reopenthg of his classification?

2. Whether the Courts below erred jn holding that a

de facto reopening of petitioner’ 8 classification did not

take place? on ig tet mh & :

@

3. Whether the Court of ints applied an improper —.

standard of judicial review in deterthining if> petitioner

was entitled to a reopening of his classification 1 - |

-

hcenaiiice of the Case

2 4

On October 17, i967, petitioner, then twenty-three years

_ old, wrote a letter to his Selective Service Local Board No.

"47, Louisville, Kentucky, which read in pertinent part, ~~

“after much, much thinking, seeking and questioning of

“my own religious upbringing and political experience I

’ have concluded that I. am a conscientious objector and I am

therefore opposed to war in any form” (A. 41).° -

In response to this letter, the local board sent him a

Special Form for Conscientious Objectors (SSS Form 150),

whicli‘he completed and returned on October 26, 1967. He

gave detailed answers to the questions on the form, stat-

ing among other things that he believed in a Supreme Being.

and that to be a member of the Armed Forces of any

country would oblige him to kill or indirectly: assist in. kill-

- ing (A. 19). Additionally, various letters, including one

from a Catholic priest, were submitted to the board in sup- .

- port of petitioner’s request for deferment as a@ conscien-

tious. objector.

This case does not involve the special ee inherent

in a post-induction order application for conscientious

objector classification. See United States v. Gearey, 368 ~

F.2d 144 (2nd Cir. 1966) (Gearey I ) and United States v. -

Gearey, 379 F. 2d 915 (2nd Cir. 1967) ( Gearey II). Both at

‘the time that petitioner advised his Jocal board that he was

a conscientious objector, and ‘at the time that. he filed his

-§SS Form 150, petitioner had not been ordered to report

for induction.

* All references (A. —) are to petitioner's Appendix.

>

In response to petitioner’s request for an appearance

before the board, a “courtesy interview” was held on No-

vember 9, 1967.’ The meeting lasted between ten and fifteen.

minutes (A. 77). The Chairman of -the board stated “at ia

that time the Board came to the conclusion that there was

~ no merit to his contention that he was entitled to con-

scientious objector status.” An entry was made on his

Classification Questionnaire on November 9th,. stating

“Classification was not reopened” (A. 14). The board, how-

ever, did-not take a vote at the meeting of November 9th.

On' November 12, 1967, petitioner wrote a letter to the

board setting forth his views more fully (A. 58).. It was

' this letter which, according to the Court of Appeals, “in

‘ dicated rather clearly that his objection to serving in the i

Armed Forces was based on essentially political, sociologi-

eal or philosophical views and his conscience rather than

on religious training and belief. ” 412 F.2d at 425.

On January 11, 1968, the board formally considered peti- .

tioner’s claim for classification, and by a vote of 4-0 took ©

the following aétion as noted in the Classification Question-

naire: “All information im file was considered including

claim of Conscientious Objector. All Members present felt

this information did not warrant re-opening of 1A clas#®...

(A..14). On January 21, petitioner wrote to the board, ap-

- pealing from the board’s failure to reclassify him in ‘Class

1-0 stating that he considered his case to haye been re-

opened. The board wrote in reply two days later that it

did not consider his case to have been reopened and that .

he had no right to appeal (A. 64, 65). On the same date

he received an order to report for induction on February

23, 1968.

.

~W

~~

6

On February 8, 1968, petitiorier filed a civil action in the

United States District Court for the Western District of

Kentucky, seeking to enjoin his induction into the Armed

Forces on the ground | that the order’ to report for induction

was void, as having been issued in violation of applicable

Selective Service Regulations and in such circumstances

as to violate due process of law. On February 16, 1968,

- the Court dismissed his complaint and denied relief. N otice

* of Appeal to the United States Court of Appeals for the

Sixth Circuit was filed on February 16, 1968, together with

a. motion for an interlocutory injunction pending appeal.

