# Julita David Robertson v. United States

> Court of Appeals for the Fifth Circuit · September 25, 1969 · 417 F.2d 440

URL: https://www.frixlaw.com/law-library/cases/9454964

## Case

- **Full name:** Julita David ROBERTSON, Appellant, v. UNITED STATES of America, Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** September 25, 1969
- **Citations:** 417 F.2d 440; 1969 U.S. App. LEXIS 10657
- **Precedential status:** Published
- **Opinion:** Dissent by Godbold
- **Judges:** Godbold, Brown, Wisdom, Gewin, Bell, Thornberry, Coleman, Goldberg, Ainsworth, Dyer, Simpson, Morgan
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9454964

## How later opinions describe it (automated extraction)

- holding that the Confrontation Clause did not apply to proceedings before a draft board because such proceedings “are not stages in a criminal prosecution”

## Opinion text

GODBOLD, Circuit Judge
(dissenting:
With deference to my numerous colleagues I must record my disagreement. It seems to me quite clear that the Local Board, in considering whether Robertson was entitled to a ministerial classification, proceeded under an erroneous view of the law.
*451 I recognize the difficulty faced by this Board, and others, composed of public-spirited laymen performing a vital national service. It has proved excruciatingly difficult to attempt to fit the Jehovah’s Witness registrant into the pigeonholes of the statutory exemption for “regular or duly ordained ministers of religion,” 50 U.S.C. App. § 456(g) and § 466(g) and the supporting regulations, 32 C.F.R. § 1622.43 . 1 The lay boards look to the professional Selective Service staffs for guidance. And Selective Service, in search of an answer, has given weight to statements of position from counsel for the church, 1A which focus the emphasis on the particular piece of paper — the certificate — given the registrant by the church, certifying him to hold a described place in the church hierarchy. It is understandably easy for the unarguable and concrete certificate to become the nexus, the last or controlling word, the convenient peg on which to hang the hat of decision. 2 That avoids the sifting and weighing of evidence which itself may be, as it was in this case, shifting and changing. But, as so often happens, the shortest way across proves to be the longest way around.
1. The governing law
The scope of judicial review of a selective service classification is narrow. But a classification made on the basis of an erroneous view of the law falls within the range of judicial scrutiny. McKart v. United States, 395 U.S. 185 , 89 S.Ct. 1657 , 23 L.Ed.2d 194 (1969); Sieurella v. United States, 348 U.S. 385 , 75 S.Ct. 403 , 99 L.Ed. 436 (1955); United States v. Tichenor, 403 F.2d 986 (6th Cir. 1968); United States v. Hagaman, 213 F.2d 86 (3d Cir. 1954) (en banc).
In the ease of Jehovah’s Witnesses, under whose doctrine every member is a minister, ministerial classification may be neither granted nor denied on the basis alone of a certificate given the registrant certifying him to hold a particular place in the church hierarchy. The Covington memorandum, see footnote 1A, supra, neither changes church doctrine nor makes “regular or ordained” ministers out of particular persons or classes from among the sect’s “ministers.” The draft board cannot abdicate to the authorities of this sect, or to the general counsel of the sect, its duty to judge the claim for * * * exemption on the particular objective facts of the case. In United States v. Tichenor, supra, the court held:
We hold only that the local draft board cannot, solely on the basis that appellant is not certified as a “Pioneer”, deny him such a classification, *452 but rather it must determine, on the basis of the evidence before it, whether he is a “regular or duly ordained minister” as defined by 50 U.S.App. § 466(g).
403 F.2d at 989 . Accord: Cox v. United States, 332 U.S. 442, 450 , 68 S.Ct. 115 , 92 L.Ed. 59 , 68 (1947) and Senate Report 1268, 80th Congress, 2d Sess., p. 13; United States v. Dillon, 294 F.Supp. 38 (D.Or.1968); United States v. Garcia, C.D.Calif. No. 1265-CD-Cr. No. 8956 [Jan. 31, 1968]; United States v. Smoke, S.D.Ohio, Cr. No. 8956 [Jan. 31, 1968]. Similarly, in Application of Kansas, 385 F.2d 506 (2d Cir. 1967) the Second Circuit held that the registrant “could not be denied a ministerial exemption solely on the ground that he was a ‘cantor and musical director’.”
