Petition for Writ of Certiorari — Sunal v. Large

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SEP 25 1946

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SUPREME COURT OF THE UN

Ocroper Term 1946 oe : af

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THEODORE MARTIN SUYAPy Petitioner’ ;

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Ea la |

DAVID R. LARGE, SUPERINSENDENT ©"

FEDERAL PRISON CAMP == *.- .

MILL POINT, W.VA. | eres

_ Respondent = pans iter

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“oO

BNE) for Writ. of bomccane.

_tathe United Stites Cireuit Court of Appeals <

a, oa vee Cirenit NS 2 oe)

HAYDEN C. COVINGTON |

e Counsel for Petitioner

; 5; | .)

INDEX F

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— ° PAGE

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Questions presented ©......2........... os sihcialahic ide caja ona teaan ii cael 3 ;

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How issues raised ........ Ssamnstenqgiiestichsboncesaningnaiesencensevncnelesansnantarnttentnefete 8

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Reasons relied on for granting Writ... ss conokalkabanceanihaes a 3)

SUPPORTING BRIEP .......... TE ei MMR es ore 13-34

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Argument ipeabapelicaek eT MENSA PD oh casecrsceeznoemenceleseaniecsesiecntteiousanses 13-33 o

ONE—Refusal by the sentencing court to or pu petitioner

to challenge the validity of the draft board order, in de-

fense to the indictment charging him with refusal to

‘submit to ‘induction, was a denial of a judicial trial

contrary to the due process clause of the First Amend-

_ ment to, and tbe bill-of-attaipder clause of, the Constitu-'° *

“tion so as to make the judgment ‘of conviction subject ¢? '

. to collateral attack on a writ of habeas corpus, irrespec-

tive of the validity of the draft board proceedings ................ 13

TWO—Even assuming that petitioner's right to relegje upon

the writ of habéas corpus is dependent exclusively upon °

the invalidity of administrative a the undisputed 2

evidence shows that the draft boards arbitrarily and

capriciously denied: him. his claim for ex®mption from r

training and service as a minister . religion and ‘that the ~~

lassification given him(was wit ~— in fact; accord- : i

“pagly, the order supporting his i on was OM sein 28 4

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Comelsion —..2..--..ieecnseeeneetssssiDeadeescnscrrsssqovoenestovseenoecnnnssscsnnsssnsseansqaguecseesene 34

Cases CiTED Saye

Adams v. United States ex rd. McCann % 2

BEF, FD cncsanareepceinensitsapninnsiptticiapameeticonesshatgyiesquscesacenesesensvmvennesseninas 22 ‘

Albert v. Goguen ‘ ' a <

142 FP. 2d S02, (CCAD) ......ncccceccecccosceoees RT MER Oh, CORT ae. pn Mee 14

‘+ Bain, Ex p Se: ‘

4 Mae Bs 3 Bt aeeneneeeen Sib dacledtibeatis cceusalieasigeiiiail aa 11, 21

Baker v. Bakéy Eccles. & Co ,

Be ee a IE prtcieenitcisncicgllliasnadinmrigpinensdienentoeceionens sincceobinsesbilaipiieien ‘10,1

Bowen v. Johnston ”

? 306 U.S. 19, 2 _ BESS See ee _ pecan 10, 14,1

« ’ ms

- at

‘

e ™™ * “a

Casés CiTEeD cohtinued

% ‘ wipe 3 PAGE

Bradstreet v. Neptune . ‘

3 Sumn. (U.S.) 600 NITTE vanccciesshsaiiunsiaes ci tueniiciidl <2 17,18

=, Carroliton ‘

— Ga. App. —, 34 S. E. 2d 621 ......... hale ae oh 33

Cain, Ex parte 4 om". © ongeity

OF | ea a 30

Callan v. Wilson — P

y 127 U.S. 540 11, 22

hicago M. & S. P. R. v. Minnesota :

134 U.S. 418, 456-457 _.: ae

Clowans v. Rives :

104 F. 2d 240 .... 21

Commonwealth v. Akmakjian ‘

316 Mass. 97, 55 N: E. 2d 6 : 33

Commonwealth v. Richardson . ‘ /

313 Mass. 632, 638 i : ‘ 33

hh Cummings v. Missouri k .

4 Wall. 277, 320-332 ......... precenten 17, 18.

eee Diaz v. United States - , i

223 U.8.- 442 .............0... lirica 20

Donley v. Colorado Springs ‘ . “4 a

: 40 F. Supp. 15 ae 33

Dowell v. United States. . , ,

221° U. S. 325, 330 ..... 7 i eS 20.

Edwards xv. United States e

Be SR e a en ; 20

Estep. v. nited States .

i Oct. T. 1 : f <e

Betitloner Joint Brief, pp. 131-190 =

' lip opinion, p. 7/ mete 15 ......

| Us. —~, 668, ee 2

ONT” SER) Binet 13, 14, 15, 17, 25

Follett v. McCormick , -— B e

321 vw. 8. 573 wodeeetee o* . ~~ sf. on™

Frank v. Mangum ten

237 U.S. 309, 330-331, 335-347 oo. ecccsesescnneeen , 11, 21 :

Griffin yv. Griffin md

= U.8;— 8. Ct. 556 . siatlieaiieiai sie 10,18

Hawk, Ex parte é - °%@ :

321 U.S. 114 -M”

Helvering v. B a

293 U.S. UGB ..eeeeececeees prenaee 29

House v. Mayo. .,

324 U.S. 45 :....... stissthecDiebadilcsencbeeciaeiiahdGiteiadaihen 15

_ Hovey v, Elliott lace We ke ita

* 167 U.S: 409, 413-415, 417-418 PR SRS ae eee ne .... 10, 17, 18, 19- {

. ii :

, \ - ‘. {

’

‘Cases Crrep continued

Eat > ay PAGE

Johnson v. Zerbst a) >

304 U.S. 458, 463, @8 Set ATE Bio 10, 11, 16, 17, 22

Jones v. Huff tee : ? >

153 F.2d 14 (App. D. C.) ................ Saehnenibiilibslaabiataibatoglaasoas 17.

Jones v. Kentucky * :

97 F. 2d°335 (1938, CCA-6) oo. Es 21

Jones v. Moultrie, - , o

— Ga. App. —, 33 8. E. 2d 561 svdiliinbninuab itn pisenntieiitsesinalis lion 33

Kentucky v. Jones . a

e- meer tee en Ce iopucinhnnediosnbisaniasiats 18

Lisemba v. California _——

S34 0.6. 218, 38 tn grccteeeneeenccaneeenennseeeee ginal 20

» .Manning v. Biddle a)

14 F. 2d 518, 519 (CCA-8) o . 22

MeVeigh .v. Unitéd States ’

oe re ey 10, 17, 18,19

Moore v. Dempsey _ agers .

261 U.S. 81, 86, 88, 91 . A PERE LE CE IN 11, 21

Murdock v. Pennsylvania

319 U.S. 105 ..:........ railed pecsat : 32

National Exchange Bank v. Wiley

195 U.S. 257 . OEY . Woe Ha 18

- Nielsen, Hans, Ex parte

131 U.S. 176, 184-185 (1889) ipidpietipeiairpeeacessensaeniapdeaieiaieiatdaadsicSie TO, 22

Old Wayne Life Ass’n v. MeDonough ; \

204. U.S. 8, 23 ...... re Sieg en 10,18

Ong gz Wing v. United States

— 218 U.S. 272, 279. acishistenthitinibeniammnainsdinunsDbsenseicanss ee 17,19

Potter v. Dowd . s

- 146 F. 2d 2 TE suskacieneednacaotieenaatll Sieisidicthtamsiteshcnscictactciaan Relies é&> 22

_ > Rea’ v. MeDon

. 153 F. 2d 190 (CCA-5) cert. denied March 25, 1946,°66 — ~

. §. Ct 820; rehearing denied April 22,1946, 66 S. Ct. 959 > 1, 10, 15

Rinko v. United States : ae.

. 147 F. 2d 1 (CCA-7) cert. denied 325 U.S. Bs GN eetccectceies 15

+ Rogers v. Peck. :

199 U.S. 425, 435 00... paige tahoneilisaecieadideiaiittneeiltiuamndsain cena 19.

Rossier, In re

6 U.S. App. 214, 133 F. 2d 316, 322-324 0 17 .

Serews v. United States ‘

325 U.S. 91 ...... Se AE AS Ae ES OTR A ARG, OR 23

Semansky v. Stark ; ;

SP, Oy OD ee 33

Shreveport v. Teague j

Siebold, Ex parte .

