Petersen v. Clark

• Decision Date: 28 May 1968
• Docket Number: Civ. No. 47888.
• Court: U.S. District Court — Northern District of California
• Parties: Norman Lloyd PETERSEN, Plaintiff, v. Ramsey CLARK et al., Defendants.

285 F. Supp. 700

Norman Lloyd PETERSEN, Plaintiff, v. Ramsey CLARK et al., Defendants.

Civ. No. 47888.

United States District Court N. D. California.

May 28, 1968.

Doris Brin Walker, Treuhaft, Walker & Burnstein, Oakland, Cal., for plaintiff.

Cecil F. Poole, U. S. Atty., Jerry K. Cimmet, Asst. U. S. Atty., for defendants.

ORDER DENYING DEFENDANTS' MOTION TO DISMISS

ZIRPOLI, District Judge.

NATURE OF THE CASE

Plaintiff filed this action seeking to enjoin his then-scheduled induction into the armed forced of the United States. He alleged that he had been illegally classified and ordered to report for induction. Basically, he set forth numerous alleged procedural errors committed by his local board in the classification process which led to the order to report for induction. Said errors, plaintiff contended, denied him due process and hence vitiated the validity of the order to report for induction.

On January 23, 1968, after this court heard oral argument and allowed plaintiff to amend the complaint, it was held that 50 U.S.C.App. § 460(b) (3), properly construed, barred a civil action to enjoin an induction on the grounds pressed by plaintiff. This court continues to be of the view that congressional intent was indeed to eliminate civil review of the validity of such orders. See Breen v. Selective Service Local Board No. 16, 284 F.Supp. 749 (U.S.Dist.Ct., D.Conn., March 13, 1968).

The order of January 23, 1968, as amended by this court's order of January 29, 1968, also ruled that plaintiff's amended complaint raised a substantial federal question appropriate for resolution by a three-judge court pursuant to 28 U.S.C. § 2282. The federal question is whether section 460(b) (3) is constitutional. A three-judge court was designated by the chief judge of this circuit. On February 20, 1968, a pretrial order was entered by this court and on March 14, 1968, this court approved a stipulation of the parties staying further proceedings in this case. The parties then believed that Oestereich v. Selective Service System Local Board No. 11, 390 F.2d 100 (10th Cir. 1968), in which certiorari was then to have been sought, see 390 U.S. ____, 88 S.Ct. 1804, 20 L.Ed. 2d 651, raised the issue of the constitutionality of section 460(b) (3).¹ From a reading of the memorandum filed by the Solicitor General in Oestereich, both sides later discovered that the Supreme Court may not decide the question which is precisely presented in this case. On April 3, 1968, the defendants asked to be relieved of the stipulation and filed a motion to dismiss this action.

On January 25, 1968, plaintiff refused to submit to induction into the armed forces of the United States. On April 23, 1968, plaintiff filed a motion basically seeking injunctive relief to prevent criminal prosecution for his noncompliance with the induction order, and seeking declaratory relief that the order was invalid. The civil suit is barred if section 460(b) (3)^* is constitutional so as to oust this court of subject matter jurisdiction to review plaintiff's classification and processing other than in a criminal case.

On April 26, 1968, oral argument was heard by the three-judge court. On May 13, 1968, after consideration by the three-judge court, it was determined that the action, insofar as it attacked the constitutionality of section 460(b) (3), did not necessitate a three-judge court. The three-judge court then remanded the case to this court for further consideration.

THE MOTION TO DISMISS

The pleadings heretofore filed and the oral argument to the three-judge court clearly frame the issue in this case: Is it unconstitutional and a denial of due process for Congress to deny a person the opportunity to have civil judicial review of his selective service classification and order to report for induction in an "article-three" or "constitutional" court² prior to a criminal prosecution pursuant to 50 U.S.C.App. § 462?

Plaintiff contends, in effect, that Article III's grant to Congress of the power to regulate original jurisdiction of the federal courts³ other than the Supreme Court⁴ is limited by the fifth amendment's due process clause which guarantees the right to an article-three court in circumstances such as are present here.⁵ This case involves the specific situation where a federal administrative agency places an individual in the position of having to either: (1) comply with an allegedly invalid order when compliance may subject him to such restraint of liberty as military service entails or (2) risk criminal prosecution to judicially test the order's validity.

A. Congressional Power to Regulate the Jurisdiction of the Lower Federal Courts

The United States Constitution, Article III, provides:

ARTICLE III. — THE JUDICIARY

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. * * *

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; —to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. * * *

Article III has engendered considerable and continuing debate centering on whether the Judiciary Act of 1789, 1 Stat. 73, creating lower federal courts, merely complied with the constitutional mandate that the judicial power "shall be vested" or was a gratuitous act of Congress which Congress was free to withhold or later revoke. See Wright, Federal Courts §§ 1, 10. The precise question, however, of whether Article III itself prohibits Congress from abolishing the lower federal courts is not raised in this case. The reason, of course, is that Article III is not the only guide to congressional power, for there is precedent construing the due process clauses of the fifth and fourteenth amendments and their implications concerning a right of judicial review.

At oral argument, plaintiff's counsel was asked whether Congress could abolish the United States District Courts and Courts of Appeals. The reply was a qualified "yes". The qualification was that some other (constitutional or article-three) court would have to be created in a case such as this one where an administrative body acts upon an individual in a coercive way. Counsel's answer either (1) ignored the holding in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), for surely original jurisdiction could not be conferred on the Supreme Court to enjoin military inductions if Marbury is viable; (2) implied that appellate review by the Supreme Court of a classification would suffice, such a scheme being like that held constitutional in Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944); or (3) was sophistry since opting for the creation of a new, lower constitutional court would, in reality, be the equivalent of a "no" answer.

The thrust of plaintiff's attack on section 460(b) (3) has been that the fifth amendment's due process clause is a limitation on congressional power to regulate jurisdiction. If due process requires either (1) appellate review of induction orders by the Supreme Court or (2) original jurisdiction of injunction actions to enjoin inductions in lower constitutional courts, prior to the time a person could raise the defense of an order's invalidity in a criminal case, then section 460(b) (3) is unconstitutional. Even if one of the foregoing alternatives is required to satisfy due process, Congress is still free to abolish the lower courts if Congress would prefer to place review in the Supreme Court. Section 460(b) (3) proscribes both alternatives.

B. Due Process and the Elimination of all Review

Despite Article III and the argument that Congress has plenary power over jurisdiction of the federal courts, but for original jurisdiction of the Supreme Court, most authorities are singularly alike in their reluctance to agree that Congress could completely abolish judicial review in a case such as this which involves the validity of an administrative order to report for induction. For example:

There is so much authority for the proposition that Congress is free to grant or withhold the judicial power that it might seem unnecessary to belabor the point. Yet lingering doubts remain. Wright, Federal Courts § 10.

In Lockerty v. Phillips, 319 U.S. 182, 63 S.Ct. 1019, 87 L.Ed. 1339 (1942), involving congressional power to vest special courts with power over Emergency Price Control Act disputes, the Court declared:

The Congressional power to ordain and establish inferior courts includes the power "of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good."

Yet the Court specifically reserved the question whether a prohibition of all relief would be constitutional. In Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944), the Court upheld a scheme which provided, as the only review in a constitutional court, an appeal to the Supreme...