James Rolf Bjerkan v. United States
529 F.2d 125
7th Cir.
1975
Check Treatment

*1 and hold finding court’s the lower inadequate.4 case notice limited holding our Because notice

sufficiency Kelly, 3575 in of § interpretation court’s reach, and need dowe important more decide, the should constitutionality concerning Act. Offender Special Dangerous of the we affirm. given reasons

For the BJERKAN, Rolf

James Plaintiff-Appellant, America, STATES

UNITED Defendant-Appellee. 74-2039.

No. Appeals, Circuit. Seventh 23, 1975. Sept.

Argued 18, 1975. Nov.

Decided rights to a if, afforded then opinion, to borrow defendants writer 4. The Coupling Heaney these facts particulars. Judge of this bill of expression recent court, slate,” to the court alternatives available clean the broad on a “write he could hearing holding Kelly. It under 18 U.S.C. conclusions subscribe to hold sentencing, vote writer would most indictments practice as to approved an language statute sufficient. the notice charge a crime *2 126 Wis., Milwaukee, First, for

Curry court to consider § 2255 relief. Carafas plaintiff-appellant. LaVallee, 234, 238, 1556, 20 (1968). L.Ed.2d Skinner, Atty., Mi- 554 U. S. Prior K. Samuel decision, Bjerkan Groark, Atty., was U. S. Chica- D. Asst. released from chael custody by action Ill., defendant-appellee. for the Clemency go, fact, however, Board. This did not de- FAIRCHILD, Judge, and Chief Before feat jurisdiction district court’s nor SPRECHER, Circuit SWYGERT petition. did it moot the Id. The Court Judges. in Carafas held that even though the petitioner had completed serving his sen- SPRECHER, Judge. Circuit shortly prior tence to consideration of his only question in developed, the As it appeal by Court, the Supreme the case the denial of habeas appeal from was neither moot jurisdiction nor was 2255 § 28 U.S.C. type relief corpus defeated. presidential whether concerns consequence conviction, of his he peti- the decision on this after granted engage businesses; cannot in certain ap- court moots district tion in the he cannot serve an official of a peal. labor specified union for a period of time; I he cannot vote election State; held in New York he cannot Bjerkan, Rolf James petitioner, juror. serve as a Because of these report for refusing was convicted “disabilities or burdens [which] in viola Forces the Armed into induction conviction, petitioner’s from” flow he 462(a). App. His § U.S.C. of 50 tion has “a judg- substantial stake in the this court on affirmed was ment conviction which survives the 1351, Cir., F.2d cert. 9, 1973, 474 7 March imposed satisfaction of the sentence on 444, 1022, 38 94 denied, S.Ct. Fiswick v. him.” 329 4, 1974, when January 312. On L.Ed.2d 211, 224, 230, 222 (1946). U.S. S.Ct. 91 [67 incarceration, his sentence began his he L.Ed. On account of these 196] years eigh three was reduced consequences,” “collateral the case is 20, 1974, he March On teen months. not moot. here under petition filed the (footnotes Id. at 88 at 1559 S.Ct. be 237 - which was decided U.S.C. omitted). In the mean on November low time, Bjerkan furloughed by Clearly, had been only when was fur- This Clemency Board. loughed, petition his Presidential was still viable be- and on filed in November cause he faced serious “collateral appeal was conse- President, quences” from his December conviction. After his General, granted Attorney it is not so clear through the unconditional a full and remain. petitioner must determine whether a full pardon. consequences” eliminates all “collateral possibility argument, During oral petitioner’s conviction. had become the case was raised re- pardon. The court moot due Ill ques- briefs on supplemental quested briefs and a review of the and after tion Obviously, cannot erase the that the law we conclude applicable fact basic wipe nor can it case is moot. away stigma social that a These, however, inflicts. were not the II consequences” which con- Bjer petition was filed When cerned the Court in Carafas. “col- custody kan was in the correctional lateral noted in Carafas Sandstone, Minnesota, nature, es were consisting institution tablishing jurisdiction of a substantial deprivation person’s district of rights, basic with the has dealt Court Supreme professions, to work right relationship serve to vote once, in v. New states then, although Clearly, jury. L.Ed. S.Ct. York, U.S. in- petitioner render will not case, courts of basic it nocent, if and sentenced had York federal, do it will New both *3 on a relying second offender aas Carlesi the away conviction, had