100 U.S. 371, 375>......... (ion incidealeipeteeinnantndetiaiabanttigsnidsintea casi “St See 16

Smith v. O'Grady °

A WO I i ii tS a ee

> iii an

. *° oo :

ig 4

* Cases GiTeD continued

Pers PAGE

Smith v. United States :

I A 2 inser linppeenibentcacublti 4

» 66 Oct. T. 1945, Petitioner’s Joint Brief, pp. 131-190 ........

=v. 8. —, 66 8. Ct. 423, 429 ....... . 15,26

State v. Meredith . “2

\ 1978. C. 351, 158. E. 2d cn felons soone 33

Swaczyk v. United States ; °

156 F. 2d 17 (CCA-1) decided June 13, 1946, pending on

petition for writ of certiorari, No... 290 Oct. T. 1946: ;

Petition for writ of certiorari, pp. es . 3a

: “4 &

Thomas v. Atlanta’ - eg 3 4

59 Ga. App. 520, 1 S. E. 2d 598 ........... Ssdntpiabdemaecnine 33

Trinidad v. Sagrada ities ete. . :

263 U_8. 878 ......... - 29 *.

United States v. Lovett F : : poke

— U.S. —, 66 S. Ct. 1073 .. e sas 18

United States ex rel. Arpaia v. Alexander , mis Pea

146 F. 2d 847 (CCA- 2). Si acai 13, 14

_ United States ex rel. Falbo v. Kennedy ae ‘

141 F. 2d 689 (CCA-4) cert. denied 322 U.S. 745 ............:. 13,14

United States ex rel. Hekpv. Stalter ; x

151 F, 2d 633 (CC 11, 32

_ United: States ex rel. Lohrberg v. Nicholson :

_. 141 F. 2d 689 (CCA) cert..denied 322 U.S. 744 .......0......0..2+. _ 13,14

United States ex rel. McCann v. Adams: ”,

320 U.S. 220, 221 .....s... : sniaiacngeesticl 22

United States ex rel. Trainin v. Cain -

144 Fy 2d 944 ae ici : 17

Waley v. Jélinston ge,

316 U.S. 101, 104-106 .....2.:......... a.......... 10-11, 21, 23

Walker v. Johnston ‘ ; aor.

FN TE pinnae vinialiiiisnnienaailiong sarees 11, 22

: wee Aa parte ae

: 317 U.S. 604 ‘icithiianndiaiiRavchijecaiin 14

iad v. A aT, :

11, 21

19, 17,18

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Judicial Code, See. 240 (a), as amended by °

Act-of Feb. 13, 1925 ............ a te SE Ae een mrad. 2, 34

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United States Code: ; : ; See

Title 28, secs. 451-464 (“Habeas Corpus Act”) ::..0..0000 00000. “2

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SUPREME COURT OF THE UNITED STATES

Octosten Term 1946

THEODORE MARTIN SUNAL, Petitioner

4—DAVID R. LARGE, SUPERINTENDENT |

a FEDERAL PRISON CAMP

MILL POINT, W.VA. -

- Respondent .° y o<8

Petition for Writ of Certiorari .

_ to the United States Circuit Court of Appeals

for the F ourth Circuit.

Te rie SUPREME CouRT OF THE Unirep Grace:

Theodore Martin Sunal petitions this Court for a writ

_ of certiorari. He shows unto the Court as follows:

Summary of Matters Involved

1. Preliminary Statement.

The denial of certiorari by this Court in “Rea v. Mc-

Donald, 66 S. Ct. 820, does not foreclose the questions pre-

sented here. Although the facts are-identical, the conclusions

in the two cases are different. In the Rea case, ‘the. court

of appeals (153 F. 2d 190) held that the writ of habeas

corpus was not available. The court .below held that the

_ writ of habeas corpus was an available remedy. [102,

- 104-107]* Then the cout below: held that the prisoner was

* Bracketed figures appearing in this petition and the supporting

- brief refer to pages’ of separatgly- pbound printed appendix.

| - °

3 ° ° ¢

Sd, ‘ e ee .

c ° ®

properly, remanded in spite of the alleged denial of consti-

tutional rights” because petitioner was liahle for training

and’ service as charged in thé indictment. [109]

< "2. Opinion of the court below. ;

; The opinion of the United States Cireuit Court of Ap-

peals is not yet reported in the Federal Reporter, : but

appears in the record. [102-118] :

: 3. Jurisdiction. :

‘Jurisdiction of this Court rests upon Section 240 (a) of

_. the Judicial Code, as amended by the Act of February 13,

i, 1925. See also Rule 38 of the Revised Rules of the Supreme.

: Céurt of the United States. :

| “ ° #

pe . 4, Timeliness of this petition. y

fog The judgment of the Circuit Court of roe wa

? rendered and entered on July 29, 1946. [118-119] ‘The

, petition for writ of certiorari is filed within three months

‘.from that date. .- | ‘

7 Stabutes-etd Regulations involved. - /

_ Seope and effect of the Habeas Corpus Act (28 U.S.C.

. secs. 451-464) are, involved. Also drawn in question is th

construction and application of the Selective Training and

Service Act of 1940, as amended, sections 3.(a), 5 (d),

10 (a), and 11 (50 Us S.C. App. sees. 301-318). Also in-

- volved are’the Selective Service Regulations, sections 615.81

(a), 615.82, 622.44, 622.51, 623.1, 623.2, 623.21, 623.61, 625.1, |

- 625.2, 629.1-629.35; . 633.2, 633.21, 642. 41, and 642.42 ° (32

C. F. R. Supp. 601:5 et set) promulgated by the President

under said Act.» ;

‘

6. Constitutional erivisions involved.

7 Clause 2 of Section 9*of Article I concerning the writ

1. ° of. habeas corpus is involved.- ‘Clause 3 of Section 9 of

Article I prohibiting bills of attainder is invoked. Clauses

1-3 in Section 2 of Article Ill, investing the judicial powers,

_ and the ¥ifth and Sixth Amendments are relied upon. o

4 « . ° f

Rs 2 3.

~ Questions Presented

4: ‘Did refusal of the convicting’ epurt to: permit peti-

_ tioner to attack the validity of the draft-board order sup- -

porting the indictment constitute a denial of a judicial trial

to petitioner, contrary to the due- “process and bill-of-attain-~

der clauses of the Constitution, so as to make the judgment

of conviction subject to collateral attack upon writ of habeas

corpus?

2. Did the courts below, after holding that denial of the .

right to challenge the validity of the draft-board order

by the convicting court was stifficient ground for. granting

the writ of habeas corpus, err in remanding petitioner —

‘because, after. review of the proceedings in the convicting °

court, they were of the opinion that there was basis in

‘fact for the draft- board order whichpin their opinion, was

> valid?

3. “UE pon the hearing of a a writ of habeas corpus to deter-

mine the validity of restraint of one held under conviction

a4 vn account of refusal to submit to induction as ordered by

’ a draft board, because of refusal of convicting court to

permit the prisoner’'to challenge the validitwof the draft-

board order, is the: issue. confined to - validity of the

fad

draf t- board proceedings?

4. Upon the hearing of a writ of habeas corpus to:

determine the validity oT restraint of ont held undér con-

. Viction on -account of refusal to submit to induction as

" ordered by a draft board, because of | refusal of convicting

court to permit the prisoner to challenge. the validity, of the

draft:board order, is the error of the convicting court cured

through’ a finding of the habeas corpus court that the

draft-board proceedings sustaining the jurisdiction of the

convicting court are valid? nan

5. May petitioner, by writ of habeas corpus, collaterally

attack the conviétion for refusal to submit to induction on

the ground that the convicting court denied him the right

#):

to challénge the validity of the drefft-board order, contrary:

to the due-process and bill-of-attainder clauses of the Con-

stitution, irrespective of the validity of the draft-board

order?

‘6. Is the denial of the right to challepge the validity of :

a draft- board order in petitioner's defense against the in-

dictment charging him with réfiisal to submit to induction,

reviewable only on: direct appeal from the judgment of .

conviction arid not collaterally by writ of habeas corpus? 2

7. Did the courts below err in holding that the, draft-

board determination supporting the convictién of petitioner

had basis in fact, » WAS not issued in excess of authority, con-

trary to law, arbitrarily andveapriciously, and contrary to.

the due peneene clause of the Fifth Amendment to the Con- .

