source: Caselaw Access Project

author:
      Mr. Justice Stewart Mr. Justice Douglas,
      Mr. Justice Brennan,

license: Public Domain

text:
    EHLERT v. UNITED STATES
    No. 120.
    Argued January 13, 1971 —
    Decided April 21, 1971
    Stewart, J., deliyered the opinion of the Court, in which Burger, C. J., and Black, Harlan, White, and Blackmun, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 108. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 119.

      Paul N. Halvonik argued the cause for petitioner. With him on the briefs were Stanley J. Friedman, Mortimer H. Herzstein, and Marvin M. Karpatkin.

      Assistant Attorney General Rehnquist argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Marshall Tamor Golding.

      Norman Leonard filed a brief for the Lawyers’ Selective Service Panel of San Francisco as amicus curiae urging reversal.
   Mr. Justice Stewart

delivered the opinion of the Court.

The question in this case is whether a Selective Service local board must reopen the classification of a registrant who claims that his conscientious objection to war in any form crystallized between the mailing of his notice to report for induction and his scheduled induction date. The petitioner before us made no claim to conscientious objector status until after he received his induction notice. Before the induction date, he then wrote to his local board and asked to be allowed to present his claim. He represented that his views had matured only after the induction notice had made immediate the prospect of military service. After Selective Service proceedings not material here, the petitioner’s local board notified him that it had declined to reopen his classification because the crystallization of his conscientious objection did not constitute the “change in the registrant’s status resulting from circumstances over which the registrant had no control” required for post-induction notice reopening under a Selective Service regulation. The petitioner then refused to submit'to induction, and a grand jury in the United States District Court for the Northern District of California indicted him for violation of the Military Selective Service Act of 1967.

The petitioner waived trial by jury, and the District Court, holding that ripening of conscientious objector views could not be a circumstance over which a registrant had no control, found the petitioner guilty. The conviction was affirmed by the United States Court of Appeals for the Ninth Circuit, sitting en banc, and we granted certiorari, 397 U. S. 1074, to resolve a conflict among the circuits over the interpretation of the governing Selective Service regulation.

A regulation explicitly providing that no conscientious objector claim could be considered by a local board unless filed before the mailing of an induction notice would, we think, be perfectly valid, provided that no inductee could be ordered to combatant training or service before a prompt, fair, and proper in-service determination of his claim. The Military Selective Service Act of 1967 confers on the President authority “to prescribe the necessary rules and regulations to carry out the provisions of this title . . . 50 U. S. C. App. §460 (b)(1). To read out of the authority delegated by this section the power to make reasonable timeliness rules would render it impossible to require the submission, before mailing of an induction notice, of a claim matured before that time. The System needs and has the power to make reasonable timeliness rules for the presentation of claims to exemption from service.

A regulation barring post-induction notice presentation of conscientious objector claims, with the proviso mentioned, would be entirely reasonable as a timeliness rule. Selective Service boards must already handle prenotice claims, and the military has procedures for processing conscientious objector claims that mature in the service. Allocation of the burden of handling claims that first arise in the brief period between notice and induction seems well within the discretion of those concerned with choosing the most feasible means for operating the Selective Service and military systems. Further, requiring in-service presentation of post-notice claims would deprive no registrant of any legal right and would not leave a “no man's land” time period in which a claim then arising could not be presented in any forum.

The only unconditional right conferred by statute upon conscientious objectors is exemption from combatant training and service. The Selective Service law, indeed, provides for noncombatant training and service for those objectors to whose induction there is no obstacle. The right to civilian service “in lieu of . . . induction” arises only if a registrant’s “claim is sustained by the local board.” It does not follow, given the power to make reasonable timeliness rules, that a registrant has an unconditional right to present his claim to the local board before induction, any more than he has such a right after induction. Congress seems rather carefully to have confined the unconditional right created by the statute to immunity from combatant training and service. Consequently, requiring those whose conscientious objection has not crystallized until after their induction notices to present their claims after induction would work no deprivation of statutory rights, so long as the claimants were not subjected to combatant training or service until their claims had been acted upon.

That those whose views are late in crystallizing can be required to wait, however, does not mean they can be deprived of a full and fair opportunity to present the merits of their conscientious objector claims for consideration under the same substantive criteria that must guide the Selective Service System. See Welsh v. United States, 398 U. S. 333. The very assertion of crystallization just before induction might cast doubt upon the genuineness of some claims, but there is no reason to suppose that such claims could not be every bit as bona fide and substantial as the claims of those whose conscientious objection ripens before notice or after induction. It would be wholly arbitrary to deny the late crystallizer a full opportunity to obtain a determination on the merits of his claim to exemption from combatant training and service just because his conscientious scruples took shape during a brief period in legal limbo. A system in which such persons could present their claims after induction, with the assurance of no combatant training or service before opportunity for a ruling on the merits, would be wholly consistent with the conscientious objector statute.

The regulation we must interpret in this case does not unambiguously create such a system. Rather, it bars post-notice reopening “unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control.” It is clear that the regulation was meant to cover at least such nonvolitional changes as injury to the registrant or death in his family making him the sole surviving son. The Government urges that the regulation be confined to just such "objectively identifiable” and “extraneous” events and circumstances. The petitioner contends that post-notice crystallization of conscientious objection is both a “circumstance” within the meaning of the regulation and one over which the registrant has no control.

We need not take sides in the somewhat theological debates about the nature of “control” over one’s own conscience that the phrasing of this regulation has forced upon so many federal courts. Rather, since the meaning of the language is not free from doubt, we are obligated to regard as controlling a reasonable, consistently applied administrative interpretation if the Government’s be such. Immigration Service v. Stanisic, 395 U. S. 62, 72; Thorpe v. Housing Authority, 393 U. S. 268, 276; Udall v. Tallman, 380 U. S. 1, 16-17; Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 413-414.

The Government argues for an interpretation identical in effect with the unambiguous rule hypothecated above, which, we have said, would clearly be a reasonable timeliness rule, consistent with the conscientious objector statute. The Government’s interpretation is a plausible construction of the language of the actual regulation, though admittedly not the only possible one. Given the ambiguity of the language, it is wholly rational to confine it to those “objectively identifiable” and “extraneous” circumstances that are most likely to prove manageable without putting undue burdens on the administration of the Selective Service System. It appears, moreover, that this position has been consistently urged by the Government in litigation when it was not foreclosed by adverse local precedent.

There remains for consideration whether the conditions for the validity of such a rule, discussed above, are met in practice. It appears undisputed that when an inductee presents a prima facie claim of conscientious objection that complies with timeliness rules for in-service cog-nizability, he is given duty involving the minimum practicable conflict with his asserted beliefs. It is thus evident that armed forces policy substantially meets the requirement of no combat training or service before an opportunity for a ruling on the claim.

As for the absence of any no man's land, the pertinent military regulations are somewhat inconsistent in their phrasing, perhaps because of the sharp division among the courts of appeals. They contain language appearing to recognize the obligation of the service to hear the claims of those whose alleged conscientious objection has crystallized between notice and induction, but they also contain formulations seeming to look the other way. We are assured, however, by a letter included in the briefs in this case from the General Counsel of the Department of the Army to the Department of Justice, that present practice allows presentation of such claims, and that there thus exists no possibility that late crystallizers will find themselves without a forum in which to press their claims. Our conclusion in this case is based upon that assurance. For if, contrary to that assurance, a situation should arise in which neither the local board nor the military had made available a full opportunity to present a prima facie conscientious objection claim for determination under established criteria, see Welsh v. United States, supra, a wholly different case would be presented.

Given the prevailing interpretation of the Army regulation, we hold that the Court of Appeals did not misconstrue the Selective Service regulation in holding that it barred presentation to the local board of a claim that allegedly arose between mailing of a notice of induction and the scheduled induction date. Accordingly the judgment of the Court of Appeals for the Ninth Circuit is

Affirmed.

Mr. Justice Douglas,

dissenting.

The rather stuffy judicial notion that an inductee’s realization that he has a “conscientious” objection to war is not a circumstance over which he has “no control” within the meaning of the Regulation is belied by experience. Saul of Tarsus would be a good witness:

“Now as he journeyed he approached Damascus, and suddenly a light from heaven flashed about him. And he fell to the ground and heard a voice saying to him, ‘Saul, Saul, why do you persecute me?’ And he said, ‘Who are you, Lord?’ And he said, T am Jesus, whom you are persecuting; but rise and enter the city, and you will be told what you are to do.’ ”

The stories of sudden conversion are legion in religious history; and there is no reason why the Selective Service boards should not recognize them, deal with them, and, if sincere, act on them even though they come after notice of induction has been received.

