# Petition for Writ of Certiorari — Sunal v. Large > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386405_0256%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1947 - **Citation:** 332 U.S. 174 ## Text al EEE eeEeEeEeEeE=-_ri'_'"S-— i‘ Crt:;”;”;:~*™” FILE COPY ~ ase a i le S357 1 ‘s SEP 25 1946 _cuctt nam sg | SUPREME COURT OF THE UN Ocroper Term 1946 oe : af 0 = THEODORE MARTIN SUYAPy Petitioner’ ; 3 v. | “ee Ea la | DAVID R. LARGE, SUPERINSENDENT ©" FEDERAL PRISON CAMP == *.- . MILL POINT, W.VA. | eres _ Respondent = pans iter ’ : “oO BNE) for Writ. of bomccane. _tathe United Stites Cireuit Court of Appeals 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 : +9 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, : 16 11, 21 19, 17,18 jecipligshon uasiincincuigighule eh asigpariarasideacnteeeomaoamavetatannisnininailaaie 20 ¢ a — ». Srarures Crrep ee eres °° Pace Judicial Code, See. 240 (a), as amended by ° Act-of Feb. 13, 1925 ............ a te SE Ae een mrad. 2, 34 Ruies; Supreme Court of the United States, Rule 38: F...... wath Fas 2, 34 United States Code: ; : ; See Title 28, secs. 451-464 (“Habeas Corpus Act”) ::..0..0000 00000. “2 : Hi} ¢-. oneontehitsnathansenasiinssensendsasnaAhseccnsansasneasss lnesons . 2, 5,10 United States Constitution ; _ Article I, see. 9, clatise 2 Sica scepaiiaikeuhadnaeabagacbeaadi seiichinaaiaiias 2 - Article I, sec. 9, clause 3 0... PB ee Noe IM 2, 3, 4, 8, 13, 1% Article ITT, sec. 2, clauses 1-3 \oi...ccs.coseccescece-eseoieceesen spina ican a -$97 Amendmented# ..0.00.0.......... isnt ibid ittellaebitieeisiceeanes CE TE cistatamiad . 13 ' NN cdot piie cine. Sahiiclipuiiakcanpansibhgaandaenukamscenlil cesses Oy By 4, 8, 11, 17 , Salem VE ois oe Reasons aoe igiienaiiieececuuctades Sad ‘.23 ?. Seurcrive SERvive Matera, Crrep Opinion No. 14, National eadquarters, Selective Service Sys- tem, June 12, 1941,“amendéd Nov. 2, 1942 20.0... 28 Regulations, Selective Service (32-C. F. R. Supp. 615.81 et seq.) seetions— ait Mot oon RRL TPR LACIE INS SOONG SARL IMO OEM, OP REGIEN 2 615.82 OREN. satsiapiennieentlpsnbeniiansitaabebninagialadse 2 Na 8 oe, Ne eee fe 2, 31 zi §292 ° - 2 2 2 ; ee . 2 » — CARE TNS HRN DS EN ITE “9 oe ae EEE sadeesereneeneee RAR seeeeseesdesecnssssveresnassencces F 2 ic, SEI CEE ER FERRE OEY As IE CPG Re SO Ae Tore AR oe OE 2 EERE ACEO CR FO BE ae rr Sees aaeraa ; ae : 2 Selectiv@Service in Wartime, Seeghd Report of Direetor of ) Selective Service 19.142 (Government Printing Office, Washington) PP Bi DOKL oon cncccnserseenseeony siericonninastsuaaRianinansiaias _ 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? g ed 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? J — af an — 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. Me 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 \ , 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.: Pn f ee = 8. * 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 > 4 ° € 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. 17 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. es 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 = 19 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- 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.” 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 24 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 oe Bb - trative action, 25 to consider or to permit the jury to-consider the illegality of the adnfinistrative action cannot succeed. A similar at- tempt was made by the court below in Smith v. United © 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 26 _ 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 action of the trial court in excluding evidence and in holding © 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 - of 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. ; | \ a. _. 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 System.* The draft, boards and tke lower federal courts © 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 of the. orthodex religious denominations. ‘The undisputed © 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. 7 30 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 31 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. d4 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 Ss --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386405_0256%3A2. Public record. Not legal advice.