Ehlert v. United States.

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

DOCKET NO.: 120
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

Question

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.

Potter Stewart:

I suppose it’s clear that if he — when on an automobile accident that cut his leg off, so would that under the regulation you and the Government would agree would there be a circumstance beyond his control that would clearly affect his status on the selective service, but that if he enrolled as a bonafide student and as an undergraduate and a bonafide at college, after receiving an induction notice that would clearly be something within his control and would not justify reopening, you would both be agreed on those two appointed position according to the regulation?

Paul N. Halvonik:

In both agree in both of those cases.

Potter Stewart:

And the question is here whether a status of conscientious objection which my hypothesis crystallized or occurred after the induction notice falls under the one category or the other, is that what this case is about?

Paul N. Halvonik:

That’s partially what this case is about.

I think that that’s the — the principal controversy at the moment, it seems to me there’s another problem here.

If this sort of case involving a conscientious objector — if we should conclude that this is not a circumstance within the Government’s theory, that this isn’t the sort of case where this regulation applies, then perhaps the regulation isn’t authorized by Congress because Congress has said that nothing contained in this title shall require a conscientious objector to serve and the conscientious —

Potter Stewart:

What’s Congress said about divinity students for instance?

Paul N. Halvonik:

I’m not sure precisely if that is the same provision, nothing but it would still be different, I would get to the different point with any other classification other than a conscientious objector could take advantage as the Government suggests of getting out once he gets in the army and that would apply to divinity students I suppose as well but a conscientious objector —

Potter Stewart:

I’m saying about a person who enrolled in a divinity school, after receiving his induction notice and the regulation as it is written would not allow him to —

Paul N. Halvonik:

That’s true, that’s something over which he definitely would have some control.

Potter Stewart:

Would have control although a divinity student as I thought was expressly exempted by Congress from being inducted.

Paul N. Halvonik:

But what you’re suggesting there I think is that — my interest here was not whether he had control or not and that he can control the circumstances perhaps, get out and perhaps it wouldn’t be authorized to the divinity student neither, I’m not sure that there isn’t a real problem with cutting off any of these late maturing claims, but it seems to me clearly, the regulation itself contemplates a reopening when the claim is one that couldn’t have been made before and over which the man had no control and that’s the precise case that we have here.

At least we have that facially in his application, he’s made a prima facie case that he had late crystallization that was conscientious objector I believe and additionally has made a prima facie case that he is a conscientious objector, and in that situation we contend there should be a reopening.

And that we just point out to emphasize additionally that if the regulation isn’t read that way, there is no form for this man.

The Government at certain points in the brief seems to suggest that he’s been dilatory but this isn’t just a late claim, this is a late maturing claim, he couldn’t have made the claim before he received the order to report for induction because he was not to his conscience and his mind the conscientious objector at that time.

Potter Stewart:

I gather that there’s a good deal of difference of view between you and your brothers on the other side as to whether or not there is a forum for this man.

I understood you to say there’s no forum whatsoever if you don’t prevail in this case and I understand it from the Government’s brief that they concede and tell us, advise us that his forum would be after induction when he asserts his claim of his conscientious objector in the army, that the army has basically the same standards as does the selective service law with respect to conscientious objectors?

Paul N. Halvonik:

But the difficulty with that —

Potter Stewart:

Have I misunderstood the Government’s brief?

Paul N. Halvonik:

I think you understand it precisely and the difficulty with that position is this Court noted in the United States — in the Malloy case in the footnote quotation from United States v Freeman in footnote six, there are conscientious objectors in Mr. Ehlert’s who cannot submit to induction, so that’s the form they can’t reach and their objection is to any participation with —

Potter Stewart:

With regards to statute doesn’t protect those who cannot submit to induction, maybe the Constitution does but the statute talks about service doesn’t it?

Paul N. Halvonik:

Yes, but the —

Potter Stewart:

Not induction?

Paul N. Halvonik:

— the statutory scheme is to permit a man to follow his conscience and not submit to —

Potter Stewart:

Yes but what’s the statute?

Paul N. Halvonik:

— not participate in the service at all.

Potter Stewart:

But would the Congress write — it didn’t say that they’re exempted from being inducted, did it?

Paul N. Halvonik:

With Congress, they have to do alternative service that’s true.

Potter Stewart:

Yes.

Paul N. Halvonik:

But they’re exempted from being inducted into the armed forces, yes.

Potter Stewart:

Inducted?

Does it say so?

You’re talking about the words that’s not in here.

Paul N. Halvonik:

Well, they can’t be subjected to combatant training and service in the armed forces of the United States.

But once one is abducted, that’s what occurs.

Potter Stewart:

Not if he immediately files a conscientious objector application, is he?

Paul N. Halvonik:

The conscientious objector, however, in the conscientious objector such as Ehlert cannot submit to induction into the armed forces.

Potter Stewart:

Well, that’s a (Inaudible) but the — even if his objection had been —

Paul N. Halvonik:

We pointed out in our brief Mr. Justice —

Potter Stewart:

My point is that Congress doesn’t protect the conscientious objector from being inducted?

