Murray v. Blatchford, Civ. A. No. 4018.

• Decision Date: 24 December 1969
• Docket Number: Civ. A. No. 4018.
• Parties: Stephen Bruce MURRAY v. Joseph BLATCHFORD, Director of the Peace Corps, General Lloyd Wilson, Director of Rhode Island Selective Service, Local Board No. 3, Rhode Island Selective Service, John Mitchell, Attorney General of the United States, and Lincoln C. Almond, United States Attorney, District of Rhode Island.
• Court: U.S. District Court — District of Rhode Island

307 F. Supp. 1038

Stephen Bruce MURRAY v. Joseph BLATCHFORD, Director of the Peace Corps, General Lloyd Wilson, Director of Rhode Island Selective Service, Local Board No. 3, Rhode Island Selective Service, John Mitchell, Attorney General of the United States, and Lincoln C. Almond, United States Attorney, District of Rhode Island.

Civ. A. No. 4018.

United States District Court D. Rhode Island.

December 24, 1969.

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Marvin M. Karpatkin and Michael N. Pollet, Melvin L. Wulf, New York City, Milton Stanzler, Providence, R. I., for plaintiff.

William D. Ruckelshaus, Asst. Atty. Gen., Harland F. Leathers, Dept. of Justice, Washington, D. C., Lincoln C. Almond, U. S. Atty., for Dist. of Rhode Island, Providence, R. I., for defendants.

OPINION

PETTINE, District Judge.

This is a civil action commenced by the plaintiff, a citizen of the United States and a resident of Rhode Island, who seeks declaratory, injunctive, and other relief against the named defendants. In a previous decision published sub nom. Murray v. Vaughn, 300 F.Supp. 688 (D. R.I.1969), this court set out the facts as alleged in the complaint, denied the various defendants' various motions to dismiss, treated the defendant Peace Corps Director's motion to dismiss the plaintiff's allegations of violations of due process as a motion for more definite statement, which was granted, permitted plaintiff to amend his complaint to state more definitely his due process claims, and declined to pass upon plaintiff's motion for preliminary injunction but ordered priority hearing of the permanent injunction suit and consolidation with it of the preliminary injunction suit.

The case was tried in September, 1969 and in the course of trial the court ruled upon various motions of the various parties. In particular, the court permitted broad-based discovery by the plaintiff of Selective Service and Peace Corps files,¹ denied the plaintiff's pretrial motion to dismiss the indictment in the criminal proceeding here sought to be enjoined,² denied the defendants' renewed pretrial motion to dismiss the second count of the plaintiff's complaint,³ repeatedly denied hearsay objections by the defendants,⁴ including one specific such objection involving a difficult evidentiary ruling under Fed.R.Civ.P. 43 and the Rhode Island Dead Man's statute,⁵ denied defendants' motions for dismissal and judgment at the close of plaintiff's case,⁶ and granted plaintiff's post-trial motion to amend his complaint to conform to the proof at trial concerning certain additional, allegedly lawless action by the defendant local board.⁷ At the close of all the testimony, the court requested certain additional matters briefed, and the court then heard final arguments at which the plaintiff moved for judgment, and the defendant moved for dismissal or judgment. This decision constitutes the court's rulings on the defendants' final motions for dismissal and the parties' motions for judgment. Moreover, this decision constitutes the court's findings of fact and conclusions of law in compliance with Fed.R.Civ.P. 52 and 65.

Factual Findings

Stephen Bruce Murray was born on November 7, 1941 in Hartford, Connecticut. At age eighteen he registered with Rhode Island Local Board No. 3 of the Selective Service System. During his college and post-graduate years, he received II-S student deferments, which terminated in May, 1965 upon his graduation from UCLA with a Masters in Music. Near the completion of his studies at UCLA, Murray inquired into possible Peace Corps service and was, in February, 1965, accepted into the Peace Corps for service in Chile. In June, 1965 he received a II-A occupational deferment from Local Board No. 3 and immediately commenced his training for Peace Corps service.

During this training period there was some discussion of Peace Corps policy concerning Volunteers' involvement in host country politics. Murray understood Peace Corps policy to forbid active involvement in the elective politics of the host country. At no time was there any policy forbidding Volunteers to write books or articles or to publish matter in host country newspapers. At no time was it ever discused whether Volunteers could write to American or host country newspapers concerning civil liberties or other matters of public policy.