‘stitution, since the undisputed evidence showed that peti-

tioner. was.an ordained minister of religion, exempt from

_all training and service under the Act?

—

Statement of Case

FORM AND HISTORY OF ACTION, es

This civil ‘action- was begun by filing a petition for”

writ of habeas corpus in the name of the United States

of America upon the relation of Rudolph J. Sunal. It was

* alleged that the petitioner was illegally restrained of his

liberty under a judgment and commitment of the’ United

‘States District Court for the Western District of Pennsy]l-

‘vania based upon an indictment charging’ petitioner with

an alleged violation of the Selective Training and Service *

Act. of 1940, as dinended, by refusal to submit to induction

into the armed forces after repprting at the induction

station pursuant to the order the Seltctive Service

board. [1-20].

The district court issued the writ of habeas corpus.

The warden, respondent, filed his return, together

“demurrer and motion to dismiss. [21-27] Evidence

received. [84-94] The case was -argued, at the conclus

of which the court discharged the writ of habeas corpus and

“ remanded petitioner to the custody of respondent. [98-99]

: Thereupon application was made to have petitioner ad-

mitted to bail pending a disposition of this’ appeal. [98]

Bail was@allowed because _ of substantial questions that

should be decided by this court upon appeal. [99] The court

cs entered findings of fact and conclusions of law, as well as -

the judgment. [96-98] Notice of apes and bond were on

filed.

FACTS

Petitioner duly registered under the Selective Training

and Service Act of 1940 with Loeal Board No. 26, at

_ Pittsburgh, Pennsylvania. In the Selective Service ques-

-+tionnaire, he did not fill in Series VIII in reference to the

claim for exemption as‘a minister of religion. [30] Later

6 ;

on he filed a number of papers explaining why he did not

fill out this portion of the questionnaire. [37-83]. Moreover,

he filed evidence showing that he was regularly engaged

as a minister of’ religion. [42-45, 63-65, 67-69, 73] At the

time his first classification was given he was a part-time

minister of Jehovah’s witnesses. On July 1, 1941, the local

~board placed him in Class I-A. [31] He appealed and was

-. elassified as a conscientious objector, Class IV-E, making

him liable for training and service in a Civilian Public

Service Camp. [31] He failed to report for work of national

. importance. [4] He was indicted, tried and sentenced to a

term of two years. [4] He served this sentence. Thereafter

'- petitioner entered the full-time pioneer missionary ministry

upon release from prison, and engaged therein for approxi-

mately one year before he was, again classified. In such

full-time ministry, he devoted an average of 150 hours.

monthly to his actual ministerial work. He did part-time

secular work, spending approximately three hours or four

hours daily to the performance of duties in his secular

work. {4,5] The secular work did not interfere with his

full-time ministerial work. [5] He was recognized by scores

of people* who. filed affidavits and petitions with*his draft

board showing that they recognized him as standing in

relation to Jehovah’s witnesses in the same manner as do

regular and duly ordained ministers. [51-66] He was looked

upon by Jehovah’s witnesses and other persons as having

' the same positionstoward Jehovah’s witnesses as do the

ministers of the orthodox religious denominations toward .

their congregations. [51-66] Moreover his draft board file

_ Affidavits and petitions were signed by 103 persons. Before the hearing

officer of the Department of Justice eighteen persons appeared who

testified concerning his ministerial activity. The entire draft board file -

which was received in evidence by the court below is not being prinfed

in its entirety because of the expense involved. The file is very voluminous. ©

Only portions thereof have been printed as part of Appendix. [37-83]

The court is referred to the draft board file; however, which is among the

exhibits filed with the Clerk of this Court.

showed that he regularly performed ceremonies and duties

that are customarily performed by orthodox clergy. [67-73]

There was no evidence in the file to show that he was not

regularly teaching and preaching as a full-time ‘minister

of the Watchtower Bible and Tract Society and Jehovah’s

witnesses, duly recognized religious organizations under the

Act. [67-73] In spite of the undisputed evidence showing

that at the time of his classification he was a minister of

religion his local board on May 20, 1944, placed him: in

Class I-A making him liable for training and service in

the armed forces. [32] He requested a personal appearance ©

before the local board, which was granted. [32, 49-50] His

claim for exemption as a minister was again denied and his

classification continued. [78-79] He appealed to the board

of appeal which affirmed his I-A classification. [32-33,

67-77] In due course he was ordered to report for induction.

(5-6, 33] He responded to the order, reported-at the induc-

tion station and completed the selective*process. [5-6, 33]

After he was ‘accepted, following his final physical exam- |

. ination, he refused to step forward and submit to induction: .'

as a part of the induction ceremony. [6, 33] He was released .

by the armed forces, arrested and charged with an alleged.

violation of the Selective Training and Service Act. [6, 33]

Petitioner pleaded not guilty to the indictment charging

him with refusal to submit to induction. [10,33] On the

trial to a jury he offered in evidence his entire draft board ~

file. He offered other evidence in the form of de novo _

testimony. [10-11]: All the evidence was offered for the <e

purpose of establishing that the Selective Service System, *

acted illegally, in excess of its authority, without due proe./

ess of law and arbitrarily and capriciously denying him-

his claim for exemption as a minister of religion. [10-11]

‘The trial court refused to admit such evidence, to which

exception was taken. [11-12] The judge instructed the —

jury that the draft board classification could not be attacked

in defense to the indictment. [11] Petitioner excepted ‘to

‘

this. [11] The jury returned a verdict of guilty. [12] Peti-

tioner was sentenced to serve five years in the custody of

the attorney general. [12] No appeal being taken from

such judgment, he was committed to the custody of the

warden of the Federal Prison Camp located at Mill Point,

West Virginia. [98] Sane

How Issues Raised

The issues were raised by the petition for writ of habeas

corpus, the return of the warden and the order of the court

below. [{1-17, 23-27, 98-99, 103] In the petition for writ of ha-

beas corpus, petitioner contended that upon the trial of the

indictment before the jury in the District Court for the

Western District of Pennsylvania, he was denied his con-

stitutional right of-a fair trial and the right to be heard

in his defense, contrary to the Constitution. [2-3] It was

contended that the convicting court denied him due process

of law by holding that’ he was not entitled to challenge

the validity of the order commanding him to submit to

induction, and in refusing him the right to offer evidence

' to show the invalidity of the order. [11] By reason of this .

action of the convicting court, it was claimed that he was

- penalized contrary tothe due procéss clause and being

denied his defense to the indictment. [11-12] It was. con-

tended that the court transferred the judicial power of

the court to the draft board, denying him his right of trial

_ by jury, refusing him the right to a judicial trial. and

abridging his liberty, contrary*to the due process clause

of the Fifth Amendment to the United States Constitution.

[12] Moreover, it was alleged that the Act and Regulations

had -been transformed into‘a bill of attainder, contrary to

Clause 3, Sectiof’ 9 of Article I of the United States

Constitution. [12] — | eee da

_ The courts beldw held that the holding and action of the

convicting court was grounds for discnarge upon a petition

. 9

for writ, of habeas corpus providing the draft board file

showed that petitioner was arbitrarily dnd capriciously Tore

classified and illegally deprived of his rights under the

Act and Regulations by the Selective Service System.

[88-89, 107] However, the courts below held that the hold-

ing and action.of the convicting court was harmless error

and not grounds for the discharge of petitioner because the

draft board record contained evidgnce on which the draft

boards were justified in placing petitioner in Class 1-A

and denying his claim for exemption as a minister of

religion. [89, 92, 96, 109, 112-115] The basis for this conclu-

sion was that because petitioner devoted part of his time

to the performance of secular’work, he could not complain

of the action of the draft board in rejecting his claim for

exemption as a minister. [90, 92-93, 115-117] The courts —

concluded that the action of the draft boards in denying

petitioner the ministerial classification and in classifying

him as liable for training and service was not a denial

of due process of law and was not arbitrary or capricious.

