Petition for Writ of Certiorari — Spiro v. United States

LIBRARY | }

‘SUPREME COURT. U. & a Re DEC 2 1957

FILED

JOHN F. DAVIS, CLERK

In THE - : i

Supreme Court of the United States

Ocroser TERM, 1967

| 874

—_—»—

SrepHen Spiro,

' Petitioner,

me Vy

Unirep States or AMERICA,

Respondent. -

is Aa PETITION FOR | WRIT OF CERTIORARI TO THE.

| _ UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

; ‘° F P A oa

| ae : ne - Esrner Strum Franke

| Counsel for Petitioner

455 East 42nd Street ~

Paterson, N. J. 07504

, INDEX

aaa | PAGE

Citations to Opinions Below rene ‘os 1

III sett ctirecinctnesonnenesiaiyes eentteassennensessacenseeqeetesteeeeene QD,

Questions Presented : isepsusenpubaaieaacaddasianatadunags 3

Constitutional Provisions, Statutes, Selective Service

Regulations Involved ......... , i “as 3

Statement of the Case:......... ENO nc,

Reasons for Granting the Writ ee

I. The Court.of Appeals has decided a federal

question in a way in. conflict with applicable |

decisions of this: Court coveeres 12

II. The Court of Appeals has decided an important

question of federal law which has not been but,

- Should be settled by this Court ssreoeteeelenneeeenden ieee 14°

III. , The Court of Appeals has Satie the cur- ~

| rent trend of the United States Supreme Court

to erect safeguards against erssion or waiver

- of constitutional : rights. ‘by hard-pressed de-

fendants charged with crime ....... 16

ConcLusion .. : nn Renner? 19

APPENDICES:

A—Opinion of the District Cours for the District

of New Jersey boiloiveidedoleantearsen iniietbeke mi

.

eT CT ee ree ° Soke

PAGE

_ B—Findings of. Fact and Conclusions of Law :....... 2a

C—Opinion: of the Court of Appeals for the. Third |

Circuit ..... > — 10a

D—Order Amending Opinion of the Court of Ap-.

peals for the, Third Circuit 16a

E—Constitutional Provisions, Statutes and Regi.

lations 18a

F—Letter from Chief of the Conscientious-Objec-

_ tor Section to New: Jersey Appeal Board ........ 26a -

G—Letter from Petitioner. to New Jersey Ap- __

- acca ‘Bla

: i OF Avrnonrriss

Cases: :

Abington School District ‘v. Schempp, 374 U. S. 203

(1963) 15

| Annett v. U. S. A., 205 F. 2d 689, (C. A. 10th, 1953) -: ars

Bolling v. Sharpe 347 U. S. 497 (1954) 16

Cantwell v. Conn., 310 U. S. 296 (1940) ily 14

. Clementino v. U.S. A., 216 F. 24 10 (C. A. 9th, 1954) -.:. 14

| Douglas v. California, 372 U. S. 353 (1963) .............. 18

Escobedo v. Illinois, 378 U. S. 478 (1964) ........ 18

Fowler v. Rhode Island, 348 U. S. 67 (1951). ecewesenieed A S-16

Gideon v. Wainwright, 372 U. S. 335. (1963) ..............--

-

,

iii

"Hinkle v. U. S. A, 216 F. 2d 8 (C. A. 9th, 1954) 0. 14

_. Kedroff v. St. Nicholas Cathedral, 344 U. S. 94... 13

| Koitehat v. U.S., ae F a6 80 (C. A. 9th, 1960) ........ 14.

Malloy v. en 378.-U. S.1 (1964) | ~~ 2

Mapp v. Ohio, 367 U. S..648 (1961) 18

Mayfield v. U. S., 220 F. 2d 729 (C. A. 5th, 1955) ........ zn

McCollum v. Board of Education, 333 U. S. 203 1948) ..

