GUTKNECHT v. UNITED STATES

Print this transcript Transcript: 

Argument of Michael E. Tigar

Chief Justice Warren E. Burger: Gutknecht against the United States.

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

Mr. 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.

Justice Potter Stewart: There almost 10% of all federal prosecutions?

Mr. 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.

Chief Justice Warren E. Burger: What was the petitioner's classification at that time?

Mr. 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.

Chief Justice Warren E. Burger: Does the record show anything about how long the time is involved in processing appeals in that particular board?

Mr. 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.

Justice Potter Stewart: Now, was his appeal still pending from his 1-A classification?

Mr. Michael E. Tigar: No, if it had been pending Mr. Justice Stewart, it would have been illegal.

Justice Potter Stewart: Right.

Mr. Michael E. Tigar: Under the regulations.

Justice Potter Stewart: But it was not?

Mr. 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.

The delinquency regulations, if the Court please, provide that when a registrant fails to perform any duty, a term given no further definition, under the act or regulations, he may in the unfettered discretion of the board be declared delinquent.

If he is to further exempt, he may again in the unfettered discretion of the board be classified in the class available for service.

If he's already 1-A, he is sent to the head of the list for induction.

Now, if he is reclassified out of the deferred or exempt status, he has a personal appearance before the board and an appeal.

If like the petitioner, he is already 1-A, he is entitled to no hearing whatever before the local board under the regulations.

Say that hearing which the board in its absolute discretion may choose to give him.

The decision to declare, retain, or remit delinquency status, resides under the regulations in the discretion of the board.

It's our contention, set forth in our brief, that this kind of administrative sanctioning procedure, involving the summary deprival of a benefit or privilege, under a regulatory system, knows no parallel in federal administrative law today.

And when coupled with administration under the broad ranging directive of the director of Selective Service to have local boards reach out to get at the sanctioned behavior, the regulations have a fearsome deterrent effect upon the exercise of protected freedoms.

Chief Justice Warren E. Burger: How much of your case depends upon whether he did or did not have a right to a hearing at that time?

Mr. Michael E. Tigar: Mr. Chief Justice, I would say our case depends not at all upon that point.

We do of course contend that the regulations impose punishment and therefore, he was entitled to a judicial trial.

Second, that they impose a sanction at least and he is entitled to due process and adversary hearing.

But, even if the Court should decide those questions against us, we believe that Green and McElroy compels reversal here.

Green and McElroy will be recalled, did not require the Court to reach the constitutional issue.

All the Court held was that given our presumption in favor of fairness, we would not presume that the Congress authorized an administrative agency to dispense with these fundamental procedural decencies, without an expressed statement by the Congress and an expressed statement by the president of an intention to do so.

And if the Court were to adapt that position, which seems to me sensible and supported by the former decisions of the Court, the constitutional issue need not be reached.

However, we do believe that if the constitutional issue must be reached, should be decided in our favor.

These regulations in their purpose, their language, their administration, and their effect are punitive.

Even the Government cannot evade this issue and it's brief that a search on the one hand that they are not punitive and in the appendix to its brief reprints a letter from General Hershey to Mendel Rivers, which makes their punitive intent abundantly clear.

On page 81, General Hershey says that Selective Service should not be used for punitive purposes, if by that it's meant that one should be inducted to the Armed Forces as punishment for an offense, which is not related to Selective Service, leaving the regulations to be applied in that vast number of federal offenses which maybe found in trusteeses of the Selective Service Act and Regulations.

Indeed, the delinquency regulations are far broader than is necessary to achieve the limited, non punitive purpose which the Government would describe to them.

Under the regulations, a registrant is presumed to be 1-A, unless he supplies the board with information about his status.

And perhaps, properly so that compels him to go in there, and tell the local board what he's been doing and whether he's entitled to a deferment or exemption.

A delinquency system, which limits the local board discretion, and which provided that a registrant's classification was to be frozen, it was to be frozen in 1-A for example, and that no requests for deferment would be considered, until he started cooperating with the local board in supplying information.

If again, placed under a limited, non discretionary, regulatory scheme, might be non-punitive, but taking the further step of prior to induction illustrates I think the punitive purpose, which lies at the base of these regulations.

Justice John M. Harlan: Within that hypothetical, just get into that limitation, let's say that the regulation is so construed, he's authorized by the statute.

Mr. Michael E. Tigar: No, Mr. Justice Harlan, we would not.

I think that this regulatory scheme finds no authorization, whatever in the Selective Service Center.

And that it ought to be held unauthorized and the president left, if he wishes to, to -- excuse me, I misunderstood your question.

If the regulations were redrafted with the limitation I've just suggested, perhaps this Court could find them approved under the statute or authorized under the president's general rule making power.

Justice John M. Harlan: That was my question.

Mr. Michael E. Tigar: That would be a different case, yes Mr. Justice Harlan.

The presence scheme reposing in local boards, there's absolute discretion, finds no authorization in the statute.