In Dillon, Garcia and Smoke district courts acquitted Jehovah’s Witnesses who had been denied IV-D classification because they were Vacation Pioneers rather than Regular Pioneers. In Dillon the court stated: “The fact that he [defendant] was classified as a ‘Vacation Pioneer’ and not a ‘Pioneer’ does not preclude him from obtaining a ministerial classification.”
The government does not deny that a classification made under an erroneous view of the law is subject to judicial review. Nor does it deny the correctness of Tichenor and like cases. Rather it zeroes in on matters other than appellant’s status as a Vacation Pioneer and asserts they are bases in fact for the Board’s action.
2. The existence of an erroneous view of the law.
In the performance of his duties Colonel Shed Weeks, Chief, Administrative Division, Mississippi State Headquarters, Selective Service System, actively participated in appellant’s case at many stages. He met and advised with appellant and his father and friends. He advised the Board in numerous instances. He attended appellant’s meeting of October 14 with the Board. On August 27, 1965 at the written request of the Board, appellant, his father and two other Jehovah’s Witnesses, conferred with Colonel Weeks to discuss appellant’s request to be classified as a minister. The Clerk’s report of the conference says:
Colonel Weeks pointed out that Robertson is not now eligible for such a classification [4-D] and explained the reason why and instructed registrant as to how he could qualify for a 4-D classification.
We need not guess at what the instructions were. In his testimony Colonel Weeks described what he told appellant. The emphasis was upon what Robertson must do to secure a Regular Pioneer certificate, or other “qualifying” certificate.
Q. Now, in connection with this conference that you had there, do you recall what conversation you had and what you talked about?
A. Well, the registrant discussed with me his position with the Watchtower Bible and Tract Society his previous activities. To the best of my knowledge he didn’t have at that time no official position or he didn’t know about his connection with his preaching activities. I discussed with him and the people who were with him what was necessary to be eligible under Selective Service regulations and I also pointed out to him what his duties would be to be eligible for a 4-D classification with the local Selective Service Board.
Q. What did you tell him that would be required of him to qualify as a Jf-D of [sic] the Board of the Selective Service?
A. That he would have to have enough preaching hours to qualify him as a regular pioneer preacher to obtain a regular pioneer certificate from the Watchtower Bible and Tract Society.
Q. Was anything said to him about a congregational servant?
A. Also about a congregational servant after the other was explained to him.
*453 Q. Was any other position explained to him?
A. Assistant congregational servant, and also the requirements required for that.
Q. Well now, what discussion did you have with him as to those qualifications that were required or how did that come about?
A. I advised him that he must be putting in enough time in his preaching activities to consider this as his vocation and must be preaching regularly and I showed him. the number of hours the Watchtower Society required before he would be eligible for a regular pioneer certificate.
On either September 3 or 7, 1965 appellant delivered to the Board letters stating that he was a Vacation Pioneer and had applied to be a Regular Pioneer. The Clerk’s report of this appearance at the Board says:
He is reported by his associates as being a Vacation Pioneer, which apparently does not qualify him as being eligible for a U — D classification.
On September 8 Colonél Weeks wrote the Board:
I believe that in a very short while this registrant will be able to get the evidence as a Regular Pioneer, as he stated in my interview with him on August 27, that application had been made. I believe that it would eliminate quite a bit of unnecessary work to give the registrant at least fifteen days to submit this certificate * * *. If the registrant does submit a certificate from the Watchtower Bible and Tract Society certifying that he is a Regular or a Special Pioneer, then the local board may by justified in placing him in Class IV-D.
The September 14 meeting of the Board is discussed below.
These occurrences are consistent with Colonel Weeks’ testimony describing Selective Service policy. On cross-examination this occurred:
Q. Is it your testimony, Colonel Weeks, that only one who is a regular pioneer minister is entitled to a ministerial exemption?