Miranda v. Arizona, 384 U. S. 436 (1966) si -

Mullane v. Central Hanover Bank & Trust Co., 339

U. S. 306 (1950) : 17

Murdock v. Pennsylvania, 319 U.S. 105 (1943) dieses

Neimotko : v. Maryland, 340 U. S. 268 (1953) acsiiadtiaililiisiads! 16

Riles v, U. S., 223 F. 2d 786 (C. A. 5th, 1955) 0... “14

Shepherd v. U. 8., 220 F. 2d:855 (C. A. 9th, 1955)... 14

Sherbert v. Werner, 374 U. S. 398 (1963) | 16

Sicurella v. United States, 348 U. S. 385 —* 12, 13, 14

United States v. Ballard, 322 U. S: 78 - 8, 15

U.S. v. Lauing, 221 F, 24 425 (C. A. 7th, 1955) _..... 14

U.S. v. Seeger, 380 U. S. 163 (1965) neces 15

_ U.S. v. Wierzchucki, 248 F. oedl 788 (D. C., W. D.

- Wise. 1965) ) e 18

Walker v. Hutchinson, 352 U. S, 112 (1956) . ielustlasnesidhe: 17

Watson v. aad 13 Wall. 679 .. ssctissaalnsbadediinmila 13,15 |

-

* 50 U.S. C. App. See. 460(b) (1)

50 U. S. C. App. See. 462(a) .

iv

| Constitutional Provisions: me

Constitution of: the United States

First Amendment

Fifth, Amendment |

PAGE. .

_...B, 14; 15, 16

Fourteenth Amendment. .......... mi

Statutes:

5.U. S. C. See. 1005(a)

A.

28 U.S. C. See, 1254(1) ........ ee bons eee |

50 U. S. C. App. Sec. 456(f)

3,16

50 U. S. C. App. See. aay)

Selective Service. Regulations:

32 C. F. R. See. 1604.41

32 C. F. R. See. 1604.71 (a) (e) (4) (1)(8)(5) a

- 32.C. F. R. See. 1624.1 (b),

32.C. F. R. See. 1626.61 (b)

i ea

Supreme Court ut. ‘the Auited States

Ocroser peed 1967

NO. jooeennseneeeone 7

ps"

STEPHEN SPIRO, .

Petitioner,

oi °¢

. 8 —_—V.—— . . ="

‘ , + °

Unirep States oF AMERICA, eP

‘Respondent.

: — 7 . -

PETITION FOR WRIT OF CERTIORARI TO THE .

UNITED. STATES COURT OF APPEALS

‘FOR THE THIRD. CIRCUIT

Legend: ‘Reference to - the Record ‘designated (R a)

refers to petitioner’s a ignore’ in the Court

of Appeals.

To the Honorable, the Chief Justice of ‘the United States,

and to the Associate Justices of me. Supreme Cours of

the United States: | fear 4

Petitioner prays that a writ of certiorari issue-to review

the judgment of the United States Court of Appeals for «

the Third Circuit, ‘entered in ‘the above entitled case on

Gaenee 20, 1967. ‘

Citations to Opinions Below

The opinion of the District Court for the District of

New Jersey is-unreported and is printed in Appendix:“A” —

hereto, infra p. la. At the request of the defendant, the _

a a

‘

2

District Court made Findings of Fact and Conclusions of

Law,.which are printed in Appendix “B” hereto, infra p.

2a. The opinion of the Court of Appeals for the Third Cir-

cuit printed in Appendix “C” hereto, infra p. 10a, has not

a yet appeared in the reports. Order amending opinion of

the Court of Appeals for the Third Circuit, is printed ii in

Appendix “D”, infra p. 16a.

| ; Jurisdiction

The judgment of the Court of Appeals, affirming the con-

viction of the. District Court, was. dated and entered on

August 29, 1967. On October 20, 1967, the Court of Appeals

filed an order amending its opinion, but entered judgment

denying a rehearing.

On November 9,'1967, petitioner made application for ex-

tension of time within which to file this petition. This was

granted by order dated November 10, 1967, which extended

time to and including December 4, 196%

The Clerk of the Court of poner for the Third Circuit

has entered an automatic stay of mandate, pending receipt

of notice from the Clerk of the Supreme Court that this

petition has been- filed within time, in which event the

mandate will continue untib this Honorable Court has dis-

posed of this case. In the meantime, the petitioner, who:

~ has been sentenced to confinement for two years in the cus-

tody of the Attorney General, has been\ontinued on bail

in the sum of $500.— oh his own recognizance, by -the Dis-

trict Court for the District of New J ersey.

