Wayte v. United States

RESPONDENT: United States
LOCATION: United States Courthouse

DOCKET NO.: 83-1292
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 470 US 598 (1985)
ARGUED: Nov 06, 1984
DECIDED: Mar 19, 1985

Mark D. Rosenbaum - on behalf of the Petitioner
Rex E. Lee - on behalf of the Respondent

Facts of the case

Mr. Wayte was required by a 1980 Presidential Proclamation to register with the Selective Service system. Instead, he wrote letters to various government officials stating that he had not registered and did not intend to do so. Wayte's letters were added to a file kept by the Selective Service of men who had informed the government that they were not complying with the proclamation.

The Selective Service later adopted a policy of passive enforcement, in which it would prosecute only men who had either reported to the government that they were not registering or whom other people had reported to the government for not registering. After a long series of requests by the government that Wayte register (all of which he failed to respond to), the government eventually indicted Wayte in federal district court for violating the Military Selective Service Act.

The district court, however, dismissed the indictment, holding that the government's passive enforcement policy was unconstitutional because it amounted to selective prosecution of only those men who took an outspoken stance against the Selective Service. On appeal, the Ninth Circuit Court of Appeals reversed, holding that Wayte had failed to show that the government focused its attention on him because of his protest activities.


Did the Justice Department's policy of passive enforcement of the Selective Service Act, in which it prosecuted only those men who were reported by others or who reported themselves for not registering with the Selective Service system, violate the First and Fifth Amendments?

Media for Wayte v. United States

Audio Transcription for Oral Argument - November 06, 1984 in Wayte v. United States

Warren E. Burger:

We will hear arguments first this morning in Wayte against the United States.

Mr. Rosenbaum, you may proceed whenever you are ready.

Mark D. Rosenbaum:

Mr. Chief Justice, and may it please the Court, a system of justice must of course take advantage of confessions and eye witness reports of criminal activity.

We do not attack that proposition, nor do we seek immunity for offenders regardless of how identified.

Rather, this case presents the issue whether the government violates the First Amendment by a policy of enforcing the draft registration law in a way that inherently results in investigating and prosecuting only those who proclaim their noncompliance with registration, a group that would inevitably be limited to political opponents of draft registration.

What is undisputed here may be briefly stated.

Of the 700,000 who violated the registration law, as both courts below found, only 13, all of them political or religious protestors against Selective Service, were investigated or prosecuted.

Warren E. Burger:

Wouldn't it be fair to say that most of the people who fail to register are opponents of the registration process?

Mark D. Rosenbaum:

Chief Justice Burger, there were hearings before a Congressional Committee as to the causes of individuals who did not register.

Those hearings before a Senate Subcommittee elicited a variety of reasons, only one of which was religious or political objection to the registration.

In fact, as we indicated in our papers, persons felt that the President wasn't serious about draft registration, persons were upset that their peers had been not prosecuted.

Six separate reasons were listed.

Political and moral objection was only one of them.

So, it was not mere statistical happenstance that the only individuals in fact prosecuted were political or religious objectors.

From the inception of the government's policy, the Justice Department recognized that investigating and prosecuting only those who proclaimed their noncompliance would result in a skewed sample of nonregistrants, what the government itself termed a not typical sample.

The department recognized--

William H. Rehnquist:

What does that term mean in the sense of skewed or non-typical?

Mark D. Rosenbaum:

--It meant that out of an entire pool of nonregistrants, individuals who had a variety of reasons for not registering, the only individuals who in fact would be selected, would be singled out, would be those who had actively protested, either by writing the President of the United States or by speaking out against the draft itself.

William H. Rehnquist:

But you are going to single out by some method, have some system for prosecution, so in that sense any system is "skewed" in your terms, isn't it?

Mark D. Rosenbaum:

Any system singles out certain individuals for investigation and prosecution.

The critical issue in this case is whether the government can rely upon a policy which if activated only through the exercise of political petition or speech.

Lewis F. Powell, Jr.:

May I ask, of the total pool I think you mentioned 500,000 or 600,000.

Mark D. Rosenbaum:

Yes, sir.

Lewis F. Powell, Jr.:

How many of those have been identified by the government as nonregistrants at the time the 15 suits were filed?

Mark D. Rosenbaum:

That is an interesting question that goes to the nature of the government's enforcement policy.

In fact, only in the neighborhood of some 500 or 600 individuals had been identified by the government's policy, but that wasn't because the government had sought a variety of methods to identify individuals, and happened only as a matter of chance to elect to find the individuals who had spoken out or who had written the President.

The very premise of the government's enforcement policy was that it was not interested, that it showed no concern whatsoever for nonregistrants who had violated the law in any other way.

It was as if the law that the government was enforcing was a law that made it a crime to not register when accompanied by protest or speech, not the offense itself.

Lewis F. Powell, Jr.:

Is my recollection incorrect that the government had explored various ways of ascertaining the identity of a much larger number of a pool?

Mark D. Rosenbaum:

Let me answer that in two respects, Justice--