The latter motion was denied on February 22, 1968. .On

- February 23, 1968, the petitioner reported to the induction.

station but refused to submit to. induction. into the armed-

- forces. The appeal in i the civil case was dismissed as moot

“ ~_ by the Court of Appeals on May 2, 1968. The petitioner -

= thereafter indicted, tried and convicted. :

T

’ ARGUMENT

» : 1. | ¢

Since petitioner made out a prima ‘facie claim for con-

scientious objector status, he was entitled to a reopen-

ing of his classification.

The Court of Appeals in every judicial circuit in the

United States, including the Sixth, has held that: where —

a registrant presents new facts to his local board not.

previously considered and those facts, if true, would en-

title: him to reclassification, then the local hoard is com- —

pelled to reopen his classification." See 32 C.F.R. 1625.2.

While the several Courts of Appeals have varied some-

what in defining the prima facie case for a requested

classification which will trigger the .reopening process,

« See United States v. Stoppelman, 406 F.2d 127 (1st Cir. 1969) ;

United States v. Gearey, 379 F.2d 915, fn. 11 (2nd Cir. 1967)

adopting the standard enunciated in United States v. Burlich, 257

F. Supp. 906, 911 (S.D.N.Y. 1966) ; United States v. Turner, ——

* F.2d ——, No.°17685 (3rd Cir. Feb. 10, 1970) following United

States ex rel. Berman v. Craig, 207 F.2d 888 (38rd Cir. 1953) ;

United States v. Grier, 415 F.2d 1098 (4th Cir. 1969) ; Robertson

v. United States; 404 F.2d 1141 (5th Cir. 1969) rev’d en banc on

other grounds 417 F.2d 440; Townsend v. Zimmerman, 237 F.2d

876 (6th Cir. 1956); United States v. Freeman, 388 F.2d 246

(7th Cir. 1967); Davis v. United States, 410 F.2d 89 (8th. Cir.

1969) ; Miller v. United States, 388 F.2d 973 (9th Cir. 1967);

Owens v. United States, 396 F.2d 540 (10th Cir. 1968)...

' Indeed some courts have found the right to a reopening of one’s

classification upon the presentation of new facts not. previously

considered so strong that the action of a local board in refusing

to reo _ so “basically lawless” as to warrant pre-induction

judicial review. See Hunt v. Local Board, —— F.2d —— (3rd

Cir. No. \18076 March 24, 1970); Barker v. Hershey, 2 SSLR

8390 (W.D. Wisc. 1969); Walsh v. Local Board No. 10, 305 F.

Supp. 1274 (S.D.N.Y. 1969). ee eins

\

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amici believe the test carefully enunciated by Judge. Wein-

feld in United States v. Burlich, 257 F. Supp. 906

(S.D:N.Y. 1966) and adopted by the Second Circuit in

Gearey II,? supra, properly, states the. — of a

prima. facie case for reopening:

“A prima facie ease is mails ‘out if a resiaieasi has

presented facts which, if true and uncontradicted by

other information contained in his file, would be suffi-

Gent under the regulations to warrant granting his

reclassification.” 257 F. Supp. at 911. 7

See also’ United States ex rel. Wilkerson v. Command-

ing ,OWficer, 286 F. Supp. 290 (S.D.N.Y. 1968); and se¢

Hershey, Legal Aspects of Selective: Service, 36 (1969).

Only one month after,petitioner’ 8 local board refused |

_ to reopen his classification, the General Counsel of the

Selective Service System stated an unequivocal reopening

policy that is considerably broader than the prime -facie

[7 standard of Burlich and Gearey II. |

a “In every case in which a claim of conscientious ‘a

* jection is filed by a registrant prior to -the issuance

of an induction order, it has been the consistent policy

of the Director to’require reopening of such regis-

_ trant’s classification. |

1 SSLR 22 ina 25, rinorting a letter of Feb. 21, 1968 to the

» Massachusetts iat Director aa Selective Service. See

* Unlike Seiben, eens this case does not involve the issue

of a local board’s refusal to reopen a registrant’s classification after

a — has — mailed an order to eepret for induction.

