Kulas v. Laird

• Court: U.S. District Court — Eastern District of New York
• Writing for the Court: WEINSTEIN
• Citation: Kulas v. Laird, 315 F.Supp. 345 (E.D. N.Y. 1970)
• Decision Date: 14 May 1970
• Docket Number: No. 70 C 388.,70 C 388.
• Parties: Grahame J. KULAS, Petitioner, v. Hon. Melvin LAIRD, Secretary of Defense, Hon. Stanley Resor, Secretary of the Army, Commanding Officer, Armed Forces Examining and Entrance Station, Fort Hamilton, Brooklyn, New York, Respondents.

315 F. Supp. 345

Grahame J. KULAS, Petitioner, v. Hon. Melvin LAIRD, Secretary of Defense, Hon. Stanley Resor, Secretary of the Army, Commanding Officer, Armed Forces Examining and Entrance Station, Fort Hamilton, Brooklyn, New York, Respondents.

No. 70 C 388.

United States District Court, E. D. New York.

May 14, 1970.

Thomas M. Quinn, New York City, for petitioner.

Edward R. Neaher, U. S. Atty. for Eastern District of New York, Brooklyn, for respondents, Steven Arniotes, New York City, of counsel.

MEMORANDUM AND ORDER GRANTING WRIT OF HABEAS CORPUS

WEINSTEIN, District Judge.

Petitioner seeks a writ of habeas corpus releasing him from the custody of the Armed Services. Since the final order to report for induction, pursuant to which the petitioner submitted to induction on March 30, 1970, is invalid, the writ must issue, and the petitioner must be released.

I. FACTS

The only evidence apart from the Selective Service file was the uncontradicted testimony of the petitioner. This testimony is highly credible. The United States knew the substance of petitioner's claims and had ample opportunity to prepare. Since the hearing was held more than three weeks after the decision of the Second Circuit in Paszel v. Laird, 426 F.2d 1169 (2d Cir. 1970)—suggesting that testimony of Selective Service officials be utilized in cases such as this— the government's failure to produce additional evidence indicates that testimony of local board members would add nothing of value to the record.

Petitioner was registered with his local board in Nashua, New Hampshire shortly after his eighteenth birthday in 1963. From that time until he was classified I-A on June 24, 1969, he attended high school and college, and was entitled to student deferments (I-S(H) or II-S).

On June 2, 1969, petitioner requested a continued student deferment because of his graduate studies in the field of vocational rehabilitation which were being financed under a grant from the Department of Health, Education and Welfare. Believing that this request constituted all that was necessary to secure a personal appearance and appeal in the event of a denial of his request, he did not communicate with his local board again until August 18, 1969. On that day he appeared at his local board and sought a personal appearance and appeal.

Told by clerks at the local board that a personal appearance could no longer be granted, but that an appeal would be allowed, the petitioner executed a written request for an appeal. He also, as his testimony indicates,

"requested to see a Government appeal agent to more or less find out what my rights are and where I erred, if I did. The clerk indicated again that it would be too late for her to arrange a time to see the Government appeal agent.

"At that time, the clerk—the second clerk said to me that if I had any questions that I should direct them to her because she knew almost as much about the law as the Government appeal agent does, so I reiterated what I had said to the first clerk. She said, `No. We don't have time to arrange for a personal appearance or have you see a Government appeal agent.'

* * * * * *

"She said to me that I shouldn't tell her how to do their work, and then the first secretary started to raise her voice at me. * * *

"Then, she said, `Well, we'll send your file to the State Board of Appeal if you want, but we will not grant you a personal appearance.' * * *

"She said, `Either have your file sent to the State Appeal Board or I'll put your file back into the file and you will be inducted accordingly.'"

His file was sent to the State Appeal Board that day, pursuant to 32 C.F.R. § 1626.2(d), which provides that an appeal may be permitted, although the time for one has expired, if the failure to appeal earlier "was due to lack of understanding of the right to appeal." The file was returned to the local board on September 19, 1969, after the Appeal Board had affirmed the decision below. Less than one week later, September 25, 1969, petitioner was ordered to report for induction.