And, there is no indication that the Congress has ever explicitly and carefully considered it, as it has explicitly and carefully considered every other federal regulatory scheme that I know of, which involves the imposition of the sanction of this character.

We turn therefore, to the inhibitory effect of the Hershey directive, upon the exercise of protective freedoms.

Justice Hugo L. Black: Where did you say that letter was?

Mr. Michael E. Tigar: The letter Mr. Justice Black, it appears at page 81 of the Government's brief, it is a response to a letter from -- or to a request from Mendel Rivers for information.

The Government has attempted to evade the free speech issue in this case.

In its brief and in oral argument yesterday, by denying that it exists.

It underscores this by saying that the petitioner's turning in of his card is not protected conduct.

We argue in our brief that it is, but the Court needn't reach that issue, in order to find the First Amendment fault in the Hershey directive.

The record in this case indicates that the board had before it, the following information. First, a letter from the United States Attorney, reprinted at page 42 and 43 of the appendix, stating that the petitioner had participated in an antiwar, anti-draft demonstration and turn in this Court.

Second, the board had before it the indubitably persuasive words of General Hershey counseling it to use its broad-ranging discretionary powers to punish behavior which the five lay members of the board conceived to be illegal.

And finally, there is the delinquency notice.

We have here a case therefore, in which the directive, the regulatory scheme, the Hershey directive, the local board memorandum supplemented by this very vague system of procedural provisions in the delinquency regulations is unconstitutional on it's face.

And here, as in NAACP and Button, as in Freidman and Maryland, as in Aptheker against the Secretary of State, it doesn't matter whether the petitioner's conduct could be reached and punished under a more narrowly drawn regulatory and statutory scheme.

The directive being unconstitutional on it's face.

The regulations supplementing this chilling effect by their vagueness and the discretion they vest in local boards, requires a reversal of the petitioner's conviction.

This reading is indeed supported by the only prior selective service decision of this Court, which is in point, Sicurella against United States.

In Sicurella, the local board had before it, the illegal recommendation by the Department of Justice, that the petitioner's conscientious objector claim be not sustained and the Court held that given this -- the presence of this persuasive though mistaken recommendation, that the conviction had to be reversed because it did not affirmatively appear in the selective service file, that the board had disavowed the unlawful and mistaken views of the Department of Justice.

The final point to which I would address myself in oral argument today, leaving the remainder of rather technical arguments to our very lengthy brief is the variance question.

That is the petitioner was indicted, if the Court for refusal to report for and submit to induction.

In a part of our brief and I don't propose to argue, we say that that indictment fails to state in offense, because it's bad under rule seven of the rules of criminal procedure.

But that aside, concededly the petitioner reported, the Government doesn't deny that.

He then, went to the induction center and when there, refused, the records shows, to obey certain orders by induction center officials that he submit to processing.

He was never given an opportunity to refuse to submit to induction.

Submitting to induction, as this Court had occasion, in Mr. Justice Douglas' opinion for the Court in Billings and Truesdale to consider at some length is a well defined orderly step in the process of selection of man into the Armed Forces of the United States.

Chief Justice Warren E. Burger: What do you say he did, if he did not refuse to submit to induction?

Mr. Michael E. Tigar: Mr. Chief Justice, there is an offense.

It is a duty of a registrant to obey the orders of the induction center officials.

And the failure to perform that duty can be prosecuted under Section 12 (a).

We have here therefore a case that is on all force with Stirone against United States, in which the indictment charged a conspiracy respecting the importation of sand into Pennsylvania and the proof at trial showed a conspiracy involving both the importation of sand and the exportation of steel.

In other words, the proof of trial was quite different from the offense with which the petitioner was charged.

And, I would say that that is a not inconsiderable problem, given the large number of these offenses that are being prosecuted in the Courts, it devolves upon the Government with a special burden, I think to plead with accuracy and above all to present to the grand jury all of the facts.

So that at the time the charge is laid, there's been a thorough and full consideration of what it is the defendant should be prosecuted for.

Chief Justice Warren E. Burger: Well perhaps, I didn't make my question clear enough, Mr. Tigar.

If the man presents himself at the induction center and let us say refuses to take the medical examination or refuses to fill out forms, as he refused to comply with induction orders.

Mr. Michael E. Tigar: He has Mr. Chief Justice, refused to comply with that part of the induction process that deals with the physical and mental examination.

Chief Justice Warren E. Burger: Is that an offense under the statute?

Mr. Michael E. Tigar: Yes, it is.

It's an offense under the regulations in the statute, Section 12 (a) of the Act, makes it a crime to refuse to perform any duty under the regulations.

The regulations make it a duty to comply with those orders of induction center officials.

Chief Justice Warren E. Burger: But do I understand that you're to say that he did not refuse to comply with induction orders, which the statute contemplates to make out an offense?

Mr. Michael E. Tigar: No, Mr. Chief Justice that is not my point.

