McGee v. United States/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

This is a case where so far every judge has agreed that McGee is a conscientious objector. He expressed his belief 'in a personal Supreme Being to whom obligation is superior when duties of human relations are considered'; he said that 'taking part in any form of military operation indicates an approval/consent situation repugnant * *  * to love and service of God and fellowman.' The majority of the Court of Appeals concluded that '(n)either his prior nor his subsequent actions were inconsistent with his assertions *  *  * and we see nothing in McGee's file-all that was before the board-that could reasonably put his sincerity in issue.' 426 F.2d 691, 697. Judge Feinberg in dissent agreed. Id., at 703.

Petitioner was a Roman Catholic studying at the Union Theological Seminary in New York City, preparing for the ministry. His sincerity and dedication to his moral cause are not questioned.

The critical issue in the case is whether the Selective Service Board in 1966 did 'consider' and reject the claim of the registrant that he was a conscientious objector. The District Court and a majority of the Court of Appeals held that the board did pass on the claim. And this Court now refuses to pass on the registrant's claim to the contrary, because, it says, that finding is not 'clearly erroneous.' That the finding is clearly erroneous seems apparent to one who reads the entire record.

The advice which the registrant received in a letter from the board, dated March 23, 1966, was as follows: 'We wish to advise that your claim as conscientious objector will be considered when you no longer qualify for student classification.' That letter states that decision on the 'claim as conscientious objector' will be passed on later. The inference is clear-that it was not then considered and decided.

The Chairman of the board testified that the conscientious objector claim was not considered, 'because the young man was attending college and in my judgment he rated a 2S qualification which we proceeded to give him.' He later testified that in February 1966 he, the Chairman of the board, felt 'that there weren't sufficient facts in that to motivate me to grant the registrant the request he sought.' Yet even that ambiguous statement is a far cry from concluding that the board rejected his claim to status as a conscientious objector. Indeed, it was the duty of the board under the Regulations to classify the registrant 'in the lowest class for which he is determined to be eligible.' 32 CFR § 1623.2. And it is clear that the student classification of II-S is lower than the classification of a conscientious objector, I-O. In 1966 the board therefore had no occasion to pass on the conscientious objector claim.

As respects the reclassification of registrant in 1967 the Chairman of the board testified: ' * *  * I recall that subsequently the young man finished his college or left college, I don't recall, and did not further merit a 2S deferment at which time, sir, based on nothing further in his file other than what we had already had in the file, we gave him a 1A classification. In doing that, sir, we again reviewed what appeared in the file.' And the Chairman also testified: 'He was no longer in school and we had no alternative but to classify him 1A.'

But it is clear from the Chairman's own testimony that the classification of I-A granted in 1967 was based upon the supposition that the board had denied the conscientious objector claim in 1966, for the Chairman stated:

'Based on our previous determination that his request for     conscientious objection status was denied, we had no alternative at that time but to give him a 1A,      which we did.

'Q. You didn't consider the conscientious objector claim     again because it had been denied previously?

'A. Yes-'

And yet, as the Chairman also testified, the board made no decision in 1966:

'When Mr. McGee's return application came in asking for his     deferment on the grounds of conscientious objector, sir, that      was reviewed by me and read and carefully considered, as I      consider all requests. As I stated before, it was my     considered judgment upon concluding the reading of it and my      consideration that he did not rate the deferment.

'Q. Mr. Lande, am I correct in understanding that the     decision with respect to this conscientious objector      application was made, then, by you and not by the entire      board?

'The Court: Are you talking now about the original receipt of     the application?

'Mr. Meyer (counsel for petitioner): Yes, your Honor.

'The Court: Or when they were told or learned that he no     longer was in college?

'Mr. Meyer: The original receipt.

'The Court: He said, as I recall it, that that was his     decision.'

It is, with all due respect, I think, a clear miscarriage of justice to allow a man to be sent off to prison where there are at best only dubious grounds for saying that the board discharged its statutory duty of considering and passing upon the conscientious objector claim.

The question might not loom as important as it seems to be in this case if the claim itself were a transparent one. But there is nothing on the face of the claim or in the record to detract from it. The man was a theological student studying for the priesthood, and to send him off to prison on this record is either to sanction a form of administrative trickery or to allow the Selective Service board to act quite irresponsibly.

If there were a 'lawless' act in this case, it was committed by the Selective Service Board.

It was the board that defaulted, not McGee. Its duty under the Regulations was to 'receive and consider all information, pertinent to the classification of a registrant, presented to it.' 32 CFR § 1622.1(c) (italics added). The board did not 'consider' the claim. Since the board did not 'consider' the claim and reject it, but deferred decision on it in 1966 and then in 1967 said that the 1966 deferment was a decision on the merits, there was no way in which McGee could have made a timely appeal to the board.

This case, on the facts, is a much stronger one for dispensing with the need to exhaust administrative remedies than was McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194. In McKart the registrant failed to appeal his classification of I-A where he had enjoyed a IV-A classification (sole surviving son status) until his mother died. Then the board put him in I-A on the ground that the 'family unit' had ceased to exist. We excused exhaustion of remedies on the ground that only a question of law was involved. We rationalized the result as follows:

'In short, we simply do not think that the exhaustion     doctrine contributes significantly to the fairly low number      of registrants who decide to subject themselves to criminal      prosecution for failure to submit to induction. Accordingly,     in the present case, where there appears no significant interest to be      served in having the System decide the issue before it      reaches the courts, we do not believe that petitioner's      failure to appeal his classification should foreclose all      judicial review.' Id., at 200, 89 S.Ct., at 1666.

By like reasoning, we should conclude that cases where the local board does not 'consider' the conscientious objector claim must be few and far between. Moreover, the term 'consider' is a key part of a Regulation and just as much a question of law as the phrase in issue in McKart. Men should not go to prison because boards are either derelict or vindictive.

I would reverse this judgment of conviction.