9

also. Selective Service Local Board Memorandum 41 as

amended July 30, 1968, reported at 1 SSLRB 2174.

Thus the essential question is whether the ' record re-

veals that petitioner met the basic Teneenee of a con-

_ Scientious objector claim. _ - : ahs

While petitioner, as any registrant, must do more than .

state baldly that for conscientious reasons he is opposed

to participation in war in any form, but cf. United States

v. Freeman, supra, he is entitled to the presumptions in

his favor implied by the term prima facie. He need not

. prove his case to the hilt as he would ners to do if the case

were already reopened.

“In determining whether a prima facie case for re-

opening has been made out, the Court, in accordance

with generally applicable legal practice, must con-

strue the facts in a way most favorable to. the regis-

trant . .. the Board is required to reopen if a prima

facie case is made out.” Weinstein, J., United States .

v. Baker, 1 SSLR 3017; 3018 (E.D.N.Y. 1968). -

(D.B.I. 1969); ‘United States v. Turact, supra; United

Accord: \ Murray v. Blatchford, 307 F: Supp. 1038, 1055

States Je

reeman, Supra.

Potltinaie demonstrated a: strong religious background.

He wrote a reasoned, detailed statement. of his beliefs,

which on its face were those of a classic conscientious —

objector, cf. United States v. Seeger, 380 U:S. 168 (1965);

“and were obviously rooted in his religious background.

2In United States v. Stout, 415 F.2d 1190 (4th Cir.-1969), the

Court held that administrative policy statements of the Selective

— — had the force of law. :

10

He documented the substance of his beliefs as. best he

could by letters attesting to his sincerity. Surely no more _

can be’ required for a prima facie case, -

~' Tf the standard for reopening is not to. be equivalent

to the standard of ultimate success in & conscientious

: objector. application, petitioner’ 8 prima facie application

must be held sufficient. In United- States v. Bryant, 293 -

F. Supp. 922, 932 (N.D. Ark. 1968), the Court held:- ©

“A prima facie case. was ‘established when the defen-

dant formally attested that he was conscientiously

‘opposed to participation in war in any form, and

persons knowing the defendant attested to his sincer- .

ity. No statement made by the defendant is in‘ any

) way inconsistent with his professed. belief.”

~ See also United States v. James, 417 F. 2d 826, 829 (4th

Cir. re Bi |

. it is perfeetly clear ‘that deferidant’s timely asser-

diets to his local board, if believed, demonstrate that.

he was) brought up in, and had embraced, the religious

tradition of one of his parents, . who belonged to a:

denomination, the members of which have consistently ° .

opposed participation in war. Defendant asserted his ©

personal objections, in light of- this tradition, to

participation in war in any form. He thus presented:a

prima facie case for exemption.” (Citations omitted.)

The Third Circuit recently reaffirmed its prior holding in

United States ex rel. Berman v. Craig, 207 F.2d 888 (1953).

in United States v. Turner, supra, the Court held. that

“the rule is wel] established that where one who has —

. originally made no claim to conscientious onjemor

A

a:

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. status and has been classified 1-A later seeks a con-

scientious objector status because of changed circum-

. stances the board is. required to reopen his classifica-

“tion if the claim which he has presented is adequate on

its face, and only then may- ‘the board Goeearatan the

merits of the claim. %

There is a substantial reason which undétlies the

judicial doctrine.. For if the request to reopen is

granted the Voard must classify the registrant de novo

~and-mail notice of the new classification tehim, which

-then forms the basis for the registrant’s right to appeal

- and appear personally before the board. On the other

~ hand, when the board refuses to reopen a classification,

there is no right of appeal. .It would therefore be a

denial of procedural due process if: local- boards

prevented administrative appeal from a refusal to

reclassify by casting it in the form of a refusal to

reopen.” Turner, supra, p. 2 (slipsheet Seana:

Judge it ahodei: in his concurring ee staied the

rule even more bluntly :

“When a claim, in writing, for change in classification.

is presented by a draft registrant on grounds, which,

if established by substantial proof, would entitle him

to the change sought, a draft board is required . to

reopen and consider the existing classification so as to

afford the registrant the due process right of appeal

if his claim is denied. ” Turne?, suprs, P. 10 (slipsheet

Sli ceramic go ta keaty C laera Ey

_ The Court below disregarded all of these considetations

and held that it is completely within the discretion of the

: . ~ ee = ° ;

2°.