My point is that if he committed any offense at all, it was the offense of refusing to obey orders that he take physical and mental examinations at the induction center.

And it was not the offense of which he was indicted, the refusal to submit to induction, which is a very precisely defined offense in the Selective Service and Army regulations, which this Court had before it, in Billings against Truesdale.

Chief Justice Warren E. Burger: And was that raised at the trial?

Mr. Michael E. Tigar: The variance question?

No, Mr. Chief Justice it was not raised at the trial.

If the issue arose during the trial and I think from the record in the Court of Appeals, the contention that was focused on was the failure of the indictment to inform the petitioner of the offense with which he was charged.

I think that this question is fairly composed within that.

And it is certainly a question upon which certiorari was granted.

Chief Justice Warren E. Burger: Is it your position that every destruction or failure to carry a draft card in possession is an exercise of First Amendment rights?

Mr. Michael E. Tigar: Mr. Chief Justice, the destruction question I believe is foreclosed by the Court's decision in O'Brien against United States.

It is our position that under the circumstances of this case, in which the surrender of the card was a part of a constitutionally protected course of conduct that it was a protected First Amendment activity.

That is --

Chief Justice Warren E. Burger: Assuming that it's surrender, the act of surrendering falls in that category, does that mean the actor is forever thereafter excused from complying with the requirement to carry the draft card in its possession?

Mr. Michael E. Tigar: I would say not Mr. Chief Justice, although it's a question that had not occurred to me until you asked it.

If the board would have send him another card and if his failure to possess it is unrelated to a course of conduct in which he's exercising his First Amendment right of dissent.

Then, I think that would be a different case than the one that we have before us.

Our point there is only that there is a difference as I believe, the Court said in O'Brien between permanently rendering one certificate unavailable and the abandonment of it.

And that there has been by the Government no showing that this conduct by the petitioner or similar conduct by others across the country is interfered with the operation of the Selective Service System.

Thus, we do not have a showing by the Government that the countervailing interest is paramount, cogent, important, strong or any of the other words, which the Court has used in defining the permissible scope of limitation of speech and non-speech conduct, when they're brigaded together.

Justice Potter Stewart: Is it the duty of the board to send somebody another card, when it learns that that person's card has been -- or learns from third parties, (Inaudible) that person's card has been lost or destroyed?

Mr. Michael E. Tigar: I find in the regulation Mr. Justice Stewart no statement that the board has such a duty.

Justice Potter Stewart: I suppose a registrant who loses his card, it's really his own negligence or carelessness or because it's stolen or something that can apply and get a new one.

Mr. Michael E. Tigar: Yes, he can a duplicate card.

The difficulty, it was another difficulty with these regulations of course, is that if the board gets a card, which the registrant has lost, it has no way of knowing the reason why he is abandoned it.

And there's no provision under the regulations to give him a hearing.

Indeed, in this record the board never had any evidence that the petitioner surrendered his card.

Selective Service certificates aren't even in the file.

I don't know where they are.

The only evidence the board had was the United States Attorney's letter.

Justice Potter Stewart: Well, if that was here say evidence, but there's no dispute about what did happen?

Mr. Michael E. Tigar: There is no dispute.

No, but I think it underscores one of the dangers in this regulatory scheme sir.

I want --

Chief Justice Warren E. Burger: Do they need a regulation of any kind to guide the board in what to do if a trashed card turns up under some lost and found process?

Do they need a regulation to tell the board to send that card to the registrant again?

Mr. Michael E. Tigar: No, Mr. Chief Justice, I would not say that they would.

And if the actions of boards were limited to sending the card back to the registrant, we wouldn't have the case we have.

It's only when the board seeks to use the coming into its office of card, as the predicate for deprival of a benefit conferred with the statute in regulation that a quite serious congressional authorization and due process problems is raised.

Chief Justice Warren E. Burger: Would it make a difference in that situation, whether the board was aware that it had been a deliberate disposition of the card, as compared within inadvertent loss of the card?

Mr. Michael E. Tigar: No, Mr. Chief Justice, it would not make a difference, unless that determination were made after the kind of adversary hearing, which this Court has in other cases involving imposition of sanctions regardless indispensable.

Chief Justice Warren E. Burger: Well, do I understand you to be suggesting that if the card shows up that the board by any process, they must hold an adversary hearing to determine whether it was lost or deliberately thrown away?

Mr. Michael E. Tigar: It is our position that the regulations are invalid for failure to provide such a hearing.

Yes, that seems reasonable that if the board is going to take away the registrant statutorily and regulatory mandated position in the manpower pool, that it ought to have some means reliable, fair, orderly means of informing itself.

That is our position.

In conclusion, I find it quite difficult to state my sense of urgency about this case.

And Mr. Ruckelshaus perhaps set our theme for us yesterday in Breen.

There is today a rising tide of protest activity.

Much of that activity involves conduct, which under this Court's decision can clearly be punished.

That is not the issue in this case.

The war in Vietnam is not the issue in this case nor its conscription.