The jurisdiction of this. Court is invoked under 28 U.S. C.

Sec. a 1).

<P

Questions Presented

. “itl ta

~ : . 4a 2

“There are two questions, presented, viz. :

I—Does failure or refusal’ to recognize the Just War Doe-

trine’ followed by. an adherent of the Roman Catholié

Church, whom the Hearing Officer characterized as “a ;

- sincere and devout member- of theatholic Church who is

sincere inhis adherence to his views”, constitute religious

discrimination and negate the freedom of religion” guar-

anteed by the First Amendment and the Dye Process Clause .

of the Fifth Amendment? ee

_ I—Was a registrant ‘denied ane ar due process. in

his selective service progessing, when the. Local Board

failed to advise him that he could consult ‘’@ Government

Appeal’ Agent, who ‘would have ten days after notice of

elassification by the Appeal Board, withi which to request .

the Appeal Board for a reconsideration, but instead, the

Local Board mailed him an order to wopeny. for induction |

within six days? | | Aha arent

Constitutional Provisions, Statutes, Selective

Service Regulations Involved ‘

Constitution of the United States, Amendments I,.V and

XIV; | .

Statutes:

_ 5U.8.C. Sec. 1005(a); Ae

28 U.S.C. 1254(1) ;

30 U. S. C.. App. Sec. 456(j) ;

Sec. 460(b) (1);

See. 462(a) ; a,

See. 463(b) ; he

°°

—

Regulations:

32 C. F. R. Secs. 1604.41;

1604.71(a) (c) (d) (1) (3) (5);

1624.1(b) ; /

_ 1626.61(b).

The provisions of these statutes or pertinent parts thereof

are set forth in Appendix “E”, beginning at p. 18a infra.

Statement of the Case

Following a trial before the U. S. Districf Court, for

the District of New Jersey, sitting without a jury, on a

charge of failing to submit to induction, in violation of 50

U. 8. C. App. Sec. 462, petitioner was convicted.

_ The facts which gave rise to the charge are: Having

registered -on December 6, 1957, with New Jersey Local

Board No. 4, when he reached his 18th birthday, petitioner

received a classification questionnaire about a month later

which he completed and returned, without signing Series

VII dealing with conscientious objection to participation

in war (R 7a, 34a).

About the middle of November 1962, petitioner requested

the special form for conscientious objectors (Form 150)

from his Local Board which he completed and returned,

- and was thereupon classified I-A-O (R 9a). He appealed, °

seeking an I-O classification, and his file was forwarded

ato the New Jersey Appeal Board on January 22, 1963 (R -

Oa). After an F.B.I. investigation, a hearing before a

Hearing Officer and other processing the Appeal Board.

returned the file to the Local Board on December 14, 1964

(R 10a) classifying the petitioner I-A by a-vote of 3 to 0 |

4

~

Y

TP aries |

4

4) ete

(R 13a). On Deéember 15, 1964 the Local Board mailed

Form 110, Notice of Classification, to the petitioner, ad-

vising him of the Appeal Board’s decision (R 20a). Six

days later, on December 21, 1964, the Local Board mailed .

Form 252, Induction Order, to the petitioner, ordering him

_ to report for induction on January-6, 1965 (R 14a, 22a).*

At the appointed time and place, petitioner appeared at

the induction center but refused to take the one step for--

ward which would have marked his entry into the U. S.

Army (R 68a). |

Throughout his selective service processing, and at the

_ trial petitioner explained his religious training as a mem-

ber of the Catholie faith and‘amplified his religious beliefs.

The Roman Catholic Church has a traditional teaching,

derived originally from St. Augustine, developed by ‘St.

Thomas Aquinas, and later doctrines. This teaching is

passed down by priests of the Church as a holy covenant

from generation to generation, is discussed by theologians,

but is never officially promulgated in an official statement

of Pope or Council, for the Church, the Institutional Church

very rarely takes a position on war (R 37a-41a; 60a-62a).**

* Following receipt of induction order and on December 24, 1964,

the Lotal Board received a request from petitioner for a student

deferment in that he was accepted as a night student at Fairleigh-

Dickingon University at Teaneck, N. J.; together with college verifi-

cation (R 15a). This deferment was denied by letter dated Decem-

ber 28, 1964, inasmuch as petitioner was not a full time student at

the time the induction order was mailed (R 15a).