- local board to make such investigntion as it wishes At °

whether the new facts are true or false and then to decide

, to reopen or not to reopen based on its own unstated- ‘and

undisclosed investigation and findings, if any. United

' Statés v. Mulloy, 412 F.2d 421, 423 (6th.Cir. 1969). What

‘the Court overlooks is the first.principle of due process of

law—that-the most reliable way of: searching for the truth

where a citizen is before a government agency is through

the hearing process—and that the most dangerous and least

reliable way is by allowing the government agency to do it ,

in secret and then announce its unappealable conclusion.

As the Second Cireuit recognized in United States. v.

" Delfin, 419 F.2d 226, 228 (2nd Cir. 1969) : é

itp ect for classification as a conscientious ob-

jector present subtle questions difficult to resolve ex-

cept upon thé fullest consideration, and, as Congress

recognized, fairness to the applicant requires that they

not be disposed of in a summary manner.”

‘The Board members plainly did not- -question potitiones’s

sincerity (A. 71, 72, 84, 86). The Court below does not-cite.

a single instance in the record where the Board expressly

or by implication questioned the sincerity of the claim.

The basis for the holding below appears to be rather the

Court’s own doubts of petitioner’s sincerity,‘ coupled with

.* The opinion below states that “the Board had the sight to

- consider inconsistent statements made by the registrant as well

as any fact which cast doubt on his veracity,” - -412 F.2d at 425,

but the only reference to the trial record is the Board Chairman’s

- testimony that Mulloy “did not make out a case for conscientious

objection.” Ibid. This is plainly no evidence of a Board find-

ing of inconsistency or of ‘a Board doubt of veracity. Then the

opinion | below mentions <p items which “the uoerd had ‘the -

— to take ware account,” sbid » although there lately . no

c

/ |

13 ; :

the Court’s erroneous view of the legal sufficiency of peti-

tioner’s religious beliefs: | WV tetes t

“Mulloy’s letter dated November 17, 1967, from which ,

we have quoted, indicated rather clearly that his ob- —

jection to serving in the Armed Forces;was based on

Gri essentially political, sociological or philosophical views

and his conscience rather than on religious training .

rt

t

- and belief.” 412 F.2d at 425.

evidence that the Board did so, and in any event none of them

provides a“legally sufficient ground for denial of conscientious

objector status: (1) The registrant did not claim to be a con-

' scientious objector when he registered ‘at age 18, and only did” so. is

“when time was running out for him.” Ibid. If the Gearey cases,

supra, which the Court below cites approvingly, id. at 424, stand

for anything it is that one need not himself as a con-

scientious objector at age 18 in order to be legally recognized as

such, since conscientigus objector views can genuinely crystallize |

at any time in a young man’s development, ‘even after the receipt

of an induction order. Indeed, under the Gearey philosophy, it-is

error to reject a claim because it was asserted late rather

early in one’s Selective Service history, and it is plainest error

to infer’ some disability, or to require a greater tum: of proof,

for a young man who did not so declare at age 18. (2) The.

Kh

opinion below cites a letter written by petitioner’s brother which

stated that “he has maintained this position for a number of years.”

Id. at 426. But the letter could just as easily bé referring to peti-

tioner’s overall idealistic views, or his general opposition to war,

and, in any event, petitioner, ~who was classified ILS (college

student) and II-A (occupational deferment) until May of 1967,

was not obliged to inform the Board of his desire to be classified

as 4 conscientious objector so long as he was entitled to any. lower

classification: See ed States v. Bornemann, —— F.2d.