The issue is whether having chosen to fight a war in Vietnam with a conscript army.

We ought to tolerate in doing so, departure from the principle, that delegations of power are mistrusted when personal liberty is at stake. That no man should be condemned before his heard.

And that however outrageous a man's political conduct, it cannot be punished by invoking a system of rules which are vague and overbroad on their face.

I think if we depart from these principles than in these very difficult times we've constitutional compact is more than dishonored, it will become the cruelest of illusions.

Chief Justice Warren E. Burger: Mr. Ruckelshaus.

Argument of Ruckelshaus

Mr. Ruckelshaus: Mr. Chief Justice and may it please the Court.

I think again today we find ourselves at the outset faced with the same problem that we faced at the outset of the Green case.

And that is that throughout both Green and Gutknecht, throughout the briefs file by the petitioners in both cases and throughout the amicus briefs filed in both cases, there is this overtone or undertone of accusation against the Selective Service System focused in on the Hershey directive, somehow implying that the reason people are being declared registrants are being declared delinquent in this country today is because of their protest activities.

Now, I don't happen to believe that that is true.

However, even if it is true, it has not been proven in either one of these cases.

Let me give just one fact that was omitted.

On December 20th Mr. Gutknecht was declared delinquent.

The Hershey directive was issued in October.

On December 9th at page 41 of our brief is reprinted in Breen.

The brief in Breen has printed the joint statement of then Attorney General Ramsey Clark and General Hershey, specifically, repudiate the idea that any registrant could be inducted or his induction could be accelerated, because of his belief, because of any protest activity unrelated to any violation of a delinquency regulation that he engaged in.

In the court below --

Justice Potter Stewart: Where?

I can't find that, I'm looking for --

Mr. Ruckelshaus: That's on page 41 of our brief, Mr. Justice Stewart not in this brief.

Justice Potter Stewart: Thank you very much.

Mr. Ruckelshaus: Now, this as the boards in the Selective Service System had this directive or had this joint memorandum of General Hershey and then Attorney General Clark before them after they had the Hershey directive before them.

In the court below, on page 35 of the appendix, the Court states, defendant now claim that he was being unlawfully punished for his political views on the Vietnam war and states that the board's punitive action was in violation of his First Amendment Rights.

This is the Appellate Court speech.

The District Court however found that there was no evidence at trial to support defendant's contention that his delinquency order was based upon his political views.

The District Court found that the delinquency order was based upon the defendant's violation of the regulation that he had the required cards in his possession at all time, that's what involved in this case.

Justice William O. Douglas: I thought something different was involved?

Certainly, we don't sit to pass judgment on whether the large number of protest result in revocation of classification.

We are only concerned with this man and I thought the question was whether or not as a matter of procedural due process or statutory requirement, he should be entitled to a hearing on whether or not what the District Court said and the Court of Appeals said is true.

Mr. Ruckelshaus: Mr. Justice Douglas that is certainly part of this case, but what I am attempting to do at the outset is define narrowly just what it is involved here.

Justice William O. Douglas: It seems to be that would be the narrowest one, -- as a matter of statutory, not constitutional.

Mr. Ruckelshaus: I think that's correct Mr. Justice Douglas, they have launched in their brief a rather massive attack on the delinquency regulations themselves saying that they were not authorized by statute that even if they were authorized, the statute is so vague, it's to be devoid of standards, then --

Justice William O. Douglas: I don't know why, I spent a lot of time in the Oestereich case, reading the brief filed by the Solicitor General and it didn't seem to be that the attack made by this petitioner was more massive and the one made by the Solicitor General who I see is absent from this particular brief.

Mr. Ruckelshaus: Mr. Justice Douglas, the Solicitor General in his brief, in Oestereich suggested that sound arguments could be made along the lines that petitioner here makes them.

I think that if there is any disagreement, it would be that I would delete the word “sound.”

I think an argument can be made along the lines the petitioner has made them.

But I don't believe that they're sound and I think that in our brief we relate while we believe they're not.

Justice William O. Douglas: I think you're protected by the First Amendment.

Mr. Ruckelshaus: Now, Mr. Chief Justice and may it please the Court.

Now, the court below decided this question on rather narrow grounds.

On the validity of the delinquency regulations in acceleration within a class, within the class in this case 1-A.

I think that question is covered in our brief, but I think the overall question of the validity of the delinquency regulations, as far as reclassification is concerned, is what -- is either going to be before this Court.

In this case, if they decide not to take it on the narrow grounds or will be in some other cases that are pending here on petition for certiorari.

And for that reason I think this argument can best be had in terms of a broader questions.

Justice Thurgood Marshall: In this case, the man had actually has his draft card stolen from him, or burned, or lost?

Mr. Ruckelshaus: If it were burned without his consent or without his knowledge.

I think clearly Mr. Justice Marshall that if this happened, and it came to the board's attention, and they sent him a notice.