Paul N. Halvonik:

I think it does Your Honor, we —

Potter Stewart:

In which words?

Paul N. Halvonik:

And we pointed out —

Potter Stewart:

The word that the Congress used.

Paul N. Halvonik:

We pointed out in our brief, in our closing brief here that the legislative history of the 1967 Act shows that there was originally a provision in that Act to provide the conscientious objector, first submitted to induction and that was specifically removed and the point was made in the debates on the floor that there are people who cannot submit at all and that’s what their conscience is about, and this —

Warren E. Burger:

Had not the army — has not the military service allowed conscientious objector claimed to be made within that framework even after they’re in a combat zone?

Return them to the United States for that to process them?

Paul N. Halvonik:

Military will of course, that’s the claim that matures after you’re in the army.

There’s another problem with going to the army for them.

Warren E. Burger:

That’s I though what Mr. Justice Stewart was probing at that there is another remedy available to him?

Paul N. Halvonik:

But he can’t reach the remedy because he can’t submit to induction.

His conscience won’t permit him to, but even if he did, we still are not sure whether that would be the case because the army regulation is designed to provide a remedy for those who become conscientious objectors after they enter the service and this man became one before the time for induction came.

Harry A. Blackmun:

Mr. Halvonik, I would like to join Mr. Justice Harlan’s remark, do try to keep your voice up, it’s hard to hear you over here.

Paul N. Halvonik:

Very good, I shall try again Mr. Justice Blackmun.

The only argument that I can see, the Government essentially says that circumstances should not mean these kind of circumstances, I cannot see any reason for that and we’ve tried to meet that in the brief and I’ve tried to meet it here.

The only other argument that the Government has made in favor of its construction is that it makes for efficiency and I think that’s wrong.

It may result in less burdens on the Local Selective Service Board but that inefficiency are not coterminous, they’re not synonymous, in fact sometimes they’re antagonistic.

If the Selective Service doesn’t want to look at conscientious objector claims at all, and then just ignores them all, the local boards won’t have any hearings.

I suppose that it makes life easier for them but that doesn’t make them more efficient in their job, because it’s their task to remove from the manpower pool those people who Congress says are not to serve, and that’s their job, and the construction, the petitioner seeks in this regulation promotes they’re doing that job and promotes assuring that a man such as Ehlert doesn’t get to the induction center, doesn’t have to refuse and make for inefficiency throughout the governmental system because the congressional scheme is to keep conscientious objectors out before that point, so that they’re not prosecuted and they’re not going to jail.

I mean, that place is the burden, shifts the burden if adopt the Government’s theory from the local boards.

Would you say, Congress, the straight forward regulation was passed and (Inaudible) claimed by the administration, all conscientious objector claims had to be filed before a notice of injunction first?

Paul N. Halvonik:

Well, that essentially is what the Government is saying the regulation says, and I would say that such a regulation would not be authorized by Congress because it provides, because the Congress says conscientious objectors shall not be required to submit and subject to combatant training in service.

Why?

Paul N. Halvonik:

Now, it’s quite different from the Government regulation that says if you’re a conscientious objector, before you receive an order to report for induction and you don’t tell us until after that you’re cut off that slept on your rights, that would raise some interesting questions but that’s not this case, he didn’t sleep on his rights.

He wasn’t a conscientious objector until he receives an order to report for induction.

Congress has said conscientious objectors should be exempted.

I don’t see how they can adopt to regulation that flies in the facie, the congressional —

Thurgood Marshall:

Suppose Congress said that when you receive the order of induction, you are inducted?

Paul N. Halvonik:

I’m not sure I understand but you mean that you wouldn’t have to go a station somewhere, that you’re inducted as soon as you receive the order to report for induction?

Thurgood Marshall:

What would happen to this case?

Paul N. Halvonik:

Well, the difference in that I suppose would be that his claim wouldn’t have crystallized and it’s early been induct after the point of induction if that were the case and then I think the forum would still have to be provided for him and the service would provide such a forum.

Thurgood Marshall:

What forum?

In the service or in army?

Paul N. Halvonik:

Well, would have to be in the service because as you define it, he is already inducted as soon as soon as he gets the notice, so he’s immediately in the army but I don’t think Congress was liable to adopt such as system because nobody can refuse to submit to induction under that period.

Thurgood Marshall:

If this so, you’re applying to take a position that he didn’t voluntarily get inducted or so?

Paul N. Halvonik:

I think that would probably be the case, yes.

Thurgood Marshall:

My big problem is they’re suddenly (Inaudible) and taking the old one.

Paul N. Halvonik:

Well, I think we find that in all kinds of experiences in life particularly in those where it’s a combination of cognitive fact of this and emotional fact to this to draw a romantic analogy, I don’t think you’re will yourself into love with somebody whom you know, it may come for a moment and then even you can’t detach yourself very easily from it either, even though everything rational on a cognitive.

Thurgood Marshall:

My point is not that he is a conscientious objector, he can’t even take the oath in order to dedicate in, rather than trying to taking the oath to engage in war, is that his position?

Paul N. Halvonik:

Well, his position was that he would not submit to induction Your Honor.

