Gutknecht v. United States

RESPONDENT: United States
LOCATION: Holmes County Board of Education

DECIDED BY: Burger Court (1969-1970)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 396 US 295 (1970)
ARGUED: Nov 20, 1969
DECIDED: Jan 19, 1970

Facts of the case


Media for Gutknecht v. United States

Audio Transcription for Oral Argument - November 20, 1969 in Gutknecht v. United States

Warren E. Burger:

Gutknecht against the United States.

You may proceed whenever you're ready Mr. Tigar.

Michael E. Tigar:

Thank you.

Mr. Chief Justice and may it please the Court.

This case presents a serious question, here in Oestereich against the Selective Service Board, but not decided in that case.

Of whether the selective service system is being used to punish or sanction this ancient behavior without due process, without congressional authorization and on the standards so vague and broad as to offend the First Amendment.

There is in addition here, two serious questions, there are here two serious questions, concerning criminal procedure in the 9.7% of all federal criminal prosecutions, which are represented by selective service prosecutions today.

Potter Stewart:

There almost 10% of all federal prosecutions?

Michael E. Tigar:

Yes, Mr. Justice Stewart, 9.7% I believe in the last report.

The petitioner, David Gutknecht anticipated in an antiwar, anti-draft demonstration on the 16th of October, 1967, in the course of which he dropped his registration certificate and notice of classification, along with the mimeograph statement of position on the Vietnam war and conscription, at the feet of the United States Martial, in front of the Federal building in Minneapolis.

Eight days later, on the 24th of October, 1967, General Hershey, the Director of the Selective Service System, issued the letter to all local boards and local board memorandum number 85, which are reprinted in Appendix B to the petitioner's brief which was an issue in Oestereich.

Warren E. Burger:

What was the petitioner's classification at that time?

Michael E. Tigar:

At that time Mr. Chief Justice he was classified 1-A, although he had an appeal pending, which meant that he could not be inducted.

Warren E. Burger:

Does the record show anything about how long the time is involved in processing appeals in that particular board?

Michael E. Tigar:

No, Mr. Chief Justice it does not.

The average time is a meaningless figure.

It varies greatly depending on the workload.

Those figures are collected most recently in the Marshall Commission report in pursuit of equity.

The local board memorandum and letter, urged local boards to use the delinquency power to reclassify and order for priority induction, registrants who engaged in illegal demonstrations.

As soon as it could under the regulations, the petitioner's board on December 21, 1967, sent him a delinquency notice, reprinted at page 44 of the appendix.

And a weekend, a day and Christmas day after that, sent him an order to report for priority induction.

Taking him out of his statutorily and regulatory mandated position in the order of call and ordering him for military service, ahead of the time, when he would otherwise have to report.

Potter Stewart:

Now, was his appeal still pending from his 1-A classification?

Michael E. Tigar:

No, if it had been pending Mr. Justice Stewart, it would have been illegal.

Potter Stewart:


Michael E. Tigar:

Under the regulations.

Potter Stewart:

But it was not?

Michael E. Tigar:

It was not pending.

The petitioner concededly reported for induction, but did not obey the orders of the induction center officials relating to his processing.

A prosecution for refusal to report for and submit to induction followed then, he is currently under sentence of four years imprisonment.