Gutknecht v. United States

Decision Date19 January 1970
Docket NumberNo. 71,71
PartiesDavid Earl GUTKNECHT, Petitioner, v. UNITED STATES
CourtU.S. Supreme Court

Michael E. Tigar, Washington, D.C., for petitioner, pro hac vice, by special leave of Court.

William D. Ruckelshaus, Washington, D.C., for respondent.

Mr. Justice DOUGLAS delivered the opinion of the Court.

This case presents an important question under the Military Selective Service Act of 1967, 62 Stat. 604, as amended, 65 Stat. 75, 81 Stat. 100.

Petitioner registered with his Selective Service Local Board and was classified I—A. Shortly thereafter he received a II—S (student) classification. In a little over a year he notified the Board that he was no longer a student and was classified I—A. Meanwhile he had asked for an exemption as a conscientious objector. The Board denied that exemption, reclassifying him as I—A, and he appealed to the State Board. While that appeal was pending, he surrendered his registration certificate and notice of classification by leaving them on the steps of the Federal Building in Minneapolis with a statement explaining he was opposed to the war in Vietnam. That was on October 16, 1967. On November 22, 1967, his appeal to the State Board was denied. On November 27, 1967, he was notified that he was I—A.

On December 20, 1967, he was declared delinquent by the local board. On December 26, 1967, he was ordered to report for induction on January 24, 1968. He reported at the induction center, but in his case the normal procedure of induction was not followed. Rather, he signed a statement, 'I refuse to take part, or all, (sic) of the prescribed processing.' Thereafter he was indicted for wilfully and knowingly failing and neglecting 'to perform a duty required of him' under the Act. He was tried without a jury, found guilty, and sentenced to four years' imprisonment. United States v. Gutknecht, D.C., 283 F.Supp. 945. His conviction was affirmed by the Court of Appeals, 8 Cir., 406 F.2d 494. The case is here on a petition for a writ of certiorari, 394 U.S. 997, 89 S.Ct. 1595, 22 L.Ed.2d 775.

I

Among the defenses tendered at the trial was the legality of the delinquency regulations which were applied to petitioner. It is that single question which we will consider.

By the regulations promulgated under the Act a local board may declare a registrant to be a 'delinquent' whenever he

'has failed to perform any duty or duties required of him under the selective service law other than the duty to comply with an Order to Report for Induction (SSS Form No. 252) or the duty to com- ply with an Order to Report for Civilian Work and Statement of Employer (SSS Form No. 153). * * *' 32 CFR § 1642.4.

In this case, petitioner was declared a delinquent for failing to have his registration certificate (SSS Form No. 2) and current classification notice (SSS Form No. 110) in his personal possession at all times, as required by 32 CFR §§ 1617.1 and 1623.5 respectively.

The consequences of being declared a delinquent under § 1642.4 are of two types: (1) Registrants who have deferments or exemptions may be reclassified in one of the classes available for service, I—A, I—A—O, or I—O, whichever is deemed applicable. 32 CFR § 1642.12. (2) Registrants who are already classified I—A, I—A O, or I—O, and those who are reclassified to such a status, will be given first priority in the order of call for induction, requiring them to be called even ahead of volunteers for induction. 32 CFR § 1642.13. The latter consequence deprives the registrant of his previous standing in the order of call as set out in 32 CFR § 1631.7.1

The order-of-call provision in use when petitioner was declared 'delinquent' 2 is set out in 32 CFR § 1631.7(a). The provision lists, in order, six categories of registrants and provides that the registrants shall be selected and ordered to report for induction according to the order of those categories. The first category is delinquents; the next category is volunteers; the other four categories consist of nonvolunteers. In this case, the petitioner was in the third of the six categories at the time he was declared to be a 'delinquent.' By virtue of the declaration of delinquency he was moved to the first of the categories which meant, according to the brief of the Department of Justice, that 'it is unlikely that petitioner, who was 20 years of age when ordered to report for induction, would have been called at such an early date had he not been declared a delinquent.'

If a person who is ordered to report for induction or alternative civilian service, refuses to comply with that order, he subjects himself to criminal prosecution. See 32 CFR §§ 1642.41, 1660.30.

There is no doubt concerning the propriety of the latter criminal sanction, for Congress has specifically provided for the punishment of those who disobey selective service statutes and regulations in § 12 of the Military Selective Service Act of 1967, 50 U.S.C. App. § 462 (1964 ed., Supp. IV). The question posed by this case concerns the legitimacy of the delinquency regulations which were applied to the petitioner, so as to deprive him of his previous standing in the order of call.

