Ehlert v. United States.

RESPONDENT: United States.
LOCATION: United States District Court for the Northern District of Illinois, Eastern Division

DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 402 US 99 (1971)
ARGUED: Jan 13, 1971
DECIDED: Apr 21, 1971

Facts of the case


Media for Ehlert v. United States.

Audio Transcription for Oral Argument - January 13, 1971 in Ehlert v. United States.

Warren E. Burger:

We’ll hear arguments next in Number 120, Ehlert against the United States.

Mr. Halvonik, you may proceed whenever you’re ready.

Paul N. Halvonik:

Mr. Chief Justice, may it please the Court.

The petition in this case is a conscientious objector, being such, he quite naturally refused to submit to induction, he was tried for that offense, failure to submit to induction, he’s found guilty --

Warren E. Burger:

Would you keep your voice slightly higher?

Paul N. Halvonik:

Yes, Your Honor.

He was found guilty and sentenced to two years in prison.

I observed that it was a conscientious objector, however, that claim has never been passed upon by his local board and the reason for that is he did not become a conscientious objector until after he received his notice to report for induction.

He couldn’t apply for the status before he was conscientious objector and at the time he became a conscientious objector, according to the local board, it no longer had jurisdiction to review his claim and that the Government contends is correct reading of the selective service regulations and the selective service law so that an objector such as Ehlert can never have his claim heard.

We think the Government’s risk misreading the regulation because there is a regulation that provides for reopening of classifications, reconsiderations by the local board, if after an order of Court for induction has been mailed, there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.

We contend that that regulation is applicable here.

Warren E. Burger:

You mean has changed in attitude or something over which he had no control?

Paul N. Halvonik:

Yes Your Honor but the Second Circuit and other Circuits following the jury decision have called it crystallization of conscience.

When that moment arrives, when he decides that he can do nothing else but not participate in war, when that moment comes, its crystallization is the circumstance over which he has no control and which --

Warren E. Burger:

Well, is it – do they say in those cases that the circumstance was one over they hadn't approached or he had no control or the time or both?

Paul N. Halvonik:

Well, it comes at a time which is after the order report for induction.

The cases to which I refer all say that the reopening occurs under 1625.2 and that language in that regulation is that you have a reopening if there were circumstances over which the registrant had no control.

The theory of the majority below in the Ninth Circuit here that one does have control over his conscience and for that reason the registrant wouldn’t come within the regulation.

I don’t think the Government is currently, at least not being enthusiastically supporting that view.

The Government seems to say now that this isn’t a circumstance within the meaning of the statute, they cite no authority for that and they seem to claim that a circumstance has to be some sort of external event that’s verifiable.

I think that -- confused with the circumstances within the meaning of the regulation, the circumstance I assume the regulation means its approximate circumstance.

That is to say, if when after he receives a notice to report for induction, should be struck by an automobile have a leg broken, the circumstance that results in the reopening is not being struck by an automobile but having a broken leg.

It’s not the external event if you will but personal --

Some of us on this end of the bench are having great difficulty in hearing you.

Paul N. Halvonik:

I’ll try to speak up, Mr. Justice Harlan.

Would you please.

Paul N. Halvonik:

Another analogy might be since the Government seems to be saying that has to the event that’s externally verifiable should a man after receiving an order to report for induction become mentally incompetent.

I think we would say that there had been a circumstance for which he had no control which should intervene and which required reclassification.

Now, there would be nothing outside the man that we’d look to that, we would call a circumstance and yet without torturing the language at all, we would say that some circumstance had occurred that changed the status.

He was no longer competent, he was no longer a person who fitted in to the scheme of the manpower pool for selective service system.