Shiffman v. Selective Service Board No Zigmond v. Selective Service Board No

• Decision Date: 01 October 1967
• Citation: 391 U.S. 930,88 S.Ct. 1831,20 L.Ed.2d 849
• Parties: SHIFFMAN v. SELECTIVE SERVICE BOARD NO. 5. ZIGMOND v. SELECTIVE SERVICE BOARD NO. 5. Nos. ___ and ___
• Court: U.S. Supreme Court

391 U.S. 930

88 S.Ct. 1831

20 L.Ed.2d 849

SHIFFMAN

v SELECTIVE SERVICE BOARD NO. 5.

ZIGMOND

v. SELECTIVE SERVICE BOARD NO. 5.

Nos. ___ and ___.

Supreme Court of the United States

October Term, 1967.

May 27, 1968

For memorandum decisions of the court see 391 U.S. 930, 88 S.Ct. 1831.

Mr. Justice STEWART, concurring.

In voting to deny these applications, I intimate no view upon the merits of the applicants' substantive claims, which are not now before us.

Mr. Justice DOUGLAS, dissenting.

In these cases the Court of Appeals for the First and Second Circuits have held that § 10(b)(3) of the Military Selective Service Act, 50 U.S.C.App. § 460(b)(3),¹ precludes preinduction judicial review of action taken against the two applicants by their local draft boards. They seek stays of induction into the Armed Forces until this Court has acted on certiorari petitions they will file, arguing that § 10(b)(3) is inapplicable or may not constitutionally be applied to require registrants either to forego the exercise of First Amendment rights or to vindicate them by defending a criminal prosecution.²

Applicant Shiffman's Local Board declared him delinquent, canceled his II-A occupational deferment and reclassified him I-A after Shiffman had 'turned in' his draft classification card to the Government in an antiwar protest. He was then ordered to report for induction. Applicant Zigmond was classified I-A, but, having reached the age of 26, should ordinarily not have been called for induction until younger eligible registrants in the draft pool had been taken (see 32 CFR § 1631.7). Nevertheless, he received a delinquency notice followed by his induction notice soon after 'turning in' to the Government both his draft registration and classification certificates as a sign of protest.

I would grant the stays³ as I am unable to see any place in our constitutional system for Selective Service delinquency regulations employed to penalize or deter exercise of First Amendment rights.

The First Amendment means that whatever speech or protest a person makes, he may not, I submit, be taken by the neck by the Government and subjected to punishment, penalties, or inconveniences for making it.

1 'No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, * * *.'

2 Oestereich v. Selective Service Local Board No. 11, No. 1246, this Term, 391 U.S. 912, 88 S.Ct. 1804, 20 L.Ed.2d 651, cert. granted, May 20, 1968, raises the same issue presented in these cases, viz., whether § 10(b)(3) may, consistent with the First Amendment, preclude judicial review of petitioner's punitive reclassification and order to report for induction made by his local board after petitioner had returned his Selective Service registration certificate to the Government as a protest against the war in Vietnam. Although the Solicitor General supported that petition on the ground that § 10(b)(3) should not be construed to preclude judicial review of local board action terminating an express statutory exemption granted by Congress, the writ we issued was unrestricted. The question of the validity of § 10(b)(3) in cases raising First Amendment defenses to reclassification and induction is now pending before this Court and these cases clearly come within the rule of Yasa v. Esperdy, 80 S.Ct. 1366, 4 L.Ed.2d 1717, and Keith v. People of State of New York, 79 S.Ct. 938, 3 L.Ed.2d 974, in which stays were granted because similar or identical issues were before the Court in other cases.

3 The factors which we consider in passing upon stay applications include the likelihood that the case will command the vote of four Justices upon petition for certiorari (Appalachian Power Co. v. American Institute of C.P.A., 80 S.Ct. 16, 4 L.Ed.2d 30 (Mr. Justice Brennan)); the likelihood of real and irreparable injury to the applicant if stay is denied (Public Service Board of State of Vermont v. United States, 87 S.Ct. 3, 17 L.Ed.2d 41 (Mr. Justice Harlan)); Long Beach Federal Sav. &...