Mulloy v. United States

PETITIONER:Mulloy
RESPONDENT:United States
LOCATION:Holmes County Board of Education

DOCKET NO.: 655
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 398 US 410 (1970)
ARGUED: Apr 20, 1970
DECIDED: Jun 15, 1970

Facts of the case

Question

Audio Transcription for Oral Argument – April 20, 1970 in Mulloy v. United States

Warren E. Burger:

The next case for argument is Number 655, Mulloy against the United States.

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

Robert Allen Sedler:

Thank you, Your Honor.

May it please the Court?

The issues in this case, arise out of the stated refusal of petitioner Mulloys Selective Service Board to reopen his classification and consider his claim for conscientious objector status.

That’s what we are dealing with here, a failure to reopen.

We do not have the case where the board has decided to claim, at least officially, on the merits and where there has been an appeal, or at least, an opportunity for an appeal, so that the question before this Court would be whether there was a basis in fact for the determination.

The issue is not whether the petitioner was a conscientious objector or whether there was a basis in fact for a substantive determination that he was not.

The issue is purely a procedural one.

Did the petitioner make enough of a showing of entitlement to classification as a conscientious objector that he was entitled to an appealable determination by the board?

I guess what this case is all about is that the petitioner claims, he was entitled to a full-scale determination including the right of appeal.

The board summarily dismissed.

The first issue then revolves around the summary dismissal.

The petitioner is contended throughout these proceedings that the board either was required to reopen because based on his SSS Form 150 and the letters and other information submitted in support of a claim, he made out a prima facie case of entitlement or, that what really happened was that the board in fact reopened deciding the claim against him on the merits but denying him the appeal to which he was entitled by the regulations.

In this Court, the Government now concedes which is a clear departure from its position here before that based on the SSS Form 150 and the supporting letters, the petitioner made out a prima facie case of entitlement but says the Government, even so, the board does not have to reopen.

I think issue was joined on that first point.

The second issue —

Potter Stewart:

Do you think it can be — this record — what reading for the board’s action?

Robert Allen Sedler:

No, Your Honor.

This is a point that we have made and that the board did not say why it found that he wasn’t a conscientious objector.B

ut the record does clearly say what the board did.

The Form 100, the phase form, falling the November 9th meeting, says, “Classification not reopened”.

Now, following the meeting on January 11th, the SSS Form 100 reads all information in the file considered including claim of conscientious objector.

The board felt that information did not warrant reopening of 1-A classification vote four to nothing.

This was also brought out at the testimony both in the civil trial and the criminal trial where Chairman Sherman stated, “That taking everything in the file.”

Assuming what he said to be true, he did not make out a case and we saw no reason to reopen because it wasn’t there.

I think it is very clear that the board’s reason for its action was that the petitioner did not make out a prima facie case for entitlement.

This was the Government’s argument both in the District Court and before the Court of Appeals.

The Court of Appeals explicitly stated that, petitioner did not make out a prima facie case and therefore the board was not required to reopen.

Now, we have contended all along, that the only way you could say, he did not make out a prima facie case is to totally distort the meaning of prima facie case, and say that prima facie case means the same thing as a merits determination.

Robert Allen Sedler:

I think that’s the point that stands out most clearly in this case, that there was nothing more that the board could have done.

No further information that it could’ve considered if it had in fact reopened the classification.

Now, what it did was to say, “We don’t think he is a conscientious objector.”

Now, the board can say that but under the regulations, this constitutes a reopening in fact, entitling the registrant to an administrative appeal under Section 1625.13.

The second issue and this isn’t a way related to the first, is simply that he was denied due process because the board did not give them a full and fair hearing.

They didn’t read the file.

They, at best, walked through it, scanning it before making a determination that he didn’t state a prima facie case.

They’re simply would not have been timed at the so-called courtesy hearing for the three members who were present to even scan, let alone read the detailed answers to SSS Form 150, let alone all the other information in the form.

Warren E. Burger:

Does that necessarily or possibly rest on an assumption that they haven’t read it a little bit sooner?

Robert Allen Sedler:

They so stated at the trial, there were three — there were three members present, Your Honor at the November 9th hearing.

Mr. Sherman, the Chairman testified.

Well, we looked over his file before he came in as we would anyone else.

Now, at that time, in the record and the civil trial will bare this out.

There were other registrants ahead of Mulloy.

Then Mulloy came in to the interview.

Mr. Downs said that, “The file was there and any member who wanted to could look at it.”

I asked Mr. Downs, “Did you read it?”

He said, “No, I just scanned it because I was the newest member of the board and I wasn’t familiar with what was in the file at all.”

Mr. Wolfgang said that, “He read it but he couldn’t recall how much time he spent on it.”

I think it’s very clear from the evidence that these members didn’t read the file.

We’ve also contended as part of the same denial of the full and fair hearing that the demonstrable incompetence of the draft board members was a denial of due process.

They simply did not understand what a conscientious objector was.

The clerk testified that in her 17 years with the board, no one had ever been assigned to civilian work as a conscientious objector.

Mr. Sherman, the chairman of the board thought that a conscientious objector was one who was opposed to the use of violence which of course is not the statutory definition.

Mr. Downs didn’t seem to realize that the board had the power to determine whether a man was a conscientious objector.

Mr. Walking seem to think that by applying for conscientious objector status, the member stay — the registrant stated that he would not do alternative civilian service.

Now, I think this is the factual situation that we are dealing with.