been which federal prior conviction. his of first of- constituting the as pardoned, was petitioner granted pardon The aof use that claimed fense. repre- It unconditional. and full, free federal violated the pardoned par- President’s the of an exercise sented very a Court took The power. pardon The full measure.1 to its don noting the question, the of view narrow the noted that Clemency Board pun- in states have which discretion wide civil petitioner’s federal all of restored appropriate prescribing and ishing crimes view. support cases the and rights sentencing as a the It held penalties. v. Unit- Knote in Supreme Court As the such permissible because offender second 153, 149, 24 L.Ed. States, 95 U.S. ed additional impose “an did not sentence a wrote, releases pardon] (1877), “[a pe- which crimes for on [the punishment by imposed from all disabilities offender and been already had titioner] all his offense, him to restores and but rather im- pardoned]” punished [and Arm- noted in as was rights.” And civil for . . . “punishment posed (13 States, strong United at at only.” Id. crime new a 20 L.Ed. Wall.) 578. all which of act public “a to result, are bound not- the Court States reaching of United Courts are ignore all Courts notice, to which not could the states take that ed difficult The fact, effect.” most cir- under give to pardon. bound a fed- is whether bound it. face were which states cumstances state petitioner’s wrote: eral Court The rights. civil It may not questioned be that right directly in its without or in- Clemency Board The Presidential directly regarding to national petitioner restrict letter government its in exertion of pardon made evident its le- of granting gitimate powers. It not, is therefore to in and be the pardon view could conceded that if the act of the state in civil itself, petitioner’s state restore taking prior into consideration con- Board wrote: rights. viction of an offense committed civil all federal pardon will restore against same offender the laws of the upon your crimi- you lost rights which despite United States was including nal any just punishment sense a for such also You will for Federal office. run crime, prior the act of the state restoring your helpful find destroying would because be void or your such state certain circumscribing par- effect of the a license and to obtain vote granted don the Constitution occupations work laws of the United States. state you are now barred which Id. at added) (emphasis 34 S.Ct. at 577 add- (Emphasis law. ed). correct, serious were If Board’s view the Court that after a would remain established collateral cognizance take via- appeal to be and this would continue way offense ble. Impeach- except in Cases part: II, provides in art. U.S.Const. ment. grant Re- Power have shall President] [The against for Offenses Pardons prieves and “punishment.” life, which constitute a liberty, these are pursuit Court, did happiness; elaborate on and that pursuit in the be a “punishment.” happiness avocations, what it considered to all honors, all positions, open are alike every- sense would Common seem to indicate one, protection and that the deprivation of certain basic civil rights these all are equal before the resulting rights felony from a Any deprivation law. or suspension of “punishment.” However, constitutes rights past conduct is rely entirely we sense, on need common punishment, and can be in no other- Supreme Court in early an wise defined. spoken subject. case has In Cum Missouri, mings Wall.) (emphasis Id. 321—22 added). (1866), the 18 L.Ed. 356 Court faced a provision constitutional which Missouri Therefore, any deprivation of a required persons holding any *4 office of person’s basic civil including the profit the any honor under state or or right vote, to the to juries serve position consequence in the profes of and the to work in profes certain sions, teaching, or religion business to sions, by a state on account of a federal lengthy oath dealing to with subscribe conviction would constitute punishm prior person’s the sentiments feel ent.2 If the conviction were pardoned, ings Confederacy. toward the Failure to here, as it was such attempted' punish disqualified person take oath the the ment would constitute a restriction on any of livelihoods. from The legitimate, the constitutional of disabilities Court held created “[t]he the President pardon an offense constitution by the of Missouri must be against the United States and would be regarded penalties they constitute — void as circumscribing and nullifying Id.