Thurgood Marshall:

Regardless if nothing happen afterwards?

Paul N. Halvonik:

Did anything happen after he refused to submit?

Thurgood Marshall:

Only if he was inducted and started to see all the vicinity of the army and stayed right there in the camp and litigated and all, he couldn’t go through that?

Paul N. Halvonik:

He couldn’t become a member of the armed forces now.

Thurgood Marshall:

Yes, just couldn’t?

Paul N. Halvonik:

Just couldn’t and that’s not only Mr. Ehlert, that’s — there are a lot of religious sects, a number of religious sects that also adopt that philosophy.

Thurgood Marshall:

Which religious sects —

Paul N. Halvonik:

Jehovah’s Witnesses as far as I know.

Thurgood Marshall:

Which religious sect says that when you get your induction notice you don’t like war?

Which sect is that?

Paul N. Halvonik:

Well, that was a different point from the one I was trying to make Mr. Justice Marshall.

I was just saying that there are religious sects that cannot submit to induction.

There’s no religious sects that says that when you decide at the last moment, you don’t go to war, that that’s part of the philosophy but it does happen, I might point out the United States Court of Appeals for the Seventh Circuit on January 5, adopted the construction of — we advanced here in the Nordlof case, they reverse their previous position and joined the Second Circuit, and other circuits that have adopted the construction we contend for and that case involved the Jehovah’s Witness.

A man who married a Jehovah’s Witness before he receive his order to report for induction and went to through a period of talking with his wife and her parents and hadn’t decided he was a Jehovah’s Witness yet and really it didn’t put it all together until after he’d received the notice to report for induction and then he talks some more and he finally concluded that he was indeed a conscientious objector and he didn’t raise it until he got down to the induction center and that’s when he raised the point and the Seventh Circuit held a very scholarly opinion that this man was entitled for benefit of regulation Section 1625.2.

William O. Douglas:

What is the name of that case?

Paul N. Halvonik:

It’s United State v. Nordlof, Mr. Justice Douglas, it was decided on January 5.

William O. Douglas:

Nord?

Paul N. Halvonik:

Nordlof, N O R D L O F.

Potter Stewart:

And he hadn’t communicated with his Selective Service Board at all until he got to the induction?

Paul N. Halvonik:

Until he got to the induction center.

Potter Stewart:

Is the induction center an army establishment or is in a selective service establishment?

Paul N. Halvonik:

In this context, the two circuits that had faced the question have decided that it’s an extension of selective service.

Potter Stewart:

It’s run by the United States Army?

Paul N. Halvonik:

Well, that maybe but of course the Government contented for years that it was an exhaustion of remedies that always occurred there if you didn’t go through physical or something of that nature and so that it was really an extension of selective service and that both the Second Circuit in Stanford, now the Seventh Circuit in Nordlof have come to the conclusion that they are extensions of Selective Service System for the purposes of re-openings where a change has occurred after the notice to report for induction and that’s not so strange because it happens all the time in physicals, you know, physical examinations if its determined down there.

Even though the application had been made before if its determined that the selective service induction center that the man isn’t physically fit, if there’s been a change, he’s taken out of the — he is given a one Y or four F and he’s not inducted.

But anyway, I was saying that I don’t think that our construction at all produces any problems as far as the efficiency of the selective service system that the construction that we seek in this regulation would result the Selective Service System doing what its job is and not having conscientious objectors in jails where none of the purposes of penology are served.

And on the other side, the construction that we seek provides nothing but a forum for those who have late maturing claims.

And one thing they have to establish is that their claim is late maturing under the construction we seek.

A man who’d been dilatory or slept on his rights wouldn’t get the advantage of the rule that we are seeking here, we don’t foreclose that possibility but as far as Ehlert’s concerned, his was a late maturing claim, he’s made a prima facie case and that ought to be enough and there is no reason and no suggestion by Congress that conscientious objector are to be treated differently from other people who are deferred or exempted under the draft and yet that is what happens if we accept the Government’s construction, because persons with other sorts of claims, other sorts of change of status for example, somebody becoming a sole surviving son after a order to report for induction, even the Government concedes that their cases can be reopened.

There’s no reason to think that the conscientious objector shouldn’t be reopened, the congressional history is clear that a conscientious objector is supposed to be given the same sort of treatment as every other person exempted or deferred.

Potter Stewart:

Well, on the other hand, you concede that a bonafide undergraduate college student could not get a reopening, if he went to college after his induction notice, don’t you think?

Paul N. Halvonik:

Well, but that as a matter is not beyond his control, that’s what we’re talking about.

Potter Stewart:

But you’re talking — you just told us that the conscientious objectors are the only ones except for military service who were treated this way.

Certainly, the college student who goes to college after his induction notice is treated this way.

Paul N. Halvonik:

But he’s treated that way because it isn’t the matter beyond his control but everybody else was something —

Potter Stewart:

But here the question —

Paul N. Halvonik:

But that’s the reason he’s not treated the same.

If students were drafted to colleges and a man received his draft notice to school after he received this draft notice report for induction, I would assume that he would be exempted.