No. 33716 (2nd Cir. Jan. 5, 1970). (3) The opinion below stat

that petitioner was incorrect in his assertion to the Board that he

as subject to a $5,000 bond in a Federal Court proceeding. Amici

are baffled as to what this has to do with the sincerity of a claim for —

conscientious objection. See United States v. Rempel, 220 F.2d 949

(10th Cir. 1955). Finally, amici must observe that an attitude

of unseemly suspicion and ‘hostility towards petitioner is reflected

|

-by the gratuitous statement that: petitioner attempted to “fool” -

a

the Board and the District Court, td. at 426.

4

rid

, 14 ; o re ey

This Court, in United ‘States v. Seeger, 380 U.S. 163 — |

(1965) construed the statutory definition of a conscientious

objector broadly. Thus it was held that “: .. any exception

to it must. be interpreted narrowly.” 380 US. at 186. -

/“[Bjhe use by Congress of the words ‘merely per-

sonal’ seems to us'to restrict the exception to a moral

code which is not only personal but which is the sole

° basis for the. registrant’s belief and is in no way re- |

lated to. Suprenie Being.” Ibid. (emphasis added).’

‘A mere comparison of petitioner’s claim with his letter

of November 17, 1967 demonstrates that there was indeed

substantial religious’ content to his objection and thus the

letter does not supply-a basis in fact for the board’s re-

fusal to reopen, as the Court below held, Seeger, supra.

See also United States v. Levy, 419 F.2d 360, 367-368 (8th

Cir. 1969); United States v. White; —- F.2d ——, No. .

_ 26629 (5th Cir. Dec. 3, 1969) ; United States ex rel. Brooks ©

v.-Clifford, 409 F.2d.700, 708 (4th Cir. 1969); Pitcher v.

Laird, =< Fa, No. 28285 (5th Cir. Jan. 30, 1970); :

Fleming v. United States, 344 F.2d 912, 915 (10th Cir. 1965) ;

Bates v. Commanding Officer, 413° F.2d 475, 479 (1st Cir.

1969) ; United. States v. Pence, 410 F.2d,557, 562 (8th Cir.

1969); Kessler v. United States, 406 F. 2d 151 (5th Cir.

1969).

’

a]

bd * The Court below implies that the Military. Selective otic |

Act of 1967, whieh shortened the definition of conscientious ob- -

jection so as to eliminate the eg tement of belief in relation-

ship to a Supreme Being, had effect of cutting down this

Court’s holding in Seeger. If anything, a better argument can ©

be made to the contrary. See United States v. Levy, 419 F.2d 360, »

- 866 (8th Cir. 1969), which concludes that Seeger is unchanged

_by the amendment. .

a

A

2

15

Petitioner made out a prima facie case for conscientious .

objector status* and the Court below erred in finding that

the local board did not deprive him of due yrpeees when -

it refused to reopen his’ classification. 3

[

I.

Ade facto reopening of petitioner’s classification took

_ place by reason of the scope and intensity of the local

board’s inquiry. The Court below erred in not finding .

that petitioner had therefore been illegally denied his

rights of persénal appearance. and ne attendant to

3 such res Rein

It is well recewiinedl by the inal ad well as by the es

Selective Service.System, that a local board cannot make ©

an evaluative determination upon the merits of a regis-

. trant’s request for reclassification and then summarily

refuse to reopen his classification. To do so would cut off ~

' his.rights of personal appearance under 32 C.F.R. §1624

and appeal, 32 C.F.R. $1626. Nothing prevents a local

board from reopening a registrant’s classification and then

retaining him in 1-A status. This procedure is expressly

_ authorized by 32 C.F.R. §1625.11. At least, however, he is

given the minimal due process safeguards of personal ap-

pearance and appeal which follow a A ancarrpee-e 32 C.F.R.

$1625.13.