A. Our local boards consider persons who are congregation servants, assistant congregational servants,— pioneers [sic], and regular pioneers, being the criteria as applies under Section 1622.43 or Selective Service Regulations.
The Clerk of the Board testified to the regulations which the Board “had to go by.” Part of her testimony was:
Q. Wasn’t the instructions given to the Board [concerning the ministerial exemption] only for a regular pioneer certificate?
A. I believe there are two other uh, titles that they may have and be qualified, something about a congregational servant or something like that. 3
And later:
Q. I’m talking about the vacation pioneer servant?
A. Well, a vacation pioneer servant is not entitled to a U-D classification.
Under these criteria articulated by Colonel Weeks and the Clerk of the Board, the registrant in Wiggins v. United States, supra, should not have been accorded ministerial status at the hands of this court. He was a Book Study Conductor.
The position of Selective Service, as communicated by Colonel Weeks, is on record elsewhere as well. In a memorandum of April 9, 1964 to Mississippi local boards and clerks concerning Jehovah’s Witnesses, 4 Colonel Weeks discussed the *454 report given by Colonel Daniel Omer, General Counsel of the Selective Service System, at a conference of State Directors of Selective Service in May, 1959. 5 Also he discussed a letter from an official of Jehovah’s Witnesses and the 1958 memorandum from Hayden Covington. Colonel Weeks’ memorandum states “it is felt” that Regular Pioneers and Special Pioneers meet the requirements of § 1622.43 of the Regulations for a IV-D classification but:
“Vacation Pioneer appointment is only temporary, and it does not meet the requirements of the definition of a IV-D classification under the Selective Service regulations.” 6
In a letter of September 14, 1965 7 (coincidentally, the date that appellant had his first meeting with his board) Colonel Weeks advised McCoy’s board:
The minimum requirement for a Regular or Special Pioneer will meet the criteria for a IV-D classification as defined under Section 1622.43 of the Regulations. A Vacation Pioneer will not meet this criteria because he is not preaching regularly as defined under Regulations.
If there is any doubt that the Board’s various actions were taken pursuant to the erroneous understanding that a Regular Pioneer certificate was prerequisite, 7A this which occurred on cross-examination of the Clerk, should dispel it:
Q. Now, Mrs. Hall, in a letter dated September 17, 1965 addressed to Colonel Shed H. Weeks, document number 45, in the third paragraph, you asked Colonel Weeks to arrange a meeting immediately in order to resolve this matter as quickly as possible, why was it so urgent to get this young man to report, what was the great urgency?
A. Well, he was overdue to go.
Q. Was it possible that the Board was trying to head off this information about his being a pioneer—
A. No, sir, the Board gave him time to get his pioneer certificate, they gave him some time.
Q. Now, in these documents received from the Watchtower Society in his record, what did it show with respect to the amount of time he had to devote to the ministry as a vacation pioneer?
BY MR. HAUBERG [United States Attorney]:
If it please the Court, the Vacation Pioneer is not in the Category that they said they would certify for a h — D ministerial classification.
BY THE COURT:
I realize that, but I’ll let her answer.
The Clerk understood what the Board’s requirement was. The United States Attorney understood it and in candor recognized .it. The trial judge understood it.
This is the flood tide of evidence which my brother judges do not mention. My brothers adopt the government’s argument that because appellant’s file contained other factual data to which the Board’s decision arguably can be related the use throughout of an erroneous standard of law becomes error without *455 injury. Heavy reliance is placed on excerpts from the reports of the Board meetings of September 15 and October 14. The report of the September 14 meeting does say the Board met and “registrant’s file was studied by them carefully.” But it says much more than this boilerplate. I set out in the margin the full report of that meeting sent to Colonel Weeks. 8 The Board suspected appellant of stalling because it found he had aqyplied for a Vacation Pioneer certificate and not a Regular Pioneer certificate, as Colonel Weeks had understood he was going to do, and, under their interpretation of Board Advices [from Selective Service], other Memorandums [sic], and Regulations appellant could not qualify as a Regular Pioneer anyhow. The Board was traveling unwaveringly down the rabbit trail on which, through error wholly understandable, it had been set.