It doesn’t happen that way but it does happen that way with conscientious objectors, there is a moment in time —

Potter Stewart:

Drafted by his conscience or —

Paul N. Halvonik:

Yes.

Potter Stewart:

— or by the almighty or whatever.

Paul N. Halvonik:

Precisely, of course that’s the analogy that the Jehovah’s Witnesses use.

Potter Stewart:

The Second Circuit has —

Paul N. Halvonik:

The Second Circuit has Your Honor —

Potter Stewart:

I don’t quite understand.

Paul N. Halvonik:

It’s about evenly divided.

Now, the Government said the way to the circuits was with them but I think it’s even now because with the seven switching.

May I say that the contrary construction goes back by countering in the Government’s construction goes back to United States v. Shobel of the Seventh Circuit, that’s where they all began and that case is now overruled in the Seventh Circuit and one other point I should make about the Nordlof case is that relates to the decision by three members of the panel in the Seventh Circuit.

There’s a notation in the footnote that it was circulated among all the members and majority agree with inclusion that Shobel should be expressly overruled.

If there are no further questions, I’d like to reserve the rest of my time for rebuttal.

Warren E. Burger:

Very well, Mr. Halvonik.

Paul N. Halvonik:

Thank you, Mr. Chief Justice.

Warren E. Burger:

Mr. Rehnquist?

William H. Rehnquist:

Mr. Chief Justice and may it please the Court.

Let me advert very briefly to the facts as they appear to the Government to bear on the appropriate decision of this case.

On July 24, 1961, the petitioner registered for the draft because he reached age 18.

On January 17, 1964, the petitioner returned his classification questionnaire to the local board making no assertion of claim to conscientious objection.

On April 15, 1964, petitioner was ordered to report for a physical examination on May 26, 1964.

In June 16, 1965, the petitioner’s induction notice was mailed to him directing him to report for induction on July 14, 1965.

One day before the date scheduled for his induction, on July 13, 1965, the petitioner mailed a letter to his local draft board asserting that he was a conscientious objector.

The petitioner was tried for violation of the applicable statute convicted by the District Court and the judgment was upheld by the Ninth Circuit in a split of eight to five in that Court.

The questions raised by the petitioner go to the proper interpretation of the regulation whether the regulation as interpreted by the court below was consistent with the statute.

The regulation as is set forth in the briefs, the critical language is that reclassification after mailing of induction notice is cut off in all cases unless it is based on a claim of “change in the registrant’s status resulting from circumstances over which the registrant has no control, and the regulation as construed by the court below is designed to exclude all post notice of induction claims subject only to a very narrow exception and the exception is — requires two facets, one must meet both facets to come within the exception.

The first is that it be a non-volitional change and the second is that it be a change resulting from circumstances over which the registrant had no control.

Now, there were two opinion, three opinions in the court below agreeing with the result of affirmance of the conviction. Judge Kilkenny writing the court’s majority opinion stressed the volitional nature of a change in conscientious belief.

Judge Donahue with the concurrence of three of the other judges of the panel who also concurred with Judge Kilkenny stressed the common sense in dictionary definition of the word circumstances in the context used in the regulation concluding that as used the term referred to some event external or extraneous to the registrant and therefore that it was unnecessary to engage in the debate that had gone on between the other circuits which had considered this matter as to whether a change in conscience was volitional or not since regardless of that, such a change was not a circumstance as used in those regulations.

Both Judge Kilkenny and Judge Donahue relied also on the serious practical consequences of a contrary construction as expounded by Judge Merrill for the dissenters in reaching the result that they did.

Potter Stewart:

How has the selective service system as to regulations bring the ambiguity?

William H. Rehnquist:

I can’t answer that Your Honor.

William H. Rehnquist:

There’s no doubt that this thing is something that can reasonably argued either way.

I think that — I beg your pardon?

Potter Stewart:

I say there’s no question as to its ambiguity?

William H. Rehnquist:

I can’t —

Potter Stewart:

Splits the circuit intramurally split between circuits

You read either way?

William H. Rehnquist:

I do know that the selective service system is presently in the process of a complete overhaul of its regulations and hopefully this type of thing will be ultimately eliminated and I think also that you know, not just in this situation but in others, something that when you write it appears perfectly clear, you get a particular fact situation to apply it to and all of a sudden there’s an ambiguity you didn’t notice there when you were writing.

Potter Stewart:

What was it made, the sentences are —

William H. Rehnquist:

Gearey was, the first Gearey case was 364 F.2d which would place it I suppose four or five years ago.

Potter Stewart:

(Inaudible)

William H. Rehnquist:

(Inaudible) was back in the 50s I think.

But I think — I believe Gearey was the first case that went the other way though I’m not positive about that.

Harry A. Blackmun:

Mr. Rehnquist, may I ask you a question?

To what extent do you rely on the so called Department of Defense directive?

William H. Rehnquist:

Well, we think it’s an important factor in this case, Mr. Justice Blackmun.

We have not only set forth the DOD regulation, we have checked within the past week with the Office of the General Counsel of the Army and received his assurance that this type of claim that was not considered on the merits by the Selective Service System is considered when raised under the army system —

Harry A. Blackmun:

You know, perhaps you can straighten me out as to the DOD directive.