Application by the registrant to the New Jersey State Director

of Selective Service on December 29, 1964 for a postponement of

his induction order to enable him to process a Presidential ‘appeal,

met with’a similar rebuff, though the Rev. Herbert Rogers, Assistant

Professor of Theology at Fordham University joined in this request

(R 16a, 17a). i .

** During his trial, petitioner sought to introduce into evidence .

the “Pastoral Constitution on the Church in the Modern World”,

Py’

6

The ethics textbooks list seven requirements which must

be simultaneously verified before a ‘war may be considered

just and licit for Christian participation (R 35a). These

requirements are (R 35a, 36a):

1. The war must be a last resort when all other means of

settling the dispute have failed.

2, The war must be declared and conducted by legitimate -

authority. The ordinary usage of any ‘government will

suffice.

3. There nt be a reasonable assurance + a successful

outcome. nee

eo

4. There must. be a just cause for the war.

5. “There must be a proportionality in which the good )

effects outweigh the evil. ‘This must apply: not only to the

“ war as a whole but to any operation within the war.

6. There must be only the, use of the legitimate means

of warfare. ‘~

oa

i There must be a right intention on the part ‘of those

responsible for conducting and declaring the war, right

intention being defined as the will to peace.

-~

promulgated an His Holiness Pope Paul the Sixth on Becember 7,

1965, which was the official statement of the Church on the Foster-

ing of Peace, the Promotion of a Community of. Nations, and the

Avoidance of- War, but. the Government objected to it because it

was not considered and in fact was not in existence during the

- gelective service processing of the petitioner. The objection was

- sustained. It was marked Defendant’s Exhibit No. 2 for Identifi-

cation (R 44a-47a).

7

Moreover, there.are prohibitions regarding activities

which would make a war ‘unjust and consequently, illicit

for Christian participation. Primarily, the prohibitions ©

apply to direct attacks upon civilians. A civilian is con-

sidered in the eyes of the Church innocent. One does not

have the tight to directly take the life of an innocent

person. Consequently, any military activity directed at an

innocent person is sinful (B 36a). .

At. his trial, petitioner testified that, these criteria con- °

sidered, there has never been a just war throughout history,

and it is unlikely that any future war would be just ‘R 58a,

59a, 62a-65a).

__- Petitioner sheila no fower than 23 documents, whit

* are in his selective service file, comprising letters | or pub-

lished articles written by himself, as well as letters, cer-

~ tifieates. or affidavits from eminent Catholics, holding re-

sponsible positions, who have known him’ and who have

discussed this conscientious objector outlook with him.

Some of them admitted that they differed radically with

his views, but have nonetheless attested to the sincerity

and depth of his religious convictions.

Petitioner had attended Catholic elementary schools and

a Catholic military high school, where he received religious

and secular training. There, no teaching had been given

with respect to war or peace (R 72a, 73a). He had attended

the University of Chicago, “on and off from 1957 to 1964”,

dropping out gia to earn some money and then

‘returning (R 5la).

‘ During. one of his drop-out periods on : Maseh: 13, 1962,

he was reclassified I-A by the Local Board (R 53a). Then

in April 1962, he'took an Air Force qualifying examination ;

and in July or August of that year, he applied at Lakeview

or Glenview Air Station in IMinois for preprocessing for

the Naval Air Reserve (R 54a). However, he told these

Services to hald his application as he might be going back

to school in the Falf of 1962, in which case ‘he would not

enter the Service (R 54a, 55a). ded

Prior to the Fall of 1962, the—petitioner had had no

acquaintance with the Just War Doctrine, as it was not

usually* taught at the high school level (R. 56a).

His development as a conscientious objector can . best be .

explained in the words of the petitioner himself, and we

quote (R 55a): . ‘

“Around October or November of 1962, I was work-

ing in the Student Peace Union, National Office in

Chicago, and New.Directions, paper books sent a book

ealled ‘Breakthrough to Peace’, edited by Merton, a

‘Trappist Monk. It was to be reviewed by us. I read

it and it opened up new areas of thought which I never

realized existed. :

“So I started reading further. I read ‘Modern War

and Basic Ethics’ by John Ryan, which goes into a

very elaborate discussion ‘of the doctrine of just war.