The report of the October 14 meeting, at which Colonel Weeks was present, says:
Before discussing the type of work that the registrant should perform, the local board again reviewed the file concerning the registrant’s preaching activities. The local board reviewed photostatic copy of Vacation Pioneer appointment of the registrant and letters of friends and brothers concerning the registrant’s ministerial activities.
This is inconsistent with the testimony of Colonel Weeks himself, quoted above,' of what local boards would consider. But even if the report is right and Colonel Weeks wrong, if the Board “considered” the Vacation Pioneer certificate alone, or other evidence, or the certificate plus other evidence, such “consideration” is not a valid basis in fact for the classification if conducted under an erroneous legal standard. To “consider” the file was meaningless if upon looking at the documents that made up the file the Board members thought that a Regular Pioneer certificate was the sine qua non to ministerial classification, or that a Vacation Pioneer certificate commanded denial, or that a Vacation Pioneer certificate was simply irrelevant.
3. The reach of the problem
The problem is not one alone for this Board and this registrant, or Mississippi boards and registrants. We do not know whether the misunderstanding reaches Selective Service in all the states. But we do know, as a minimum, from this case and those discussed in this opinion, that it has touched boards in Mississippi, Kentucky, Wisconsin, Ohio, Oregon and California. And we know, from Colonel Weeks’ memorandum to Mississippi boards and clerks, that the misunderstanding has at least some roots in the National Selective Service System. 9
*456 The Board found to have erred in Tichenor was in Kentucky. United States v. Hestad, 248 F.Supp. 650 (W.D. Wis.1965) concerned a Wisconsin board and the Wisconsin Selective Service headquarters. The district court directed a judgment of acquittal on a charge of refusal to report for work because the Board had improperly refused to reopen defendant’s classification. Part of the new evidence furnished as the basis for reopening was the defendant’s Vacation Pioneer certificate. The district judge said:
This record, suggests, but does not make explicit, a theory which may have led the local board and the state headquarters of Selective Service to conclude that a prima facie case for ministerial classification had not been made out by this defendant. This theory is that only a “regular pioneer”, as distinguished from a “vacation pioneer”, in the Watchtower Society is entitled to 4-D classification.
248 F.Supp. at 654 . He found two items in the record indicating that this theory may have been maintained. The first was an opaque notation by the secretary of the local board in connection with a meeting:
Q. Board general in every CO’s and the nation. Do [sic-due?]. to have Pioneer Certificate or higher for a 4-D. (Neby).
248 F.Supp. at 655 . The second element was a series of events which occurred after the order to report was mailed to defendant on December 18, 1964. In May, 1965 the defendant was appointed a Regular Pioneer. Responding to this appointment the State Selective Service headquarters wrote the board on May 12:
Since his [defendant’s] appointment as a Pioneer Minister was not effective until after he did not report for civilian work, no action is required by your Local Board at this time.
The district judge noted that possibly the board’s failure to reopen in December could not be challenged by subsequent events. But he added:
However, the Administrative Officer’s letter of May 12 supports the conclusion that the local board believed that a “regular pioneer minister”, “or higher”, is entitled to 4-D classification, but that other members of Jehovah’s Witnesses are not.
# * * * * *
If such a standard was applied by the local board, and perhaps endorsed by the state headquarters, it was incorrect.
The widespread misconception is further exemplified by United States v. Dillon, 294 F.Supp. 38 (D.Or.1968). A Vacation Pioneer was classified IV-D. He was devoting at least 130 hours per month to the ministry and had been doing so for fourteen months. He spent only twenty-five hours per month in secular activities. The Board refused a ministerial classification. On appeal the Appeal Board unanimously reversed and classified Dillon as IV-D. The Oregon Selective Service Headquarters wrote the Appeals Board and asked it to reconsider because Dillon was only a Vacation Pioneer, “which, has not generally been considered a basis for Class IV-D.” The Board reconsidered and denied the ministerial classification. On prosecution for failure to report for civilian work the district judge found Dillon not guilty and jointed out Selective Service’s error — “the fact that he [Dillon] was classified as a ‘Vacation Pioneer’ and not a ‘Pioneer’ does not preclude him from obtaining a ministerial classification.” 294 F.Supp. at 40 .