Justice Thurgood Marshall: The notice says this didn't come to him, the only thing came to the board's attention was he didn't have his card.

Under these regulations, is it not probable, but is it possible that a board could accelerate in?

Mr. Ruckelshaus: I think it is possible that a board could do so, but I think if they did Mr. Justice Marshall, it would be a clear abuse of their discretion.

And if this happened we would -- and if this is what had happened in this case, we would not be here in this Court today.

Justice Thurgood Marshall: Why not?

Mr. Ruckelshaus: Because we would have confessed there prior to coming here.

Now, I think if under our interpretation of the regulations, if a regulation is violated by inadvertence or by mistake of the registrant and the board attempts to accelerate him under a strict reading of the regulations that this is a clear abuse of discretion on the part of the board.

That it is only willful violations on the part of registrants and not only willful, but a violation in which the registrant shows no desire to come back in to compliance again with the regulations.

Justice Thurgood Marshall: Was he have offered a new draft card?

Mr. Ruckelshaus: He was not offered a new draft card, Mr. Justice Marshall.

Justice Thurgood Marshall: Have you ever suggested that he apply for one?

Mr. Ruckelshaus: But on page 44 of the appendix is a copy of the delinquency notice that was sent to Mr. Gutknecht in this case.

And in that delinquency notice, in paragraph two it said, “You are hereby directed to report to the local board immediately in person or by mail or to take this notice to the local board nearest to you for advice as to what you should do.”

Now, Mr. Gutknecht did not do that, he said that because five days later, he was reclassified that this in effect did not give him the amount of notice that he needed to bring himself back into compliance.

If he had tried to get himself back into compliance by showing a willingness to possess his cards at anytime, prior to induction or certainly prior to the notice of induction, I think that again clearly the board would have been abusing its discretion by not permitting him to come back into compliance.

This is consistent with our theory of the delinquency regulations not being punishment, but being remedial in their effect.

Justice Thurgood Marshall: The regulation don't get any of that protection, none.

Mr. Ruckelshaus: I --

Justice Thurgood Marshall: It leaves it up to the board.

Mr. Ruckelshaus: Well, I respectfully would state Mr. Justice --

Justice Thurgood Marshall: Just in point at words, may as if the authority that the board has, uncontrolled authority.

Mr. Ruckelshaus: Well, the board has given discretion without question under the regulation, but I think like any discretionary grant, there is -- there are times when that can be abused.

And it is our contention that consistent with the analysis of civil contempt in this case that where someone attempts to bring himself back into compliance for the regulations.

There's a clear abuse and in this Court --

Justice Thurgood Marshall: I wonder if the Breen case, I would assume that he couldn't get into Court before that, could he?

Your position in the Breen case, he couldn't have litigated.

Mr. Ruckelshaus: In Breen he could bring himself back into compliance, by simply agreeing to --

Justice Thurgood Marshall: But I mean when he was classified and gotten -- that notice in five days to report.

He couldn't have litigated that?

Mr. Ruckelshaus: No, he was not -- in Breen, he has never been given an induction.

Justice Thurgood Marshall: No, I mean in this case.

This man could litigate.

Mr. Ruckelshaus: He has never been given -- Yes, he has never been given a notice of induction.

Justice Thurgood Marshall: Well, how can this man in this case test out the discretion of the draft board, legally and of course --

Mr. Ruckelshaus: He's doing it in a criminal action, which were here before this court, Mr. Justice Marshall.

Justice Thurgood Marshall: It's the only way he could.

Mr. Ruckelshaus: That's right, under the regulation, under the law, under Section 10 (b) 3 this is the vehicle which he can use to test his rights.

And that's precisely what he's doing here in this Court and as a further example of what I'm saying in number 623, before this Court.

Now, Troutman against United States, a confession of error, a virtual confession of error will be filled by the Justice Department, by the Solicitor General, but tomorrow where Mr. Troutman attempted to bring himself back into compliance --

Justice Thurgood Marshall: But that won't help this man's four years.

Mr. Ruckelshaus: Mr. Justice Marshall, what I'm saying is that attempting to focus what Mr. Gutknecht could have done in order to bring himself back into compliance and to focus on the fact that if the draft boards, if the boards themselves do not permit him to come back into compliance, we're prepared to confess error, we're prepared to admit that they have abused their discretion.

And I think in the grant, in the regulations themselves, where it says he may -- the board itself may change its mind at anytime.

And another regulation writ says it may reopen the whole proceedings as to his classification at anytime.

Justice Thurgood Marshall: My real difficulty is that as to whether or not the Government confesses error is up to one person, the Attorney General of the United States, his uncontrolled discretion.

We had the uncontrolled discretion to the board, controlled only by the uncontrolled discretion of the Attorney General of the United States.

Is that your position?

Mr. Ruckelshaus: Mr. Justice Marshall, I don't think that we can look at a discretionary grant assuming that is going to be abused.

Obviously, with over four thousand draft boards in this country, there are abuses.