The Government says that the board must have assumed that the petitioner was not sincere.

Otherwise, it would have been inexplicable that they didn’t reopen.

I would suggest that there may be another reason that they never read the file and if they had read the file, it wouldn’t have made any difference because they had no understanding of what a conscientious objector was.

Robert Allen Sedler:

The relevant time period is a fairly brief one.

All the relevant events relating to conscientious objector status occurred between May 1967 and January 1968.

The petitioner after leaving school in 1966 went to work for the Appalachia volunteers, an anti-poverty group working in Eastern Kentucky.

He was given an occupational deferment to weigh from March 1966 to May 1967.

In May 1967, he was classified as I-A.

This was affirmed by the Appeals Board in August of 1967.

I believe the date was August 16th.

On August 11, 1967, petitioners — petitioner and two other people were arrested in Eastern Kentucky on a charge of teaching sedition.

All of these is brought out in McSurely versus Ratliff we’ve cited in the brief were a three judge federal court found that the prosecution was undertaken to inhibit organizing activities in Eastern Kentucky.

They enjoined the prosecution because a statute was patently unconstitutional.

The petitioner spent some time in jail before he was released on bond.

There was a midnight raiding party, 15 armed men led by the prosecuting attorney came to the petitioners house ransacked through all the books and records and this was the sedition prosecution to which the petitioner was subject.

The three judge federal court enjoined the prosecution on September 14th, 1967.

It then directed the petitioner and the other plaintiffs to execute a $500.00 recognizance bond to the federal court pending the right of appeal.

The states right of appeal expired 60 days later and no appeal was taken.

Now, the petitioner stated in his letter to the board of October 17th that, his experiences in Eastern Kentucky, including the sedition prosecution were the precipitating catalysts.

This caused generalized belief in pacifism and nonviolence and he demonstrated his belief in nonviolence by supporting letters to crystallize into in his view, objection to participation in war, wrestled with his conscience and came to the conclusions saying, “I can now say, I am a conscientious objector.”

He wrote this to the board.

He filled out the SSS Form 150 in great detail.

Included in the letters were — including the supporting information were letters from a Catholic priest testifying his sincerity, testifying as to why opposition to war was consistent with Catholic teaching.

There were further letters in there testifying as to his activities in Eastern Kentucky.

The board members granted this courtesy hearing, as I called it, on November 9th, right after the board, the interview which lasted about 10 or 15 minutes and here, I really like to quote from the Government’s brief that they meaning the board members, discussed the case briefly and came to unanimous conclusion that there was no basis or justification for reopening the classification.

The effective decision was made on November 9th but an entry to this effect was made on Form 100, classification not reopened.

Now, the reason the board didn’t take a vote that evening, was that petitioner was still under bond to the federal court and was believed under indictment in Kentucky on a charge of flourishing a deadly weapon which was later dropped.

They took the formal meeting, the formal vote at a meeting of January 11th and according to Chairman Sherman at that time, it readopted or reaffirmed its action of November 9th, and it’s that point where we held the entry in the phase Form 100.

All information in the file was considered including claim of conscientious objector.

All members present felt this information did not warrant a reopening of I-A classification.

Hugo L. Black:

Where he — he had pitched his claim for non-draft status for considerable period on an occupational deferment, hadn’t he?

Robert Allen Sedler:

He had an occupational deferment until May of 1967.

This then was not renewed and this was denied in August of 1967.

Robert Allen Sedler:

He didn’t file for conscientious objector until October 67 following the sedition prosecution.

But, he made it very clear that he considered his work in Appalachia to be the clearest demonstration of his religious beliefs, of his sincerity and his opposition to war.

I think it’s also fair to say that he believed that if he were granted conscientious objector status, he might be permitted to continue to do anti-poverty work which would presumably qualify as alternative service in the national interest under Section 1660.1 of the regulations.

If the members of the board had read his SSS Form 150, they would have understood the correlation between his work in Appalachia and his claim of conscientious objector status.

I think it’s the height of sophistry to say that a young man, not learned in the law, who by law can’t be represented by counsel before these draft boards can suddenly have his claim for conscientious objector status converted into a claim for occupational deferment which had previously been denied.

Warren E. Burger:

Now, you have been rather severe on the draft board people and their lack of grasp of —

Robert Allen Sedler:

Yes indeed, Your Honor.

Warren E. Burger:

Lack of grasp of what they were supposed to be doing but wasn’t it rather late for this man to discover himself what a conscientious objector was in circumstances?

Robert Allen Sedler:

Well, I want to make clear Your Honor that this is a pre-induction case, that there was no outstanding order for induction.

In answer —

Warren E. Burger:

There was a classification though?

Robert Allen Sedler:

Pardon?

Warren E. Burger:

There was a classification?

Robert Allen Sedler:

Yes, You’re Honor.

Warren E. Burger:

So, he knew that he was subject to call?

Robert Allen Sedler:

Well, this, I think, is true of any registrant in class I-A.

I think if you say that this is late, then it becomes — then what you’re saying is that if a registrant doesn’t claim conscientious objector status at age 18-and-a-half when he registers for the draft, it can always be found that he is late.

Warren E. Burger:

Well, I’m just relating this to your argument that you offered it hadn’t occurred to me until you offered it.

Did he think that his activity in any poverty movement was a sufficient demonstration of his conscientious objector state of mind and attitude?

Now I say to you that, if that’s what he thought it was, wouldn’t it have been reasonable for him to communicate that an earlier state — stage than he did?