In United States v. Duecker, W.D. Wis. 67-CR-78 [Apr. 22, 1968], tried before the same judge who tried the Hestad case, supra, a Jehovah’s Wit *457 ness was acquitted. A representative of the Wisconsin State Selective Service Headquarters had brought to the local board meeting a copy of the same “presentation” by the General Counsel of Selective Service to state directors, referred to in Colonel Weeks’ memorandum to the Mississippi boards and clerks. See footnote 5, supra, and accompanying text. This official had marked the organizational chart, which was a part of the document, to indicate that Congregation Servants and Pioneers are entitled to IV-D classification but that those of “lesser” rank are not. Also the clerk’s summary of a local board meeting showed a member inquired of defendant whether he was a “pioneer minister.” The court commented:
It is quite reasonable that those charged with the administration of the selective service system, and particularly those called upon to decide whether a ministerial classification is appropriate, should acquaint themselves with the organizational structure of various religious groups, and should ask a particular registrant whether he holds a religious title and, if so, what it is. However, there is a considerable danger of prejudicial error which must be carefully avoided. Registrants are to be classified on an individual basis according to their individual activities and circumstances, not upon the titles they may hold. For a local board or an appeal board to act upon the theory reflected by the pencilled annotations to the organizational chart in Exhibit 3 would be error invalidating the classification.
At best, with regard both to the standard and to what the Board thought it could consider, and did consider under that standard, the majority opinion is based on the sort of guesswork that the Supreme Court forbade in Sicurella v. United States, supra, 348 U.S. at 392 , 75 S.Ct., at 406 , 99 L.Ed. at 441 :
Here, where it is impossible to determine on exactly which grounds the Appeal Board decided, the integrity of the Selective Service System demands, at least, that the Government not recommend illegal grounds.
Accord: United States v. Jakobson, 325 F.2d 409 (2d Cir. 1963); United States v. Stepler, 258 F.2d 310 (3d Cir. 1958); Shepherd v. United States, 217 F.2d 942 (9th Cir. 1954), rehearing denied 220 F.2d 855 (1955).
In Shepherd v. United States, supra, the Board was erroneously advised by the Department of Justice that the registrant, who believed in self-defense and theocratic war, was not entitled to conscientious objector status because he was not opposed to war in any form. The Ninth Circuit held:
We recognize the possibility that the appeal board’s action here may have been prompted solely by a consideration of the matters last referred to [the fact that the local board had made a classification after opportunity to observe the registrant’s demeanor and pass on his credibility] and that the appeal board may have disregarded the Department’s recommendation, or at any rate, that portion thereof containing the erroneous statement to which we have alluded. On the other hand, we cannot close our eyes to the strong probability that the appeal board, no doubt composed of laymen, would be much influenced by such a statement of the Department of Justice recommending that even if the registrant was sincere he could not be exempted because of his expressed beliefs relating to self defense and theocratic wars.
***** *
We do not overlook the usual presumption that official action has been regularly performed. While it might be argued that in the absence of evidence one way or the other we must presume that the appeal board here disregarded the erroneous advice of the Department of Justice and relied exclusively upon the implied findings of the local board, that the registrant had failed to convince them of the genuineness of his religious convictions or of his sincerity, we find it *458 difficult to be persuaded in this, a criminal case, that such a presumption is sufficient to negative the likelihood that the board in fact relied upon the erroneous advice of the Department of Justice.
The present case cries for reversal more strongly than Shepherd , where the board arguably acted on evidentiary considerations of demeanor and credibility that were independent of the erroneous advice. The erroneous legal principles in the present case are inextricably part of the Board’s action, relating as they do to the effect on Robertson’s classification of the Vacation Pioneer certificate which the majority say was considered by the Board as part of all the facts before it.
