Brief for Petitionero — Witmer v. United States

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SUPREME COURT. U.@' :

Supreme Court of the Anite

Octoser Term, 1954

No. 164

PHILIP ANDREW WITMER,

Petitioner

UNITED STATES OF AMERICA,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR PETITIONER

Haypen C. Covinctron

124 Coumbia Heights

Brooklyn 1, New York

Counsel for Petitioner

SUBJECT INDEX

PAGE

RON i in nt ua oa Bn ce es ween on seeeeee) 1

SS oe rare hte ee teow ennee 2

Statutes and regulations involved ............... 2

eS IN cus ooBe dv est eb sen vinuseeda i)

rr Or rr ee vtec ayeeuennees 10

Summary of the argument ..\,................06- 19

pS PS Oe rere Perr Pree ree Penne 28

ONE

The denial of the conscientious objector status by

the appeal board has without basis in fact ; consequent-

ly, the final I-A classification was arbitrary and capri-

ic ee bots eens 28-40

TWO

The act and regulations do not permit the Depart-

ment of Justice to recommend, or the appeal board to

accept the recommendation, that willingness to work

on a farm and to produce food to assist in the war

effort is basis in fact for the denial of the conscien-

a ee I ok bs os eo hataoe bse ees Kbeee ae 40-48

THREE

The local board deprived petitioner of his rights

guaranteed by Section 1624.2 of the Selective Service

Regulations by considering the case as out of its hands

and by refusing to reopen the case and reclassify peti-

tioner upon his personal appearance. .............. 48-63

ae isedeke one he beds eeua nee eane 6°

Appendix A—February 1, 1951, issue of the Watch-

tower magazine, containing articles entitled

“Why Jehovah’s Witnesses Are Not Pacifists”

and “Pacifism and Conscientious Objection-—Is

There a Difference?” ........ accompanying this brief

Cases CITED

PAGE

Annett v. United States

10th Cir., 1953, 205 F. 2d 689, 690, 691, 692 .. 24, 37, 45

Atkins v. United States

tir, Wes re BB BOD ccc ccccecvecves 53

Bejelis v. United States

6th Cir., 1953, 206 F. 2d 354, 356, 358 .... 25, 49, 61, 62

Berman v. Craig

3rd Cir., 1953, 207 F’. 2d 888, 891 .............. 38

Clementino v. United States

9th Cir., Sept. 27, 1954, — F. 2d— ........ 24, 45, 46

Dickinson v. United States

346 U.S. 389, 396-397, 399 (1953) ...... 20, 36, 37, 45

Estep v. United States

327 U.S. 114, 121, 122 (1946) ........ 25, 49, 57, 62, 63

Fabiani, Ex parte

E. D, Pa., 1952, 105 F. Supp. 139, 147-148 ..... 49, 59

Franks v. United States

9th Cir., Oct. 4, 1954, —F. 2d— ...... 22, 24, 41, 46

Girouard v. United States

ae to. ey Oe, Gy Ge CI) 6 nc cc ecevcccctesenss 23, 44

Goetz v. United States

9th Cir., Oct. 14, 1954, —F. 2d—...... 22, 24, 41, 46

Hinkle v. United States

9th Cir., Sept. 24, 1954,-- F. 2d— ...... 22, 24, 41, 45

Jessen v. United States

10th Cir., 1954, 212 F. 2d 897, 899-900 ...... 20, 37, 38

Jewell v. United States

6th Cir., 1953, 208 F. 2d 770, 771-772 .......... 20, 37

Knox v. United States

9th Cir., 1952, 200 F. 2d 398, 401-402 .......... 26, 53

Lowe v. United States

Oils Cir. BODG, SOP FW. BE TEs oc ccvcccsccveves 45

Cases Citep continued

PAGE

Martin v. United States

4th Cir., 1951, 190 F. 2d 775, 342 U.S. 872 (1951)