Robert Allen Sedler:

Well, it wouldn’t have — I think I have two answers to that, Your Honor.

In the first place, as long as he had another deferment, the board could not consider his claim for conscientious objector status under the regulations.

But I think that all of these things led up.

I focused on this particular event, namely the sedition prosecution.

Its when does a man really have to face up to the question, “Am I a conscientious objector?”

There is a recent decision that came down from the Fourth Circuit involving an in-service conscientious objector that said that being called to Vietnam maybe the catalytic draft.

Moreover, there’s another point that Id like to make that the board never — never considered this.

Mr. Sherman, the Chairman of the Board was specifically asked, “Did you ask him, excuse me, any questions as to why you did not file for the claim of conscientious objector earlier?”

Mr. Sherman’s action — answer was “No, none that I recall.”

In other words, presumably a board could find that the man’s objection to war meet matured at an earlier time and conceivably, though the Court might suggest to the contrary, but conceivably under 1625.1 (b), it could find that the claim was not timely asserted.

Robert Allen Sedler:

That is not the case here.

The board members assumed that the claim was timely asserted.

They stated that they assumed he was sincere in everything that he said.

Now, the Government is trying to say, “No, they didn’t really mean that.”

But it can’t point to one place in the record where any board member affirmatively stated, “No, we didn’t believe him.”

Potter Stewart:

Isn’t the issue of law in this case very narrow, namely, what does it take to trigger a consideration of a reopening of a classification.

Robert Allen Sedler:

Exactly, You’re Honor.

Potter Stewart:

You got all there is to this case.

Robert Allen Sedler:

That is the — that is what I called the first issue.

Potter Stewart:

You got the Second Circuit or some other Circuits, principally the second saying all you got to do is to show a prima facie case on paper and you got other Circuits including this one saying, “No, there’s more discretion in the board didn’t ask even though its prima facie showing on paper that they didn’t like to do some kind of an evaluation of it.

Robert Allen Sedler:

I would submit Your Honor that with regard to pre-induction —

Potter Stewart:

Have I so stated the issue correctly?

Robert Allen Sedler:

I think you stated — I think that’s — I think it’s a perfectly correct statement of the first issue.

I would say that with regard to pre-induction request for reopening, every Circuit but Sixth has held that the board is required to reopen when the registrant presents a prima facie case.

That is when the new facts, if true, when entitled the registrant to claim classification, the board must reopen.

The Sixth Circuit held this too in Thompson versus Zimmerman.

But in Mulloy, they depart from Thompson versus Zimmerman.

The Sixth Circuit is the only Circuit that upholds that the board is not required to reopen whenever a prima facie case for classification has been presented and they held this in the case of the most difficult claim one of conscientious objector.

What they have done has been to completely obliterate Mulloy between a refusal to reopen and denial of claim under merits following a reopening that what were they were saying is that the board can decide if it wants to reopen or if it doesn’t want to reopen.

Now, this is totally contrary to the clear import of the regulation.

There are two reasons I think why a board has to reopen upon the presentment of a prima facie case.

The first goes to procedural due process.

Upon a reopening, the registrant gets a personal appearance.

That’s mandatory under Section 625 — 1625.11 and 13.

It’s only by a personal appearance that he will get a chance to tell his side of the story, otherwise, the board can’t simply decide without having heard him present his story.

The second reason relates to an appeal.

Under the regulations whenever the draft board decides the merits, that determination is to be reviewed by an appeals board.

If the draft board can decide the merits unilaterally then you completely negate the provisions of 1625.13 providing for an appeal after reopening.

Now, where the board is not supposed to reopen under 1625.4 is where the new facts even if true would not entitle the registrant to the claim classification.

Potter Stewart:

But now let’s say, according to — as I understand it then, you already said the board is without discretion if they are presented to at allegations that if true would entitle the registrant to a new or different classification.

Robert Allen Sedler:

That is —

Potter Stewart:

Would that be right?

So, in other words and the time process involved in a —

Robert Allen Sedler:

Assuming its —

Potter Stewart:

Personal appearance or reopening of personal appearance set on appeal is a matter of months, I suppose all know it?

Robert Allen Sedler:

Exactly, and you know —

Potter Stewart:

So, I suppose the registrant could say I am now a member of the United States Senate even though that word demonstrably false and therefore I ask her reclassification as member of the United States Senate.

And according to your submission as I understand it, it would be incumbent upon the board to grant him a personal appearance and that reopen his — reopen his classification and find that, “No, he wasn’t a member of the United States Senate at all.”

But then there would be an appeal and then he could say, “Well, next time — well, now I am a member of the FBI or I am member of a — or am I m a divinity student.”

And just go through the various exemptions and deferments until everybody ran out of time and he was over 26 years old, is that — a registrant couldn’t do that?

Robert Allen Sedler:

Well, it wont do him any good until he reach 26 because under 1631.7 (a) of the regulations, if his number come up, he is liable and he is called notwithstanding that he reaches 26.

So, that won’t do him any good.

Potter Stewart:

Well, I suppose you went long enough, he could reach 46, if he had not —

Robert Allen Sedler:

There are only a limited number of classifications but if I may suggest, I was going to answer Your Honors question, “No, because I don’t want to get into a box of advocating something ridiculous.”

Let me draw an analogy to a motion for summary judgment.

I read 1625.1, 2, and 4 as in effect embodying dismissal of a claim on — sorry, dismissal of a complaint on the ground that it fails to state a claim on which relief can be granted.