An unexplained note pinned to the file indicates that the local board met on October 14, 1969 and "reviewed and considered" the "entire contents of registrant's file." This memorandum suggests that the local board passed on the student deferment claim on the merits after petitioner was ordered to report for induction but before the conscientious objector claim detailed below was filed. The note stated that the "Board feels it is about time registrant be thinking of meeting his military obligations before seeking further deferments."

Petitioner has consistently asserted that prior to the date he was first ordered to report for induction his religious beliefs had matured within the context of his Roman Catholicism into conscientious opposition to participation in war at any time. Nevertheless, he made no assertion of this claim until October 21, 1969, after requesting the Special Form for Conscientious Objectors on October 3, 1969. In his dealings with the local board, and at the hearing in this case, the petitioner explained this delay by stating that not until late September or October, 1969—after the notice to report for induction—did he first learn that his Roman Catholicism did not, as a matter of law, preclude him from a claim to conscientious objector status.

After the submission of petitioner's claim of conscientious objection to the local board, with a carbon copy to the State Director of Selective Service, the Director reviewed the file and, in a letter of October 27, 1969 to the local board, wrote:

"In order that this registrant may be granted every right to which he is entitled, I am requesting the local board to postpone his induction date for an indefinite period. This postponement will allow the local board to carefully consider the registrant's claim of conscientious objection on the basis of the evidence submitted. If the local board is unable to grant the conscientious objector classification claimed, it shall request the registrant to appear before it for a personal interview in accordance with Local Board Memorandum No. 41, paragraph 3(b)."

Local Board Memorandum No. 41 provides in pertinent part:

"2. What Constitutes a Claim of Conscientious Objection.—A registrant should be considered to have claimed conscientious objection to war if he has signed Series VIII of the Classification Questionnaire (SSS Form No. 100), if he has filed a Special Form for Conscientious Objector (SSS Form No. 150), or if he has filed any other written statement claiming that he is a conscientious objector.

"3. Consideration of C.O. Claims by Local Boards.—(a) The local board will make every effort to secure a completed Special Form for Conscientious Objector (SSS Form No. 150) from each registrant who signed Series VIII of the Classification Questionnaire (SSS Form No. 100) or who has filed a written statement claiming he is a conscientious objector. However, the absence of an SSS Form No. 150 does not preclude consideration of all the other evidence in the cover sheet to support the claim.

"(b) If, upon consideration of this evidence, the local board determines that it cannot grant the I-A-O or I-O classification claimed, the local board should invite or request the registrant to meet with it for an interview prior to classification. The primary purpose of the interview will be to develop further facts on which the conscientious objector claim is based, and the sincerity of such claim. This interview does not take the place of the personal appearance which the registrant may request under Section 1624.1, after the classification action."

While ambiguous, the reference to Memorandum 41 seems to have been intended as an assertion that a reopening and an opportunity for a personal appearance was not being ordered. In accordance with the Director's suggestion, petitioner's date of induction was postponed, and, by letter of November 12, 1969, the local board directed his presence at a "personal appearance" on November 18, 1969. Petitioner was informed that at this meeting he would be required to summarize in writing whatever was discussed. At the local board he was told that the meeting constituted merely an "interview" and not a "procedural personal appearance." Nothing in the file indicates that the local board complied with the request of the State Director to determine, before it ordered him to appear, whether the petitioner's conscientious objector claim might be granted.

The summaries of the November 18 meeting made by both the local board and the petitioner indicate that questioning was directed solely to the issue of the time of maturation of the petitioner's conscientious objector claims, and not to the nature of his beliefs. The minutes of the local board following this interview contain the following statement:

"After the registrant left the meeting room at 8:50 a. m. the board reviewed his file again and considered the evidence submitted. The board feels that after all this time and being in college, it is difficult to believe that he was unaware of all of his rights. Looked for further student deferments—now filing for a I-O classification. Classification not reopened."

On November 21, the local board notified petitioner that his classification had not been reopened, and ordered him to report for induction. Subsequent postponements, at the behest of the National Director of Selective Service, resulted in a final order to report for induction on March 30, 1970. Petitioner submitted to induction that day, and this action was filed immediately thereafter.

II. SCOPE OF REVIEW

Violations of due process in refusing to reopen and reconsider a classification sufficient to warrant relief in the federal courts may occur in two ways. First, a local or appellate board may deny a registrant valuable procedural rights designed for his protection in violation of applicable statutes or regulations; second, there may be no basis...