Mulloy v. United States

• Decision Date: 15 June 1970
• Docket Number: No. 655,655
• Citation: 398 U.S. 410,26 L.Ed.2d 362,90 S.Ct. 1766
• Parties: Joseph Thomas MULLOY, Petitioner, v. UNITED STATES
• Court: U.S. Supreme Court

398 U.S. 410

90 S.Ct. 1766

26 L.Ed.2d 362

Joseph Thomas MULLOY, Petitioner,

v UNITED STATES.

No. 655.

Argued April 20, 1970.

Decided June 15, 1970.

Robert Allen Sedler, Lexington, Ky., for petitioner.

Joseph J. Connolly, Washington, D.C., for respondent.

Mr. Justice STEWART delivered the opinion of the Court.

Following a jury trial in the United States District Court for the Western District of Kentucky, the petitioner was convicted for refusing to submit to induction into the Armed Forces in violation of § 12(a) of the Military Selective Service Act of 1967, 62 Stat. 622, as amended, 50 U.S.C. App. § 462(a) (1964 ed., Supp. IV). He was sentenced to five years' imprisonment and fined $10,000, and his conviction was affirmed by the Court of Appeals for the Sixth Circuit. 412 F.2d 421. We granted certiorari, 396 U.S. 1036, 90 S.Ct. 680, 24 L.Ed.2d 680, to consider the petitioner's contention, raised both in the trial court and in the Court of Appeals, that the order to report was invalid because his local board had refused to reopen his I—A classification following his application for a I—O classification as a conscientious objector. The argument is that it was an abuse of discretion for the board to reject his conscientious objector claim without reopening his classification, and by so doing to deprive him of his right to an administrative appeal.

I

On October 17, 1967, the petitioner, who was then 23 years old and classified I—A (available for military service), wrote to his local Selective Service Board that '(a)fter much, much thinking, seeking, and questioning of my own religious upbringing and political experience I have concluded that I am a conscientious objector. I am therefore opposed to war in any form.' In response to this letter the clerk sent him the Special Form for Conscientious Objectors (SSS) Form 150), which he promptly completed and returned.¹

The petitioner stated in the form that he was conscientiously opposed by reason of his religious training and belief to participation in war in any form. He said that he believed in a Supreme Being and that this belief involved duties superior to those arising from any human relation; that his religious training had taught him that it was against God's law to kill; and that as a member of the armed services he would be obliged to kill or indirectly assist in killing. In response to the form's inquiry as to how, when, and from what source he had received the training and acquired the belief upon which his conscientious objection was based, he gave a detailed answer, explaining that he had been born and raised a Catholic; that he had at one point in his life thought he would become a priest; that he had gone through a religious crisis in college and left the church, but had returned to it and been greatly influenced by the writings of Thomas Merton, who had preached nonviolence. He said that he had learned in the work he had been doing with an antipoverty organization in Appalachia of the need for love and understanding among people, and of the futility of violence. He concluded that his early training, coupled with his adult experience, particularly as a worker among the Appalachian poor, had brought him to his present position as a conscientious objector.

The petitioner also gave detailed and specific answers to other questions that the form asked, such as when and where he had given public expression to the views expressed as the basis for his conscientious objector claim, and what actions or behavior he thought most conspicuously demonstrated the consistency and depth of his religious convictions. Five people who were well acquainted with the petitioner wrote to the board, attest- ing to the sincerity of his beliefs. One letter was from a Catholic priest, who wrote of the petitioner's honesty and integrity and said that he felt military service would do violence to the petitioner's conscience. Other letters from people who had worked with the petitioner spoke of his belief in nonviolence and confirmed the accuracy of the incidents that the petitioner had referred to in the form as manifestations of his beliefs. The petitioner's brother wrote that while he vehemently disagreed with the petitioner's unwillingness to bear arms for his country, he still felt that the petitioner was sincere in his beliefs.

In response to the petitioner's request to discuss his application with the board, the clerk wrote that the board had decided to grant him a personal appearance. This interview took place on November 9 and lasted about 10 or 15 minutes. It was attended by three of the four local board members. The re sume of the interview prepared by the clerk stated that the petitioner 'advised that he was claiming a C.O. classification because he had learned through experience and did not until later in life realize the importance of now believing as he did,' and that he 'felt that military service would interrupt his work and there would be no one else to take his place.' The minute entry in the petitioner's file indicated that all members present felt the information in the form, and accompanying letters, together with what was learned at the interview, did not warrant a reopening of the petitioner's I—A classification. However, no formal vote on the petitioner's application was taken until January 11, 1968, at which time the minute entry indicated, all four members were present and again it was noted that all 'felt this information did not warrant reopening' of the I—A classification. After receiving notification of the board's action, the petitioner wrote to the board on January 21 seeking to appeal its failure to reclassify him I—O. He said that he considered the November interview to have been a reopening of his case. On January 23 the board replied that the interview had been extended as a matter of courtesy, and that it had not at any time reopened the petitioner's classification. On the same day the petitioner was ordered to report for induction on February 23, 1968. The petitioner reported, but refused to submit to induction. This refusal resulted in the criminal charge that led to his conviction under 50 U.S.C. App. § 462(a) (1964 ed., Supp. IV).

II

Under the Selective Service regulations a 'local board may reopen and consider anew the classification of a registrant * * * (if presented with) facts not considered when the registrant was classified which, if true, would justify a change in the registrant's classification * * *.' 32 CFR § 1625.2² Even if the local board denies the requested reclassification, there is a crucial difference between such board action and a simple refusal to reopen the classification at all. For once the local board reopens, it is required by the regulations to 'consider the new information which it has received (and to) again classify the registrant in the same manner as if he had never before been classified.' 32 CFR § 1625.11. A classification following a reopening is thus in all respects a new and original one and, even if the registrant is placed in the same classification as before, '(e)ach such classification (following the reopening) shall be followed by the same right of appearance before the local board and * * * of appeal as in the case of an original classification.' 32 CFR § 1625.13. Where, however, in the opinion of the board, no new facts are presented or 'such facts, if true, would not justify a change in such registrant's classification * * *,' 32 CFR § 1625.4, the board need not reopen, and following such a refusal to reopen, the registrant has no right to a personal appearance or to an appeal. Thus, whether or not a reopening is granted is a matter of substance, for with a reopening comes the right to be heard personally and to appeal. While the petitioner here was given an interview as a matter of courtesy, the board's refusal to reopen his classification denied him the opportunity for an administrative appeal from the rejection of his conscientious objector claim. Therefore, if the refusal to reopen was improper, petitioner was wrongly deprived of an essential procedural right, and the order to report for induction was invalid.

III

Though the language of 32 CFR § 1625.2 is permissive, it does not follow that a board may arbitrarily refuse to reopen a registrant's classification. While differing somewhat in their formulation of...