This other book, ‘Morality in Modern Warfare’, edited | |

by John Nagle, which has a series of essays on the -

general topic of war and morality from several points

of view, and I had some conversations with Prof.

Gordonson of Loyola University in Chicago,.who is a

—perhaps the best known Catholic spokesman on

pacifism. ‘

“And after discussion, reading and prayer, I re-

alized I had no choice really than to be a conscientious

objector. “6

9

As part of the processing of his selective service appeal,

petitioner was noticed to appear for a hearing before

’ William P. Reiss, a Hearing Officer, who subsequently sent

a report of this hearing to T: Oscar Smith, Esq., Chief,

- Conscientious Objector Section of. the Department of Jus-

tice. Mr. Smith in turn made a report which he submitted

‘to the Chairman of Panel No. i of the New J ersey Appeal

Board, in which he stated:

_ “The Hearing Officer ae that the registrant is

a sincere anggdevout member of the Catholic Church °

and is sincere in his adherence to his views notwith-

standing that he came late to his conscientious-objector

position, but that the registrant:does not have a con-

scientious objection to participation in war in any

form... The Hearing Officer recommended that the .

caine objector ‘claim of the registrant be not

sustained. ”

. Smith also stated:

“The Hearing Officer reported that the registrant

frankly admitted that he could not in good conscience

‘object to participation in a ‘just war’; that he also

admitted that his belief that the next. war would be an

unjust war is a matter of opinion; that he admitted

that there is no officially stated Catholic Church opinion

against war; that he admitted the presence of Catholic:

chaplains in the Armed Fovees; that he admitted that

his position was based:-on.a political analysis of war-

fare from an historical as well as current point of view;

that he admitted that he had no objection to the use of

conventional or nuclear -wespons against soldiers and

would have no objection to being in the Armed Forces

¢

10 |

of the United States equipped only with guns that shot -

bullets provided military policy prohibited the bomb- |

ing of cities having no military value.” (See Appendix

“RK” infra P. 26a for the full text.)

A copy of this report and recommendation was sent to

the petitioner with instructions for refutation and answer.

Within the time allotted for response, petitioner sent a

' letter to Panel No: 1 of the New J ersey Appeal Board,

_ from which we quote, in part:

“The report of the Department of Justice comments

that ‘he also admitted that his belief that the next war

would be an unjust war is a matter of. opinion.’ The

‘ hearing officer did indeed ask-me if I agreed with him

that my belief in the unjustnéss of ‘the next war was_

an opinion, and I did agree with him. However, upon

reflecting on that statement, I feel that ‘ opinion’ is not

-quite the correct word. I think that my belief. in the

unjustness of the next war would more appropriately

be called a ‘judgment’, that-is, an analysis or inter-—

pretation which forms the ‘basis for actio&.. In seeking

guidance for the determination of such a judgment, I

look first to the Church. ~~

‘“The Church, as the Church, has no official position

on the application of its’ ‘teachings to possible future

_ political events. On the other hand, many theologians

agree with my position, and I have in fact based my .

position in‘darge measure upon the statements of these

. theologians. On the other hand, the presence of many

priests in the armed forces indicates that there is by

no means any unanimity on the question among Church-

men. The next place to seek guidance is from the gov-

11

ernment; but in this case, such a quest is futile—no

governmént, no vivil authority would admit to an un-

just -war, even if in fact it were intending to wage

one such wilfully. Therefore, I am forced to rely on

my own conscience, which the Church teaches must’

always be our ultimate and final guide. My conscience

has formed a judgment, Which I must accept and fol-

_low. - rma Oa |

“Although I said that I could participate in a just

- war, even in a combatant status, this was purely a

theoretical statement. If I had wings, I could fly. I

maintain that this ‘just? war is, in the real world,

not capable of occurring; that as a result of the Sin :

of ‘Adam and the consequent Corruption of the Human >

_ Will, it is inconceivable that a just war will ever hap-

pen—since there never has been one, as far as I can

tell, and I hardly expect that Men will suddenly change.