[93, 96-97, 113, 115-116] ‘The courts helow held that the ac-

tion of the- -eonvicting court in rejecting the evidence and

in charging the jury was not a denial of due process of law: =

[96-97, 109,112] The courts below declared that the im-

prisonment of petitioner was lawful and that he was not

entitled to a disgfimge from custody. [97, 118]

Specification of Error |

The courts below erred in remanding ‘petitioner to cus-

es tody and holding that his detention was valid.

ee eee

Reasons Relied on for Granting ¥ Writ

‘The holding of the court below that the writ of habeas

corpus was available to determine the legality of Getention

of .one convicted for refusal to submit to induction. in

violation of the Selective Training and Service Act is

in direct conflict: with the holding of the United States |

Cireuit Qgurt of Appeals for the Fifth Circuit in Rea v.

McDonald, 153 F. 2d 190.

The holding of the court below that the denial to one

charged with refusal] to submit fo induction of his right to ~

‘challenge the validity of the draft board order did not

constitute a denial of procedural due process of law and

of a judicial trial so as to make the judgment subject to

collateral attack is in direct conflict with applicable deci-

sis of thic Court. McVeigh v. United States, 11 Walls 259,

261, 267-268; Windsor v/McVeigh, 93 U.S. 274, 277, 278-279;

Hovey v. Elliott, 167 U. 8. 409, 413-415, 417-418 ; Old,.Wayne

Life Ass'n v. McDonough, 204 US. 8, 23; Baker v. Waker

Eccles & Co., 242 U.S. 394, 401; Griffin v. ms S. Ct.

556. ae

The holding of the court below that the denial to peti-

tioner of his right tu challenge the validity of the draft

board order in résponse to the indictment charging him with

refusal to submit to induction did not constitute an ouster

~.of jurisdiction so as to make the judgment of conviction

subject .to collateral attack by writ of habeas corpus is

in direct conflict with applicable decisions of this Court.

Johnson v. Zerbst, 304 U.S. 458; Bowen v. Johnston, 306

U.S. 19, 23-25. |

The holding of the court below that the denial of the

constitutional right to defend the indictment on. the ground .

that the draft board order was ‘invalid is. reviewable only

upon direct appeal and not. collaterally ; habeas corpus

is in direct na hor applicable decisions of this court.

Ex parte Hans Nielsen (1889) 131 U.S. 176; 184-185; Waley—

* .

7 | \ -

v. Johnston, 316 U.S. 101; Frank v: Mangum; 237-U. 8.'309,

330-331, 335; Moore v. Dempsey, 261 U.S. 81, 91; Ex parte

Wilson (1885) 114 U.S. 417; Ex parte Bain (1887), 121

_ U: S. 1; Callan v. Wilson, 127 U.S. 540; Johnson v. Zerbst,

304 U. S. 458; Walker v. Johnston, 312 U.S..275. _

: The holding of the court bélow that the determination

of the draft boards and the order supporting the indictment

were valid and had basis in ‘fact and that the petitioner

was not arbitrarity and capriciously denied his claim for

exemption is in direct conflict with the holding of the

United States Circuit Court of Appests for the Seventh

Circuit in the case of United States ex rel. Hull v. Stalter,

151 F. 2d 633, where the facts before the draft board were .

substantially the same as here. There the @ourt held that

the draft board determination and order were contrary

to the ‘due process clause of the Fifth Amendment.

- In addition to the, fact that the holding of the court

below is in ‘conflict with applicable decisions of this Court, -

Me petitioner claims, lor additional grounds supporting

thegranting of the writ, that the court below has decided

important questions of federal law which have not been,

but should be, settled by this Court. Moreover, the court

below has. so- far departed ‘rom the accepted and usual

‘course of judicial proceedings i in habeas corpus cases and

has iso sanctioned such departire by oh district court,

eae Ry

as to'call for an exercise of this Court's power of super-

” vision.

—

“~ -

_ WHEREFORE your petitioner prays that this Court

exer¢ise its discretion by directing the issuance of a writ -

of certiorari to the Circuit Courtyof Appeals for the Fourth,

— Cireuit rae such court to certify to this Court for *

; review

and defermination on a day certain to be named

therein, a ful’ and complete .transcript 6f the record and

all proceedings in the case as numbered and entitled on =“

the docket of said court; and that the order of the Circuit

‘Court of Appeals, affirming the judgment of the district. _

court, be here set aside and held for naugat; and that your

petitioner be granted sueh other and further relief in the |

~-premises as to this Court may seem just and proper. under ~

the circumstances.

THEODORE MARTIN SUNAL; Petitioner

‘ :

By HAYDEN C. COVINGTON, his Counsel

3 | }

(pi ee

, 13°

SUPPORTING BRIEF

: * Preliminary es :

For a statement as to the ‘opinion of the court below,

the*basis on which the jurisdictton of this court is claimed,

the questions presented, the history of the action, how

the issues were raised, the.evidénce received and rejected

and the error relied upon, reference is. here made to the

foregoing petition for writ of certiorari.

ARGUMENT

; ONE

Refusal by the sentencing court to permit peti-

tioner to challenge the validity of the draft board

order,.in defense to the indictment charging him .

with refusal to submit to induction, was a denial of

a judicial trial contrary to the due process clause of

the First Amendment to, and the bill-of-attainder

. clause of the Constitution, so as to make the judg-

ment of conviction subject to collateral attack on

a writ of habeas corpus, irrespective of the ——

of the draft board proceedings. . ©

The decisions in: United States ex’ rel. Lélrkerg v.

Nicholson (CCA-4) 141. F. 2d 689 (certiorari denied 322

‘U.S. 744), United States ex rel. Falb . v. Kennedy (CCA-4)

141 EF. 2d 689 (certiorari denied 322 U.S. 745), and United

States ex rel. Arpaia v. Alexander (CCA-2) 146. 2d 847 *

are not apposite. In each of those cases the prisoner had

not completed the selective process. The failure of each to

report for and submit to a preinduction physical exami-

nation prevented the’ armed forces. from. determining

4 .

.* See Note 17 of the majority opinion written by Mr. Justice Douglas

in Estep v. United Sia 66 S. Ct. 423, 428. eg

/ « . 9

é.:

ee =

* 14

_ whether he was acceptable for training and service through |

"the screening process, None-of those registrants had reached

the point in the administrative process which qualified

them to challenge the legality of the administrative orders.

Since petitioner had completed the selective process upon

_ reporting for induction he is in a position to challenge the

administrative orders in defense to the’ indictment charging

him with refusal to submit to induction. The denial of this:

right by the. convicting | court entitles him to the writ of

habeas corpus. _ ;

_ Mr. Justice Douglas, speaking for the court in Estep

v. United States (66 S. Ct. 423, 428), recognizes that there

is a distinction, between the situation presented in the

7% Lohrbery, Falbo and Arpaia cases, supra, and that pre-

sented upon a petition for habeas corpus where the prisoncr |

’ had exhausted the selective process. In footnote 17 of the

Estep opinion (pp. 428-429) he declares that, “It is true

that after the conviction of the defendant in the Falbo

edge, his. petition for a writ of habeas corpus was denied.

United States ex rel. Falbo v. Kennedy, 4 Cir., 141 F. 2d

Sf 689. And in g like situation habeas corpus was denied in

advance of the trial. Albert v. Goguen, 1 Cir., 141 F. 2d 302.

But in those cases additional steps in the: selective service.

ocedure remained to be taken. Denial of habeas corpus

llowed by analogy to the familiar situations where other’

‘corrective procedures had been available which might have

afforded relief from the orders complained of. See Bowen

v. Johnston, 306 UNS_19,.59 S.°Ct. 442, 83 L. Ed. 455;

Ex parte Williams, 31 . 604, 63 S. Ct. 431, 87 L. Ed.

491; Ex parte Hawk, 321 U.S. 114, 64 S. Ct. 448, 88-4y/Ed.

572. But in the present cases the registrants, as we have

said, had pursued their administrative remedies to the end.”

In_ petitioner’s, case where no additional step in the

_ selective process remained to be taken. There was no other

“corrective procedure”. available to petitioner “which might

a >

€

45°

have afforded relief from the orders complained of.” He

pursued the selective process to the very end as did Estep.

in the case of Estep v. United States, 66, S. Ct. 423.

The court below was correct in refusing to follow the

- opinion of the United Statés Circuit Court of Appeals for

the Fifth Circuit in Rea v. McDonald, 153 F. 2d 190, cert.

den. 66 S, Ct. 820, rehearing den. 66 S. Ct. 959.

