RESPONDENT: United States
DOCKET NO.: 814
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Fifth Circuit
CITATION: 394 US 309 (1969)
ARGUED: Feb 27, 1969
DECIDED: Mar 24, 1969
Facts of the case
Media for DuVernay v. United States
Audio Transcription for Oral Argument - February 27, 1969 in DuVernay v. United States
Number 814, Raymond Joseph Duvernay, petitioner versus the United States.
Benjamin E. Smith:
Mr. Chief Justice and may it please the Court.
This is an appeal from Fifth Circuit by a young black Selective Service registrant from conviction at least in District of Louisiana, for refusal to be inducted.
I might say, the ability of the Court to this particular registrant when all the way through the system up to the point of where he was asked to be inducted and had said that he was not going to be inducted.
Now, he was in charged by indictment in courts, tried for this offense in federal court and was convicted.
Now, on the -- the thing that happened was that he attempted to defend his defense for the criminal charge, was that black people had been excluded from his Selective Service Board and in the midst of the trial of the case below, we discovered that the chairman of this black person's board was the president of the United Ku Klux Klan of America, Manny Jackhill, and at the same time, we found out in the process of counter case that the defendant had been denied an appeal by his board.
When he tried to tell him that he had a hardship deferment, it turned out that he and his mother with his sole support of himself and six and brothers and sisters, so that when the Fifth Circuit decided this case, it said that the defenses were foreclosed because he had failed to exhaust his administrative remedies below.
But I say to you that that can't possibly be because the boards below, the board in Louisiana, Board number 42 was perfectly incompetent to determine whether or not it was properly composed, whether its board chairman should have been the chairman or whether there should have been the board dissolved because the fact that negroes were excluded from service on the board.
These are constitutional issues which the board has no jurisdiction over and which could not be raised before the board and we'd have to admit be necessarily raised before the Court.
If we follow Judge Thornberry's opinion in the circuit, it would necessarily mean that these serious constitutional issues could never be raised because we know they can't be raised before the board.
The Government in its brief here agrees with us on that point and they cannot then under the Thornberry opinion out of the circuit be raised in the federal court and we know that that is impossible.
If we cannot raise it in federal court, it simply means that this defendant would then go to jail for five years in this case without ever having been able to raise these serious constitutional questions in any court competent jurisdiction.
And I think Mr. Justice Murphy when he wrote the concurring opinion in Esten , put it very well, he said that if at some point, these remedies are not available, well then, what's going to happen is that these people are going to go -- if it violates due process, then I'm just trying to find the citation.
To sustain the conviction of the two petitioners and this was in Esten.
In these cases, we'd require adherence to the proposition that a person may be criminally punished without ever being afforded the opportunity to prove that the prosecution is based on an invalid administrative order.
That violates the most elementary and fundamental concepts of due process of law.
Now, actually, I think that what we're trying to do is raise a constitutional issue.
The fact that negroes were excluded from the Board and the chairman was a clansman, that he was denied of appeal and the fact that these facts were not raised in the board below, in the draft board is absolutely irrelevant.
They wouldn't have anything to do with this classification.
If he had waived a right that related to classification and we were up here talking about classification, that would be one thing.
We're not talking about this man's classification.
We're talking about his constitutional rights to talk about the composition of that draft.
And what would be the effect, I ask the Court, of saying to this particular thing, you can never raise those issues in the Board and you can never raise those issues in this Court.
What would be the effect on the Selective Service System?
Because the Selective Service System itself is based upon the fairness of the system and presumably upon the knowledge by the country that the system operates in a fair manner that it reflects the qualities of life in America, that it reflects the characteristics of the community where the people lived that they have to serve, that they are drafted by their friends and neighbors and here we find draft boards and we all knew it in Louisiana where not one negro had ever served.
And they had an open clansman on the Board and they knew it but they didn't do anything about it until after this case when they got rid of it.
But what the confidence of the country would be shaken in these boards if we can't raise these issues and I say that we're required to do it.
We can't be foreclosed to do it.
The circuit opinion in this regard has got to be overruled.