The first sentence speaks of federal courts upheld that a claim to exception must be interposed prior to notice of induction and failure to make timely claim constitutes a waiver, this I take it is the Government’s position here.

Now, the second sentence seems to me to be internally inconsistent.

It says a request for discharge after entering military service base solely on conscientious objection which existed but was not claimed not prior to notice but prior to induction.

Is it internally inconsistent?

William H. Rehnquist:

If read literally, I suppose it is.

I think taken in context with the first sentence, Mr. Justice Blackmun that the focus is notice of induction rather than induction and that’s the interpretation that the general counsel of the army places on.

Harry A. Blackmun:

Certainly, it doesn’t say that, does it?

William H. Rehnquist:

It doesn’t say it in so many words, no.

As you commented Mr. Justice Stewart in the cutting of a claim for a purely voluntary reason, the case of a teacher who becomes a teacher after notice for induction.

Now, that’s been upheld by the Third Circuit this past year in case called Clark versus Volatile which is the same case that in September went the same way as the Second Circuit had gone in Gearey.

So to say as petitioner does that we treat conscientious objectors in some invidious way that we don’t treat any other kind of claims for a change in registration just isn’t so.

In fact, —

Potter Stewart:

Well, it depends really.

Potter Stewart:

I think on whether you accept the proposition that a conscientious objector whose objection crystallized or post induction of it is somebody who comes under the regulation.

If he is, if he is then you treat him differently from the way you do the man who was hit by an automobile had his leg cut off.

If on the other hand, you don’t accept the fact that he comes under the definition then you’re quite right that you treat him no different from the way you treat a man who goes to divinity school after his — after his notice of induction was sent.

William H. Rehnquist:

Yes, and certainly if we —

Potter Stewart:

Is that it?

William H. Rehnquist:

If we treat him contrary to the way the regulation says we should treat him, you don’t need any further argument, I suppose, to conclude that we’re doing wrong by it but we say the regulation construed perfectly consistently with its language does cut off not just conscientious claims but any claim that maybe result from volition and of course before notice to report for induction, there are any number of things that one may do volitionally to obtain exemption.

One may go to school, one may enter the ministry, one may become a teacher, these are barred and there has been no suggestion in any Court that’s considered the point that they may not be barred post induction notice.

So, the unifying theme of the regulation is the notion that not only is volitional move to obtain exemption totally cut off with the mailing of the induction notice but that only those non-volitional types of claims which are capable of ready verification by the local board consisting as it does of laymen meeting irregularly.

The sole surviving son exemption, a brother shot down in a plane of something like that that can be verified with a letter or a phone call is something that can clearly be disposed off by the board one way or the other between the time of notice of induction and the time of reporting for induction which is near as I can tell from these cases seems to have run during this period of time of — from between three and four weeks.

A claim to a change in ones conscience, a change in conscientious status requiring as it does both the ascertainment of a present state of mind and a determination of whether or not that is a change of the state of mind one held prior to induction is a factual and of extraordinary difficulty and even had this petitioner mailed his claim the day after he received his induction notice, a local board would have had great difficulty passing on it, prior to the time of induction deciding it one way or the other and certainly when he mails it on the day before he is scheduled to report for induction, he assures the absolute impossibility of the board being able to pass on it.

In short, he assures himself regardless of the merits of his claim, regardless of the merits of his conscientious objector claim or of his claim to a change of mind of getting a postponement in the date set for induction.

And in effect, somebody else who had a higher lottery number who is not being called that month is put into the manpower pool to replace him while his case remains in limbo for some un-ascertainable period of time while the local board makes the determination if you follow the Gearey procedure and we’re to adopt Gearey as to whether in fact there has been a change of status or not.

Potter Stewart:

Mr. Rehnquist, you don’t necessary do it now at all but I hope that you will before you finish your argument, state as clearly as you can if you can the Government’s position with respect to assuming the bonafides on this conscientious objector status just where and when can he assert the claim and how would it be processed?

I don’t mean in your own order but I hope you will explain.

William H. Rehnquist:

Yes, well, let me address it right now if I may.

The DOD directive which we cite and the assurances we have from the general counsel of the army as of this past week are that a registrant whose claim is not passed upon on its merits because — it arises post induction notice isn’t passed on by under merits by the Selective Service Board maybe offered and considered under the army regulations as soon as the registrant is inducted.

Potter Stewart:

That would be before any combatant training or service?

William H. Rehnquist:

My understanding is that as soon as that kind of a claim is made in the army, the man gets what is in effect a desk job in a situation where he is not further processed into the military system until there has been a disposition one way or the other of his claim.

If he prevails he gets discharged?

William H. Rehnquist:

If he prevails he gets discharged.

The petitioner claims that since under his view of the statute, it confers a right of exemption on the conscientious objector and doesn’t expressly authorize any regulation which may limit the time in which that claim can be asserted, that the regulation is here applied by the court below as inconsistent with the statute and therefore unauthorized.

I think this claim proves too much and would cite at least two points in support of that observation.