The same ground for denial of petition for writ of

habeas corpus was urged in the case of House v. Mayo,

324 U.S. 45. This Court, concerning its previous denial

for writ of certiorari in that case, said: ‘

“The district-court also referred to a denial by this

court of a petition for certiorari, filed here after the denial

by the Florida Supreme Coart of one of the applications

for habeas corpus. See House v. Mayo, $22 @S..7 10, 64

S. Ct. 1058. The district court thought that this Was an

expression ‘of the opinion that no nieritorious: question is

presented by the ‘matters of which petitioner here: eom-

plains.’ But as we have often said, a denial of certiorari

v. Carver, 260 U. S. 482, 490, 43 s. Ct. 181, 192, 67 L. Ed.

361; Atlantic Coast L. Ry. v. Powe, 283 U.S. 401, 403, 404,

51S. Ct. 489, 499, 75 L. Ed. 1142.”

In further support of the fact that the denial of cer-

tiorari in the Rea case, supra, should not be accepted as |

ground for denial of the questions presented here, it should ©

be observed that the questions presented in the cases of

Estep. y. United States, and Smith v. United States, 66

S. Ct. 423, were previousiy presented to the court in Rinko F

-v. United States, 147 F. 2d 1. Petitionfor certiorari was

denied, 325 U.S, 851, 894. See also note 15, Estep v. United

“States, supra. :

_ 16

The principles annountéed*in Bowen vy. Johnston, 306

U.S. 19, are applicable here.- There -it. was stated that if

- the absence of jurisdiction appeared on the face ofthe

record made in the trial court upon the trial of. the indict- ;

ment, it would be reviewable on a writ of habeas. corpus.

(/bid. p. 26) ‘In that‘decision it was also said that the’

general rule, that habeas corpus is not available where —

the question could be. raised upon appeal, is “not so in-

flexible that it may not yield to exceptional circumstances |

where ‘the need for thée> remedy afforded by the writ of

‘habeas corpus is apparent.” (/bid. p. 27) In the case.at

bar there was such uncertainty and doubt and confusion: —

at the time of the trial by the district court in Pennsylvania

as to the’availability of the defense to the indictment that _

such presents unusual circumstances warranting the writ ©

of habeas corpus.’ (Ibid. p. 27) .

In,Johnson v. Zerbst, 304 U.S. 458, the covet announced

a principle and made a holding that is a precedent for the

action petitioner requests here. In that decision it is said:

“A court’s jurisdiction at the beginning of trial may be

lost ‘in thé course of the proceedings’ due to failure to

‘complete the. court—as’ the Sixth Amendment’ requires—

by providing counsel for an accused who is unable ‘to

. obtain counsel,.who had_not ‘intelligently waived this con-

_., stitutional guaranty, and. whose life or liberty is at stake.

If this requirement of the Sixth 4ynendment is not complied

with, the court no longer, has , Jurisdictiqn to proceed. The

__judgment of conviction pronounced , by a court without |

jurisdiction is void, and one imprisoned thereunder may

obtain release by habeas corpus. A judge of the United

~States—to whom a petition for habeas corpus is addressed

should be alert to examine ‘the facts for himself when,

if true as alleged, they make the -trial absolutely void. ”

, (lbid. 468) See also Williams vy. Kaiser, 323 U.S: 471, 477;

* Bow en v. Johnston, 306 U.S. 19, ates Ex parte ae

100 U. S. si 375.

The denial of petitioner's constitutional right to attack

-the draft board order contrary ‘to the express commands

of the fundamental-compact is such: an error that is not’

only reviewable i:pon appeal but is also subject, to review

and collateral attack upon a petition for writ of habeas

corpus. *

Tf a federal judge of a district court refuses to compat

a judicial trial, as did the judge of the convicting court in

- the case at bar, and proceeds to cut out the only defense

and try the case by illegal theory similar to “trial by -

_ ordeal”, in violation of the due process elause of the Fifth

Amendment, Clause 3 in Section 9 of Article I, prohibiting

bills of attainder, and Article III investing the judicial

powers in the courts and not in administrative agencies,

then such federal court loses jurisdiction or is ousted of —

jurisdiction. to proceed further and pronounce sentence.

against petitioner. Johnson v. Zerbsi, 304 U.S. 458, 468.

" See also: In’re Rosier, 76 U.S. App. 214,833 F. 2d 316,

322-324, and Jones v. Huff (App. D.C.) 152 F. 2d 14.

It has béem uniformly. héld that to deny a defendant i in

a criminal or civil case the right to be heard and to make’ .,

his defenses is a rank denial of procedural due process

of law. ‘McVeigh v. United States, 11 Wall. 259, 261, 267-

268; Windsor v. McVeigh, 93 U.S. 274, 277, 278-279; Hovey

v. Elliott, 167 U.S. 409, 413-415, 417-418; Bradstreet v.

Neptune, 3 Sumn. (U.S.} 600; Ong Chang Wing v. United »

States, 218 U.S. 272, 279; Chicago M. & S.P?R. v. Min-

nesota, 134 U.S. 418, 456-457 ; United States ex rel. Trainin

v. Cain (CCA-2) 144 F. 2d 944; Estep v. United States, -

66 S. Ct. 423, 429-433,. concurring — of Mr. Juatice

siursy

- Moreover, to duu one the right to be hina in his

defense to a-criminal charge is to deny a judicial trial eon-

trary to the bill-of-attainder clause of the United States

_ Constitution, in, addition to amounting t o a denial of pro-

_cedural due process. of law. Cummings Vv. Missouri, 4 Wall.

2k, 320- 332 Kentileky y Jones, 10 Bush. (70 Ky.) 725;

United States v. Lovett, $68. Ct..1073. A judgment rendered

upon a trial where there has been a denial of a funda-

mental constitutional right or due process of procedural law

: is w nullity and subject to collateral attack, including attack

by habeas corpus. National Exchange Bank v..Wiley, 195

U.S. 257; Old Wayne rife Ags’n v. McDonough; 204 U.S.

. 8, 23; Baker v. Baker Eccles & Co., 242.U:S. 394, 401;

Griffin v, Griffin, 66 S. Ct. 556. Y.”

Phe doe ‘trine of denial.of defenses because of contempt

-of the law’and flouting of the orders of administrative and

judicial officers has never been approvéd by ‘the courts. .

Gn Hovey v. Elliott, 167 U.S. 409, 413-415, 417-418, the

court held subject to collateral attack a judgment where

the answer of the defendant had been cele Soeones of

contempt of court.. The ‘court held that the entry of the

judgment without affording an opportunity to defend was

a violation of the citizen’s rights of due process. __

The right to attack an administrative order on the

ground of its illegality; in defense to an indictment, is

“S supported by Windsor v. ‘McVeigh, 93°U. S. 274, 277-278.

There it was said: “Wherever one is assailed in his person

or his property. Mhere he may defend, for the liability and -

the. right are inseparable. This is a principle of natural

justice, recognized as such by the common intelligence and |

conscience of all nations.” See also McVeigh v. United

States, 11’ Wall. 259, 267; Bradstreet v. Neptune, 3 Sumn.

(U.S.) 600, where it is ‘said: “Ft is as old. as the law and

never more to be respected than now, that no one shall — -

be personally bound ‘tintil he has had his day in court;

by which is meant, until he has been duly cited to appear,

and has been afforded an opportunity to be heard. Judg-

inent without such citation and opportunity wants all the

attributes of a judicial determination. It is judicial usurpa-

tion and oppression and never can be upheld where justice

is justly administered.”

- Se

In McVeigh v. United States, 11 Wall. 259, 267, the

court said that when one is assailed by an indictment or

proceeding in the United States District Courts “he could

defend there. The liability and the right are inseparable.

- A different result would be a blot upon our jurisprudence

and civilization. We cannot hesitate or doubt on the subject.

It would be contrary to the right principles of the social.

compact and of the right administration of justice.”

In Rogers v. Peck, 199 U.S. 425, 435, the court said

that a defendant in a criminal case must be given an ade-

quate and full opportunity to be heard in Gefense to an’

indictment.

In Ong Chang Wing v. United States, 218 U.S. 272,

279, it is said: “This court has had frequent occasion to

eonsider the requirements of due process of law to criminal

"procedure, and, generally speaking, it may be said that

if an accused has been heard in.a court of competent

_ jurisdietion,.. ... with an opportunity to be heard,...