The Court holds that the proper remedy is in-service processing of these claims. That is to say, the claims that come so late, even though they come prior to induction, are to be processed by military rather than by civilian personnel.

This conclusion is not required by the Regulation for, as I have said, sudden conversion is a commonplace in religious experiences. And we deal here with religious, ethical, philosophical attitudes that are commonly summarized in capsule form by reference to “conscience.”

It is therefore a tour de force for the Court to say that in-service processing by the military is required. Certainly that result is not mandated by the Act. Since it is not, we have a choice in construction which really involves a choice of policy. Faced with that choice we should not hesitate to leave these matters to civilian authorities.

Chief Justice Stone, before coming to this Bench, served with two other lawyers named by President Wilson to screen conscientious objectors in World War I. One of the three was in the military, the other two were civilians. In the account he wrote, he said:

“[I]t was the relatively small residue of nonreligious objectors who brought to the Board its real perplexities. While conscience is commonly associated with religious convictions, all experience teaches us that the supreme moral imperative which sometimes actuates men to choose one course of action in preference to another and to adhere to it at all costs may be dissociated from what is commonly recognized as religious experience. The President’s order expressly recognized that scruples against participating in war might be conscientious although not religious. How to detect the presence of such scruples and to distinguish them from the mere extremist support of more or less novel social or political theories and from mere individualistic resistance to the will of the majority, such as one sometimes sees in the petulant disobedience of an ill-disciplined child, was the difficult task.”

The mind of the military has reacted more violently to the conscientious objector than the mind of the priest or other civilian.

The story of in-service processing of these claims in World War I is an unpleasant one:

“The phrase 'well-recognized religious sect’ was given the most rigorous interpretation, and any who based conscientious objections on political rather than religious foundations got short shrift. Such objectors were either 'shot to death by musketry/ 'imprisoned for long terms by court martial/ or subjected to indignities and physical violence 'by their more patriotic fellows.’ ”

Another account is substantially the same:

“In military camp and prison alike, objectors were often subjected to indignities and to physical cruelty. Some were beaten; others were hung by their fingers to the doors of their cells in such a way that their feet barely touched the floor. In one case, an objector who refused to don the army uniform was kept in a damp cell, where he contracted pneumonia and died. His dead body was then dressed in the uniform that in life he had spurned, and, thus attired, was sent home to his family. A number of objectors among the absolutists went on hunger strikes and had to be fed forcibly.”

According to the accounts, the treatment of conscientious objectors in World War II was not as severe as in World War I. But the main disciplinary device was to give the man an order and then court-martial him for failure to obey the order. “Here punishment varied, but common sentences for objectors were five to ten years, although these were not infrequently reduced on review by Washington. Sentences on the whole were much lighter than those imposed by courts-martial during the First World War but more severe, on the average, than those meted out by civil courts during the Second World War. Sentences of general courts-martial were served in the several disciplinary barracks of the Army, but in some instances objectors were first sent to a 'rehabilitation center/ where the Army gave prisoners a second chance to 'reform’; if 'reformation’ did not take place, they served out their sentences in the disciplinary barracks. Army regulations provided for periodic and automatic clemency reviews, the first during the initial six months of the sentence and subsequent reviews once each year.” (Emphasis added.)

I have placed in the Appendix to this dissent a summary of a recent (1969) record in one military center, showing how one conscientious objector in Jones v. Lemond, 396 U. S. 1227, was treated.

I do not suggest that every detention center in the Armed Services is like the brig on Treasure Island, San Francisco Bay. Nor do I suggest that every conscientious objector is treated as cruelly as was the plaintiff in the Lemond case. I do suggest however that in my time every conscientious objector was “fair game” to most top sergeants who considered that he had a “yellow streak” and therefore was a coward or was un-American. The conscientious objector never had an easy time asserting First Amendment rights in the Armed Services.

What might happen to him in the barracks or in the detention center is, of course, not the measure of what would transpire at the hearings. But the military mind is educated in other values; it does not reflect the humanistic, philosophical values most germane to ferreting out First Amendment claims that are genuine.

Our decisions on conscientious objection leave considerable latitude for administrative findings. On one hand Gillette v. United States and Negre v. Larsen, 401 U. S. 437, make it clear that objection to a particular war will not qualify for conscientious objector status. On the other hand, both United States v. Seeger, 380 U. S. 163, and Welsh v. United States, 398 U. S. 333, demonstrate that the objector need not be religious and his views may be based on broad humanistic grounds. There are subtleties in these positions for, as noted, “§ 6 (j)’s exclusion of those persons with 'essentially political, sociological, or philosophical views or a merely personal moral code’ should [not] be read to exclude those who hold strong beliefs about our domestic and foreign affairs or even those whose conscientious objection to participation in all wars is founded to a substantial extent upon considerations of public policy.” 398 U. S., at 342 (opinion of Black, J.) (emphasis added).

Thus under the Court’s interpretations of § 6 (j) those who do not qualify are those who lack sincerity, do not oppose all wars, or those who rest their beliefs "solely upon considerations of policy, pragmatism, or expediency.” Id., at 342-343. Decision as to whether an individual is entitled to a conscientious objector status under these broad criteria requires great sensitivity on the part of those who have the final say.

Ehlert’s claim itself falls somewhere between Gillette and Welsh. In addition it raises claims between pragmatism and a respect for human life and values. His beliefs are not religious in nature. He stated they came from “the intellectual atmosphere of the University of California and its surroundings and the natural workings of an eager-to-know and questioning mind.” In a letter refusing induction he stated his objection was “that the sole purpose of military service in this country today is preparation for a nuclear orgasm which would be totally destructive of human life and values.” On his Form 150 he wrote “that service in the armed forces of this country at this time is work toward the end of the destruction of the human race. I consider that my duty not to work for the destruction of the human race is superior to any duties which may arise from any human relation.” He added he would use force where its use “would not make more probable the destruction of the human race.”

While it appears that Ehlert’s claim may be sufficiently close to Gillette to foreclose his claim, other claims in this sensitive area may not be as close to Gillette, yet also may be beyond Welsh. In a choice between civilian and military factfinders dealing in an area of conscience clearly the former are to be preferred.

Moreover, proof of a conscientious objector’s claim will usually be much more difficult after induction than before. Military exigencies may take him far from his neighborhood, the only place where he can find the friends and associates who know him. His chances of having a fair hearing are therefore lessened when the hearing on his claim is relegated to in-service procedures. For these reasons I would resolve any ambiguities in the law in favor of pre-induction review of his claim and not relegate him to the regime where military philosophy, rather than the First Amendment, is supreme.

Beyond all these arguments is a constitutional one. Induction itself may violate the privileges of conscience engrained in the First Amendment. A compelled act was the heart of the case presented by Board of Education v. Barnette, 319 U. S. 624, when children of Jehovah’s Witnesses protested the requirement that they salute the flag. We said:

“Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort .... Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
“It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.” Id., at 640-641.

To some conscientious objectors, taking the one step forward is an act violating the conscience, since wearing the uniform in any form is as revolting to them as saluting the flag was to the children in the Barnette case. To another conscientious objector the bearing of arms, not acting as orderlies, say, in military hospitals, is the act at which he rebels. The sorting and sifting of these claims and all varieties of them are best processed by civilians rather than the military. The present Regulations permit it and I would resolve any ambiguities in favor of the procedure most protective of the rights of conscience involved here.

I therefore dissent from affirmance of the judgment below.

APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING

On September 15, 1969, I entered a stay in the case of Jones v. Lemond, 396 U. S. 1227. Jones was in the United States Navy and his claim to discharge as a conscientious objector arose five months after his enlistment. According to the allegation he had made many attempts over a period of some 37 days to file an application to be discharged as a conscientious objector. He was unable to make a filing or obtain a hearing. He went AWOL on that account and later surrendered himself and with the help of legal advice pressed for processing of his conscientious objector claim.