* The parses tee seems to concede in its Brief in Opposition

| at page 18 that the “new information” which petitioner presented

in the representations made in Form 150 and the accompan

letters did present a prima facie showing that he met the statu-

tory conscientious objector standard. This was not the view of

_ the Court below. See 414 F.2d at 426.

ber

.j .

ree

In the case at bar, the Court below held that the board

‘ could not only reach the merits of an applicant’s request |

for" deferment at the initial stage of determining whether

on"

or not to reopen, but in fact had a duty to reach the heart

of the claim at such a preliminary stage. It is respectfully .

submitted that the Court below was in error.

| Miller y. United States, 388 F.2d 973 (9th Cir. 1967 );

involved: a registrant’s request to reopen his classification

on grpunds of conscientious objection after receipt of. an

order \to report for induction. Additionally, the’ State

Directoy of Selective Service had given the local board

‘permission to disregard the post-induction order restric-

tions of ‘32 C.F-R. §1625.2. The board considered the

_ registrant’s application and then refused to reopen.

- The Ninth Circuit found that what the board actually did |

was to engage in an

“... evaluative consideration and judgment that,

scion of the prima facie sufficieney of the infor-

mation submitted, it was not, when probatively weighed

‘against other elements in the situation entitled. to

eredence as fact.” 388 F.2d at 975.

<q

The Court held that this amounted to a determination of

the cena: of classification. and that,

“While the local board labeled what it rm Sui as a

denial of reopening in form, the substance of what it

did was, as indicated,.to consider the new informa-

tion’. . . received, weigh this against other probative

taatebi: and then evaluatively concluded that appel- |

lant’s previous 1-A classification was proper in -the

situation.” 388 F. 2diat nei

g

“a7

In reversing vabiaihiatte conviction, the Miller court held

that it was not

.. validly possible for these ruiniliaatl rights [per

soil appearance and appeal] to be cut off... by a

local board’s choosing not to reopen, but to fle I

less engage in a similar consideration of ‘the situation

‘upon its merits, and then to accord to its classification

result the status of a denial = of the claimant’s

motion to reopen. ” 388 F.2d 976." ;

See also Umted States % v. Grier, 415 F.2d 1998 (4th Cir.

1969); Unitéd States v. Clark, 105 F. Supp. 613 at 615

~“(W.D. Pa. 1952).

A number of recent decisions ted analyzed. the feaak of

“de facto” reopening. Judge Weinstein, in United States

v. Baker, 1 R 3017 (E.D. N. . ¢ 1968) saw that, ©

. there no differcnee. between the way the [dis-

cretionary] interview was conducted and the way it -

would have been conducted had there been a reopening -

_ of this classification and a full review of the facts to

. determine sincerity. 43

And at 3019:

‘.... a full inquiry and hearing of the registrant’s con-

tentions did ‘take place even though it was designated ©

an ‘interview’ and the local board panel may well have

-.. believed that it was only. holding a hearing to decide if

a ee was ran hee panel's distinction be-

™ The Geet below recognizes that tis ‘Miller decision supports

petitioner’s argument but fails to analyze or distinguish it. 412

F.2d at 425. > .

eS.

tween a <iaee meeting and a special meeting is of. no

significance? Under the circumstances .., a reopening

_ Of the classification died occur as a matter of law." .

ene aceon.)

Identically, i in United States v. Westphal, 304 F. Supp. 951

at 954 (D.S.D. 1969), the Court held that,

Owes “when the local board invited the registrant to\ap-

pear before it in connectign with his request for con-

scientious objector status, that was in effect a reopen-

ing of, his: —:

The Fourth Circuit, i in Davis vs Umited States, 410 F. 2d

- 89 (1969), relying on Robertson v. United States, 404 F.2d

1141 at 1146 (5th Cir. 1969), rev'd en banc on other grounds

417 F.2d 440, held that the board improperly considered

the’ issue of sincerity without first reopening the regis-

it’s classification. Thus, shaving. cut off the registrant’s

ight to appeal on that crucial issue, the registrant was

held to. have been denied due ptocesé. See also Lane v.