. Consequently, I must refuse military service.” (See

_ Appendix “G” infra p. 3la for the full text had peti-

tioner’ s refutation).

In making his report to the New Jersey Appeal Board,

Mr. Smith made the following recommendation :

“The Department of J ustice concurs ‘in the Hearing f

Officer’s determination and recommends to’ your board

that the conscientious-objectot claim of the registrant

be not sustained and that he be not classified in Class

. LO or in Class I-A-0.”

The New rJ ersey Appeal Board followed this recommenda-

tion and classified the registrant I-A, 3 to 0. The induction

order, the refusal to submit to induction and the indictment

were the inevitable consequences,

12

REASONS FOR GRANTING THE WRIT

Ip Da e *

The Coyrt of Appeals has decided a federal question

in a.way’ in conflict with applicable decisions of this

| Court. , p 7 ee a

- Petitioner’ S opposition to participation in war unless

seven requirements are simultaneously verified by Catholic

criteria, before the war can be considered a just war, is

analogous to the position of Jehovah Witnesses, who stand

ready to fight in a Theocratic War and at apo,

but i in no other war. ‘

. Wevies satisfied itself that the applicant ‘i is ‘sincere in his

beliefs, this Court has held in Sicurella.v. United States, 348

U. S. 385 (1955) that he was entitled to exemption under

See. 6(j) of the Universal Military Training & Service Act

[50 U. S. C. App. 456(j)'] déspite his readiness to fight

in a Theocratic War. and his willingness to use force to’

defend his ministry, Kingdom interests and his fellow

brethren. ae

_, This Court has laid down the test that it is not whether

the registrant is opposed to all war, but whether he is

opposed, on religious grounds, to participation in'war; and

inasmuch as history does not record any ‘Theocratic War

since Biblical times, the possibility that it can happen in

the future is rather remote. -

‘So, too; with petitioner herein. “After he filed his claim .“

_ as a conscientious objector, he maintained in his“ state-

ments before the selective service system, that measured by,

Catholic criteria there never had been a Just War through-

13 -

out history and it is highly inconceivable that any future. .

war would be just. His statement to the Hearing Officer

that he would fight in a Just War was still within the con- ——

text of his religious beliefs, as it presupposed that the

seveh leriteria for a Just War’ would have been met.

As the petitioner has so ably stated in his letter to the

Appeal Board (App. “@”, p. 33a infra), “I maintain that this‘

‘J ust War’ is, in the real world, not capable of occurring.”

Nor need objections to war necessarily be objections to

¢-taking life. It is sufficient when these objections are based

on Church -doctrine. Neither the. 1948 Act nor the 1951

Act made any reference to refusal or reluctance to take life,

. as a standard for. conscientious objection. So long as this

opposition to participation i in war is predicated on religious _

grounds, that is all that was required. The conscientious

‘objector provisions were integded to extend even to mem-

bers of the asiiaacd Church: adhering to the Just ——

doctrine. a : ™

The religious expression of what constitutes a Just War

by Thomistic criteria of the Catholic Church is an ecclesias-

tical determination, having the force of jure divino, which

cannot be questioned in secular tribunals. An. ecclesiastical

determination is binding on all governmental bodies and the

‘Courts. Kedroff v. St. Nicholas Cathedral, 344 U. S. 94;

Watson v. Jones, 13 Wall. 679, 727; United States v. Bal-

lard, 322 U. S. 78, 85-88.

However, if the Court of Appeals for the Third Circuit

was correct in considering that the issues in the Sicurella

and Spiro cases were unrelated, then we find that: © _. -

. .

>

h. . at

a Cade biiahde = Dbibelitesita” eles tenaiiae Be ee

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ay sia” beans Lente, a shh

ite he

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ne

s..*

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Il.

The _— of Appeals has decided an important ques- ,

tion of federal law ‘which has not been but should be

settled by this’ Court. | a

There is little doubt that the outcome of numerous liti-

gated cases* has forced the selective service system to ac-

cord conscientious objector status to those Jehovah Wit-

nesses who will accept it and not insist on being’ classified

as ministers. .