“then he has had-<lue process of law.” |

The construction of: the Act so as. to deny judicial

review of administrative action, which econcededly is avail-

-+ able upon petition for writ of habeas corPus, is a rank

denial of due process of law and-of the right to be heard

in one’s ‘defense. Hovey v. Elljott, 167 U.S. 409, 413-418:

« -“{A] more fundamental question yet remiains to be deter-

- anined, that is, whether a court possessing plenary power

to punish for contempt, unlimited by statute, has the right

to. summon a defendant to answer, and then, after obtain-

ing, jurisdiction’ by the summons, refuse to allow the’ party

, ‘summoned to answer or strike his answer from: the files,

suppress the testimony in his favor, and condemn him

without considerati@® thereof and without a hearing, on

_the-theory that he has been guilty of contempt of court.

The mere statement of this proposition would seem, in

reason and. conscience, to .render imperative a negative

answer... . Can it be doubted that due process of law

signifies a right to be heard in one’s defense? If the legis-

lative ‘department of.the government were to enact a

statute conferring the right to condemn the citizen without

any opportunity whatever to be heard, would it be pre-.

tended that such an enactment would not be violative of

the Constitution? If this be true, as it undoubtedly is, how

can it -be said that the judicial. department, the soyrce

and foundation of justice itself, has yet the authority to-

render lawful that-which if done under express legislative:

sanction would be violative of tha Constitution?”

In Edwards v. United Sfates, 312 U.S, 473, the court

held that the striking: of a-plea in bar becauge it was ut-

ineritorious and could ‘not be sustained in law or fact-was

a denial of due process and:constituted reversible -error.

The court, in Dowell v. United States; 221 U, S. 325, 330

held that an act whereby an administrative. agency deter-

mined the facts of one’s duty and the circumstances of

' his violation’ thereof, without an opportunity to be heard

in his defense in court, was ‘unconstitutional. Speaking of

the constitutional provisions the court said: “It was -in-

tended to prevent the conviction of the accused ypon depusi-

- tions or ex parte “affidavits, and particularly to preserve

the right of the accused to test the recollection of the —

witnesses in the exercise of the right of cross examination.”

In Wong Wing v. United States, 163 U.S. 228, the

_statute that permitted the immigration officer to exclude

the alien by order rendered under administrative power,

also allowed him the right to impose a penalty and punish-

- ment in addition. The law was declared invalid. The court

said: “It is not ‘consistent with the theory of our govern-—

ment that the legislature should, after having defined an

offense as an infamous crime, find the: fact of guilt and

adjudge the punishment by one of its own agents.” See

also Diaz v, United States, 223 U.S. 442; Lisemba vy.

California, 314 U8. 219, 236. )

The fact-that the writ.of habeas corpus:-has been broad-

m . P m 7 21

ened,so as to reach many different types of = 2 3

prodpdural due process impels the conclusion that ref

_ petitioner the right to attack the draft board order oe a

denial of a judicial trial contrary to the due process clause

and is equally subject to attack by habeas corpus, which

penetrates and goes behind the judgment and reviews the

substance of “the inatter, either on the record or-de hors

the record, regardless. of whether there has been an appeal

~ or failure to take an appeal. The following types of errors

_ and inquiries’ inflicted ‘contrary to the Constitution have

been, among many others, reviewed upon the writ of

' habeas corpus,.although the questions could have been

raised” upon appeal :

(1) Erroneous denial of a plea of former jeopardy.

Qe parte, Hans Nielsen (1889) 131 U.S. 176, 184-185;

Clowans v. Rives, 104 F. 2d 240. © Ae

(2) Erroneous reception into evidence a confession ob-

tained in violation of the due process clause by force, ete. —

Jones v. Kentucky (CCA-6) (1938) 97 F. 2d 335.

(3) legal foreing or obtaining a plea of guilty. Waley

v. Johnston, 316 U.S. 101; Smith v. O'Grady, 312 U.S. 329.

_ (4) Proceeding to judgment of guilty after trial dom. _

inated by mob violence which could have been complained

of at trial and raised on appeal. Frank v. Mangum, 237 U.S.

309, 330-331, 335;-Moore v. Dempsey, 261 U.S. 86, 91.

(5) Trial by information for a felony contrary to the

Constitution, which could have been raised upon appeal.

Ex parte Wilson (1885) 114 U.S. 417; Ex parte Bain —

(1887) 121 U.S. 1, in which latter case the indictment was

arended, without return to grand jury, by the prosecutor.

e...

+)-) ;

¢ r ae

- (6) Denial of trial by jury which should and could

havé been raised on appeal. Callan v. Wilson, 127 U.S. 540,

(7) Illegal denial of counsel which qpuld have ge"

_ raised upon appeal. Johuson v. Zerbst, 304 U.S, 458, 463,

468 ; Walker v. Jelineton: 312 U.S. 275; United States ex

rel. McCann v. Adams, 320 U.S S,220; 221; Adams v. United

‘States ex rel. McCann, 317 U. S, 269. %,

The denial of the right to make any and. all valid Pm

fenses upon a trial, such as refusing petitioner. the right-

to attack the draft board order, is equal to, if not worse

than, a denial of the right to have counsel. Thé Constitution

guarantees both. Without the granting of either, upon re-

quest not waived as here, the trial court loses jurisdiction

to pronounce sentence. The provisions “of the Constitution.

guaranteeing a judicial trial are equally as strong and

respectable as is the provision with reference to the right

to have counsel. If a defendant is deprived of the right of

counsel it does him no good to have a triai,.If he is also

deprived of a judicial trial and the right to be heard in

his. defenses that the draft board order was invalid, it

‘does him no good to have counsel. If habeas corpus attack

collaterally made can reach the denials of one it should

_ reach the other because there is no difference between “the

two rights. Cf. United States ex rel. McCann y. Adams,

supra; with Adam. v. United States ex rel. McCann, supra: |

The decision of the United States Kighth Circuit Court of -

Appeals i in Manning v. Biddle, 14 FP. 2d 518, 519, is apposite

here. Cf. Potter v. Dowd (CCA-7) 146 F, 2d 244.

nven assuming, arguendo, that petitioner had the op-

portunity of raising these objections in the Circuit Court

- e % oh *y . ° . F % ¥

from raising constitutional questions upon his petition for

-writ of habeas corpus. Since the constitutional objections

urged in the petition are so fundamental and of such great:

magnitude they cannot be waived by failure to object,

even if petitioner was represented by counsel. If the ques-.

‘tions are such that they can be considered on a. petition as

for writ of habeas corpus, they cannot be waived even if —

petitioner had failed*to suimit to the sentence and had —

taken an appeal. Screws v. United ‘States, 325 U.S. 91. f

«- Similarly in Waley v. Johnston, 316 U.S. 101, the eourt

extended. the writ and ‘broadened its scope in order to

<} - permit a full inquiry ifte-Lacts entirely de hors the record

to show the illegality of a plea of guilty, thus placing the

. plea on the same footing as a confession obtained in the

same manner by force and duress. It was said (pp. 104-105) :

“In such circumstances the use of the writ in the federal _

courts to test the constitutional validity of, a conviction ‘’

‘for crime is. not restricted to those cases where the judg- >

ment of conviction x void for want of jurisdiction of the [79

trial court to render it. Zt extends also to those exceptional Ve»

cases where the conviction has been in disregard of the. ZA

_ constitutional rights of the accused, and ‘where the writ

.is the only effective means ‘of preserves - rights.” <<

** (Italics added) “Ss

The courts below held that the ‘writ of hatieas corpus was

_ properly discharged because, upor ihe evidence, it appears _ =

that petition is not a minister of religion within the . é>

meaning of tlt¥Act and therefore the United States District’

Court for the. Western District of Pennsylvania did not

commit any prejudicial error against petitioner when the. - ,

_ evidence appearing in the draft board file was excluded

from consideration “by the court and jury, or when the

court instructed the jury that it could not consider the

alleged illegality of the draft board determination. In’

other words, thé courts below held that the alleged error

Noe

yw .

_ indenying petitioner due proce te s of law was harmless error,

because petitioner would not-have been able to establish

that. he was a minister and that the draft board acted.

illegally, even if the convicting court had ruled properly.

This holding of the courts below begs the question. It puts

the cart before the horse. If there was denial of due proe-

ess of law such denial! cannot be cured by the finding of

. the courts below that petitioner is not a minister of religion: .