I would not stand here and say they weren't, but where abuses are found, where abuses of that discretionary grant to the board are found, there is a process by which those abuses can be set right and I think just as any administrative board is given a discretion, where that discretion is abused, the person who is wrong has a power and a right to raise that wrong in the Court of law.

And if it comes to the attention of those who are meant to enforce the law, then this is the way it works in any case, that the Attorney General would be the last one to admit the abuse of discretion or the Solicitor General in this Court.

I don't see that that's any difference, in terms of a grant of discretion to the draft boards and it is to any other administrative agency.

Justice Thurgood Marshall: I only raised it because you said that's what cured the discretion of the draft board.

That's the only reason I'm raising.

Mr. Ruckelshaus: I don't think that's only thing that cures it, Mr. Justice Marshall.

I don't think the --

Justice Thurgood Marshall: You think case like this could cure?

Mr. Ruckelshaus: Could cure?

Justice Thurgood Marshall: Sure.

Mr. Ruckelshaus: Well, he has the right --

Justice Thurgood Marshall: To raise --

Mr. Ruckelshaus: That's it.

Justice Thurgood Marshall: Nobody blocks it?

You didn't it block it, you let him raise it and now it's up to you, that's the way you should think it should be done.

I don't see anything wrong with that position, for me to take.

Chief Justice Warren E. Burger: Mr. Ruckleshaus, are you saying to us that any registrant, any draft registrant who loses his card or is otherwise dispossessed of it through inadvertence and not intent has the key to the solution of his problem by simply getting another card and putting himself back in compliance at any stage.

Mr. Ruckelshaus: Absolutely, Mr. Chief Justice, this is our position.

This is our position that this is clearly what is intended by the regulations themselves, when they say that the classification maybe reopened at anytime, without regard to other regulations.

That he has the right, when he's reclassified to notice that he has a right to a hearing and he has the right to an appeal to the state appeal board.

That the -- that these regulations read as a whole clearly draw the analogy between civil contempt that we have drawn and make then remedial.

The question of punishment that Mr. Justice Marshall addressed himself to yesterday, I think is very much involved in this case as to whether the delinquency regulations themselves amount to punishment, the acceleration and that if it does amount to punishment, is it done so without due process or the Fifth and Sixth Amendment guarantee.

Now, yesterday when I just mentioned in passing your question Mr. Justice Marshall, about what the punishment -- the question that bothered you that there maybe elements of punishment in the delinquency regulations.

The counsel jumped with glee in his rebuttal argument that I was willing to admit there maybe elements of punishment.

I think that really it would do this Court a little good to get into so many called argument of just exactly what amounts to punishment.

It is our position on page 39 and following of our brief that some of the indicia of legal punishment are present here, just as they were -- the outlined in the Kennedy Mendoza case.

Among those indicia that are outline of that case is their sanctions that are here, ultimately involved an affirmative disability.He is going to be restrained, if he's in the Army.

Secondly, it comes in to play on finding of scienter, this is in line with our theory that there has to be a willful violation of the regulations and a willful refusal to come back into compliance for the regulations, before the board has properly exercised this discretion in declaring some one delinquent.

Thirdly, the behavior to which it applies is already a crime and this is true in this case.

It is already a crime of the violation to the regulations.

Does it promote one of the traditional aims of punishment, in deterrence and retribution, which were named in the Kennedy-Mendoza case.

Now, I think that while there are some questions about the deterrence as being only used and only defined in terms of punishment that there are deterrent aspects of this.

But, there are indicia that do not point to punishment, as outlined in the Kennedy-Mendoza.

Induction is not historically been regarded as punishment.

Secondly, whether there's an alternative purpose maybe assigned, a non penal purpose assigned into the regulations involved. And I think delinquency regulations do have an alternative purpose.

The purpose of the regulations is essentially two fold, is to induce cooperation with the Selective Service System on the part of all draft eligible men and this is where the civil contempt analogy comes in.

Because if we're trying to define this in a remedial sense, that we're trying to get cooperation here, just as in a civil contempt proceeding if somebody comes back into compliance.

And if he does what the regulations say, then he will be put back into his prior classification, otherwise there would be an abuse of discretion.

And in this case, the purpose of the regulations is to cure what has happened and not to punish what has happened and just as in the Troutman case, we have confessed there and I think we would be willing to do so in any instance in this Court or in any Court, where it was shown that an effort was made to cure the error.

The second purpose -- which is a non penal purpose, is the maintenance of the non delinquent morale.

Those who do comply with the regulations, it should not, it seems to me be discouraged by the success of those who do not.

And for this reason, I think there is a good purpose of the -- alternative purpose of the statute.

But as I said at the beginning, I think to get into an argument in this Court about whether this amounted to legal punishment might really cause the Court to miss the point.

Because the point in this case is why are we talking about punishment?

We're talking about punishment, in terms of the delinquency regulations to find whether he has been deprived of due process or is stiff in Sixth Amendment rights.

