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December 24, 1969

MUHAMMAD ALI, Plaintiff,
The DIVISION OF STATE ATHLETIC COMMISSION OF the DEPARTMENT OF STATE OF the State of NEW YORK and Edwin B. Dooley, Albert Berkowitz and Raymond J. Lee, as Chairman and Members thereof, Defendants

The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.


 On April 28, 1967, the plaintiff, Muhammad Ali (also known as Cassius Clay), refused to submit to induction into the armed forces. He was at the time "recognized" in New York and elsewhere as the world's heavyweight champion prize fighter. His resistance to the draft was predicated, inter alia, upon a claimed ministerial exemption, a conscientious objector claim, and hardship grounds. On June 20, 1967, after rejection of his attacks upon the denial of an exemption for religious reasons, a jury found him guilty under 50 U.S.C.App. § 462 of criminally refusing induction, and he was sentenced to a term of five years in prison (subject, the District Judge said, to consideration of "clemency" if and when the conviction was affirmed).

 On May 6, 1968, the Fifth Circuit affirmed. Clay v. United States, 397 F.2d 901. In an introductory summary at the outset of its detailed opinion, the Court said (p. 905):

"Cassius Marsellus Clay, Jr., also known as Muhammad Ali, heavyweight professional boxing champion of the world, was convicted after trial by jury on an indictment charging violation of 50 U.S.C.App. § 462, for knowingly and wilfully refusing to report for and submit to induction into the armed forces of the United States. Clay's draft case has been through practically every phase of selective service procedure, beginning with the date he registered on April 18, 1960, until he was ordered to report but declined to submit to induction on April 28, 1967, and was thereafter convicted by jury trial held on June 19, 20, 1967. On four different occasions he was classified 1-A (Available for military service) by his local board, twice by two different appeal boards (in Kentucky and Texas) and once by the National Selective Service Appeal Board (the Presidential Appeal Board). In every instance the vote of the boards was unanimous.
"There has been no administrative process which Clay (Ali) has not sought within the Selective Service System, its local and appeal boards, the Presidential Appeal Board and finally the federal courts, in an unsuccessful attempt to evade and escape from military service of his country. Being entirely satisfied that he has been fairly accorded due process of law, and without discrimination, we affirm his conviction."

 Reviewing the claimed right to a ministerial exemption (pp. 915-918), the appellate Court noted the long course of Muhammad Ali's self-description, to the draft board and elsewhere, as a "professional fighter" and "boxer," observing that the claim to a minister's exemption followed only after the "eventful and important" change of his classification from 1-Y to 1-A and that "Clay (Ali) had never stated to his board or claimed to be a minister or a conscientious objector prior to that time" (p. 917). The Court concluded that the board had correctly denied the exemption. "His vocation is clearly that of a professional boxer." (p. 918).

 The Court of Appeals likewise reviewed at some length (pp. 918-921) the claim to conscientious objector status and found it to have been properly denied upon "more than adequate evidence" (p. 921).

 On March 24, 1969, the Supreme Court, vacated the judgment in Clay, aka Ali v. United States, along with a number of others, and remanded for consideration under Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969), as to whether the conviction was tainted by use of the fruits of unlawful electronic surveillance. See Giordano v. United States, 394 U.S. 310, 22 L. Ed. 2d 297, 89 S. Ct. 1163, On July 14, 1969, after a hearing pursuant to that mandate, the District Court for the Southern District of Texas ruled that the conviction had been proper and again imposed a five-year sentence. An appeal from that decision is pending.

 Throughout the criminal proceedings begun in the spring of 1967, Ali has been free on bail, and he remains in that status at this time.

 In the present lawsuit, begun some four months after reaffirmance of his conviction by the Texas District Court, Muhammad Ali charges that the New York State Athletic Commission has transgressed various provisions of the Federal Constitution in holding that his conviction and sentence for refusal to serve in the armed forces justify refusal of a license to fight in the prize ring. The facts generating his present claims are said by both sides to be undisputed. They are the subjects now of a motion by plaintiff for a preliminary injunction and a motion by defendants to dismiss.


 The defendants suspended plaintiff's boxing license some 2 1/2 years ago, on April 28, 1967, when he refused to submit to induction. On June 9, 1967, concluding a short course of correspondence on the subject, the Commission stated to plaintiff's counsel that it would grant a "permissive hearing to be held within a reasonable time after" the trial and decision in the criminal prosecution. Plaintiff never sought a hearing upon the suspension as such, and the one-year license to which that action related lapsed at its term's end, on September 30, 1967.

 Two years later, however, on September 22, 1969, plaintiff's attorney submitted an application for a new license with a letter requesting a hearing. The letter said in part: "Though he is not entitled to a hearing as a matter of right, his request is predicated upon good sportsmanship, equity and due process." In a letter dated October 16, 1969, the Commission denied the application, subject to reconsideration following reversal (if it occurs) of the conviction from which plaintiff's appeal is pending in the Fifth Circuit. In its letter announcing this action, the agency stated that there was no occasion now for holding a concededly non-mandatory hearing ...

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