There, we do not look beyond the facts of the claim.

Assuming that the facts if true, would not entitle the registrant to the claim classification, the board has justified in dismissing.

But if the facts, if true, would entitle him to the claim classification, the board must reopen unless there is no genuine issue of material fact.

In other words, I would use the same thing as in the summary judgment case.

Suppose the registrant asks for a reopening on the ground that he is a regularly enrolled student in Cudham College as of January 1.

On January 2nd, there is received in his file a letter from the registrar of Cudham College saying that as of January 2nd, he was dismissed.

Assuming the board verifies this, calls the registrant in, lets him verify this, I would say, “No.

They are not required to reopen and there’s no reopening in fact.”

But what I am saying is that where the new facts, if true, would entitle the registrant to the claimed classification and it cannot be said that there is no genuine issue as to any material fact.

This would require a reopening and I think Your Honor that that would answer your question as to the member of the Senate.

Potter Stewart:

Well, I suppose you can, so long as there’s an allegation, does this have to be made under oath?

Robert Allen Sedler:

I believe that it is provided that all, there are severe penalties for making false statements to the board.

That should serve as a sufficient deterrent.

I really don’t think that this is a practical problem.

Robert Allen Sedler:

There is nothing to be gained anymore by a registrant delaying this.

It won’t prevent his induction.

Moreover, the board —

Potter Stewart:

Does it have to be made under oath?

Do you have to swear to this, you don’t, do you?

Robert Allen Sedler:

I believe —

Potter Stewart:

You just write him a letter, don’t you?

Robert Allen Sedler:

Well, true, the board held —

Potter Stewart:

Or maybe out of form provided the board?

Robert Allen Sedler:

But the board couldn’t provide.

This provided him the statute that any false statements to the board subject a person to five years imprisonment and a fine of $10,000.00, so that, that should be sufficient deterrent against making false statements.

I believe I will reserve the time for rebuttal, so if there are no further questions.

Warren E. Burger:

Thank you counsel.

Mr. Connolly.

Joseph J. Connolly:

Mr. Chief Justice and May it please the Court.

Since Mr. Sedler has taxed the Government for changing its position during this litigation.

It seems appropriate for me to restate the Government’s position at the outset of my argument.

I think I can do so in two propositions which I will briefly describe and then return to each in more detail.

The first proposition relates to what we believe to be the basic issue of law in this case.

That is, what inquiries can a local board make and what issues can it resolved concerning a request for reclassification without the board being deemed to have, in fact, reopen the classification.

Section 1625.4 of the regulations clearly specifies two issues which are for the primary determination by the board in deciding whether to reopen.

The first is whether the facts alleged by the registrant, if true, would justify a change in the registrant’s classification.

The second issue is whether the facts presented are new facts which were not considered by the board at the time the registrant was classified.

The discretionary language of 1625.2 also demonstrates that there are other issues which may be resolved by the board without a reopening.

Thus, we believe that the board may in certain circumstances decide the critical facts are not true and therefore, the reclassification would not be justified.

The board also may reach certain conclusions about the facts alleged and deny reopening on that basis, thus, in certainly — certain narrowly defined classes of cases which I will illustrate presently.

The board may conclude that the registrant’s civilian work is not in the national interest or that its claim of conscientious objection is not a sincerely held belief.

Interpreted in this manner, we believe that the regulation affords a necessary flexibility to the Selective Service System to dispose off meritless applications without full administrative procedures.

This is necessary as we show in our brief in order to prevent the administrative system from becoming bogged down with such applications and to prevent disingenuous registrants from postponing and perhaps avoiding military service.

Our second proposition relates to the facts of this case.

Joseph J. Connolly:

We submit that what the local board did in this case was to conclude that petitioner had not set forth facts which would justify conscientious objector classification.

Because the true premise for his claim was his belief in the importance of his work in Appalachia.

This is the determination which the board has clearly authorized to make.

And as I hope to demonstrate later in this argument, the board had a rational basis when the facts of this case for making that determination.

And Mr. Sedler has stated that the Government has conceded that there was a prima facie basis — prima facie case for reclassification.

The Government has made this concession and I should clarify our position.

We believe that certain of the facts set forth in petitioners Form 150 and in the accompanying letters, taken together with all doubts resolved in favor of the petitioner and with all inconsistent information disregarded would have constituted a prima facie case.

But the question for the local board was whether it should try to piece together the favorable information, resolve doubts in favor of the petitioner, and disregard his own statements that seemed inconsistent with his claim.

That was the question which the board resolved after its courtesy interview with the petitioner.

It decided that there was no reason to reopen because the facts as explained by the petitioner did not justify reclassification.

Now as to the point of law involved in this case, I would like to give three illustrations of what I think would be the Government’s position as to what inquiries the board can make without reopening and what issues it can resolve without reopening.

I think the first illustration was elicited in Mr. Sedlers colloquy with Mr. Justice Stewart concerning the question, whether the registrant is a student at X College, whether he is a United States Senator or perhaps whether his wife is pregnant as he alleges.

We believe that the discretion granted to the board in Section 1625.2 allows the board to inquire into that critical fact, if true and if the fact is found not true, then to deny a reopening on that basis.

The second illustration that I would give is a situation where a registrant claims that he is employed in the national interest and let’s suppose that he says that he is employed in an electronics factory making radar scopes for jet fighter planes.

Now in that case, we do believe that the board, if there’s no reason to doubt the truth of the facts, would be required to reopening consider that claim on the merits.