And what is in this case the punishment of which Mr. Gutknecht the petitioner complains.

It is accelerated induction.

This is what he complaints of and before he can be inducted in an accelerated manner, he has the right to refuse induction, just as he did here.

And thereby, submit himself to a criminal prosecution in which he has the full panoply of Fifth and Sixth Amendment rights.

And, I think this is a clear distinction between this case and the case in Mendoza-Martinez, where the Court went in to the admittedly difficult question of what amounts to punishment and what doesn't.

Because Mr. Mendoza was never given a hearing, he was denationalized.

He left the country, in order to avoid the grant and having left, he was immediately denationalized.

He had no right to a hearing, to contest their denationalization.

There was no way he could bring up a contesting of his rights and the Court there said that that was punishment and without the due process or Fourth or Fifth and Sixth Amendment rights which he should have.

I think we can draw an analogy between what has happened here and a grand jury proceeding.

Now, when a man is indicted under a grand jury proceeding, he is in a very real sense punished.

He maybe put in jail if he is indicted and without bail, if it's a non-bailable offense or bail maybe set so high that he can't meet it, and he stayed there. He has had none of his Fifth or Sixth Amendment rights and probably a little due process at that time.

But in this case, where the board itself has found him delinquent, because he's violated one of the regulations, I say the analogy between this and the grand jury is very close.

And secondly, as far as the board hearing itself is concerned, he is given notice of the delinquency itself.

The notice that I read, they're right on page 44 of the appendix, where it says, “Come in, until let us tell you how we can show you how to avoid a further delinquency.”

In this case, he would have in my estimation, although it is contested by the petitioners, if he had asked for a hearing, he would have been given one.

There's no evidence that he asked for a hearing in this case, because what was there to hear?

He had turned in his draft card.

They're not going to hear whether he is willing to take them back or not, there is no fact situation for the board to hear.

There is a clear regulation, which Mr. Gutknecht violated and under that regulation, it's within the discretion of the board to apply the delinquency regulations, which they did in this case.

Now, again under our theory, he would have the right to purge himself from this violation because I think had he shown a desire to do so and the board had refused to let him do it, we would have been the first to confess error, but he made no effort to do that.

And in this case, I submit that there is no fact situation, which would have -- this Court could focus on, to say whether the procedural due process in the hearing at the board level has been violated.

Now, I submit that the Kennedy-Mendoza analysis is simply not sufficient in this case to determine that what we're talking about is legal punishment.

I think there are some differences, but even if you find that the line between punishment and non punishment.

If you find this false slightly over the line toward punishment.

I think that even if that is true, he has been given at one stage, at the end of this process, all of his Fifth and Sixth Amendment rights.

He has been given a complete due process.

Justice Potter Stewart: That is in this criminal trial, you mean?

Mr. Ruckelshaus: Yes, that's right, Mr. Justice Stewart.

This is the statutory framework that the Congress has setup whereby this man could raise his rights and there is no such statutory framework in the Kennedy-Mendoza situation.

Now, the other argument of the petitioner was in their brief that even if it wasn't punishment, we have not provided the procedural due process that is necessary and I think in pointing out that he did receive notice, it is our contention that a fair reading of the regulations would be that he could receive a hearing, if he so requested.

Now, this is a completely speculative question before this Court, because he didn't request to hear it.

Either before he received the delinquency notice or after he received his reclassification.

And I don't see how it can be heard to complain here, when he has not asked for a hearing.

As far as the variance between the charge and the proof is concerned, I think that that is fairly stated in the brief and that I think that question, plus the argument that the affidavit itself, where indictment itself was duplicitous, boarders on the frivolous.

Now, there are cases cited in our brief, which I think clearly point out that the questions involved.

Yesterday, we discussed the problem of congressional authorization.

And I think that in the broad sense, that the delinquency regulations are a fair grant to the administrative branch by Congress of an effort to implement what is admittedly a difficult statute.

To implement a selective service law in a time in this country in which many people are opposed to the results that might occur from going into the Army.

But I think that given the policy as set down by the Congress in the executive branch, that this is a fair way of implementing that policy.

And that this Court should affirm the Court below and uphold the delinquency regulations as adapted by the President.

Chief Justice Warren E. Burger: Thank you, Mr. Ruckelshaus.

Mr. Tigar.

Rebuttal of Michael E. Tigar

Mr. Michael E. Tigar: Excuse me, Mr. Chief Justice, may it please the Court.

If it is the Government's position that these regulations ought to be limited, the president has the power to limit them by a stroke of the pen.

Selective Service System is exempt from the rule making requirements of the Administrative Procedure Act and in tomorrow morning's federal register, the position of the executive branch could be made indisputably clear.

But if that is not to be done, then we accept the Government's concession that willfulness is required and that a hearing must be given if one is asked for.

And this conviction must therefore be reversed, because there is in this record, in the Selective Service file, which as this Court held in Cox against United States is the sole basis of review.