Suppose the convicting court had deni petitioner the

right to counsel. Can it be reasonably said that such denial

could be cured by a finding of the courts "below that - ‘peti-

. tioner had no good defense to the.indictment because his

draft board file showed that he was not a minister of reli-

gion and was therefore guilty of failing to submit to in-

- duction?gSuppose the court would have put him -to trial

upon aninformation rather than an indictment. Suppose the

court erroneously overruled a.plea of former jeopardy.

Suppose petitioner was convicted upon a confession ille-

gally obtained, ts or to the Constitution. Can it reason- |

‘ably be said in arty of these instances that the violation

of the Constitution is harmless error becayse the draft

board file showed that petitioner is not a minister and that

‘he is guilty? The mere asking of. these questions answers

‘ with a resounding NO. If petitioner was denied due process

of fiw, as he claims, then there is only one method whereby

that denial can be cured. That way is to discharge peti-

tioner without prejudice te the rights of the Government

to reindict and retry him, so that upon anvther trigl he

_will have an opportunity to: make his defenses. If ope is

denied the right of counsel, the right of trial by jury, or

the right to trial under. indictment contrary to the 'Con-

stitution, such errors,cannot be cured on the grodnd that

they were: harmless : or that, the petitioner is admit-

tedly guilty, as the courts below held here.

The efforts of the courts below to hold that the action

of Judge Schoonmaker at Erie, Pennsylvania, in refusing

Eon

- trative action,

to consider or to permit the jury to-consider the illegality

of the adnfinistrative action cannot succeed. A similar at-

States, 148 F. 2d 288. See the last point discussed in that

dpinion. The Smith case was a companion case to the Estep

case m this Court. This Court reversed the judgment in ~— .

fthe Smith case because, the trial court refused to exercise

its’ judicial function. This Court did not consider the

error harmless, as did the court below in its affirmance -

of the judgment. In the Smith case the trial court refused

to permit the jury to pass upon the issues raised. In the

Smith case the court limited determination of the issues

to whether the defendant complied With the order. In this

case the court trying the indictment limited the determi-

nation to “Whether the petitioner complied with the order

to’ submit to induction. Moreover, in the Smith case, as

well as in’ this case, the trial cqurt did not pass ‘upon the

legality of the administrative Dactiteatien,

If the courts below can pass upon the validity of ‘the

administrative determination after reviewirig ‘the draft .

hoard file, then the convicting court should have done so.

-Inasmuch as the convicting court failed to consider the

legality of the administrative determination, and failed

to permit the jury’to determine thetegality of the adminis-

e error, which is a denial of due process,

by the rationaljzing of the courts below in

the same way, the error in the Smith case

is case

las i. no cured by‘the rationalizing of the ye below.

. United States, 148 F. 2d 288; see | { paragraph

of opinion. The contrary view takem by this Court is

best expressed by the last sentence of its opinion in the

Estep and Smith cases (66 S. Ct. 423, 429): “Since the

petitioners were denied the opportunity to show that their

‘local boards greene their om a new trial -must

be had in each

If this Court oa of the opinion fhat the performance

_ of secular work by a minister of religion, or the failure

of a minister to devote his full time (to the exclusion —

of all-other activity) in the further ance, of ministerial

work, would be ground for holding as harmless error the

that the jury could not consider the alleged illegality of

the draft board action, it would have so, eld i in the Smith

case. It seems plain that if. one is detiied the right to

make his defense that the ‘action of the draft boards

. was illegal, such cannot be held harmless error because the

courts below were of the opinion that the draft board did -

not err ii making. its classification. If such can be accom-

plished, then the. denial of the right of trial by jury can be:

held to be hated error by habeas corpus on th “round

that the undisputed evidence shows that the defendant Pee

guilty. The effott ‘of the courts below to hold as harmless

error the denial of due process by the United States District

Court for the Western, District of Pennsylvania is‘an effort

to use habeas corpus inquiry into a trial de novo of the -

. guilt or innocence efthe petitioner.

Reg

Only one court liAs-jurisdiction to determine the guilt

. or innocence of the. petitioner iihder the. mdictment, and

that is the United States District Court for the Western

District of Pennsylvania. The failure of that court to.

exercise its judicial function doés not authorize the courts

below to reconsider the evidence de novo to determine.

whether or not petitioner is guilty. The convicting court

having failed torexercise its function in this regard cannot

be exonerated from the violation of the Constitution be-

cause the- courts below saw fit to allow -petitioner a full

and fair trial on the.alleged illegality of the administrative

‘determination, while he was " in prison and after his

- conviction. -

The holding of the courts ‘alee that, although the writ

of habeas corpus was available, the petitioner should be

‘remanded because the draft board proceedings were found

X | 27

to be valid, is an extraordinary departure from due process

of law in habeas corpus cases. If this doctrine be sustained,

then a new rule will have been grafted onto habeas corpus

law which would defeat the very purpose of the writ. The

judgment of conviction .was invalid because of the denial

of the right to be heard on the validity of the draft board

detarmination. The denial of this right entitled petitioner

to the writ of habeas corpus. The invalidity of the judg-.

“ment, because of the denial of the right, cannot be validated

by the habeas corpus court inquiring into the validity

of the draft board praceedings. Once the judgment is

invalid so as to justify the writ of habeas corpus the

validity cannot be restored by the habeas corpus court per-

forming the judicial function that the convicting: court

refused to perform. The novel method of disposing of

the prisoner presents a threat to the inherent efficacy

of the writ of habeas corpus. Such a rule would permit

habeas corpus courts to inquire into the guilt or innocence

of the prisoner for the purpose of determining the validity

“of his detention. This) would enable habeas corpus courts

to xemand prisoners who_ have been denied constitutional

rights on a finding that the denial of such rights was

harmless error. Such a rule would enable judges of habeas

corpus courts to nullify entirely the J ia of prisoners

ainder the writ.

; | \

_. Two Pie

Even assuming that petitioner’s right to release.

upon the writ of Habeas corpus is dependent ex-

clusively upon the invalidity of administratiye pro-

_-ceedings, the undisputed evidence shows that the

draft boards arbitrarily and capriciously denied

‘ him his claim for exemption from training and

“service as a minister of religion and that the classi-

fication given him was without basis in fact; accord-

ingly, the order supporting the indictment was void.

The. holding of the court below that: ‘petitioner should

be denied his releage because the draft board did not

violaté the law, in denying him his claim for exemption

as a minister of religion, again presents to this Court thé.

* necessity of expressing itself upon what is the meaning of - _

the terms “regular minister of religion” or “duly érdained .~

_minister of religion” as used in the Act and Regulations.

Jehovah’s witnesses have been declared to be a reli-

gious organization under.the Act by the Selective Service

Have ignored the true® facts in respect to. the: ministerial

activity and status of .Jehovah’s witnesses. This has been

done by arbitrarily and discriminatorily applying what.

- constitutes a “minister of religion” according to the stand-

ards of the popular orthodox religious denominations: to.

a basically different dissentient. organization. The undis-

- puted evidence in this case shows that-Jehovah’s witnesses

are & society of missionary _evangeljsts. The. evidence

showed without dispute that petitione was engaged in the

* Selective - itis National Weadihantere® Opinion No. 14, June 12,

1941; Opinion No.. 14. (amended) November 2, 1942; State Director

Advice No. 213-B, June 7, 1944; State Director Advice No. 213-B (amend+

ed) September 25, 1944; Selective Service in Wartime, Seeond Report

of Director of Selective Service “1941-1942, Governme nt Printing Office,

——_— 1943, pp. 239- =.

. é.-.

)

full- time missionary evangelistic work. He preached the

gospel from house-to house. Moreover, he delivered sermons | -

at gatherings as do the orthodox clergy. In.addition to |

this he preached i in the homes of the people in th apostolic

manner, serving a large congregation divided into several |

small g s in the homes of the people. The only ifference m4

bétween his thethod of preaching and that of the orthodox

‘29.

clergy was that he took the message.to the people in their

homes; the people did not come to him-as do the members

evidence showed that his whole life was devoted to further-

ance of the work of Jehovah’s witnesses. °.