I did not reach the merits of that controversy, but in view of the representations made I restrained the Navy from confining Jones in the brig at Treasure Island, which according to the affidavits presented to me had become a house of horror.

“After sitting in the room approximately 45 minutes, I heard Mr. Foreman say, ‘He is an escape risk and is to be sentenced for 5 months — he is not to be allowed to phone anyone.’ Immediately after I heard Mr. Foreman speak, a Marine Sergeant opened the door and said to me ‘empty your pockets, f — er.’ I began to empty my pockets to which the Sergeant said, ‘hurry up, God-damnit.’ When I had finished emptying my pockets the Sergeant said, 'up against the wall — spread your arms and legs.’ I spread my arms out against the wall and placed my feet approximately 3½ feet apart. The Sergeant kicked my legs several times and said, 'Move them further.’ I then stretched them as far as possible, so the Sergeant kicked me a couple of more times to make sure they were spread as far as possible. He then frisked me, which involved slapping and shoving me against the wall. When he finished his so-called frisk, he handcuffed my hands behind me and said, 'Alright, let’s go — one f — k-up and I’ll bust your f — kin head open.’
'T was then taken to the Brig and told to stand in front of the fence with my nose on the canvas. I stood at attention with my nose on the canvas and the Sergeant went into the main control room.
“About 5 minutes later the Sergeant came out with another Sergeant. The Sergeant said 'empty your pockets.’ I took out a pen and chow pass and offered them to the second Sergeant. He said, 'don’t point at me f — ker, put that s — t in your hat.’ I emptied my pockets and put everything into my hat. The Sergeant said, 'put it on the ground.’ The Sergeant said to the other Sergeant, ‘he’s still pretty salty — I got him when I picked him up, but he still thinks he’s tough.’ The reply was, ‘don’t worry, he won't be so tough, I know what to do with him.’ He said, ‘spread your arms and legs turd.’ I spread out against the canvas. He started kicking me and yelling, ‘spread out a-hole.’ He kept kicking me and yelling until I fell down and then said, ‘what’s wrong with you pussy can’t you stand up — get up.’ I stood up and he said 'spread out Goddamnit.’ He started kicking me again. When I fell to my knees against the canvas he stopped and said, ‘can’t you stand up squid?’ This time I got up and spread out hands on the canvas before he could say so. He then pushed my face into the canvas, slapped my neck and arms, punched me in the sides, yanked the crotch of my dungarees painfully between my legs, slapped and pinched my legs and said, 'alright now stand at attention.’ He had now finished frisking me so they both went back into the control room taking with them the contents of my pockets in my hat.
“After much verbal harassment, I was taken to my cell.
“A couple of hours later I heard the orange badges march in. They live in the Annex in 6' x 6' x 8' cells, 3 men per cell. I heard a Corporal yelling at an orange badge for not running fast enough during the physical exercise period. He then made the orange badge do push-ups until he collapsed. Then I could hear the Corporal hitting the man and the man crying and screaming for him to stop. When the Corporal stopped they took the man back out into the compound to run and that was the last I heard of him.
“Dinner was brought to my cell and I ate it on the floor as I did with all the rest of my meals.
“Early in the evening a Corporal started harassing a confinee who was locked in the suicide risk cell. Suicide risks have to sit in the cells, which I found to be very cold with my clothes on, in nothing but a pair of underwear. The Corporal kept antagonizing the man until he started screaming and crying. Once the Corporal succeeded in breaking the confinee he started laughing, at which time the other Corporal said, 'why don’t you kick his ass for making so much noise?’
“The next day I was taken for a haircut. Another confinee cut my hair and while doing so he dropped a clip but couldn’t find it. I told him where it was and he said, 'don’t let them catch you talking to me, they’ll kick your ass.’ I kept quiet.
“After much more harrassment, I went back to my eell and I heard a man coughing and then a Corporal yelling at him to shut up. Two other Corporals joined in harrassing the man and when he couldn’t stop coughing they pulled him out of the cell and made him dive on a cup on the floor pretending it was a grenade. They got several other men out of their cells and had them all diving on the cup with the coughing man on the bottom each time.
“It wasn’t long after the grenade drills when the turnkey came to my cell and let me out. He had me fold up my blanket and pick up my locker and pulled me out to the control office. In the office there were 4 or 5 Sergeants and a Staff Sergeant yelling and screaming all types of phrases, such as, ‘you’ll be back, f- -ker and then you’ll really get it.’ I now was told to stand holding my footlocker with my arms extended and they seemed to forget me for a moment.
“Then they began talking among themselves and I realized that my lawyer, Don Jelinek and Loren Basham, a member of the Resistance, were outside the Brig in a car and they apparently insisted on remaining there until I was released. The Sergeant said ‘This guy (Jelinek) just pissed me off because he just charged in here and slapped this order down and said “get this man out.” ’ Then the Sergeant said, ‘I have a psychiatrist over here (pointing to the medical building right behind us), who will back me up saying I am not responsible for anything I do.’ He then added, ‘In a minute I am going to go out and blow their heads off.’
“Then the Sergeant seemed to gain control of himself. The MP then turned to me and said, ‘Just try and run boy, I would love to blow your head right off.’
“I was then allowed outside the Brig where I saw my Lawyer who spoke to me, but I was afraid to answer him for the fear they would beat or shoot us.
“I know they worked me over because of anger because the Military Court of Appeals gave me an order keeping me out of the Brig. Now that a second Court Order has gotten me out of the Brig, I feel they will kill me if I have to go back in again.”

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins, dissenting.

Selective Service Regulation 1625.2, 32 CFR § 1625.2 (1971), relieves a local board of its general obligation to consider a registrant’s claim for deferment whenever the claim is received after the notice to report for induction has been mailed “unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” The Court of Appeals held that this regulation relieved the local board of the necessity of considering any claim that a registrant’s conscientious objection to war had crystallized after receipt of an induction notice because, in the court’s view, registrants have control over such changes in their beliefs. 422 F. 2d 332 (CA9 1970). The Court here finds it unnecessary to come to grips with this holding and consider whether a conscientious objection claim comes within the terms of this regulation, since it finds the interpretation of the regulation controlled by “a reasonable, consistently applied administrative interpretation.” Ante, at 105.

I cannot defer to an interpretation I cannot discover. All of the cases cited by the Court make clear that judicial interpretation of an ambiguous regulation is to be informed by reference to administrative practice in interpreting and applying a regulation, not by reference to positions taken for the purpose of litigation. See cases cited, ante, at 105. Cf. Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 419 (1971). The national Selective Service office has apparently made no national administrative interpretation of the regulation. The only other information presently before us indicates that state Selective Service headquarters in North Carolina and California have interpreted the regulation to require local boards to consider “late crystallization” claims and to consider whether the registrant’s conscientious objection was a change occurring after receipt of his induction notice over which he had no control. Brief for Petitioner 28 n. 53. If anything, this suggests that petitioner’s interpretation should prevail. On this state of the record, however, I hardly think administrative practice can properly form the basis of decision.

Moreover, I do not find the regulation to be ambiguous. In the context of a blanket Selective Service regulation applicable to all claims for deferment and exemption, the reference to “circumstances” must be taken to refer to any conditions relevant to eligibility for a deferment or exemption. Since conscientious objection to war is the basis for a deferment, it must constitute a “circumstance” within the plain meaning of the regulation. The question, therefore, is whether that circumstance can be one “over which the registrant had no control.” On that score, I fully agree with the dissent of Judge Merrill below:

“One simply cannot order his conscience to be still or make himself believe what he does not believe and I must reject the implication that it is right and proper that one should suffer loss of status for having failed to bring his conscience to heel.
“Conscientious objection, in truth, is a contradiction of control. Just as a conviction honestly dictated by conscience cannot be banished at the will of the holder, so, conversely, a belief conveniently subject to the control of the holder is not conscientiously entertained.” 422 F. 2d, at 339.

In sum, I think the regulation means that late-crystallization claims asserted prior to induction should be processed by civilian personnel of the local boards, who have been designated by the Congress as the appropriate decisionmakers in these cases, rather than by military personnel during in-service processing. I dissent.

       32 CFR § 1625.2 (1971) provides, in pertinent part:
      “[T]he classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction ... or an Order to Report for Civilian Work and Statement of Employer . . . unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.”

       Military Selective Service Act of 1967, § 12 (a), 50 U. S. C. App. §462 (a) (1964 ed., Supp. V), provides in pertinent part:
      “[A]ny person . . . who . . . refuses . . . service in the armed forces ... or who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title . . . shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment . . .

       In accord with the position of the Ninth Circuit, see United States v. Al-Majied Muhammad, 364 F. 2d 223, 224 (CA4); Davis v. United States, 374 F. 2d 1, 4 (CA5); United States v. Taylor, 351 F. 2d 228, 230 (CA6) (semble).

        Contra, United States v. Gearey, 368 F. 2d 144, 150 (CA2), 379 F. 2d 915 (after remand), cert. denied, 389 U. S. 959; Scott v. Commanding Officer, 431 F. 2d 1132, 1136 (CA3); United States v. Nordlof, 440 F. 2d 840 (CA7); Keene v. United States, 266 F. 2d 378, 384 (CA10); Swift v. Director of Selective Service, — U. S. App. D. C. —, 448 F. 2d 1147. See also United States v. Stoppelman, 406 F. 2d 127, 131 n. 7 (CA1) (dictum), cert. denied, 395 U. S. 981.

       The power of the Selective Service System to set reasonable time limits for presentation of claims, with the penalty of forfeiture for noncompliance, seems never to have been questioned by any court. See, e. g., United States v. Gearey, 368 F. 2d 144, 149 and n. 9 (CA2).

       The statute on conscientious objection begins:
      “Nothing contained in this title . . . shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” Military Selective Service Act of 1967, §6 (j), 81 Stat. 104, 60 U. S. C. App. §456 (j) (1964 ed., Supp. V).

         Ibid.:

      “Any person claiming exemption from combatant training and service because of such conscientious objections whose claim is sustained by the local board shall, if he is inducted into the armed forces under this title ... be assigned to noncombatant service as defined by the President, or shall, if he is found to be conscientiously opposed to participation in such noncombatant service, in lieu of such induction, be ordered by his local board, subject to such regulations as the President may prescribe, to perform for a period equal to the period prescribed in [Military Selective Service Act of 1967, §4(b), 50 U. S. C. App. §454 (b)] such civilian work contributing to the maintenance of the national health, safety, or interest as the local board pursuant to Presidential regulations may deem appropriate . . . .”

       Since such a “no man’s land” would be intolerable, our decision today simply involves settling in which forum late crystallizers must have an opportunity for a ruling on the merits. Whether they must have such an opportunity at all cannot be open to question. Of course, a claimant who, after induction, declined to utilize available administrative procedures or who failed to observe reasonable and properly publicized time cutoffs might forfeit his claim.

       There is no reason to suppose that a Selective Service local board, faced with the need to fill its monthly quotas, would be more sensitive in applying the legal standards that govern all conscientious objector claims than would the Army, whose mission is to train inductees as members of military units of maximum effectiveness and morale.

       Department of Defense Directive No. 1300.6, § VI B (May 10, 1968):
      “With respect to persons who have already served a portion of their obligated service who request discharge or non-combatant service for conscientious objection, the following actions will be taken:
      “2. Pending decision on the case and to the extent practicable the person will be employed in duties which involve the minimum conflict with his asserted beliefs. . . .”
      Army Regulation No. 635-20, ¶ 6a (July 31, 1970):
      “[I]ndividuals who have submitted formal applications ... for discharge based on conscientious objection will be retained in their units and assigned duties providing the minimum practicable conflict with their asserted beliefs pending a final decision on their applications. In the case of trainees, this means that they will not be required to train in the study, use, or handling of arms or weapons. . . .”

       See Army Regulation No. 635-20, ¶3:

        “a. Consideration will be given to requests for separation based on bona fide conscientious objection to participation in war, in any form, when such objection develops subsequent to entry into the military service.

        “b. Federal courts have held that a claim to exemption from military service under Selective Service laws must be interposed prior to notice of induction, and failure to make timely claim for exemption constitutes waiver of the right to claim. . . . Requests for discharge after entering military service will not be favorably considered when—
      “(1) Based on conscientious objection which existed, but which was not claimed prior to notice of induction, enlistment or appointment.”
      See also Department of Defense Directive No. 1300.6, § IV B 2.

       “You also asked whether the Army allows a soldier to file for discharge in instances where his conscientious objector views are fixed after notice of induction but prior to entry into the military service. Present practice grants the soldier the opportunity to file in such cases.”
      The letter additionally explains the composition and operation of the Army 1-0 Conscientious Objector Review Board, which has the responsibility of ruling on applications for conscientious objector discharges. The Board is composed of a senior officer, an officer in the Judge Advocate General Corps, a chaplain, and a Medical Corps officer. Only two votes are required to approve an application.

       The same letter from the General Counsel of the Department of the Army reports that the identical interpretation prevailed in 1965, when the petitioner first was ordered to report for induction.

       32 CFR § 1625.2 (1971).

       9 Acts 3-6 (rev. Standard ed. 1952).

       See § 6 (j) of the Military Selective Service Act of 1967, 81 Stat. 104, 50 U. S. C. App. § 456 (j) (1964 ed., Supp. Y): “Nothing contained in this title . . . shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. As used in this subsection, the term ‘religious training and belief’ does not include essentially political, sociological, or philosophical views, or a merely personal moral code.”

       Stone, The Conscientious Objector, 21 Col. U. Q. 253, 263 (1919).

       A. Mason, Harlan Fiske Stone: Pillar of the Law 102 (1956).

       M. Sibley & P. Jacob, Conscription of Conscience 15 (1952).

         Id., at 108.

       See United States v. Freeman, 388 F. 2d 246, 248-249.


author: Mr. Chief Justice Burger Mr. Justice Douglas,

text:
    CALIFORNIA DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT et al. v. JAVA et al.
    No. 507.
    Argued February 24, 1971 —
    Decided April 26, 1971
    Burger, C. J., delivered the opinion for a unanimous Court. Douglas, J., filed a concurring opinion, post, p. 135.

      Asher Rubin, Deputy Attorney General of California, argued the cause for appellants. With him on the brief was Thomas C. Lynch, Attorney General.

      Stephen P. Berzon argued the cause for appellees pro hac vice. With him on the brief was Kenneth F. Phillips.

    Briefs of amici curiae urging reversal were filed by Solicitor General Griswold, Assistant Attorney General Gray, Robert V. Zener, and Peter G. Nash for the United States; by Duke W. Dunbar, Attorney General, John P.

      Moore, Deputy Attorney General, and Robert L. Harris, Assistant Attorney General, for the State of Colorado; by Robert M. Robson, Attorney General, and R. LaVar Marsh, Assistant Attorney General, for the State of Idaho; by Francis B. Burch, Attorney General, and Louis B. Price, Special Assistant Attorney General, for the State of Maryland, joined by the State of Illinois; by Warren B. Rudman, Attorney General, and William F. Gann, Deputy Attorney General, for the State of New Hampshire, joined by David M. Pack, Attorney General, and Lance D. Evans, Assistant Attorney General, for the State of Tennessee; by Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Brenda Soloff, Assistant Attorney General, for the State of New York; by Paul W. Brown, Attorney General, and Franklin R. Wright, Assistant Attorney General, for the State of Ohio; and by Willard Z. Carr, Jr., for the Southern California Edison Co. et al.
    Briefs of amici curiae urging affirmance were filed by C. Lyonel Jones, Ed J. Polk, Don B. Kates, Jr., and Joseph A. Matera for California Rural Legal Assistance et al.; by J. Albert Woll, Laurence Gold, and Thomas E. Harris for American Federation of Labor and Congress of Industrial Organizations; by Stephen I. Schlossberg, John A. Fillion, and Jordan Rossen for the International Union, UAW; and by the Employment Project, Center on Social Welfare Policy and Law.
   Mr. Chief Justice Burger

delivered the opinion of the Court.

This case raises the issue of whether a State may, consistent with § 303 (a)(1) of the Social Security Act, suspend or withhold unemployment compensation benefits from a claimant, when an employer takes an appeal from an initial determination of eligibility. Section 303 (a)(1) of the Social Security Act, 49 Stat. 626, as amended, 42 U. S. C. § 503 (a)(1), provides that benefits must be paid “when due.”

In late summer 1969, appellees Judith Java and Carroll Hudson, having been discharged from employment, applied for unemployment insurance benefits under the California Unemployment Insurance Program. Appel-lees were given an eligibility interview at which the employer did not appear, although such an appearance was permitted. As a result of that interview both employees were ruled eligible for benefits. Payments began immediately. In each case the former employer filed an appeal after learning of the grant of benefits, contending that benefits should be denied because the claimants were discharged for cause. In accordance with the practice of the agency and pursuant to § 1335 of the California Unemployment Insurance Code payments automatically stopped. At the subsequent hearings before an Appeals Board Referee, which stage is essentially an appeal from the preliminary determination under California Unemployment Insurance Code §§ 1328, 1334, appellee Hudson’s eligibility was affirmed, but appellee Java was ruled ineligible and the initial determination was reversed.

Prior to the hearings before the Referee, appellees commenced a class action in the United States District Court on behalf of themselves and other claimants similarly situated. They sought a declaration that § 1335 of the California Unemployment Insurance Code is unconstitutional and inconsistent with the requirements of §303 (a)(1) of the Social Security Act, and an order enjoining the operation of § 1335.

A three-judge court was convened, and it concluded that § 1335 is defective on both constitutional and statutory grounds. The District Court held that by not providing for a pretermination hearing, the California procedure constitutes a denial of procedural due process, relying on Goldberg v. Kelly, 397 U. S. 254 (1970). It further held that the application of § 1335, so as to result in a median seven-week delay in payments to claimants who have been found eligible for benefits, constituted a failure to pay unemployment compensation “when due” within the meaning of § 303 (a) (1) of the Social Security Act. The court granted appellees’ motion for a preliminary injunction, ordering the State of California not to suspend unemployment benefits pursuant to § 1335 because an eligibility determination has been appealed.

(1)

We agree with the conclusion of the District Court that § 1335 of the California Unemployment Insurance Code conflicts with the requirements of § 303 (a)(1) of the Social Security Act. This holding makes it unnecessary to reach the constitutional issue involved in Goldberg v. Kelly, supra, on which the District Court relied.

(2)

The importance of this case to workers is obvious. Because an understanding and the resolution of the basic issue depends on familiarity with a series of detailed procedures, we set out fully the administrative scheme.

All federal-state cooperative unemployment insurance programs are financed in part by grants from the United States pursuant to the Social Security Act, 42 U. S. C. §§ 501-503. No grant may be made to a State for a fiscal year unless the Secretary of Labor certifies the amount to be paid, 42 U. S. C. § 502 (a). The Secretary of Labor may not certify payment of federal funds unless he first finds that the State’s program conforms to federal requirements. In particular, §303 (a)(1) of the Act requires that state methods of administration be found “to be reasonably calculated to insure full payment of unemployment compensation when due.”

The California Unemployment Insurance Compensation Program, certified by the Secretary of Labor under § 303 of the Act, provides for payment of insurance benefits, over an extended period of time, to persons who find themselves unemployed through no fault of their own. Cal. Unemp. Ins. Code § 1251 et seq. In order to be eligible for benefits a claimant is required to have earned a specified amount of wages during his base period. Id., §1281. Benefits are paid from the State Unemployment Fund, which consists of funds collected from private employers, id., § 976 et seq., and money credited to the State’s account in the federal Unemployment Trust Fund pursuant to 42 U. S. C. §§ 501-503, 1101-1105. The amount of money an employer is required to pay into the State Fund is based on benefits paid to terminated employees which are charged to its reserve account and disbursements from the State Unemployment Fund. Cal. Unemp. Ins. Code §§ 1025-1032, 976-978.

A claimant, appearing at an unemployment insurance office to assert a claim initially is asked to fill out forms which, taken together, indicate the basis of the claim, the name of the claimant’s previous employer, the reason for his unemployment, his work experience, etc. The claimant is asked to return to the office three weeks later for the purpose of receiving an Eligibility Benefits Rights Interview. The issue most frequently disputed, the claimant’s reason for termination of employment, is answered on Form DE 1101, and the Department immediately sends copies of this form to the affected employer for verification. Meanwhile the employer is asked to furnish, within 10 days, “any facts then known which may affect the claimant’s eligibility for benefits.” Cal. Unemp. Ins. Code §§ 1327, 1030. If the employer challenges eligibility, the claimant may then be asked to complete Form DE 4935, which asks for detailed information about the termination of claimant’s previous job. The interviewer has, according to the Local Office Manual (L. O. M.) used in California, the “responsibility to seek from any source the facts required to make a prompt and proper determination of eligibility.” L. O. M. § 1400.3 (2). “Whenever information submitted is not clearly adequate to substantiate a decision, the Department has an obligation to seek the necessary information.” L. O. M. § 1400.5 (1)(a). This clearly contemplates inquiry to the latest employer, among others.

The claimant then appears for his interview. At the interview, the eligibility interviewer reviews available documents, makes certain that required forms have been completed, and clarifies or verifies any questionable statements. If there are inconsistent facts or questions as to eligibility, the claimant is asked to explain and offer his version of the facts. The interviewer is instructed to make telephone contact with other parties, including the latest employer, at the time of the interview, if possible. L. O. M. § 1404.4 (20). Interested persons, including the employer, are allowed to confirm, contradict, explain, or present any relevant evidence. L. O. M. § 1404.4 (21).

The eligibility interviewer must then consider all the evidence and make a determination as to eligibility. Normally, the determination is made at the conclusion of the interview. L. O. M. § 1404.6 (2). However, if necessary to obtain information by mail from any source, the determination may be placed in suspense for 10 days after the date of interview, or, if no response is received, no later than claimant’s next report day. L. O. M. § 1400.3 (2) (a).

From the foregoing it can be seen that the interview for the determination of eligibility is the critical point in the California procedure. In the Department’s own terms, it is “the point at which any issue affecting the claimant’s eligibility is decided and fulfills the Department’s legal obligation to insure that . . . [b]enefits are paid promptly if claimant is eligible.” L. O. M. § 1400.1 (1) (emphasis added). If the initial determination is favorable to the claimant, payments begin immediately, and for 95-98% of the claims, former employers do not appear or seek a hearing; no further problem arises as to initial eligibility. The Department sends out a notice to the employer informing him that the claimant has been found eligible, and that the employer may appeal within 10 days. Cal. Unemp. Ins. Code § 1328. The 10-day period may be extended for “good cause.” Ibid.

If the employer appeals, payment of the claimant's benefits is stopped pending determination on appeal before an Appeals Board Referee. Id., § 1335; see L. O. M. § 1474. The automatic suspension of benefits upon the employer’s appeal, after an initial determination of eligibility, is the aspect of the California procedure challenged here. By that time the claimant may have received one or perhaps two payments. When the employer appeals, a hearing is then scheduled at which both the parties may appear and be represented, call witnesses, and present evidence. “A referee after affording a reasonable opportunity for fair hearing, shall, unless such appeal is withdrawn, affirm, reverse, or modify any determination which is appealed . . . .” Cal. Unemp. Ins. Code § 1334. The appeal affords a de novo consideration. Generally, processing of the employer’s appeal takes between six and seven weeks, between the date of fifing the appeal and the date of mailing the decision or dismissal.

If upon appeal the Referee finds the claimant eligible, payments are reinstated at once and continue even if the employer exercises his right to appeal further to the Appeals Board. Cal. Unemp. Ins. Code § 1335 (b). Meanwhile as much as seven to 10 weeks may have elapsed. The record indicates that employers are successful in less than 50% of their appeals from initial determinations of eligibility. The Referee’s decision is final unless within 10 days further appeal is initiated to the Appeals Board. Cal. Unemp. Ins. Code §§ 1334, 1336. The Appeals Board must render a decision within 60 days after the filing of an appeal to it, unless it requires the taking of further evidence. Id., § 1337. If the claimant is successful on appeal, he receives a lump sum payment for weeks of unemployment prior to the Referee’s decision. Id., § 1338. If the employer is successful on appeal, his reserve account is immediately credited with all monies that have been paid his former employee. He has no responsibility for recoupment. Id., §§ 1335, 1380.

(3)

The dispositive issue is the determination of whether § 1335 of the California Unemployment Insurance Code violates the command of 42 U. S. C. § 503 (a)(1) that state unemployment compensation programs must “be reasonably calculated to insure full payment of unemployment compensation when due.” The purpose of the federal statutory scheme must be examined in order to reconcile the apparent conflict between the provision of the California statute and § 303 (a)(1) of the Social Security Act.

It is true, as appellants argue, that the unemployment compensation insurance program was not based on need in the sense underlying the various welfare programs that had their genesis in the same period of economic stress a generation ago. A kind of “need” is present in the statutory scheme for insurance, however, to the extent that any “salary replacement” insurance fulfills a need caused by lost employment. The objective of Congress was to provide a substitute for wages lost during a period of unemployment not the fault of the employee. Probably no program could be devised to make insurance payments available precisely on the nearest payday following the termination, but to the extent that this was administratively feasible this must be regarded as what Congress was trying to accomplish. The circumstances surrounding the enactment of the statute confirm this.

The Social Security Act received its impetus from the Report of the Committee on Economic Security, which was established by executive order of President Franklin D. Roosevelt to study the whole problem of financial insecurity due to unemployment, old age, disability, and health. In its report, transmitted to Congress by the President on January 17, 1935, the Committee recommended a program of unemployment insurance compensation as a “first line of defense for . . . [a worker] ordinarily steadily employed ... for a limited period during which there is expectation that he will soon be reemployed. This should be a contractual right not dependent on any means test. ... It will carry workers over most, if not all, periods of unemployment in normal times without resort to any other form of assistance.” Estimates of possible amounts and duration of unemployment benefits were made by the actuarial staff of the Committee. On the basis of 1922-1933 statistics, it was estimated that 12 weeks of benefits could be paid with a two-week waiting period at a 4% employer contribution rate. The longest waiting period entering into the estimates was four weeks, indicating an intent that payments should begin promptly after the expiration of a short waiting period.

Other evidence in the legislative history of the Act and the commentary upon it supports the conclusion that “when due” was intended to mean at the earliest stage of unemployment that such payments were administratively feasible after giving both the worker and the employer an opportunity to be heard. The purpose of the Act was to give prompt if only partial replacement of wages to the unemployed, to enable workers “to tide themselves over, until they get back to their old work or find other employment, without having to resort to relief.” Unemployment benefits provide cash to a newly unemployed worker “at a time when otherwise he would have nothing to spend,” serving to maintain the recipient at subsistence levels without the necessity of his turning to welfare or private charity. Further, providing for “security during the period following unemployment” was thought to be a means of assisting a worker to find substantially equivalent employment. The Federal Relief Administrator testified that the Act “covers a great many thousands of people who are thrown out of work suddenly. It is essential that they be permitted to look for a job. They should not be doing anything else but looking for a job.” Finally, Congress viewed unemployment insurance payments as a means of exerting an influence upon the stabilization of industry. “Their only distinguishing feature is that they will be specially earmarked for the use of the unemployed at the very times when it is best for business that they should be so used.” Early payment of insurance benefits serves to prevent a decline in the purchasing power of the unemployed, which in turn serves to aid industries producing goods and services. The following extract from the testimony of the Secretary of Labor, in support of the Act, describes the stabilization mechanism contemplated:

“I think that the importance of providing purchasing power for these people, even though temporary, is of very great significance in the beginning of a depression. I really believe that putting purchasing power in the form of unemployment-insurance benefits in the hands of the people at the moment when the depression begins and when the first groups begin to be laid off is bound to have a beneficial effect. Not only will you stabilize their purchases, but through stabilization of their purchases you will keep other industries from going downward, and immediately you spread work by that very device.”

We conclude that the word “due” in § 303 (a)(1), when construed in light of the purposes of the Act, means the time when payments are first administratively allowed as a result of a hearing of which both parties have notice and are permitted to present their respective positions; any other construction would fail to meet the objective of early substitute compensation during unemployment. Paying compensation to an unemployed worker promptly after an initial determination of eligibility accomplishes the congressional purposes of avoiding resort to welfare and stabilizing consumer demands; delaying compensation until months have elapsed defeats these purposes. It seems clear therefore that the California procedure, which suspends payments for a median period of seven weeks pending appeal, after an initial determination of eligibility has been made, is not “reasonably calculated to insure full payment of unemployment compensation when due.”

(4)

We are not persuaded by appellants’ suggestion that the initial determination is clouded with sufficient uncertainty as to warrant withholding benefits until the appeal is decided to protect the interests of the State or of employers. The California procedure for initial determinations is effective in insuring that benefits are limited to legally eligible claimants. From 95%-98% of ineligible claimants are screened out at this stage. The primary inquiry at the preliminary interview is to examine the claimant’s basic eligibility under the California statute. It is an occasion when the claims of both the employer and the employee can be heard, however. The regulations contemplate that the interviewer shall make inquiries of the employer informally. This may not always flush out objections based on discharge for cause, as this case illustrates. Nonetheless, if the employer has notice of the time and place of the preliminary interview, as was the case here, it is his responsibility to present sufficient data to make clear his objections to the claim for benefits and put the interviewer in a position to broaden the inquiry if necessary. Any procedure or regulation that fails to give notice to the employer would, of course, be violative of the statutory scheme as we construe it.

Although the eligibility interview is informal and does not contemplate taking evidence in the traditional judicial sense, it has adversary characteristics and the minimum obligation of an employer is to inform the interviewer and the claimant of any disqualifying factors. So informed, the interviewer can direct the initial inquiry to identifying a frivolous or dilatory contention by either party.

It would frustrate one of the Act’s basic purposes— providing a “substitute” for wages — to permit an employer to ignore the initial interview or fail to assert and document a claimed defense, and then effectuate cessation of payments by asserting a defense to the claim by way of appeal. If the employer fails to present any evidence, he has in effect defaulted, and neither he nor the State can with justification complain if, on a prima jade showing, benefits are allowed. If the employer’s defenses are not accepted and the claim is allowed, that also constitutes a determination that the benefits are “due.”

As we have noted, this construction of the statutory scheme vindicates the congressional objective; California’s approach tends to frustrate it. Our reading of the statute imposes no hardship on either the State or the employer and gives effect to the congressional objective of getting money into the pocket of the unemployed worker at the earliest point that is administratively feasible. That is what the Unemployment Insurance program was all about.

For the reasons stated enforcement of § 1335- must be enjoined because it is inconsistent with § 303 (a)(1) of the Social Security Act. See King v. Smith, 392 U. S. 309, 333 (1968); Rosado v. Wyman, 397 U. S. 397, 420-421 (1970).

Affirmed.

Mr. Justice Douglas,

concurring.

While I agree with the opinion of the Court, I add a few words.

The argument of California in this case is surprisingly disingenuous. First it seeks to distinguish Goldberg v. Kelly, 397 U. S. 254, on the ground that “welfare is based on need; unemployment insurance is not.” But that simply is not true, for the history makes clear that the thrust of the scheme for unemployment benefits was to take care of the need of displaced workers, pending a search for other employment. Second, California argues that delay in payment of benefits until the employer’s appeal is ended is necessary in terms of due process because “it is the employer’s money which is used to pay the claimant,” his account being “charged” and his experience rating “adversely affected” each time an employee is paid benefits. It is true that the amount of taxes contributed by each employer to the unemployment fund varies directly with the number of his former employees who qualify for unemployment benefits. Under the California scheme, however, an employer’s account is not finally charged with benefit payments until after he has exhausted all appeals in the administrative chain and also obtained judicial review. If he wins at any appellate level, he is not charged with any benefits paid to his former employee pending his appeal. Cal. Unemp. Ins. Code §§ 1335, 1380. He has no responsibility for recoupment. Thus, regardless of whether benefits to his former employees are suspended pending his appeal, an employer is assured of a complete opportunity to be heard before effective action is taken against him.

Therefore here, as in Goldberg, the requirements of procedural due process protect the payment of benefits owing the displaced employee and the employer has notice and hearing before his account is charged.

Whether due process would require the latter is a question we do not reach.

       Section 1335 of the California Unemployment Insurance Code provides:

        “If an appeal is filed, benefits with respect to the period prior to the final decision on the appeal shall be paid only after such decision, except that:
      “(a) If benefits for any week are payable in accordance with a determination by the department irrespective of any decision on the issues set forth in the appeal, such benefits shall be promptly paid regardless of such appeal, or
      “(b) If a referee affirms a determination allowing benefits, such benefits shall be paid regardless of any appeal which may thereafter be taken, and regardless of any action taken under Section 1336 or otherwise by the director, Appeals Board, or other administrative body or by any court.
      “If such determination is finally reversed, no employer’s account shall be charged with benefits paid because of that determination.” (Emphasis added.)

       Section 303 (a)(1) of the Social Security Act, 42 U. S. C. § 503 (a) (1), provides in part:
      “(a) The Secretary of Labor shall make no certification for payment to any State unless he finds that the law of such State, approved by the Secretary of Labor under the Federal Unemployment Tax Act, includes provision for—
      “(1) Such methods of administration (including after January 1, 1940, methods relating to the establishment and maintenance of personnel standards on a merit basis, except that the Secretary of Labor shall exercise no authority with respect to the selection, tenure of office, and compensation of any individual employed in accordance with such methods) as are found by the Secretary of Labor to be reasonably calculated to insure full -payment of unemployment compensation when due.” (Emphasis added.)

       Of the 226,066 claimants ruled ineligible in 1968, only 2,602 (1%) were found ineligible by a state referee upon an employer’s appeal.

       Of 667,993 determinations on eligibility in 1968, 441,927 were favorable to the claimant.

       In 1968 there were only 5,526 decisions on appeals filed by employers.

       In 1968 the period was 49 days; in 1969 it was 40.5 days.

       Of 4,159 appeals filed by an employer between January 1, 1969, and September 30, 1969, 2,023 resulted in decisions favorable to the employer. (During the same period there were 14,768 appeals filed by claimants, 4,838 of which were successful.) In 1968 there were 5,526 decisions on appeals filed by employers, resulting in 2,602 decisions favorable to the employer, and 2,924 favorable to the claimant.

       Counsel informed the Court that recoupment is effected by the Department as to approximately 65% of the amounts erroneously paid; this is generally accomplished by way of offset against benefits subsequently granted in a later unemployment claim. The Department may also file a civil action for recovery. See Cal. Unemp. Ins. Code § 2739.

       Report of the Committee on Economic Security, Hearings on S. 1130 before the Senate Committee on Finance, 74th Cong., 1st Sess., 1311 (1935); see generally Larson & Murray, The Development of Unemployment Insurance in the United States, 8 Vand. L. Rev. 181 (1955); Witte, Development of Unemployment Compensation, 55 Yale L. J. 21, 29-34 (1945).

       Report of the Committee on Economic Security, supra, n. 9, at 1321-1322. See Note, Charity versus Social Insurance in Unemployment Compensation Laws, 73 Yale L. J. 357 (1963).

       Hearings, supra, n. 9, at 1321, 1319.

       H. R. Rep. No. 615, 74th Cong., 1st Sess., 7 (1935).

       Statement of the Secretary of Labor, Hearings, supra, n. 9, at 119. Cf. Nash v. Florida Industrial Comm’n, 389 U. S. 235, 239 (1967).

       See S. Rep. No. 628, 74th Cong., 1st Sess., 12 (1935).

       Statement of Federal Relief Administrator and Member of the Committee on Economic Security, Hearings on H. R. 4120 before the House Committee on Ways and Means, 74th Cong., 1st Sess., 214 (1935).

       Statement of Sen. Robert F. Wagner, Hearings, supra, n. 9, at 3.

       Statement of the Secretary of Labor, Hearings, supra, n. 15, at 182. See Clague, The Economics of Unemployment Compensation, 55 Yale L. J. 53, 69 (1945).

       It was uncontested in argument before the District Court that the average period of unemployment in California is approximately nine weeks.

       For example, an employer’s reserve account is not charged if a claimant is ruled ineligible because of voluntary termination or discharge for cause, unless the employer fails to furnish the information required. Cal. Unemp. Ins. Code §§ 1032, 1030.
      In disposing of the prayer for a permanent injunction, it may be appropriate to join the Secretary of Labor as a party in order that complete relief may be accorded.

       Cf. Labor Board v. Gullett Gin Co., 340 U. S. 361. Though that case involved a question whether the Labor Board must deduct unemployment insurance payments from back-pay awards, we said:
      “Payments of unemployment compensation were not made to the employees by respondent but by the state out of state funds derived from taxation. True, these taxes were paid by employers, and thus to some extent respondent helped to create the fund. However, the payments to the employees were not made to discharge any liability or obligation of respondent, but to carry out a policy of social betterment for the benefit of the entire state.” Id., at 364. (Italics added.)


author: Mr. Justice Black Mr. Justice Marshall,

text:
    JAMES et al. v. VALTIERRA et al.
    No. 154.
    Argued March 3-4, 1971 —
    Decided April 26, 1971

    BlacK, J., delivered the opinion of the Court, in which Burger, C. J., and HarlaN, Stewart, and White, JJ., joined. Marshall, J., filed a dissenting opinion, in which BreNNAN and BlackmuN, JJ., joined, post, p. 143. Douglas, J., took no part in the consideration or decision of the cases.

      Donald C. Atkinson argued the cause and filed a brief for appellants in No. 154. Moses Lasky argued the cause for appellant in No. 226. With him on the briefs was Malcolm T. Dungan.

      Archibald Cox argued the cause for appellees in both cases. On the brief were Lois P. Sheinfeld and Anthony G. Amsterdam. Warren Christopher and Donald M. Wessling filed a brief for appellee Housing Authority of the city of San Jose in both cases.

      Briefs of amici curiae urging affirmance in both cases were filed by Solicitor General Griswold, Assistant Attorney General Leonard, and Lawrence G. Wallace for the United States, and by Louis J. Lejkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and George D. Zuckerman, Dominick J. Tuminaro, and Lloyd G. Milliken, Assistant Attorneys General, for the Attorney General of the State of New York.

       Together with No. 226, Shaffer v. Valtierra et al., also on appeal from the same court, argued March 4, 1971.

   Mr. Justice Black

delivered the opinion of the Court.

These cases raise but a single issue. It grows out of the United States Housing Act of 1937, 50 Stat. 888, as amended, 42 U. S. C. § 1401 et seg., which established a federal housing agency authorized to make loans and grants to state agencies for slum clearance and low-rent housing projects. In response, the California Legislature created in each county and city a public housing authority to take advantage of the financing made available by the federal Housing Act. See Cal. Health & Safety Code § 34240. At the time the federal legislation was passed the California Constitution had for many years reserved to the State’s people the power to initiate legislation and to reject or approve by referendum any Act passed by the state legislature. Cal. Const., Art. IV, § 1. The same section reserved to the electors of counties and cities the power of initiative and referendum over acts of local government bodies. In 1950, however, the State Supreme Court held that local authorities’ decisions on seeking federal aid for public housing projects were “executive” and “administrative,” not “legislative,” and therefore the state constitution’s referendum provisions did not apply to these actions. Within six months of that decision the California voters adopted Article XXXIV of the state constitution to bring public housing decisions under the State’s referendum policy. The Article provided that no low-rent housing project should be developed, constructed, or acquired in any manner by a state public body until the project was approved by a majority of those voting at a community election.

The present suits were brought by citizens of San Jose, California, and San Mateo County, localities where housing authorities could not apply for federal funds because low-cost housing proposals had been defeated in referendums. The plaintiffs, who are eligible for low-cost public housing, sought a declaration that Article XXXIV was unconstitutional because its referendum requirement violated: (1) the Supremacy Clause of the United States Constitution; (2) the Privileges and Immunities Clause; and (3) the Equal Protection Clause. A three-judge court held that Article XXXIV denied the plaintiffs equal protection of the laws and it enjoined its enforcement. 313 F. Supp. 1 (ND Cal. 1970). Two appeals were taken from the judgment, one by the San Jose City Council, and the other by a single member of the council. We noted probable jurisdiction of both appeals. 398 U. S. 949 (1970); 399 U. S. 925 (1970). For the reasons that follow, we reverse.

The three-judge court found the Supremacy Clause argument unpersuasive, and we agree. By the Housing Act of 1937 the Federal Government has offered aid to state and local governments for the creation of low-rent public housing. However, the federal legislation does not purport to require that local governments accept this or to outlaw local referendums on whether the aid should be accepted. We also find the privileges and immunities argument without merit.

While the District Court cited several cases of this Court, its chief reliance plainly rested on Hunter v. Erickson, 393 U. S. 385 (1969). The first paragraph in the District Court’s decision stated simply: “We hold Article XXXIV to be unconstitutional. See Hunter v. Erickson . . . .” The court below erred in relying on Hunter to invalidate Article XXXIV. Unlike the case before us, Hunter rested on the conclusion that Akron’s referendum law denied equal protection by placing “special burdens on racial minorities within the governmental process.” Id., at 391. In Hunter the citizens of Akron had amended the city charter to require that any ordinance regulating real estate on the basis of race, color, religion, or national origin could not take effect without approval by a majority of those voting in a city election. The Court held that the amendment created a classification based upon race because it required that laws dealing with racial housing matters could take effect only if they survived a mandatory referendum while other housing ordinances took effect without any such special election. The opinion noted:

“Because the core of the Fourteenth Amendment is the prevention of meaningful and unjustified official distinctions based on race, [citing a group of racial discrimination cases] racial classifications are ‘constitutionally suspect’. . . and subject to the ‘most rigid scrutiny.’. . . They ‘bear a far heavier burden of justification’ than other classifications.” Id., at 391-392.

The Court concluded that Akron had advanced no sufficient reasons to justify this racial classification and hence that it was unconstitutional under the Fourteenth Amendment.

Unlike the Akron referendum provision, it cannot be said that California’s Article XXXIV rests on “distinctions based on race.” Id., at 391. The Article requires referendum approval for any low-rent public housing project, not only for projects which will be occupied by a racial minority. And the record here would not support any claim that a law seemingly neutral on its face is in fact aimed at a racial minority. Cf. Gomillion v. Lightfoot, 364 U. S. 339 (1960). The present case could be affirmed only by extending Hunter, and this we decline to do.

California’s entire history demonstrates the repeated use of referendums to give citizens a voice on questions of public policy. A referendum provision was included in the first state constitution, Cal. Const. of 1849, Art. VIII, and referendums have been a commonplace occurrence in the State’s active political life. Provisions for referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice. Nonetheless, appellees contend that Article XXXIY denies them equal protection because it demands a mandatory referendum while many other referendums only take place upon citizen initiative. They suggest that the mandatory nature of the Article XXXIV referendum constitutes unconstitutional discrimination because it hampers persons desiring public housing from achieving their objective when no such roadblock faces other groups seeking to influence other public decisions to their advantage. But of course a lawmaking procedure that “disadvantages” a particular group does not always deny equal protection. Under any such holding, presumably a State would not be able to require referendums on any subject unless referendums were required on all, because they would always disadvantage some group. And this Court would be required to analyze governmental structures to determine whether a gubernatorial veto provision or a filibuster rule is likely to “disadvantage” any of the diverse and shifting groups that make up the American people.

Furthermore, an examination of California law reveals that persons advocating low-income housing have not been singled out for mandatory referendums while no other group must face that obstacle. Mandatory referendums are required for approval of state constitutional amendments, for the issuance of general obligation long-term bonds by local governments, and for certain municipal territorial annexations. See Cal. Const., Art. XVIII; Art. XIII, §40; Art. XI, §2(b). California statute books contain much legislation first enacted by voter initiative, and no such law can be repealed or amended except by referendum. Cal. Const., Art. IV, § 24(c). Some California cities have wisely provided that their public parks may not be alienated without mandatory referendums, see, e. g., San Jose Charter § 1700.

The people of California have also decided by their own vote to require referendum approval of low-rent public housing projects. This procedure ensures that all the people of a community will have a voice in a decision which may lead to large expenditures of local governmental funds for increased public services and to lower tax revenues. It gives them a voice in decisions that will affect the future development of their own community. This procedure for democratic decisionmaking does not violate the constitutional command that no State shall deny to any person “the equal protection of the laws.”

The judgment of the three-judge court is reversed and the cases are remanded for dismissal of the complaint.

Reversed and remanded.

Mr. Justice Douglas took no part in the consideration or decision of these cases.

Mr. Justice Marshall,

whom Mr. Justice Brennan and Mr. Justice Blackmun join, dissenting.

By its very terms, the mandatory prior referendum provision of Art. XXXIV applies solely to

“any development composed of urban or rural dwellings, apartments or other living accommodations for persons of low income, financed in whole or in part by the Federal Government or a state public body or to which the Federal Government or a state public body extends assistance by supplying all or part of the labor, by guaranteeing the payment of liens, or otherwise.”

Persons of low income are defined as

“persons or families who lack the amount of income which is necessary ... to enable them, without financial assistance, to live in decent, safe and sanitary dwellings, without overcrowding.”

The article explicitly singles out low-income persons to bear its burden. Publicly assisted housing developments designed to accommodate the aged, veterans, state employees, persons of moderate income, or any class of citizens other than the poor, need not be approved by prior referenda.

In my view, Art. XXXIV on its face constitutes invidious discrimination which the Equal Protection Clause of the Fourteenth Amendment plainly prohibits. “The States, of course, are prohibited by the Equal Protection Clause from discriminating between 'rich' and 'poor’ as such in the formulation and application of their laws.” Douglas v. California, 372 U. S. 353, 361 (1963) (Harlan, J., dissenting). Article XXXIV is neither “a law of general applicability that may affect the poor more harshly than it does the rich,” ibid., nor an “effort to redress economic imbalances,” ibid. It is rather an explicit classification on the basis of poverty — a suspect classification which demands exacting judicial scrutiny, see McDonald v. Board of Election, 394 U. S. 802, 807 (1969); Harper v. Virginia Board of Elections, 383 U. S. 663 (1966); Douglas v. California, supra.

The Court, however, chooses to subject the article to no scrutiny whatsoever and treats the provision as if it contained a totally benign, technical economic classification. Both the appellees and the Solicitor General of the United States as amicus curiae have strenuously argued, and the court below found, that Art. XXXIV, by imposing a substantial burden solely on the poor, violates the Fourteenth Amendment. Yet after observing that the article does not discriminate on the basis of race, the Court’s only response to the real question in these cases is the unresponsive assertion that “referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice.” It is far too late in the day to contend that the Fourteenth Amendment prohibits only racial discrimination ; and to me, singling out the poor to bear a burden not placed on any other class of citizens tramples the values that the Fourteenth Amendment was designed to protect.

I respectfully dissent.

         Housing Authority v. Superior Court, 35 Cal. 2d 550, 557-558, 219 P. 2d 457, 460-461 (1950).

       “Section 1. No low rent housing project shall hereafter be developed, constructed, or acquired in any manner by any state public body until, a majority of the qualified electors of the city, town or county, as the case may be, in which it is proposed to develop, construct, or acquire the same, voting upon such issue, approve such project by voting in favor thereof at an election to be held for that purpose, or at any general or special election.
      “For the purposes of this article the term ‘low rent housing project’ shall mean any development composed of urban or rural dwellings, apartments or other living accommodations for persons of low income, financed in whole or in part by the Federal Government or a state public body or to which the Federal Government or a state public body extends assistance by supplying all or part of the labor, by guaranteeing the payment of liens, or otherwise. . . .
      “For the purposes of this article only 'persons of low income’ shall mean persons or families who lack the amount of income which is necessary (as determined by the state public body developing, constructing, or acquiring the housing project) to enable them, without financial assistance, to live in decent, safe and sanitary dwellings, without overcrowding.”

       See, e. g., W. Crouch, The Initiative and Referendum in California (1950).

       Public low-rent housing projects are financed through bonds issued by the local housing authority. To be sure, the Federal Government contracts to make contributions sufficient to cover interest and principal, but the local government body must agree to provide all municipal services for the units and to waive all taxes on the property. The local services to be provided include schools, police, and fire protection, sewers, streets, drains, and lighting. Some of the cost is defrayed by the local governing body’s receipt of 10% of the housing project rentals, but of course the rentals are set artificially low. Both appellants and appellees agree that the building of federally financed low-cost housing entails costs to the local community. Appellant Shaffer’s Brief 34-35. Appellees’ Brief 47. See also 42 U. S. C. §§ 1401-1430.

       California law authorizes the formation of Renewal Area Agencies whose purposes include the construction of “low-income, middle-income and normal-market housing,” Cal. Health & Safety Code § 33701 et seq. Only low-income housing programs are subject to the mandatory referendum provision of Art. XXXIV even though all of the agencies’ programs may receive substantial governmental assistance.