Alten, 307 F.Supp. 881 (N.D. Ohio 1969).

“Ta United States v. Melrose, —— F.Supp. ——, Cr. 68-

124s ar S.D. December 4, 1969) the court held,

. when the local board proceeded . . to review ‘all ©

‘ ‘the evidence in the file’ including that submitted fol-

lowing its original classification, it has“reached a de- |

termination on the merits through a de facto reopening

‘of the defendant’s classification. ‘The action “of the.

board in labeling its determination a decision not to

reopen was a denial of ‘the ‘defendant’s procedural

rights.” (Blipshest opinion, p. 6. &

ee ee

19

. Judge Pettine, in his opinion in Murray v: Blatchford, —

307 F. Supp. 1038 (D.R.I. 1969), recognized the problem

of a de facto reopening incurred by a board which followed

the kind of rule urged by the Cert of Appeals below.

- local boards may run four-equare into the problem

of determining the merits of a registrant’s claim under

the guise of determining whether his claim is prima

facie sufficient [for'a reopening]. This would consti-

tute a de facto reopening ... If the local board goes

beyond the information set forth in the registrant’s

statement, it is. violating 32 C.F.R. 1625.4 and depriv-

ing the registrant of his rights to personal appesnanse

and to an appeal. ” at 1066.

Clearly, a “de facto” reopening occurred in the instant

case. The board interviewed: petitioner and indeed some

members believed he was requesting an occupational defer-

ment. His file was reviewed twice, once at the board’s

meeting of November 9, 1967 and again at the meeting of

January 11, 1968. After the meeting the following notation

was made in petitioner’s Selective Service file:

“All information in file was considered including claim

of Conscientious Objector. All members present felt

‘this information: did not warrant reopening ba 1-A

-class” (A. 14). (Emphasis oe

> Such ‘a finding on the ‘merits was characterized by the

board as not amounting to a reopening, thereby cutting off

petitioner’s rights of personal appearance and appeal. The

Court below compounded this error ‘by ratifying the local

board’s action and apparently approving of the legal fiction

gf

(

that a reopening in fact is not a reopening as a matter of

law. — , =

The Selective Service System itself has stated,

“Where a local board complied with the essential re-

' quirements there was a reopening ....” Hershey, Legal °

_ Aspects of Selective Service, 35 (1969).

20.

Sée also this Court’s discussion in Witmer v. United States, -

348 U.S. 375 at 383-384 (1954) of what appeared to have

-been a “de facto” reopening of Witmer’s classification with

regard to his claim for a ministerial exemption.

‘While the board characterized its finding as a refusal to.

reopen petitioner’s classification, the determination was in

truth and fact a decision regarding the issue of classifica-

tion itself; and thus a decision on the merits took place.

‘The action was erroneously approved of by the court be-

low. This “de facto” reopening should have invested peti-

_ tioner with rights of personal appearance and appeal. 32

C.F.R. $1625.13, §1624, §1626. These rights having been

withheld from petitioner after a “de facto” reopening of

his classification, a Violation of procedural due process

- oceurred.

Legal fictions may have their utility, but it i is a erenl and

cynical doctrine which exalts form over. substance and |

allows a man to be deprived of his liberty because an |

administrative agency arbitrarily chooses to use a label

which will cut off his valuable procedural rights. A

-ereature which looks like a cat, walks like a-cat, eats like

a cat, and purrs like a cat, is indeed a cat, even if some

-administrative agency calls it a dog. Amici respectfully

urge that the court below did not heed the admonition of

ee eee

21

Chief Justice Taft that courts should not be so blind that

they refuse to recognize what all others can see. See Bailey

. v. Drexel Furniture Co., 259 U.S. 20, 37 (1922); Gomilion —

v. Lightfoot, 270 F.2d 594, 608 (5th Cir. 1959) (dissenting

opinion by Circuit Judge Brown). It i is, We: ‘submit, the duty -

of courts reviewing administrative action, to make certain

“that the i image of the administrative process is not trans-

formed from a Rubens to.a Modigliani.” Cinderella Career

and Finishing Schools v. Federal Trade Commission, 38

USLW 2517, 2518 (D.C. Cir. Mar. 20,1970, Tamm, J .).

hae I.