This conviction should be reversed. The Board then can consider all the evidence under a correct legal standard and classify Robertson accordingly. The law then can take whatever is its appropriate course.
Therefore, I respectfully dissent.
. See the statement of Judge Wisdom for this court in Wiggins v. United States, 261 F.2d 113 (5th Cir.) cert. denied, 359 U.S. 942 , 79 S.Ct. 723 , 3 L.Ed.2d 676 (1959), referring to the Jehovah’s Witnesses who correspond to ministers in a conventional organized religion and received no salaries and must engage in secular work to earn sufficient funds to carry on their religious work.
“This situation is not adequately covered in the Act and Regulations. A draft board and a reviewing court are placed in the position of balancing the secular against the religious interests and activities of the registrant with uncertain guides at best and subject to conflicting philosophies of individual board members and judges in their approach to selective service.”
261 F.2d at 115 .
. Significant portions of the well-known 1958 memorandum from Hayden Covington, General Counsel for Jehovah’s Witnesses, to the National Selective Service Board, appear in United States v. Stidham, 248 F.Supp. 822 , at 839 n. 9 (W.D. Mo.1965).
. Even the careful judicial mind slides easily from the concept of the Watehtower Society’s standards (as exemplified in a certificate) as an evidentiary item of probative force to be considered by the board, and those standards as determinative of qualification for exemption under the Selective Service law and regulations. The majority opinion, says: “Thus Robertson, a Vacation Pioneer, did not qualify for the ministerial exemption even within the hierarchy of that religious sect.”
. Mississippi appears to recognize as qualifying for ministerial classification those who hold certificates as Congregational Servants, Assistant Congregational Servants and Regular Pioneers. See footnotes 4 and 6, infra, and accompanying text.
. This memorandum is part of the record in this court in the eomimnion case of McCoy v. United States, 403 F.2d 896 (5th Cir. 1968), which also concerned denial of IV-D classification by a Mississippi board.
. See discussion, infra, of United States v. Duecker, W.D.Wis., 67-CR-78 [Apr. 22, 1968].
. The erroneous approach of accepting the certificate as conclusive appears with respect to other types of certificates as well. Colonel Weeks’ memorandum says: “The policy in Mississippi is to also consider Assistant Congregational Servants as qualifying for a IV-D classification.”
. This letter also is part of the record in this court in McCoy v. United States.
In McCoy a member of his board testified that obtaining a Pioneer certificate was the “sole criteria” for a IV-D classification, that other information concerning congregation duties would not be sufficient because the Pioneer certificate was “the only one we would have been concerned with.” The Clerk of McCoy’s board testified to the same effect.
. No member of the Board testified.
. “Local Board No. 26 convened on 15 September 1965 and subject registrant’s file was studied by them carefully.
“After digesting the attached letter from the Watehtower Bible and Tract Society, dated 2 September 1965 and received by this board 14 September 1965, and from reviewing other statements and reports in his file, and from their interpretation of Local Board Advice No. 97 and other Memorandums and Selective Regulations, they were under the impression that this registrant had only recently applied for appointment as a vacation pioneer and had not, as he stated to you, made application for appointment as a regular pioneer, nor would he qualify if he had. They strongly suspect he is only stalling for time, or even possibly attempting to evade complying with Selective Service regulations requiring him to serve his two years civilian work in lieu of military service.
“They therefore directed that the two letters attached hereto, received by this board on 14 September 1965, be forwarded to you for your further information in this case with the request that a conference be arranged immediately with the registrant, the board, and a representative from State Headquarters in order to resolve this matter as quickly as possible.”
. And the courts themselves have aided in perpetuating the error. E.g., United States v. Heljenek, 275 F.Supp. 579 at 581 (E.D.Pa.1967) :
*456 “Within the Jehovahs’ Witnesses sect he [defendant] was a Book Study Conductor, a classification several stages below Pioneer Minister, the lowest classification recognized by the Selective Service System for ministerial exemption.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9454964. Public record. Not legal advice.