There is no expressed statutory authority in 6 (j) for barring the assertion of conscientious objector claims which have existed previous to induction notice but haven’t been asserted and yet even the Court’s which have gone the Gearey route have said that this is a proper function of the regulation that the man who was always a conscientious objector but fails to assert it until the time he receives the induction notice can validly be barred and yet there’s no statutory authority for that.

It’s simply the application of a procedural rule that is fairly designed to both permit reasonable processing of these claims and to effectuate a necessary ultimate cut off date and change it.

Potter Stewart:

Well, that’s waiver I suppose and after all you can even — you can waive even constitutional rights?

I suppose that could be misunderstood in terms of waiver, you had an objection but you didn’t make it?

William H. Rehnquist:

Well, but Mr. Justice Stewart, his waiver is so significantly different from a procedural cut off, neither of them are expressly authorized by statute, both of them are well recognized in almost any system of procedural adjudication.

Perhaps waiver because it is — you know, something that every lawyer responds to almost instinctively with an affirmative notion, maybe waiver is different but I don’t think it that — it’s completely different and I think the type of procedural thing we’re talking about here is by no means completely distinguishable.

The same Section 6 (j) of the Act that confers the right of conscientious objector exemption also confers in unqualified terms a right of appeal and although this precise language is this, “Any person claiming exemption from combatant training and service because of such conscientious objection shall if such claim is not sustained by the local board, be entitled to an appeal to the appropriate appeal board”, and yet I suspect even petitioner wouldn’t contend that the president under his general authority to promulgate rules isn’t entitled to set some time limit as within which an appeal from an adverse decision of a local board must be taken to the appeal board.

Surely, on the day before you need to report for the induction, you can’t come in and say, “Well, I’ve decided to appeal to the appeal board from the local board’s adverse ruling two years ago, that I wasn’t a conscientious objector.”

William H. Rehnquist:

So, it simply is an overly simplistic to use an overly used word.

Construction of the statute to say that because it confers a right of conscientious objection, there may be no procedural regulations governing how that right is to be set forth or how it is to be processed, and as occurred earlier in the colloquy between counsel and I believe Mr. Justice Stewart.

If you parse the sections sentence by sentence, the only unqualified right conferred, even if you take a literal reading is the right to be exempt from combatant training and service.

The right to be exempt from induction is conferred only upon those who are found by their local boards to be conscientious objectors.

I don’t think you can read either one of those statutes’ sense as literally to the exclusion of the others.

I think that the overall result that you get from a fair reading of the section is that there is a substantive right of conscientious objection and that reasonable rules are permissible so long as they serve a legitimate and to the Selective Service System and its administration and don’t unreasonably restrict the right of the conscientious objector claimant to assert his claim in that forum.

Are there any figures available, Mr. Rehnquist, as to the number of the supposed induction that changes your judgment claim?

William H. Rehnquist:

Mr. Justice Harlan, there are and I regret to say that the Selective Service System in past years not only may have been guilty of writing ambiguous regulations.

It has been guilty of not keeping as much statistical information as it should.

What we have is figures for August, September, October and November of 1970 and this is the first time selective service nationally began keeping these figures.

During this four month period, there was a total manpower call of 42,000.

During the same four month period, the total number of registrants who asserted post notice conscientious objector claims was 2695.

In other words, the very statement of petitioner in his brief that the service will be easily able to adjust to this insignificant insubstantial burden is squarely at odds with these facts.

6.42% of the total manpower call in the last four months is asserting post notice conscientious objector claims.

Hugo L. Black:

Not just conscientious?

William H. Rehnquist:

Not just conscientious objector claims but post notice conscientious objector claims and if you take the states with large metropolitan jurisdictions, the facts are even more startling.

California which leads the nation had a draft call during this period of time of 4191 total men called into service.

During that period, in California, 490 persons asserted post notice conscientious objection claims.

If you take the 10 states with the highest rate of post notice conscientious objector claims, the average rate of those claims is 11.22% of the total men called to the service in those states.

Now, —

Hugo L. Black:

You have those 10 states in your brief?

William H. Rehnquist:

Mr. Justice Black, I apologies to say we didn’t even have this figures at the time we wrote the brief.

The brief was submitted the first of —

Hugo L. Black:

What State had the most?

Do you know?

William H. Rehnquist:

California had the most, New York next, Michigan, Massachusetts, Washington, Connecticut, Colorado, Oregon, Rhode Island and the District of Colombia in that order.

Would you submit those?

William H. Rehnquist:

Yes, we would be happy to Mr. Justice Harlan, prepare perhaps a more detailed summary of the figures that I have given here orally and file them with the Court as soon as possible.

Potter Stewart:

One other thing Mr. Rehnquist to go back when I asked you about the forum available to men situated as this petitioner is and you told us about the army practice.

Did I understand you to say that should have a communication from the army within the last 10 days or so?

William H. Rehnquist:

Yes.

Potter Stewart:

If unless that’s confidential or for some other reason, could you make that available.

William H. Rehnquist:

It certainly isn’t confidential Mr. Justice Stewart and we will see to it with the Court’s permission that we incorporate that in the same submission in which we incorporate the statistics.