: It. is true that he performed secular work, devoting’

approximatély 120 hours (monthly. However, it "should be

remembered that this didnot interfere with the perform-

ance of his duties as a full-time missionary evangelist. He

spent an average of 150 hours monthly in missionary work. ;

This was the quota established by the Watchtower Society *:

for full-time pioneer miissionary evangelists. }

The court below held that petitioner was not a minister x

because he was nota “pastor” or “shepherd” of acongre:

gation of laymen in the sense that the ‘orthodox religious \

clergy are. The court below illegally and unlawfully con-- ~

_ strued the Act so.as to include only ministers of the ortho- . N

_ dox religious denominations and persons of other‘religious - \

denomfnations who stand in the same relationship to their |

organizations “as do regularly ordained ministers of older ,

‘ and better known teliguous, denominations.” [117; see also

115-117]

‘In thus construing the Act, the court below placed a

narrow strict interpretation upen the term “ordained min-

ister” which is contrary.to the policy of giving a broad

and liberal interpretation to religious exemptions.°T rinidad |

v. Sagrada Orden de Predicatores de la Provincial del San-

tisimo Rosario de Filipinas, 263 U.S. 578; Helverihg v.

Bliss, 293°€). S. 144.

Furthermore, such construction placed upon the Act is

a perversion of the intent of Congress, by confining the

exemptio ve ta,seme ministers of some: religions organiza- .

tio ng tad €ad of to all ministers of all recognized churches

ont? aN stn ‘organizations. ‘Also the interpretation placed upon

“She, Act:by the court below discriminated against Jehovah’s |

22. witnesses in favor of “older and better known religious

denominations”. [117]

In giving such narrow’ interpretation - to the Act and

_ in deelaring that petitioner was not entitled to the exemp-

- tion 4 f his. ‘performance of part-time secular work

w@iviuself in the ministry, the court below erro-

s a religious hierarchy and pronounced

nathema against petitioner, rather than ap- -

plying the law of the land. This course of auction taken by

the court below is contrary to the spirit of fairness extended

.to all religious denominations by the courts in administer- _

* ing like exemption , accorded ministers of religion in send

statutes.

The arguments of the court’ below were rejected at an

early day in this country by the Supreme Court of Alabama

in construing the exemption provision of the conscription

~ act of the Confederacy in the war between the States:

The court said: “Neither this court, nor any other authority,

judicial or executive, in this government, is a hierarchy,

clothed with the power of determining the orthodoxy ‘of

. any religious sect or denomination. It does not vary the

question, in the present case, that Mr. Cain belonged to a

sect of religionists, who perform ministerial labor gratui-

tously.” (Ex parte Cain, 39 Ala. 440-441) .

; If the decision of the court below is permitted. to stand,

disastrous and far-reaching devastating effects may be

reached. If a regular and duly ordained minister of religion

», In every sense of the word, qualified as an ordained

ster and conforms to the regulations of his organiza:

tion, can be denied his exemption. -because some of his time

gee

is devoted to other matters outside 6f his ministry, then

_ the deferments and exemptions granted by Congress under

the Act are in danger of being nullified completely. ;

_ Congress provided for the deferment.of the vice-presi-

dent of the United States, members of Congress, judges of

courts, menibers of state legislatures, and governors of the

various states, as long as they continued in office. If pro-

yiled for the exemption of ministers of religion. Certainly

Congress did not intend to deny the deferment to a member

- of Congress because he practiced law on the side. The

Congress did not intend to permit the’ deferment to be

withdrawn from a judge of a court because he operated

a farm as an avocation. It did not intend to deny the de-

ferment to governors of the states because they may have

business and economic interests that they maintained and

operated while occupying office. Certainly Congress did not.

intend to deny the rich clergy: their exemption because -

much of their time is devoted to care of investments, bonds

and stocks and other economic enterprises. -

Since it was not intended that the deferment and

exemption should be denied in any of the above hypothetical —

situations; it must be assumed that Congress did not intend

to deny the exemption to the poor preacher who is forced

to work, or who chooses to work, part of the time to sustain

himself ‘in iis full-time ministry pursuits and occupation.

Ié’must be assumed that Congress intended to accord the

exemption, as is shown in the Selective Service Regulations

(Section 622.44), to every person “who customarily preaches ;

and teaches the principles of religion of a recognized

church, religious sect, or religious organization of. which

he’is a member”, irrespective of whether he devotes time

on the side to other pursuits to earn his livelihood. -

The court below cites a large number of cases to sustain

its conclusion that petitioner was not a-minister of religion.

[117-118] All the courts that rendered the decisions, de-,

nying the exemption to Jehovah’s witnesses, including the

. 2 ,

: a

; ys. P , Pre ee oe ‘

court below, havée-agbitrarily and discriminatorily judged

“ Jehovah’s witnesses aceording to the standards of the .-

orthodox religions denominations that have rigid creeds.

ecclesiastical laws and traditional canons. Thesé ‘courts, |

should: nét have ‘compared the record made.in these

. cases with the background of the personal religious ex-

perience of the judges of the courts that made the activity

of Jehovah’s witnesses appear exotic. If the courts had

employed a realistic approach they would have been driven

to the conclusion that Jehovah’s witnesses constitute a

‘ religious denomination and that their ministers are actually

preaching, and thus core within the exemption intended

by Congress to extend to all religious organizations.

Moreover, these courts, i in the decisions rendered where

- these erroneous conclusions were reached, considered only

tangentially the question of whether Jehovah’s witnesses

were entitled to claim the exemption. Most of those decisions

did not require the court to pass upon the merit of the

claim made before the. draft boards by Jehovah’s wit-

nesses. In most of said opinions the courts decided the .

appeals in the criminal cases adversely to Jehovah’s wit. —

nesses, holding that they were not entitled to challenge

the legality of the classification given them because they

had not exhausted their administrative remedies by report-

ing for induction.. Accordingly, the discussion in those

opinions, as to whether Jehovah’s witnesses are ministers

. under the Act and Regulations, was wholly unnecessary to.

the decision made in each of ‘oem cases. Such discussions

_ were dicta. at °

Moreover, the decision of the court below i directly in —

- conflict with United States ex rel. Hull y. Stalter, 151 F.

2a 633, Murdock v. Pennsylvania, 319 U.S. 105, and Follett

v. McCormick, 321 U. S. 573, in which cases it was held that

- Jehovah’s witnesses are ministers of religion engaged in

preaching the gospel of God’s kingdom as régular and duly

ordained -ministers entitled to full ptotection of the law

: 33

that is acgorded to the ministers of the “older and better

known religious denominations”, [117]*.

Much could be written so as to state the many reasons

answering the multifarious arguments that petitioner and |

~ Jehovah's witnesses are not entitled to exemption as minis-—

ters of religion. Time and time again thorough explanations

have been niade to this Court in draft cases on all questions

related to this subject. However, in none of such cases have

the questions. been. reached for decision. Time and space

will not be utilized here to restate these matters. Some of |

the questions were succinetly discussed in the petition for

writ of certiorari filed in No. 290, October Term 1946,

Swaczyk. v. United States. (See pages 21-41.) Exhaustive

and elaborate argument on many of the related questions —

inherent in this case was made to this Court in joint brief.

for petitioners filed in.No.'66, October Term 1945, Smith

‘vy. United States and No. 292, October Term 1945. Estep v.

_United States. (See pages 131- 190.) Reference i is here made

to the arguments appearing at the respectively designated

‘pages in said petition and joint brief and incorporated

-here as though copied at length.

* See also Semansky v. Stark, 196 La. 307; 199 S. 129; Shreveport v.

Teague, 200 La. 679, 8 S: 2d 640; Thomas v. Atlanta, 59 Ga. App. 520,

1 §. E. 2d 598; Jones v. Moultrie, 33 8. E. 2d 561; Burns v. Carrollton, 34

§. E. 2d 621; State v. Meredith, 197 S. C. 351, 15 S. E. 2d 6784 Donley

v. Colorado Springs, 40 F. Supp. 15; Commonwealth v. Akmakjian, 316

‘Mass, 97, 55-N. E. 24 6; Commonwealth v. Richardson, 313 Mass. 632, 638.

Conclusion ai

It is submitted that this case is one calling for the

exercise by this court of its super¢tisory powers under the

Judicial Code: and the Rules of this court. To that end

the petition for writ of certiorari should be granted so

as to correct the errors committed; and petitioner fur-

ther prays that the judgment rendered by .the circuit

court of appeals and the district court against petitioner

be reversed and petitioner discharged or, in the alternative,

that the judgments be reversed and a new trial ordered.

Respectfully submitted,

HAYDEN C. COVINGTON

Counsel for Petitioner

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