Can the Courts permit the Seleetive Service: System to_

- discriminate against Catholic conscientious objectors and

deny them. similar status?

Time and again this Court has affirmed the importance

‘ of the First Amendment’s mandate that “Congress shall -

make nodaw respecting an-establishment of religion, or pro-

hibiting-the free exercise thereof”, and this prohibition

has been extended to the States by the Fourteenth. Amend-

ment. Cantwell v. Conn., 310 U. S. 296, 303 (1940); Mur-

dock v. Pennsywania,319 U. S. 105, 108 (1943) ; McCollum

v. Board of Education, 333 U. S. 208, 210, 211 (1948). The

Courts must also include the Selective Service System in

this prohibition."

» a

* To list just a few:

Sicurella v. U. S., 348 U.S. 385- (su

Annett v. U. SA. , 205 F. 2d 689 (C. 10th, 1953) ;

. Kretchet v. U.8., 284 F. 24561 (CLA wet 1960) ;

Mayfield v. U. S;, 220 F. 2d 729 (0.8 5th, 1955) 5

U.S. v. Lauing, 991 F. 2d 425 (€. A. 7th, 1955); "9

' Shepherd v. U. S., 220 F. 2d 855 (C. A. 9th, 1955); |

Riles v. U. 8. , 223 F. 2d 786 (C. A. 5th, 1955) ;

Hinkle v. U. 8. A., 216 F. 2d 8 (C. A. 9th, 1954) ;

Clementino v. U. 8. A. , 216 F. 2d 10 (C. A. 9th, 1954).

7

f

jo Peek

In Abington School District v. Schempp (1963), 374 U. S.

203, Mr. Justice Clark expressed the views of eight mem-

bers of the Court, when, in quoting from the unpublished

_ opinion of Judge Alphonso Taft, in Minor v. Board of Edu-

cation of Cinc., he stated that the ideal of our people as to

religious freedom is one of “absolute equality before the.

law, of all religious opinions and sects ... ” Mr. Justice

Clark continues by stating that “neither a state nor the

Federal Government can set up a:church. Neither can pass

laws which aid one religion, aid all religions, or. prefer one

religion over another.” Then he goes on to affirm that it is

not within the power of government to invade that inviolate

. citadel of the individual heart apd mind whether its pur-

pose or effect be to aid or oppose, to advance or retard

any religious belief. “In the relationship between man and

religien, the State is firmly committed to a position of neu-

trality.” Can the selective service board consistently be .

-excluded from that commitment, where a Catholic con- |

scientious objector is involved? This is a question which

must now be decided by: this Court. |

In U. S. v. Seeger, 380 U. S. 163, 195 (1965) the Court

-has stated that the very purpose of Congress in using the-

expression “Supreme Being” rather than some other desig-

‘ nation was so “as to embrace all religions’’.: (Italics ours.)

' The Catholic'religion was included. _

_' The protection of religious freedom is not restricted to

any one group or any one type of religion; nor to orthodox ;

religious practices and beliefs. U. 9. v. Ballard, 322 U. 8.

78; Watson v. Jones, 13 Wall. 679, 728. hee

It is not the business of courts. to say that what‘is a re-

ligious practice or activity for a given group is not religion

under the protection of the First Amendment. Fowler

" shins cells tions Pree ee

16

v. Rhode Island, 348 U. S. 67, 69-70 (1951). See also

_ Neimotko v. Maryland, 340 U. S. 268, 272 (1953).

For the Selective Service Sy stem and the Courts to accept

Jehovah Witnesses, as conscientious objectors, who would

fight in a Theocratic War and who would kill under certain

circumstances, and to reject Catholics, as conscientious ob-

' jectors, who would fight in a Just- War by Thomistie cri-

teria, is in direct violation of the Free Exercise Clause of

the First Amendment. Sherbert v. Werner, 374 U. S. 398

(1963). It denies to followers of the Catholic faith the

_ equal protection of the law, by preferring other religions

over the Catholic religion, thereby running afoul of the _

. Due Process Clause of the Fifth Amendment. Dieta v.

Sharpe, 347 U. 8. 497 (1954).*

ITI. | | ¥

The Court of Appeals has disregarded the current

‘trend of the United States Supreme Court to erect safe-

guards against erosion or waiver of constitutional rights

by hard-pressed defendants charged with crime.