In late October, 1965 Murray took a week of home leave in Newport prior to his departure for Chile. At that time he made special inquiry of the clerk of Local Board No. 3, telling her of his term of service which would not terminate until December, 1967,⁸ approximately one month after his twenty-sixth birthday. The clerk assured Murray that the draft board would not bother him, and that his deferment would be continued.⁹ Moreover, Local Board No. 3 sent Murray a classification card indicating a II-A classification until June, 1967.¹⁰

After his home leave, Murray went to Chile where he engaged in service as a music teacher in the town of Concepion and as a member of the music faculty at the University of Concepion. The record stands in total testament to the distinguished, diplomatic, gentle and wholly professional quality of Murray's service to the people of Concepion — he was to them the very antithesis of the "ugly American."

In May of 1967, as the war in Vietnam continued to escalate, a group of Peace Corp Volunteers decided to circulate a petition among Volunteers in Latin America. The petition's ambition was a large signing by Latin American Volunteers and eventual publication in the New York Times, in the hope of bringing an early end to the mounting hostilities in Vietnam by manifesting strong support for such an end among the respectable and moderate members of the younger generation. The professional diplomatic community in both Washington and Santiago reacted swiftly and strongly to the petition: Ambassador Dungan, the then ambassador to Chile, informed the thirteen original initiators of the petition that attempted publication would result in their expulsion from Chile and return to the United States;¹¹ the subordinates in the Latin American section of the Peace Corps made known to Volunteers that any attempt to go to the media would result in expulsion. In May of 1967, Murray received in Concepion through the mail a copy of the petition circulated by the Volunteers in Santiago and a covering letter.¹² He signed the petition and returned it to Santiago. On June 1, 1967, through the agency of intermediate level Peace Corps personnel in Chile, a letter from the Director of the Peace Corps and the Ambassador to Chile was read to Volunteers in Concepion, including Murray.¹³ That letter made clear that signers of the petition were in danger of "administrative discipline," including expulsion. Murray asked for a copy of the letter and was denied it. He then disputed its force and effect and argued with Peace Corps personnel concerning its wrongfulness as a matter of constitutional principle. On June 5, Murray wrote to the New York Times,¹⁴ with copies to Peace Corps personnel, including Paul Bell, the Chilean Peace Corps Director, and Jack Vaughn, the Director. His letter, which stated his reasons for disagreement with Peace Corps policy, was rejected. On June 7, 1967, Murray was classified I-A by Local Board No. 3 in Newport.

One theory of the plaintiff in this litigation has been the so-called "conspiracy theory," set out in the previous decision of this court. Murray v. Vaughn, 300 F.Supp. 688 at 693 n. 3 (D.R.I.1969)

"Under this theory it is alleged that Murray's intention to state his mind on Peace Corps policy and on United States foreign policy became known to Peace Corps personnel who determined to and did, in fact, bring about his removal from the Peace Corps and who, also, informed his local Selective Service System agency of his termination and either hinted or indicated directly that Murray should be reclassified and that the local board then did reclassify Murray I-A."

The evidence fails to show any such conspiracy. While it is true that it was possible for Peace Corps personnel, prior to June 7th and after June 5th, to have informed by telecommunications the Selective Service System in Rhode Island of some possible retaliatory action against Murray by the Peace Corps for his dissent from Peace Corps policy and for his attempted publication in the New York Times, the record does not show any actualization of that possibility. It would require too great an inferential leap for this court to so find. Counsel for Murray has argued vigorously for the existence of the conspiracy. In particular emphasis has been placed upon (1) the availability to Chilean Peace Corps personnel of telecommunication access to the United States, (2) the testimony of Murray that his mother, now deceased, told him that Mrs. McBrier, the clerk of the local board, told her in a telephone conversation on Wednesday, June 21, 1967 that Murray was coming home from the Peace Corps, (3) the generally incompetent, illegal, and unexplained conduct of the local board with respect to Murray's case, including (a) the change of Murray's address to Newport in June, 1967 on his coversheet¹⁵ so as to deprive him of the sixty-day appeal period for registrants in foreign countries,¹⁶ (b) the existence of multiple "page 8's"¹⁷ and the attempted doctoring of Murray's file by Rhode Island Selective Service personnel,¹⁸ (c) the fact that Murray's letter of April, 1967 stating, in accordance with Mrs. McBrier's suggestion of October, 1965, that Murray would remain in the Peace Corps in Chile until December, 1967 has never appeared in Murray's file, and (d) the entire treatment of Murray's conscientious objector request. All of these factors, it is argued, can only be made consistent by the inference of conspiracy. The court cannot and will not attempt to make consistent the shoddy performance of Rhode Island Selective Service in...