The situation might be different if there were another case in which the registrant alleged that he was employed in such and such a factory and the board had very recently decided in the case on the merits that someone doing exactly what this registrant was doing was not in the national interest.

Perhaps in that case, the board would be justified in claiming to reopen without full consideration.

The third example would, in this area would almost be humorous but in the situation which is very clear that the occupation is not deferrable and said that he was a good humorous salesman or something like that.

We think that the board could deny a reopening.

Now, the third example is the situation of the conscientious objector and as the cases illustrate, there are two issues for the board to resolve on the merits in that case, first is, what is the character of the registrants belief?

That is what does — what does he really – I will put this way, what does he say that he believes concerning his moral objection to participation in war?

What is the nature of that belief?

The second issue is the sincerity of this belief that is — does he really, genuinely believe what he says he believes about participation in war or is this a claim of convenience?

Potter Stewart:

Would you agree Mr. Connolly with your adversary that the circuits are at odds on what the standard for reopening is?

Joseph J. Connolly:

There is some disagreement among the circuits, Mr. Justice, on this.

I think the six —

Potter Stewart:

Second Circuit is partly against these decisions, isn’t it?

Joseph J. Connolly:

Yes, it is.

It’s illustrated its position in somewhat of a different context in the Gearey line of cases.

But of course, those cases did involve a claim of conscientious objection made after an induction notice has been sent but very similar issues are presented by this case.

Joseph J. Connolly:

We would submit that in most instances, that second issue for the board to resolve that I said, whether this man really believes what he says he believes.

“What’s in his mind?”

Is a question that could not be resolved by the board without a reopening which would give the registrant an opportunity — a formal opportunity for appearance before the board and appeal to the State Appeals Board.

We would say however, that there might certain cases in which even that claim, that issue can be resolved by the board without a reopening.

If the registrant claims that his conscientious objection to military service is based for example upon study in a monastery or in a divinity school or a strong association with the peace church or a peace group and the board finds by reliable means that those allegations are untrue.

It might make the decision without reopening that this registrant is insincere in his claim.

I think that’s a justifiable decision in this case and in all these other lines of cases.

If there’s any prejudice that would result to the registrant in that case, in any of those cases from the board’s erroneous view, the registrant could learn what the reason could a local board’s decision was and if it secured erroneous information, he could correct the record and the case would proceed from that point.

Potter Stewart:

But you said the board finds by reliable means that — that what he says is not true or they find that they think it’s not true, what kind or what sort of reliable means are they going to find out about this?

All they have is his statement, his allegation.

There’s no response as I understand it —

Joseph J. Connolly:

That’s right because —

Potter Stewart:

It’s not an adversary proposition.

Joseph J. Connolly:

Well, they could write a letter.

Depending upon what the claim was, write a letter to the source from which that claim originates.

The referent in a statement of fact and if the referent writes back in a letter that looks like it comes from the referent, that says, “I’ve never heard of the registrant.

He has never been engaged in any peace work with our organization, never been employed in our plant, never attended our school.”

I would submit that that would be a basis for the board saying, “No, you haven’t made out a case on the — you haven’t alleged facts which if true would justify your reclassification.

Potter Stewart:

Do Selective Service Boards actually write letters to these —

Joseph J. Connolly:

I don’t know.

I do know.

I do know that they verify academic deferments in some way — few correspondents with the universities and colleges.

Potter Stewart:

The usual practice, I suppose, is to have the registrant himself, when he asked for a classification is supply the documentary support for it, isn’t that the basic —

Joseph J. Connolly:

That’s usually done but I believe that there is some practice of verifying with him.

There’s certainly nothing in the regulations which would preclude the board from doing that and indeed 1625.1 (c) appears to contemplate that the board will do that.

Thurgood Marshall:

But nothing like that was done in this case?

Joseph J. Connolly:

No, sir.

Nothing would.

Thurgood Marshall:

But how long would it take you or I to find out whether the man was a conscientious objector?

Joseph J. Connolly:

It depends on the type of claims that he makes to support his claim for being a conscientious objector, Mr. Justice Marshall.

Thurgood Marshall:

You think you could do it in 10 minutes?

Joseph J. Connolly:

If —

Thurgood Marshall:

In order to satisfy your own conscience —

Joseph J. Connolly:

If I were faced with a fully ripened claim of conscientious objection which appeared to be based upon some long standing belief, some basis in — at the individuals — in the registrant’s religious doctrines.

If the claim was premised to — it was evidenced by prior statements of objection to participation in war and activities to objection to participation in war.

Thurgood Marshall:

Could it take you –

Joseph J. Connolly:

No, I don’t think I could do that in 10 minutes, Mr. Justice.

Thurgood Marshall:

Could it take you?

Joseph J. Connolly:

But that’s not the case here.

Thurgood Marshall:

Could it take as long as the Second Circuit took to decide Seager?

Joseph J. Connolly:

Sir?

Thurgood Marshall:

Could it take you as long as it took the Second Circuit to decide Seager?

Joseph J. Connolly:

I am not sure — I don’t know the full, the fact to which you refer.

Thurgood Marshall:

The Seager case.

Joseph J. Connolly:

Seager case.

Thurgood Marshall:

Yeah.

Joseph J. Connolly:

I don’t know how long it took them to resolve —

Thurgood Marshall:

Where it could take that long – I don’t find a little merit in this ten minute hearing or something is serious as this is, admittedly serious.

