# Petition for Writ of Certiorari — Spiro v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1178%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 390 U.S. 956 ## Text 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). _ 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 : . . ay sia” beans Lente, a shh ite he & ne s..* ’ ; 4 \ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1178%3A1. Public record. Not legal advice.