# Gutknecht v. United States/Concurrence Stewart

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Harlan Stewart
United States Supreme Court
396 U.S. 295
Gutknecht v. United States
Argued: Nov. 20, 1969. --- Decided: Jan 19, 1970
Mr. Justice STEWART, concurring in the judgment.
I do not reach the question whether Congress has authorized the delinquency regulations, because even under the regulations the petitioner's conviction cannot stand. After the petitioner's local board declared him delinquent, he had 30 days as a matter of right to seek a personal appearance before the board and to take an appeal from its ruling. Yet the board gave him no chance to assert either of those rights. Instead, it ordered him to report for induction only five days after it had mailed him a notice of the delinquency declaration.
The local board thus violated the very regulations it purported to enforce. Those provisions seek to induce Selective Service registrants to satisfy their legal obligations by presenting them with the alternative prospect of induction into the armed forces. The personal appearance and appeal are critical stages in the delinquency process. They enable the registrant declared delinquent by his local board to contest the factual premises on which the delinquency declaration rests, to correct his oversight if the breach of duty has arisen merely from neglect, or to purge himself of his delinquency if his violation has been wilful. In any event, the regulatory objective is remedial. The board's authority to reclassify a registrant based on his delinquency and to accelerate his induction is analogous to the age-old power of the courts to pronounce judgments of civil contempt. In each case the subject of the order carries 'the keys * * * in (his) own pocket' to the termination of the order's effect.
The Government has advanced the civil contempt analogy, not only in this case, but also in others before the Court both this Term and last. Such an interpretation of the delinquency regulations comports with the view of the agency charged with their administration-that their purpose is to provide young men for the armed services, not the penitentiaries. It comports, as well, with the regulatory scheme itself, under which the local board may reopen its classification of a delinquent registrant without regard to the usual restrictions against such action, and remove the registrant from delinquency status at any time, even after it has ordered him to report for induction.
Accordingly, even though the regulations seem to say that such reopening and removal lie within the discretion of the local board, the Government agrees that the board would abuse its discretion if it refused such remedial relief to a registrant who breached his duty inadvertently or carelessly, or who sought to correct the breach, even if originally wilful, and to return to compliance with his obligations. But the Government argues that in this case the petitioner cannot avail himself of these provisions in the delinquency regulations, because he made no effort to correct his delinquency. The fact is that the petitioner's local board never gave him a chance to purge his delinquency. It declared him a delinquent on December 20, 1967, sent him a notice to that effect the next day, and five days later ordered him to report for induction, more than two weeks before the expiration of the petitioner's time to seek a personal appearance or take an appeal. In these circumstances the petitioner's failure to seek his local board's advice on what he should do, as suggested by the delinquency notice, does not detract from the force of his attack upon the validity of his criminal conviction.
The Government also argues that the petitioner was not prejudiced by the local board's departure from the prescribed regulatory routine because when he was declared delinquent he was already classified I-A. But the Court of Appeals noted that the petitioner's induction date was advanced as a result of the declaration, and the Government concedes that since the petitioner was only 20 years old at the time, it is unlikely that he would have been called at such an early date had he not been declared a delinquent. That the petitioner might eventually have been called by no means a certainty, given the variations in draft calls and the possibility that he might subsequently have qualified for a deferment or exemption-does not mean he cannot complain that he was ordered to report for induction earlier than he should have been.
Finally, it is said that the petitioner had no right to a personal appearance before the local board and an appeal from its ruling because its delinquency declaration did not entail his removal into Class I-A from some other category. Since the petitioner was already I-A, the argument runs, his local board never 'reclassified' him; it just shifted him from a lower to the highest category within the I-A order of call. Neither logic nor policy supports such a narrow reading of the regulations. Section 1642.14 specifically provides for a personal appearance and appeal, not only upon a 'reclassification into' I-A, but also upon a 'classification in' that category. The regulation thus covers precisely those registrants who are already 'classified in' Class I-A, and whose declaration of delinquency automatically elevates them to the head of the order of call, as well as those registrants who are not yet in I-A, and who must be 'reclassified into' that category before they can be put at the top of the list. The regulation, recognizing that the status of the registrant prior to his being declared delinquent and placed at the head of the order of call is irrelevant to the delinquency process, ensures that all registrants declared delinquent will enjoy the same rights of personal appearance and appeal without regard to their previous status.
Because the challenged regulations afford the petitioner procedural rights that his local board never gave him a chance to exercise, I would reverse the judgment of conviction.

## Notes

* ↑ Cf. Shillitani v. United States, 384 U.S. 364, 368-372, 86 S.Ct. 1531, 1534-1536, 16 L.Ed.2d 622; Green v. United States, 356 U.S. 165, 197-198, 78 S.Ct. 632, 650-651, 2 L.Ed.2d 672 (Black, J., dissenting); Penfield Co. v. SEC, 330 U.S. 585, 590, 67 S.Ct. 918, 921, 91 L.Ed. 1117; United States v. United Mine Workers, 330 U.S. 258, 330-332, 67 S.Ct. 677, 713-715, 91 L.Ed. 884 (Black and Douglas, JJ., concurring in part and dissenting in part).
* ↑ The Government has spelled out the analogy in its briefs in Oestereich v. Selective Service System Local Bd. No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402; Breen v. Selective Service Board No. 65 O.T.1969, awaiting decision; Troutman v. United States, No. 623, O.T.1969, cert. pending; and the present case. See also Griffiths, Punitive Reclassification of Registrants Who Turn in Their Draft Cards, 1 Sel.Serv.L.Rep. 4001, 4010-4012.
* ↑ Selective Service System, Legal Aspects of Selective Service 47 (Rev.1969).
* ↑ 32 CFR § 1642.14(b); cf. 32 CFR § 1625.2.
* ↑ 32 CFR § 1642.4(c). Of similar import is the board's authority, before notifying the local United States Attorney that a registrant has failed to report for induction, to wait 30 days if it believes it may be able to locate the registrant and secure his compliance. 32 CFR § 1642.41(a).
* ↑ See 32 CFR §§ 1642.4(c), 1642.14(b).
* ↑ The Government qualifies its interpretation by implying that a local board might not abuse its discretion in refusing removal in the case of a registrant who sought in good faith to correct his breach of duty after the board had issued its order to report for induction. But that limitation has no application in the present case, where the local board improperly issued the order to report before the petitioner had a chance to bring himself into compliance. In Troutman v. United States, supra, where the Solicitor General has conceded that the local board erred in refusing to remove the petitioner's delinquency after he sought to bring himself into compliance with his Selective Service duties, nearly six months intervened between the board's declaration of delinquency that the petitioner sought to cure and its order to report for induction that gave rise to the prosecution for failure to submit to induction.
* ↑ 32 CFR §§ 1642.14, 1624.1(a), 1624.2(d), 1626.2(c)(1).
* ↑ Cf. McKart v. United States, 395 U.S. 185, 197, 89 S.Ct. 1657, 1664, 23 L.Ed.2d 194.
* ↑ 406 F.2d 494, 496.
* ↑ United States v. Baker, 9 Cir., 416 F.2d 202, 204-205; Yates v. United States, 1 Cir., 404 F.2d 462, 465-466, rehearing denied, 407 F.2d 50, cert. denied, 395 U.S. 925, 89 S.Ct. 1781, 23 L.Ed.2d 242; United States v. Smith, D.C., 291 F.Supp. 63, 67-68; United States v. Lybrand, D.C., 279 F.Supp. 74, 77-83.
* ↑ See 32 CFR § 1631.7(a).
* ↑ Cf. 32 CFR §§ 1642.12, 1642.13.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse