which are located in the same building as Local Board #31, were composed of some members whose residence satisfied both geographical requirements.
25. The Court denied defendant's motion to remand the case to the Local Board by way of a ruling in open court. We had been led to believe that this was the initial application to the Court for an order on any issue with regard to the question of the composition of defendant's Local Board. We held that there was no justification for this dilatory application and that it was evidence of an attempt by defendant to delay the commencement of trial. We now concede that at the time of this ruling we were not aware that an open motion existed in the record in which defendant's counsel indicated an intent to file such a motion and required certain documents to support it; nor did either counsel direct our attention to this fact.
26. The defendant was then tried before the Court without a jury.
At the outset the Court must reluctantly note that the facts clearly indicate that this case is burdened by an abundance of irregular conduct on the part of all participants to this litigation, commencing from the initial stage of activity within the Local Board and continuing through the trial. We find that we must first determine the legal consequences of such conduct in accordance with the provisions of the Military Selective Service Act of 1967, as amended, 50 U.S.C.A. App. § 451 et seq., and the regulations promulgated thereunder, 32 C.F.R. § 1600 et seq., before we decide the ultimate question of the defendant's guilt or innocence of the charges alleged in the indictment.
The defendant contends, inter alia, (1) that the Local Board was required to reopen and consider anew his request for a hardship deferment regardless of the fact that such request was presented after a notice of induction had been mailed; (2) that the Local Board was required to hold a properly constituted meeting and grant defendant an opportunity to make a personal appearance to present this request; and (3) that the Local Board was required to state reasons to be added to the file when it denied his request.
The Government contends, inter alia, (1) that the defendant was precluded from presenting this request by virtue of his failure to exhaust his administrative remedies through an appeal of his initial 1A classification; (2) that the Local Board was not required to reopen and consider anew defendant's classification in that the alleged change in circumstances occurred prior to the issuance of an induction order; and (3) that the facts claimed to constitute a hardship, even if true, were insufficient to warrant the granting of a hardship deferment.
In addition, the Court feels compelled to reconsider its denial of defendant's motion to remand the case to the Local Board for an administrative determination as to the legality of the composition of the board. Upon an extensive review of the record we find that our prior ruling may have been in error and that the interests of justice require an exhaustive review of the legal issues presented by that motion at this time. We further find that we must decide this issue at the outset in that a determination that the Local Board was unlawfully constituted would result in invalidating the induction order, United States v. Williams, 317 F. Supp. 1363, 1368 (E.D. Pa. 1970), and all actions by the board thereby rendering the other issues moot.
The challenge to the composition of the Local Board is grounded on the fact that although all the members of Local Board 31 were residents of the county in which the board had jurisdiction (Berks County), none of them were also residents of the geographical area served by the board (Finding of Fact No. 24).
The applicable statute is 50 U.S.C.A. App. § 460(b)(3) which states in pertinent part:
. . . each member of any local board shall be a civilian who is a citizen of the United States residing in the county or political subdivision corresponding thereto in which such local board has jurisdiction, . . .
However, the statute, 50 U.S.C.A. App. § 460(b)(1) and (3) also authorizes the President to create and establish local boards within the Selective Service System and to prescribe all necessary rules and regulations regarding the creation and operation of such board. In compliance with this legislative mandate, the President promulgated 32 C.F.R. § 1604.52(c), which was in effect when this Local Board acted upon this defendant, and which provided:
The members of local boards shall be citizens of the United States who shall be residents of a county in which their local board has jurisdiction and who shall also, if at all practicable, be residents of the area in which their local board has jurisdiction. (Emphasis supplied).