II

There is a preliminary point which must be mentioned and that is the suggestion that petitioner should have taken an administrative appeal from the order declaring him 'delinquent' and that his failure to do so bars the defense in the criminal prosecution.

The pertinent regulation is 32 CFR § 1642.14, which gives a delinquent who 'is classified in or reclassified into Class I—A, Class I—A—O or Class I—O' three rights:

(a) the right to a personal appearance, upon request, 'under the same circumstances as in any other case';

(b) the right to have his classification reopened 'in the discretion of the local board'; and (c) the right to an appeal 'under the same circumstances and by the same persons as in any other case.' (Emphasis added.)

The right to a personal appearance 'in any other case' is covered by 32 CFR § 1624.1(a). That section gives the right to '(e)very registrant after his classification is determined by the local board' provided a request is made therefor within 30 days. (Emphasis added.) The action taken against this petitioner, however, did not involve classification. The term 'classification' is used exclusively in the regulations to refer to classification in one of the classes determining availability for service, e.g., I—A, I—O. See 32 CFR pts. 1621—1623. 'Delinquency' is not such a classification, and a registrant is 'declared' a delinquent, not 'classified' as a delinquent. See 32 CFR pt. 1642.

The right to reopen his classification is also irrelevant to petitioner as he is not attacking his classification, but only his accelerated induction.

The right to appeal 'as in any other case' is covered by 32 CFR § 1626.2(a). That section provides that '(t)he registrant * * * may appeal to an appeal board from the classification of a registrant by the local board.' (Emphasis added.)

Again, since petitioner was not classified in conjunction with his delinquency, but only had his induction accelerated, it would mean that he did not have the right to an appeal under the regulations.3 We are not advised, in any authoritative way, that this interpretation of the regulations is contrary to the administrative construction of them or to the accepted practice.4

III

We come then to the merits. The problem of 'delinquency' goes back to the 1917 Act, 40 Stat. 76, as shown in the Appendix to this opinion. The present 'delinquency' regulations with which we are concerned stem from the 1948 Act, 62 Stat. 604.

The regulations issued under the 1948 Act were substantially identical to the present delinquency regulations, 32 CFR pt. 1642. Nothing in the 1948 Act or in any prior Act makes reference to delinquency or delinquents. The regulations purport to issue under the authority of § 10 of the 1948 Act. Section 10, however, relates neither to selection (§ 5) nor to deferments and exemptions (§ 6), but simply to the administration of the Act as delegated to the President: 'The President is authorized—(1) to prescribe the necessary rules and regulations to carry out the provisions of this title.' 62 Stat. 619.

The delinquency provisions of 32 CFR pt. 1642, survived the Military Selective Service Act of 1967 largely intact. Again, however, there is nothing to indicate that Congress authorized the Selective Service System to reclassify exempt or deferred registrants for punitive purposes and to provide for accelerated induction of delinquents. Rather, the Congress reaffirmed its intention under § 12 (50 U.S.C. App. § 462 (1964 ed., Supp. IV)), to punish delinquents through the criminal law.

It is true, of course, that Congress referred to 'deinquents' in § 6(h)(1), 81 Stat. 102, 50 U.S.C. App. § 456(h)(1) (1964 ed., Supp. IV):

'As used in this subsection, the term 'prime age group' means the age group which has been designated by the President as the age group from which selections for induction into the Armed Forces are first to be made after delinquents and volunteers.' (Emphasis added.)

This reference concerns only an order-of-call provision which institutes a call by age groups, 32 CFR § 1631.7(b), a provision which has never been used. This casual mention of the term 'delinquents,' moreover, must be measured against the explicit congressional provision for criminal punishment of those who violate the selective service laws, 50 U.S.C. App. § 462 (1964 ed., Supp. IV), the congressional provision for exemptions and deferments, 50 U.S.C. App. § 456 (1964 ed., Supp. IV), and congressional expressions emphasizing the importance of an impartial order of call, 50 U.S.C. App. § 455 (1964 ed. Supp. IV); H.R.Conf.Rep. No. 346, 90th Cong., 1st Sess., 9—10. Thus it was that the Solicitor General stated in his brief in Oestereich v. Selective Service System Local Board No. 11, No. 46, O.T.1968, 393...

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