The Court below erroneously applied: the “basis in

fact” test in determining whether petitioner was entitled

toa fonigeninig of his ctassiontion.

As. stated at page 8, supra, amici believe the soil

test of whether or not.a registrant is entitled to a reopen-

ing of his classification is. whether a. registrant presents’

new facts. which, “if true dnd uncontradicted“by other

information contained in his file, would be -sufficient under

the regulations to warrant granting his reclassification. s

United States v. Burlich, supra, at 911. Accord: United

States v: Grier, 415 F.2d 1098 (4th Cir. 1969); Umted

States v. Powers, 413 F.2d 834, 838: (1st Cir. 1969) ; Howze

v. United States, 409 F.2d 27 (9th Cir. 1969) ; Petrie v.

United States, 407 F.2d- 267. (9th Cir. 1969), en banc;

United States v. Gearey, 379 F.2d 915, 922 fn, 11. Addi-.

tionally, a.registrant is entitled to’ the presumptions in his

favor iniplied by the term prima facie. United States v.

‘Freeman, 388 F'2d 246 (7th Cir. 1967); Umited States v.

-

2

aha SSLR 3017 (epwy. 1968); Murray v. Blatch-

ford, 307 F. Supp. 1038 (D.R.1. 1969). f —)

In applying the “basis in fact” test, tether than the

test enunciated in Burlich, supra, the Court erroneously

made the standard for reopening equivalent to the. stand-

ard of ultimate success on the merits. Additionally, the

power of the courts to determine violationg of procedural

due process. would be no greater than their power to de-

termine the substantive validity of a classification. Cf.

Petrie v. United States, 407 F. 2d 267, 245 (9th Cir. 1969) ;,

United States v. Ransom, 223 F.2d 15 (7th Cir. 1955). See

also Mizrahi v. United ai 409 F.2d 1219 (9th Cir.

1969).

Finally, the Court below i in finding that a “basis in fact” 7

_ existed-on a ground other than that which the board found, :

violated the rule that the action of the board must _be

supported on the same grounds that it gave for such ac-

-° tion. Gatchell. v. United States, 378- F.2d°287 (9th Cir.

1967) ; Owens v. United States, 396 F.2d 540, 543 (10th

Cir. 1968) ; United States'v. Hawley, 2 SSLR 3113-.(D.

Minn. 1969) ; Benway.v. Barnhill, 300 F. Supp. 483 (D.R.I.

1969); United States v- Balderrama, 304 F. Supp. 822

= sige Tex. 1969). See_also Vitarelli v. Seaton, 359 U.S.

535 (1959); S-E.C. v. Chenery Corp., 318 U.S. 80 (1943) ;

‘Crane v. Hendrick, 284 F. Supp. 250 (N.D. Cal. 1968). °

va

.

ee

.

‘CONCLUSION

é the fore@ging reasons, amici reapocttally urge

that the judgment below should be reversed. J .

Respectfully submitted,

<a Magvin M. KarpaTKIN

_ . Micuarn N. Potter )

1345, Avenue. of the Americas

| ei York, New York 10019

mm |

eee WuLr

c/o American Civil Liberties Union :

156 Fifth Avenue ;

New York, New York 10010 .

E. Curry Fst, III c

c/o Central Committee for -

Conscientious Objectors -

2016 Walnut Street

Philadelphia, Pennsylvania 19103 .

Attorneys for Amici Curiae*

Of Counsel:

* Paut G. CuEviery ;

c/o New York Civil Liberties Union

156 Fifth Avenue

New York, New fis

©

* Attorneys for amici gratefully piidiniatilias the cvataabie

assistance of Mr. Edwin Oppenheimer, Jr., of fhe New York Civil .

Liberties Union Selective Service and llitary Law Panel.

|