Under -the Administrative Procedures Act, 5 U. S. C.

* See. 1005 (a), Congress has provided for every party in

any agency proceeding to appear in person or by or with .

counsel. By 50 U.S. C. App. 463 (b), the administrative

processing under the selective service system was expressly

removed from the application of the Administrative Pro-

cedures Act. Moreover, by authority of 50 U. S. C. App.

460 (b) (1) the President was authorized to prescribe rules

and regulations for this Act. The rule was made at no

° “Discrimination may be so unjustifiable as to be violative of

due process.”

17

registrant may be represented before the local board by

anyone acting as attorney. or legal counsel, and this was

embodied in 32 C. F. R. 1624.1(b). Thus the petitioner ~

had no legal advice or representation at any point in his

. selective service processing.

Selective’ Service Regulation, 32 C. F. R. 1604.71 pro-

‘vides for the appointment of government appeal agents

and associate government appeal agents, and under subdiv.

(c) these government appeal agents shall, whenever pos-

sible, have legal training and experience.

After an unanimous decision by the Appeal Board, un-

favorable to the registrant, the government appeal agent

| is empowered, under C. F. R. 1626. 61(b), to request.a recon- ©

sideration of the appeal board’s determination,.at any time

within 10 days after the date when the local board mails a

notice of classification to the registrant, or at any time

before an induction order is-mailed. Thus is a registrant _.

- given a minimal benefit of some legal advice and repre-

sentation:

Notice is of the very essence of the rudimentary require-

ments for: fair play in safeguarding property rights.

| Walker v. Hutchinson, 352 U: S. 11% (1956); Mullane v.

Central Hanover Bank & Trust Co., 339 U.S. 306 (1950).

‘A fortiori does this principle apply in the case of human

rights. Where the registrant does not have direct notice

of the existence of the government appeal agent, or direct

notice that the agent has 10 days in which to request re-

consideration, the registrant cannot avail himself of this

legal assistance. This irreparably prejudices his post-

appeal relief, and is a step toward his ultimate conviction.

When the Local Board mails him an induction order in

®

te

ee Tn ae ee ey

ee

18

-

six days, the already restrictive minimal legal protection

afforded a registrant is swept into the. dustbin. 2

This denial of counsel to registrants during their proc-

essing was the source of great concern to Judge James D.

Doyle in U. S. v. Wierechucki, 248 F. Supp. 788 (D. 6.,.

W. D. Wise. 1965).

In a series of landmark decisions, this Court has upheld

the constitutional rights of defendants charged with crimes

involving moral turpitude. If there is any waiver of con-

. Stitutional rights, it ig the burden of the Government to

show that they have been knowingly and intelligently

waived. Miranda vi Arizona, 384 U.S. 436 (1966) ; Malloy

.v. Hogan, 378 U. S. 1 (1964) ; Escobedo v. Illinois, 378 U. S.. -

478 (1964); Gideon v. Waimwright, 372 U. S. 335 (1963);

Douglas v. California, 372 U. S. 353 (1963) ; Mapp v. Ohio,

367 U.S: 643, 685 (1961).

In the case of a conscientious objector whose act’ is

malum prohibitum and who is also hard-pressed because

his religious training and belief forbid the violation of

his conscience, the Government, by the adroit argument that

no prejudice. has been shown to the registrant by these

denials of basic procedural due process, has contrived to

have the conscientious objector bear the burden of proving

innocence. Thus the presumption against waiver of con-

stitutional rights and the presumption of innocence, until

; guilt is proven beyond a reasonable doubt, ‘which follow

some of our most hardened criminals, do not exist for the

_ conscientious objector seeking to follow his religious train-

ing and belief. For him these presumptions have gone.

down the same thorny path to extinction as have lack of

notice and lack of legal assistance and advice.

- 19

CONCLUSION

It is respectfully urged that this Court should grant

certiorari to the Court of Appeals for the Third Circuit,

to the end that the judgment below may be reversed and

the petitioner may be given the I-O classification he

merits.

Respectfully submitted,

EstHer Strum FRANKEL

Counsel for Petitioner