No finding of willfulness and there is no showing that the petitioner was ever offered a hearing.

Justice Potter Stewart: What he had this -- I'm looking at page 30 of the appendix, which is an opinion of the Court of Appeals, which indicates that there was contained in the Selective Service board file in this case, the information as to the circumstances under which the petitioner separated himself from his draft card.

Mr. Michael E. Tigar: Yes, Mr. Justice Stewart, there is on page 42 and 43 that information, it consists of the appendix.

It consists of a letter from an Assistant United States Attorney to the Deputy State Director of the Selective Service System.

It would be our position that that could not be relied upon to establish --

Justice Potter Stewart: There was information in the record, if this is accurately reproduced here in the appendix as to the circumstances under which this man and his draft card became separated, is that correct?

Mr. Michael E. Tigar: It is correct.

Justice Potter Stewart: Indicating a willful separation on his part, is contrasted to a careless or negligent or accidental one.

Mr. Michael E. Tigar: It is true Mr. Justice Stewart that there is evidence in the record.

If I said there was none, I misspoke my self.

Justice Potter Stewart: I understood you say that there was none, I just wanted to be sure.

Mr. Michael E. Tigar: Yes, I misspoke myself, our position would be and it is there is not sufficient evidence to warrant a finding by the board of willfulness.

And I believe I went on to say that there was no finding, by the board of willfulness.

Chief Justice Warren E. Burger: Do you think that in the trial, in the District Court there is a factual basis for finding of willfulness?

Mr. Michael E. Tigar: There is Mr. Chief Justice, a factual basis there, but the review of Selective Service decisions is on the file made by the Selective Service System and the registrant.

It brings me to another point here, Mr. Ruckelshaus has said that the criminal trial that a registrant receives is a substitute for the due process hearing, which we claim he's entitled to before the agency.

Of course that trial has the most constricted standard of judicial review of board determinations, particularly factual determinations of any judicial review, of any administrative action, that the Courts have the power to review.

Chief Justice Warren E. Burger: And by the same token the standard of proof on the Government is infinitely higher, is it not?

Mr. Michael E. Tigar: But only as to factual issues, Mr. Chief Justice.

The issue whether there is any evidence in the file to support the board's determination has this Court has held the character of an issue of law.

And therefore, the Government does not have the obligation of proof beyond a reasonable doubt, with respect to it.

So that there is not that safeguard provided, with respect to the facts presented to the agency.

Justice Potter Stewart: Was Mr. Gutknecht alluded in the defense that he was allowed to tender during the trial of this case?

As to the -- and did he put in, as defensive matter, the First Amendment claim and so that's what I gather from the --

Mr. Michael E. Tigar: Yes, the First Amendment claims were raised --

Justice Potter Stewart: The Court of Appeals had written that he was permitted to do so?

Mr. Michael E. Tigar: Yes.

Those two were issues of law, which he would be entitled to present, yes sir.

Justice Potter Stewart: And was in time to present.

I mean he was allowed to present.

Mr. Michael E. Tigar: Yes, he was.

Yes sir.

Justice Hugo L. Black: What is your position?

You assume that record does show that his conduct was willful and the lawsuit --

Mr. Michael E. Tigar: Our position then Mr. Justice Black is that the regulations are invalid as not having been authorized by Congress.

That they're nonetheless invalid for failure to provide procedural safeguards and that the Hershey Memorandum is an incommunicable system of regulation or scheme regulation, which violates the First Amendment on its face so that the --

Justice Hugo L. Black: Are you saying, valid because of what?

Mr. Michael E. Tigar: That the regulations here, the delinquency regulations, the Hershey Memorandum and the local board memorandum taken together, are a scheme for regulating dissent, which is unconstitutional on it's face.

And that therefore, because the board acted in reliance upon a part of the scheme, the conviction must be reversed.

Chief Justice Warren E. Burger: I would understand that argument a great deal better if you were arguing to us that when he received his delinquency notice, he had asked for a hearing and had been refused a hearing but he did not ask, did he?

Mr. Michael E. Tigar: Mr. Chief Justice, the regulations do not provide for a hearing, a fair reading of Regulation 1642.14B establishes that in a case such as this, where the registrant is already 1-A, that the only hearing, that can be granted repossess in the absolute unfettered discussion of the local board.

Second --

Chief Justice Warren E. Burger: But that is not tested out by asking for it, was it?

Mr. Michael E. Tigar: My response to that would be twofold, Mr. Chief Justice.

First, the delinquency notice, although it asked the registrant to come in to a local board, says he can come in to any local board.

The regulations provide that what is to happen to him there is not telling him that he's entitled to a hearing.

Second, as this Court held in McKart against United States, he would be excused from fetter to exhaust because of the futility of doing so, we will forget the Selective Service board, 372 Federal 2d, 817.

Chief Justice Warren E. Burger: Thank you, Mr. Tigar.

Thank you for your submission.

Thank you for your submission, Mr. Ruckelshaus.

The case is submitted.