Joseph J. Connolly:

Mr. Justice, well, I intend to get to in a few minutes —

Thurgood Marshall:

Oh, I am sorry.

I am sorry.

Joseph J. Connolly:

— is the phrasing of what issue was before the Local Selective Service Board in this case and what inquiry it was making.

The inquiry that it was making was not the inquiry that I suggested earlier.

Now, well, do you really believe what you said you believe?

The inquiry before the local board and this is evidence in answer to an earlier question by Mr. Justice Harlan by what the board said it did after the interview.

The inquiry before the board was “Is this man really claiming a conscientious objection to warn any form or is he rehearsing, the positions that he is taking with respect to the importance of this civilian employment?”

Well, a couple of these gentlemen is kind of peripheral that (Inaudible) that it seemed to be of two of the boards, the two members of the board or one of them said they really didn’t question as to the man’s sincerity?

Joseph J. Connolly:

That’s — that is correct Mr. Justice Harlan.

That —

Money is to what in the world they didn’t do?

Joseph J. Connolly:

It’s not a very good record to reach in and decide exactly what the local board did in this case.

My recollection of the record is correct only two of the board members testified as to the basis for their conclusion in this case that the classification should not be reopened and both of those testified in effect that what this man was really saying to us is what he had said before that he believes that his participation in the Appalachia volunteers is a critical and vital matter — both to him and to the community and that it would be immoral, if you will, to take him away to fight in Vietnam at this time.

So, I am not — I approach my discussion of what the record shows in this case with a bit of hesitancy because the board members hardly were articulate in their views and it’s not a very good case to decide.

That’s what I have tried to concentrate mostly upon the legal standards of —

That’s all bound up in it because the consequences sustaining your position here is that —

Joseph J. Connolly:

Yes.

Is that nobody reviewed the underlying merits of this claim because there is never been reopened.

It doesn’t get his administrative appeal and he gets no judicial review.

Joseph J. Connolly:

Well, Mr. Justice, we believe that the regulations and fundamental fairness contemplate that result.

The regulations do contemplate that an individual who doesn’t alleged facts which if true would justify a reclassification.

It does not get a reopening and it does not get an appearance before the board and an appeal and we believe that that is an appropriate regulation and a fair regulation because what it does is to prevent really the kind of situation that Mr. Justice Stewart was suggesting in his colloquy with Mr. Sedler, that is you first start with the United States Senator then go to Congressman and go on and on and on and run down the line.

You do run out of time so, I think that I’ve tried to state that the fundamental premise of our legal position which is that the board — it is very necessary for the board to have some means of disposing of meritless cases.

Some way to decide and if it is a preliminary matter whether a case has merit or doesn’t have merit principally or whether it alleges the necessary facts to justify reclassification, but also to suggest some of the issues which the board can reach in making that decision consistent with the regulation, consistent with fundamental fairness.

Now, the remaining time, I would like to go through it and just to illustrate to the Court the kind of facts and allegations that the local board was confronted with in this case which would suggest the reason for inquiry and some of the — and justify our argument, I believe that what the board decided was based upon facts that it fairly had before.

Thurgood Marshall:

Mr. Connolly, will you include in that the charge that’s made that the board didn’t know what they were doing?

I think the two go together.

Joseph J. Connolly:

Well, I think — I would like to speak to that and perhaps — this time perhaps to dispose off it, but we have discussed it at some length in our brief and I don’t intend to go into it very deeply.

I disagree with Mr. Sedlers statement that the decision was made to deny reopening on the afternoon of November 9th, although there is some support in the record for Mr. Sedlers statement.

I believe that the record taken as a whole including the further testimony, including the testimony of a board member who wasn’t even there at that interview but who read the file, read the petitioner’s file, read the summary of his interview and then decided on January 11 to vote against reopening.

I think that the record as a whole shows that these – that even though there might have been a disposition against reopening by those members who were present at the November 9th meeting that that disposition did not ripen into a decision until January 11th, until they had all read the file, until they had given it mature consideration.

As to the question, as to whether they knew what they were doing.

I don’t believe that that’s really supported by the record at all.

There is some very cursory, very short examination of what I would concede to be quite inarticulate board members which related very, very specifically to the labels of classifications to be given and I don’t think that it can be concluded on that basis that these board members were, I believe, Mr. Sedler has used the word incompetent to decide this claim.

Thurgood Marshall:

What would it mean if somebody mistakenly had accepted a job deferment during some kind of work that this man was doing, but he was a conscientious objector, he believed in all other things that Seager believed in but he thought that this was a type of work which was in exchange for him being not drafted and then somebody tells him, “Look, if you are a conscientious objector, you have to set forth that you want this because you are a conscientious objector.”

And then, he says, he could be reclassified as a conscientious objector, could he not?

Joseph J. Connolly:

I believe so.

Thurgood Marshall:

Would be not — but you say, in this, he has got all the two of them combined together without any means of you separated?

Joseph J. Connolly:

That’s right but I think what we have to look to in this case is that there was a proceeding, there was a personal interview with the registrant before the local board in which he did have that chance to separate out the considerations to tell the local board exactly what his religious beliefs were and what his conscientious beliefs were to focus on them.

And then and to alleviate any possible confusion which the board had and we have two board members after that interview in which we must, we must presume that they gave him fair consideration at that time, fairly tried to resolve any doubts.

They said that what this man essentially wants, what he considers important is his work at the Appalachia volunteers.

