United States v. Weller/Dissent Douglas

by William O. Douglas

United States Supreme Court

401 U.S. 254

United States  v.  Weller

 Argued: Dec. 10, 1970. --- Decided: Feb 24, 1971

Mr. Justice DOUGLAS, dissenting.

I believe that the appeal is properly here and I believe that United States v. Mersky, 361 U.S. 431, 80 S.Ct. 459, 4 L.Ed.2d 423, is a precedent that sustains my view and may not properly be distinguished as the Court undertakes to do.

In Mersky a statute governing the labeling of imported articles was involved. The Act made it mandatory to label articles of foreign origin with 'the English name of the country of origin.' It also said that the Secretary of the Treasury 'may' determine the 'words and phrases or abbreviations' which were acceptable 'as indicating the country of origin.' 19 U.S.C. § 1304(a).

We held that the Act and the regulation were 'so inextricably intertwined' that dismissal of the information 'must be held to involve the construction of the statute.' 361 U.S., at 438, 80 S.Ct., at 464.

In the present case the Court concludes that the provision of the Military Selective Service Act of 1967 in issue and the regulations are 'far short' of being 'inextricably intertwined.' But, with all respect, the only section of the Act quoted is the penal provision defining the crime of refusing to be inducted. ^[1] The more relevant section is § 10(b)(3), 50 U.S.C.App. § 460(b) (3) (1964 ed., Supp. V), which reads in relevant part:

'Such local boards, or separate panels thereof each consisting of three or more members, shall, under rules and regulations prescribed by the President (§ 10(b)(1)), have the power within the respective jurisdictions of such local boards to hear and determine, subject to the right of appeal * * *, all questions or claims with respect to inclusion for, or exemption or deferment from, training and service under this title * * *.' (Emphasis added.)

The question turns on the meaning of 'to hear and determine'. President Truman, pursuant to his rule-making power granted by § 10(b)(1), promulgated on August 20, 1948, a regulation, now 32 CFR § 1624.1, which described the kind of 'hearing' to which a registrant is entitled. ^[2] More precisely does the power 'to hear and determine' include the right of a registrant personally to appear? Does it include the right of a registrant to appear through an attorney or with an attorney? Is the question to be resolved 'under the rules and regulations prescribed by the President' or is the Act to be read as including constitutional requirements of counsel? In my view the power 'to hear and determine,' granted by the Act, may indeed be more intertwined with the regulations than was the Act in the Mersky case. For in the latter, the Act, as noted, made it mandatory to label articles of foreign origin with 'the English name of the country of origin.' The power of the Secretary of the Treasury to promulgate regulations was therefore a power merely to fill in details. In contrast, the present Act leaves to 'rules and regulations prescribed by the President' the scope and nature of the power of a local board 'to hear and determine' the claims of a registrant. Is that constitutionally permissible? This case, rather than Mersky, is more nearly the one whether the Act and the regulations are 'so inextricably intertwined' that dismissal of the present indictment 'must be held to involve the construction of the statute.'

The District Court construed 'hear and determine' claims of registrants 'under rules and regulations prescribed by the President,' as those words are used in § 10(b)(3) of the Act, not to authorize 'the constitutionally-suspect action of removing the right to be represented by counsel.' 309 F.Supp., at 52. The District Court in granting the motion to dismiss accordingly concluded that it was 'loathe to hold that the administrative denial of such a right is either authorized by Congress or is constitutional.' Id., at 56. I therefore cannot say that the dismissal of the indictment was not based on a construction of the statute that the District Court never considered.

I would not remit the case to the Court of Appeals but would decide here and now whether in the circumstances here presented the registrant was entitled to the aid of counsel at the hearing before the board.

Notes

1. As we noted only last Term in dealing with this same statute, 'As a matter of sound construction, however, 'statute upon which the indictment * * * is founded' should be read to include the entire statute, and not simply the penalty provisions.' United States v. Sisson, 399 U.S. 267, 280 n. 9, 90 S.Ct. 2117, 2124, 26 L.Ed.2d 608.
2. The predecessor of 32 CFR § 1624.1, as promulgated by President Truman, provided in relevant part:

'(a) Every registrant, after his classification is determined by the local board (except a classification which is itself determined upon an appearance before the local board under the provisions of this part), shall have an opportunity to appear in person before the member or members of the local board designated for the purpose if he files a written request therefor within 10 days after the local board has mailed a Notice of Classification (SSS Form No. 110) to him. Such 10-day period may not be extended, except when the local board finds that the registrant was unable to file such request within such period because of circumstances over which he had no control.

'(b) No person other than a registrant shall have the right to appear in person before the local board, but the local board may, in its discretion, permit any person to appear before it with or on behalf of a registrant: Provided, That if the registrant does not speak English adequately he may appear with a person to act as interpreter for him: And provided further, That no registrant may be represented before the local board by anyone acting as attorney or legal counsel.' 13 Fed.Reg. 4858.

Section 1624.1(a) was amended by President Johnson by Executive Order No. 11350 on May 3, 1967, in respects not material here. 32 Fed.Reg. 6961.