punishment.” at The Court power. Carlesi York, New supra. deprivation note went on to that “[t]he any rights, political, previously of civil or punishment, enjoyed, may be the circum This corresponds result with es attending stances and the causes of the regarding tablished notions suprema the deprivation determining this Id. fact.” cy clause.3 Chief Justice Marshall in the

And Court concluded: v. Maryland, McCullock U.S. 316, 427, upon Wheat.) theory political The which our 4 L.Ed. 579 laid is, institutions rest that all the for interpretation men have foundation rights inalienable among clause: —that disqualify though even pardon guilt” not “blot there had 2. A does out nor does been prosecution no criminal crime, for the to a state of it in the offender innocence restore the fact that the criminal has eye suggested been of the law in the as was Ex and eligible. Garland, does not (4 Wall.) any make him Parte L.Ed. 366 States, U.S. more Burdick United See Thus, the fact of 79, 91, after a 35 S.Ct. 59 L.Ed. cannot be taken that, into (1915) blotting subsequent account in (suggesting far proceedings. However, the acceptance pardon may guilt, fact of the out stitute a confession of of a con- com- mission of may the crime guilt). accept be We considered. Therefore, although the effects pardon propounded by the effect of a view of commis- sion linger of the offense after a A Pardon Williston Does Biot Out Professor effects of the conviction are all (1915): wiped but 28 Harv.L.Rev. Guilt? out. VI, 2, provides: 3. U.S.Const. art. cl. true The line of distinction seems to be Constitution, legal punish- this: The removes all This and the Laws Unit- ment for the offense. ed States which shall Therefore be if the mere made in Pursuance thereof; disqualifications made, involves certain and all Treaties or which shall made, would not which sion be Authority follow from the commis- of the United the crime supreme without shall be Land; Law of the disqualifications. Judges every removes such On State shall be bound hand, thereby, any necessary Thing the other qualification if character is a or Constitution Laws and the commission of Contrary a crime State to the notwithstanding. very supremacy, It is of essence of The Presidential Pardon received to remove Mr. all obstacles to its action does remove all its sphere, own within and so modi- his convic- Therefore, every power I fy tion. am agree vested subordinate unable governments, exempt majority as to case op- its now own York, v. New In erations from their moot. own influence. (1914) 58 L.Ed. 843 regard pardon power, Pres- Court held that state take could “into sphere ident’s He limited. can consideration a prior offense committed pardon those “against offenses which are against the United pardon” States after the United States.” sphere, But long as the state’s did action not con- power, like power, constitutional punishment. stitute Carlesi, supreme. must be It cannot be hindered 57, 34 S.Ct. 577. operation assignment subordinate state of “second governments. offender status” to the power would appellant did not impair be ineffective if it the effect could of his only restore pardon for the convict’s first offense. rights. addition par- “status” person doned would still which a suffer numerous may still impose handicaps on Mr. Bjerkan, and would not receive the ben- subject he be disqualifica- efits other of what the President in granting a tions which do not punish- full constitute would seem to intend —that ments. In Nasser, States v. person be reinstated to his rights full *5 F.2d (1973), as a court McCulloch, citizen. held Chief Justice “ . . . where there is a suffi- Marshall noted that power to tax is ciently rational relationship power between the destroy. Id. Here past activity public power punish interest for a conviction which excluding unworthy people, the disquali- pardoned has been is to viti- fication is punishment not a . ate . ..” destroy presidential pardon.4 Therefore, Bjerkan’s Mr. pardon may reasons, For these not we conclude immunize him from disqualifications presidential by state as well state licensing agencies. new rights.5 federal Fed- Since a state eral Rules Evidence, may deprive Fed. Rules Evid. felon of his Rule U.S.C., basic civil for example, we may find that peti- preclude impeachment tioner here faces no testi- conse- mony which he quences” give in subsequent of the nature contemplated unrelated trials. LaVallee, v. Carafas totality supra. collateral appeal moot. substantial enough to make appeal ripe for a The order denying petition for ha- decision. corpus beas is vacated and the cause is In reaching the merits of Bjer- Mr. remanded to the district court with di- appeal, kan’s however, I would vote to rections to reinstate the cause on its cal- affirm the decision district court. endar so that it can be dismissed major issue which Bjerkan Mr. moot. raised in this appeal was the failure of Vacated and remanded. the local board and the National Selec- tive Service Board to state the reasons

FAIRCHILD, Judge Chief (dissenting). why Mr. was denied conscien- Congressional Justice Chief White noted this fact Carlesi, Power to Control the Jurisdic- 233 U.S. at 57, 34 S.Ct. 576. tion of Lower Federal A Courts: Critical Re- view and New Snythesis, 124 U.Pa.L.Rev. 45, 5. The authority holds point 97-100 that “[t]he philosophy feder- contrary. See Pardons, 7 Op.Atty.Gen. alism has shifted since dramatically” the time For the reasons stated above, we of the Civil War and that this “new atmos- unconvincing find this opinion and, of course, surrounding phere state-federal relations” has bound it. Also, we note the had a distinct impact on interpretations commented fact, as upon in Redish & Woods, federal supremacy. objector status. This omission was tious remedied, Appeal the State denying ap explanation

Board’s Neither v.

peal. United States Wain

scott, (4 1974) F.2d 356 Cir. or Unit Lemmens, F.2d

ed 1970) require analysis. different

Cir. Bjer

The reasons for denial of Mr. appeal Ap articulated

kan’s State adequate were pur Board for the

peal judicial and

pose of both administrative

review. FELTHAGER, L.

Marie

Plaintiff-Appellant, WEINBERGER, Secretary

Caspar W. Health, Welfare, Education and

Defendant-Appellee.

No. 75-1183. Appeals,

United States Court Tenth Circuit.

Argued Nov. 1975.

Decided Feb. 1976.

Rehearing Denied Feb.