Joseph J. Connolly:

And to illustrate that Mr. Justice Marshall, I’d like to jump ahead of myself and go to the letter which petitioner wrote to his local board after that interview and I think it’s a very revealing letter.

He starts out, this on page 58, 59 of the appendix.

He starts out by saying, “I’ve been thinking about the short interview I had with you all last week.

It doesn’t seem to me that all the points were covered that should’ve been and that I was not able to fully express my position of conscience.”

That’s a way he starts out.

He has some reservations that he didn’t get across to the board when he really wanted to get across to them.

But what is he going on to say.

He starts out by saying, “These are certainly trouble times in this country.”

Then he talks about discrimination and poverty, the coming revolution, “Another revolution is beginning to take place in this country.

I, of course, hope that this revolution takes a non-violent form but I remind you that I’m an organizer, that I’ve dedicated my life to change into the constant struggle that is democracy.

There is nothing that can stop me from organizing against something that I don’t believe.”

And then down the paragraph on page 59, “I told you that I felt I was serving my country’s needs here in Pike County.”

That was no frivolous statement.

The problems are too great to be ignored any longer and no one should be sent to another country as long as we are in the mess we’re in.

So, that’s what he really wanted to get across to the board.

This is a letter written some three days after his interview.

So, I think Mr. Justice Marshall that even though we have — we don’t know exactly what he said in that interview.

We have the fact to the interview.

We have the ambiguities in the petitioner’s own form which I’m going to bring out just a second and we have a local board that we must presume gave fair consideration concluding what the man really wanted was what he had before.

An opportunity to continue his organizing work in Appalachia and I think that that’s clearly demonstrated by his subsequent letter.

Warren E. Burger:

This type of communication from him probably explains why the board felt he was sincere even if perhaps confused young man.

Joseph J. Connolly:

I think that’s right Mr. Chief Justice and while you have mentioned that point, I’d like to go back and to clarify any ambiguity which might have arisen from the Government’s brief on the question of sincerity.

We believe that the question before the board is that the question of the board phrased for itself was.

This is a very sincere young man.

But is he a very sincere or what?

And the way that the board resolved that was that he’s a very sincere Appalachia volunteer who believed that it was essential for him and it’s a matter of conscience for him to remain in his present work organizing the poor in Appalachia.

So, the board — the board did not in any way suggested that petitioner was being mendacious or less than candid with them.

I think that it decided that what the petitioner wanted was a continuation of his classification.

Now, to go on — I’m just going to take some highlights from the petitioner’s Selective Service conscientious objector form which is Form 150 in this printed page — beginning at page 15 of the appendix and to go on to page, over to page 16, there is a series of questions which the petitioner answered at length in an appendix.

He didn’t use the forms.

Joseph J. Connolly:

But question number three was, “Explain how, when, and from whom or from what source you received the training and acquired the belief which is the basis of your claim made in series one.”

The claim made in series one that he’s conscientiously opposed to military service in any form.

And he began his long answer to that question on page 19 of the appendix, it goes on to say that — it starts by saying, he was born to catholic parents and inspired by missionary orders and had apparently catholic school training up to high school then become deeply troubled and faced a religious crisis and incidentally attempted suicide.

Then after that, he says, he began to get back on the right track and came under the influence of Thomas Merton who was then residing in a monastery in Kentucky.

And he says that Merton was very influential when he’s formulating his views.

And then he reaches in on page 21 for the whole rest of the answer to talk about the inspiration of his work as an Appalachia volunteer and his credo is set forth at the bottom of page 21, I suppose.

“As I grew and participated in the world, I was able to determine a priority on the things I learned as a child.”

Thus, I place love of my fellowmen above regular church attendance and I place ‘Thou shall not kill’ above ‘an eye for an eye’.

I learned rapidly in my work in the southern highlands that the significance of love and understanding and the futility of violence and force.

Too many poor people have been used and walked on by the power-hungry courthouse gangs.

There was an urgent need for the poor to become organized and the rich to be educated.

This must be done in a non-violent way.

“Violence only breeds violence.”

This is what appears to be a culmination of what he should have been alleging to be a religious — religiously founded opposition to participation in war in any form.

Hugo L. Black:

Is it your position that that does not make out what someone would call a prima facie case, to be that you are a conscientious objector?

Joseph J. Connolly:

It’s our position that there — the ambiguities inherent in that statement and other statements which I perhaps will get a chance to read plus statements of the registrant which so plainly indicated to him the primary importance of his work tended to justify the board’s conclusion or did justify the board’s conclusion that it ought not to try to piece together the various individual statements which might have justified a reclassification in order to decide whether to reopen.

We don’t doubt Mr. Justice Black that if you did do what I suggested early in the argument to piece all these statements together and what you might regard as a brief for the conscientious objector to resolve any ambiguities in his favor and to disregard its significant emphasis on his belief in the importance of his job but you could conclude —

Hugo L. Black:

But what is the ambiguity of it.

I thought just reading through them, I read all these records, I thought that he indicated that he had been taught from the childhood not to kill people he didn’t believe in it and he had conscientious objections during it and that he would consider it murder.

Joseph J. Connolly:

Well, there are — there are I believe —

Hugo L. Black:

I’m not saying there should have been exceptions of what’s not enough to call for some kind of a theory?

Joseph J. Connolly:

No, I don’t believe so Mr. Justice Black.

In light of the fact that the other statements which he made in his form suggested that this wasn’t the — that this wasn’t the primary thrust of his belief.

It was a statement which stands out.