Byron R. White:

What is the procedure Mr. Rehnquist which the army would follow if immediately perhaps (Inaudible) was presented to the army?

William H. Rehnquist:

My understanding Mr. Justice White is that as soon as the claim is presented, the man is given what is generally foretold as a desk job or a headquarters type job, so that he will be available in the area of the either army center or in —

Byron R. White:

So, he isn’t sent to training or anything?

William H. Rehnquist:

No, the training is as I understand it is differed completely until the mans claim —

Byron R. White:

What we’re arguing about here then is whether there can — whether the Government may validly under the statute force a change of venue or a change of forum for the hearing of the conscientious objector claim?

William H. Rehnquist:

Whether the affording of the army forum rather than the local board forum under the circumstances presented here is consistent with the statute and regulation.

Byron R. White:

Well, there’s no claim that the forum — there’s any difference between the forum, is there?

William H. Rehnquist:

I know of no such claim.

Byron R. White:

I mean in terms of fairness or anything like that, it’s just a question of whether you have to inducted before you get your claim heard?

William H. Rehnquist:

So, far as I know that that’s the only difference.

Thurgood Marshall:

It’s a military?

William H. Rehnquist:

It’s a military forum, yes Mr. Justice Marshall.

Thurgood Marshall:

I assume that they’re really doing different?

William H. Rehnquist:

But I think the issues are the same and —

Potter Stewart:

Same criteria, same standards?

William H. Rehnquist:

So far as I know, it’s the same criteria and —

Potter Stewart:

Welsh against the United States?

William H. Rehnquist:

And the same as far as I know from reading their most recent directive that they are well aware of Welsh versus the United States.

William J. Brennan, Jr.:

And by whom in the military is the claim considered the —

William H. Rehnquist:

There —

I can’t give a real accurate answer, Mr. Justice Brennan.

I believe it’s a series of interviews and then there’s an army board which evaluates the material gained and in effect holds a hearing.

I’m not as confident as I should be in the correctness of that response.

William J. Brennan, Jr.:

I suppose you could let us know that too?

William H. Rehnquist:

I would be happy too, if I might submit that along with the other two management Mr. —

William J. Brennan, Jr.:

Could a claim that as soon as he’s inducted after the board refuses to hear his late maturing CO claim, that a claimant immediately filed petition for habeas corpus?

William H. Rehnquist:

I think he’d have to exhaust his administrative remedy.

William J. Brennan, Jr.:

If there is one.

William H. Rehnquist:

Yes, I’ve been going in the assumption that —

William J. Brennan, Jr.:

I was just saying if – it’s one way or the other, either there’s administrative remedy or there isn’t, if there isn’t he could go to federal habeas.

William H. Rehnquist:

What you say make sense to me but I haven’t examined that branch of the law and don’t —

Potter Stewart:

I mean if the — if the board has refused to consider his claim on the ground that has late matured and has now passed beyond their jurisdiction.

William H. Rehnquist:

Well, —

Potter Stewart:

— he ought to be able to present it somewhere?

William H. Rehnquist:

Yes, but look at the man who does not, who is a conscientious objector in 1964 gets an induction notice in 1965, has never had his — has never presented his claim.

Now, the local board won’t hear his claim.

Potter Stewart:

That’s right.

William H. Rehnquist:

Yet I have — I’m not at all sure that when he’s inducted, he can necessarily resort to federal habeas corpus.

Potter Stewart:

Well, I’m not talking about him.

I’m talking about the late maturing delay in that.

William H. Rehnquist:

Well, I should think that he could resort to federal habeas corpus.

Potter Stewart:

Thank you Mr. Rehnquist.

Mr. Halvonik, you have about seven minutes left.

Paul N. Halvonik:

Thank you Mr. Chief Justice.

Let me first talk about these figures because I hadn’t heard them before either.

I noticed they were —

Potter Stewart:

By the way Mr. Halvonik, you’ll have an opportunity to submit any response in the way of commentary on the material that Mr. Rehnquist presented.

Paul N. Halvonik:

Very good, let me — if I can also just comment on some initial thoughts which is that these figures referred to post notice claims, again, the Government hasn’t made the distinction between dilatory claims and late maturing claims and the Government has continued throughout this litigation to ignore that distinction and apparently it has in gathering its statistics too, so they’re not very helpful, but the most remarkable thing I found about them was that California is a place where they have the largest number of these claims, California where Ehlert’s the law not New York where Gearey is the Law.

Now, if that tells us anything then at least means that the rule, the petitioner is asking for does not encourage late claims.

It doesn’t seem to have any effect on the number of them, they’re going to be there anyway and they’re going to have to be dealt with and they’ll have to be dealt with either by prosecutors or the army or the Selective Service System.

Potter Stewart:

Oh I gather the Government isn’t now claiming that a gentleman who doesn’t present his claim because it matured late isn’t going to get his claim heard.

Paul N. Halvonik:

Well, he’s not going to get it heard if he can’t submit to induction, the Government does admit to that.

Potter Stewart:

Oh yes, oh yes.