I mean, it’s a sufficient — it’s a sufficient allegation perhaps of conscientious objection just as assigning the first line of that form is a sufficient allegation of conscientious objection.

But we don’t believe that the board is required to reopen and give full consideration just merely because the individual signs that statement.

Well, the trouble is that you said earlier, you can’t tell what basis the board went on.

Joseph J. Connolly:

Well, we think that we — you know, I — all I’ve got —

You’re justifying the set of assumptions which has to be a premised on the fact that you cannot tell the specificity or any sense of assurance what ground the board went on?

Joseph J. Connolly:

Well, all I’ve got is the statement of the board members that their conclusion, the basis of their consideration and after the courtesy interview was that what this man really wanted was that — now, then the question really becomes well, who bears the risk of non-persuasion if it resolves —

I suggest to you that there is the Court of Appeals — the Court of Appeals did indicate what he wanted – that he did not think that what he’d been alleged was sufficient to make other prima facie case of conscientious objections and you gentlemen, the Government in its brief now concedes that in effect, the Court of Appeals is in error — In other words, you concede that the papers as I read in your brief, the papers did make out a claim of conscientious objection and you have to pin your argument on refusal to reopen on the grounds that the board has more power to that and then when it comes to what that power is, you’re up again and yet you’re dealing with a record to which on your own statement, you say, you can’t tell what the board decided.

Joseph J. Connolly:

It’s not a strong record.

If I have to reach to that point, then all I can — I can elaborate on the record, I can just say what it says but in answer to your penultimate statement, what I try to do early in the argument is to say that there maybe enough here if you piece it together the right way.

Yes.

Joseph J. Connolly:

Thank you Mr. Chief Justice.

Warren E. Burger:

Thank you, Mr. Connolly.

Mr. Sedler. Mr. Sedler, you have five minutes left.

Robert Allen Sedler:

You’re Honor.

To get back to the first point that I made, the issue before this Court is not whether petitioner Mulloy is a conscientious objector or whether there is a basis in fact for a board’s merit decision followed by an appeal that a man was not a conscientious objector.

The issue before the Court is was the board required to reopen and give the man an appeal.

That’s all we were asking in this case, is to have an appeal.

The Government has gone through the file pointing out that the board could’ve found this and the board could’ve found that.

For purposes of argument, let’s assume that the board could’ve done this.

Under the regulations, this decision is also to be made by an appeals board.

In this case, it is the petitioner who was arguing for adherence to the regulations.

And it’s the Government that is arguing for a broad interpretation of the regulations for which it confined no support.

The clear scheme of the regulations is that merits determinations are to be reviewed where a man makes out a prima facie case or a new classification — (Inaudible) a claim that had never been made before.

When a man makes out a prima facie case for a new classification, assuming that there is an issue of material fact, and certainly the Government’s argument makes it clear that there was such an issue.

Then the procedure provided in the regulations is for the board to reopen.

Make a decision, then give the man a personal appearance, so that he can fully tell his side of the story, present his version, try to correct the board.

Then, if the board still keeps him in that classification, the case is reviewed de novo by the appeals board.

So, that’s all we’re talking about here.

Should there have been an appeal.

The consequences that the Government talks about are imaginary and all of the other circuits; the boards have been required to reopen whenever a prima facie case has been presented.

The draft hasn’t stopped functioning.

All that it is meant is that people will get a fair chance.

The present petitioner is under a sentence of five years imprisonment and a fine of $10,000.00 following a determination that is basically made for 10 minutes and I repeat Your Honors, they never read the record.

It seems to me and maybe I have an advantage here over the Government’s counsel because I’ve tried the case from the beginning that we’re in never, never land.

The Government has attributed these highly sophisticated mental processes to the board but the board never read the file.

They never carefully went through the SSS Form 150.

Robert Allen Sedler:

It may well have been that on the basis of what they heard at the interview, they thought he was asking for an occupational deferment.

They couldn’t have reached that conclusion, if they would’ve read his SSS Form 150 and they would’ve seen as Your Honors pointed out from the bench, the correlation between his views.

Now, we’re talking about a young man, this time 23 years old who wasn’t represented by counsel.

Maybe if lawyers were allowed to appear before draft boards, we could clear some of these things up.

If the board members had these doubts, why didn’t the board member asked him?

Now, Mr. Mulloy, let’s be clear, what are you claiming?

Are you claiming classification as a conscientious objector or do you want an occupational deferment?

Nobody asked him that.

Nobody asked any questions at all.

He was entitled to assume that they read the record, which they didn’t.

We’re told that we’re supposed to presume that these proceedings are fair and regular.

I would submit with all due deference, you can’t presume that on the record that we have here because the board members simply did not read the file.

Now, we’re talking about the most difficult classification here that of conscientious objector.

The board members throughout assumed the sincerity of the petitioner.

They assumed that he was sincere in his beliefs.

Those beliefs are essentially religious beliefs.

This is clear from a reading of the Form 150.

It’s clear from the letter from the Catholic priest.

It’s clear from the other evidence from the file.

I would submit that there is no evidence in the file at all, that is inconsistent with the claim of conscientious objector status.

So that what the issue comes down to on the procedural questions is when does a draft board have to reopen?

We would submit that the board must reopen whenever a pre-induction claim is made for a new classification.

I believe my time has expired Your Honor.

Thank you.

Warren E. Burger:

Thank you, Mr. Sedler.

Thank your for your submission and you, Mr. Connolly.

The case is submitted.