Paul N. Halvonik:

And let me quote from footnote six in Malloy where this Court said, quoting approvingly from the Seventh Circuit decision, “A sincere claimant for conscientious objector status cannot turn to the habeas corpus remedy to challenge the legality of his classification because this religious belief prevents him from accepting induction under any circumstances.”

It’s a previously recognized principle of this Court.

Potter Stewart:

While we’re talking about footnotes, I have a question about footnote 53 in your brief.

I was puzzled and rather intrigued to find that despite the decision in this very case of your client William Ward Ehlert, you tell us that State headquarters of the Selective Service System at Sacramento California has what you describe as a procedure for having conscientious objections claims in the manner urged by you and footnote 53 on page 28, is there an explanation for that?

Paul N. Halvonik:

That’s true.

We found this particular memorandum and we used it to demonstrate but it didn’t look like things were going to get too disrupted.

It wasn’t applicable in Ehlert’s case because of course, this occurred before the memorandum was issued.

Whether —

Potter Stewart:

Which memorandum?

This memorandum came — was promulgated well after the decision in this case wasn’t it?

Paul N. Halvonik:

That’s true.

Potter Stewart:

Any explanation for that?

Paul N. Halvonik:

I can’t (Voice Overlap)

Potter Stewart:

Puzzled me very much and I just wondered —

Paul N. Halvonik:

It puzzles me too and we just found it and included it but I don’t know.

Potter Stewart:

The California Selective Service apparently state wise is doing exactly what you say a selective service ought to do and it’s doing it despite the decision of this case in the Ninth Circuit?

Paul N. Halvonik:

That’s true.

Potter Stewart:

This California law that I knew about it.

Paul N. Halvonik:

That’s the way we understand it but I have no explanation for it and I assume the local boards are following the directive but I can’t be absolutely sure.

Let me again be — on the habeas corpus and besides the client not being able to reach it in this case, there certainly are conscientious objectors who can submit to induction, we know that from the number of habeas petitions but there are these difficulties and first of all, that’s not the efficient way to handle it.

The Government keeps talking about efficiency but the proper forum for these kinds of questions is the local board.

The Government office tells us about the merits of the local board, the Weller case they told the Court that you have these people who are from your area that are expert on passing on these questions and they do it in a non-adversary manner and how fine it is.

Well, if it’s that way then the petitioner ought to have the opportunity to go to that forum, that’s the forum Congress wants it in.

We also in our brief quoted and grant it its from another context but we think the principle is applicable here from O’Callahan says, “Unlike Courts, it is the primary business of armies and navies to fight or be ready to fight war should the occasion arise but trial of soldiers to maintain discipline is merely incidental to an army’s primary fighting function, to the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purposes of armies is not served.”

How is the army served by taking these 2000 cases or however they many — many they may be and providing that sort of remedy, granted there won’t be that many because there were group that are going to go to jail, the Courts will be providing the forum and they’ll off to jail but they will be getting some.

How are they better equipped to handle it? Why is it more efficient for them to handle it?

And what about the Courts, we’re talking about California and the number of late claims there.

Let’s assume some of those are late maturing claims and should be reopened and some men aren’t going to submit to induction.

Believe me, the California federal courts don’t need any more selective service prosecutions and you can’t avoid them here, you certainly can avoid it where it’s a question of conscience.

Byron R. White:

I suppose if you prevailed in this case, the remaining issues and let’s go back on remand as to the validity of this claim both with respect to late maturation, sincerity, and etcetera.

Paul N. Halvonik:

Well, we have to go back to the board.

I would assume the conviction would be reversed and Judge Zirpoli indicated at the trial that if —

Byron R. White:

We wouldn’t decide any of those questions, I’m very sure.

Paul N. Halvonik:

ell, I should think that with the conviction ought to be reversed because he has made a prima facie claim, —

Byron R. White:

Yes.

Paul N. Halvonik:

They ought to go back to the board right for determination but the —

Potter Stewart:

The Government not in oral argument that I’ve heard but in its brief urges this of course that the conviction can be and should be affirmed even if we accept your procedural theory, your procedural and constitutional theory on the basis —

Paul N. Halvonik:

I agree with the Government that he has to make a prima facie claim where we disagree with the Government is that we think he has made the prima facie showing.

We think clearly under Welsh, he made the showing.

The Government emphasized throughout that he kept saying today but he was talking about a nuclear age not a nuclear war and to go back to this Court’s decision in Sicurella case, this Court used today throughout, it is the kind of wars we fight today, what we’re talking about.

That’s the kind of war that my client can’t fight and a war that would happen after 1945, a war that would happen since he has been two or three years old.

Under his theory, it wouldn’t have been a conscientious objector before he was three but since then he wouldn’t and for all time, it would be a conscientious objector.

Byron R. White:

Because of the atomic bomb?

Paul N. Halvonik:

Because of the atomic bomb.

He’s not saying he won’t participate in nuclear war, he is saying he won’t participate in war in a nuclear age and unfortunately, he is not going to get a chance at any other age.

Warren E. Burger:

Thank you, Mr. Halvonik.

Paul N. Halvonik:

Thank you very much, Mr. Chief Justice.

Warren E. Burger:

Thank you Mr. Rehnquist.

The case is submitted.