Bp IPE > Beas Pere ea 25, 26, 49, 51, 53, 54, 55, 58

Morgan v. United States

998 U.S, 468, 490-481 (1936) ..............-. 28, 62

N.L.R.B. v. Cherry Cotton Mills

oth Cir., 1938, 98 F. 2d 444, 446 .............. 25, 49

Niznik v. United States

fk a Oe eee - . re 58

Pine v. United States

4th Cir., 1954, 212 F’. 2d 93, 96-97 .......... 20, 36, 38

Schuman v. United States

9th Cir., 1953, 208 F. 2d 801, 802, 804-805 .... 37, 38, 45

Smith v. United States

4th Cir., 1946, 157 F’. 24 176, 182 .............. 58

Stanziale, Ex parte

ee Soe SIE Ss CUP ED civ ugck ss ov eueeuen 62

Taffs v. United States

8th Cir., 1953, 208 F. 2d 329, 331-332 (No. 576,

ge a ae 20, 21, 36, 37, 40

United States v. Alvies

N.D. Cal. S. D., 1953, 112 F. Supp. 618, 620,

Siete ia ba gk cl be hae adic were irbke 45

United States v. Benzing

W. D.N. Y., 1954, 117 F. Supp. 508 .........4: 45

United States v. Close

7th Cir., 1954, 215 F. 2d 439, 441 (No. 447, Octo-

ee I os ons Feu g Sel od coed ewes eae wa 37, 38

United States v. Everngam

D. W. Va., 1951, 102 F. Supp. 128, 130-131 ...... 45

United States v. Fry

36 Cir. 1968, S06 F.. Bb GOS, GOO nc ce ccssvescs 55

United States v. Graham

W. D. Ky., 1952, 109 F’. Supp. 377, 378 ........ 45

Cases Citep continued

PAGE

United States v. Graham

N. D.N. Y., 1952, 108 F. Supp. 794, 796-797 ... 25, 27,

49, 50, 56, 58, 59

United States v. Hagaman

Ce ee 1,19

United States v. Hartman

2d Cir., 1954, 209 F. 2d 366, 368, 369-370, 371 .. 20, 29,

36, 38, 45

United States v. Hufford

M. D. Pa., 1952, 103 F. Supp. 859, 861, 862... 26, 49, 52

United States v. Laier

N. D. Cal. 8. D., 1943, 52 F. Supp. 392 ........ 28, 63

United States v. Lowman

W. D.N. Y., 1954, 117 F. Supp. 595, 598 ....... 45

United States v. Pekarski

Re a ee .

United States v. Peterson

N. D. Cal. S. D., 1944, 53 F. Supp. 760 ........ 28, 63

United States v. Romano

ar. i. 2. dees, 100 F. Supp. 507 ............ 28, 63

United States v. Stiles

3rd Cir., 1948, 169 F. 2d 455, 456-457, 458, 459 .. 25, 26,

27, 49, 54, 55, 5 58, 59, 63

United States v. Strebel

D. Kans., 1952, 103 F. Supp. 628, 631 ........ 27, 58

United States v. Wilson

7th Cir., 1954, 215 F. 2d 443, 445, 446 .... 20, 22, 24, 37,

38, 41, 44, 46

United States v. Witmer

M.D. Pa., 115 F. Supp. 19, 3rd Cir., May 13,

I ek eweeucer 1

United States v. Zieber

drd Cir., 1947, 161 F. 2d 90, 92,93 ...... 25, 26, 27, 28,

49, 58, 61, 63

Cases Citev continued

PAGE

Ver Mehren v. Sirmyer

Sth Cir., 1929, 36 F. 2d 876, 881 .............. 25, 49

Weaver v. United States

Sth Cir., 1954, 210 F. 2d 815, 822-823 ........ 20, 36, 45

STaTUTES CITED

Federal Rules of Criminal Procedure, Rules 37(b)

ES van acne decnstevnaeddsseacetedete 2

United States Code

Title 28, Section 1254(1) ...........eceeeeses 2

Title 50, Appendix, Sections 451-470 (Selective

Service Act of 1948, as amended) Section:

1(c) (62 Stat. 604, 65 Stat. 75) ............ 2

6(j) (65 Stat. 75, 83, 86) .........- 2, 21, 40, 41, 44

12(m) (G2 Stat. G2Z) ... 0. ccccesccevevess +

SELECTIVE Service Material CirEep

Local Board Memorandum No. 41, issued Nov. 30,

1951, as amended Aug. 15, 1952 ..........---. 21, 38

Local Board Memorandum No. 52, Jan. 14, 1953... 27, 56,

57, 60

Regulations (32 C. F. R. § 1602 et seq.), Section:

se cee we eee bhai ee ke WOON 60

ee EO pee hake een eeeees 4

Es i ee th eae ee ee tede ee 39

SED 4s sick wSces pace seerieeedvenveedss 5

1624.2... 5,19, 25, 26, 27, 48, 50, 51, 52, 53, 59, 61, 63, 64

ETI ERG. ella a cara eee ep ae, ey seer 6

Es cide Se Fos obese bescccedeacgseweewews 21, 39

a oe se eebesenueneseeueene 6, 21, 40

Eo ou ks ne du Cau WSSe WN nkbsbeda'seswenes i)

MISCELLANEOUS CITATIONS

Almighty God, Word of (The Bible):

I a at a a a aes

TE hg he be ba a aA ae ee wee

SR ah a a ig ka ae eh

ERTS A eas kawebuealkd TEER Ose eR E20

I i a iat eee ee wee

Es eg Oi ee ss eet choad eeeweks

SE 65 EE CE A 0 ke rarer ee ieriek

(ELSI SEE ene Ce CaN DS veo ORR ER Brat

PAY Ree cer Pate eG uta, tele sie ee

Be NG BO on. os dn'0'd 6b6 0 bbee ean ekteen

Te 8: rrr rer ee

Pe Re oe nsec chcaheuniedes vas

PE EE SG Pek danekeceadenseer cukvun

EE OE acai nb eue ey ceo b eaves co

Se EEE 6 5 oo 5045 bs de deaeeeebereseveusees

I ES nce e ances ese eee cei aknsees

DUPRE pid s0i4siun baesavapuasaiensee nos

a cao kage cab ene bat

Selective Service System, Conscientious Objection,

Special Monograph No. 11, Vol. I, pp. 42-43,

Washington, Government Printing Office, 1950 . .

Sibley and Jacob, Conscription of Conscience, Cor-

nell University Press, Ithaca, New York, 1950,

SS were ey reer Corer Te rer rr ree Tr er

Watchtower, The, February 1, 1951, Brooklyn, New

York, Watchtower Bible and Tract Society, Ine. ..

PAGE

12,

20, 28, 32

Supreme Court of ithe United States

Ocroser TERM, 1954

No. 164

PHILIP ANDREW WITMER,

Petitioner

UNITED STATES OF AMERICA,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

YO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR PETITIONER

OPINION BELOW

The opinion of the Court of Appeals is reported. (('nit-

ed States v. Witmer, 3rd Cir., May 13, 1954, 213 F. 2d 95)

It appears in the record. [R. 61-62] A memorandum opin-

ion of the district court also appears in the record. [R. 52-

59] It is reported in 115 F. Supp. 19. See also the opinion

hy the Court of Appeals in the companion case in the court

below, United States v. Hagaman, 3rd Cir., 1954, 213 F. 2d

86. It is referred to in the opinion 1 this case by the Court

of Appeals and appears as an appendix to the petition for

writ of certiorari in this case, page 37.

JURISDICTION

The judgment of the Court of Appeals was entered on

May 13, 1954. [R. 62] The time for filing the petition for

writ of certiorari was extended to June 30, 1954. The peti-

tion for writ of certiorari was filed within the extended

time, The writ was granted on October 14, 1954. [R. 79]

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

§ 1254(1).—See also Rules 37(b)(2) and 45(a), Federal

Rules of Criminal Procedure.

STATUTE AND REGULATIONS INVOLVED

Section I(c) of the Universal Military Training and

Service Act (50 U.S. C. App. § 451(¢)) provides:

“The Congress further declares that in a free society

the obligations and privileges of serving in the armed fore-

es and the reserve components thereof should be shared

generally, in accordance with a system of selection which

is fair and just, and which is consistent with the mainte-

nance of an effective national economy.’—June 24, 1948,

ch. 625, title I, § 1, 62 Stat. 604, amended June 19, 1951, ch.

144, title I, § 1(a) 65 Stat. 75.

Section 6(j) of the act (50 U.S.C. App. § 456(j), 65

Stat. 75, 83, 86) provides:

“Conscientious objectors.—Nothing contained in this ti-

tle shall be construed to require any person to be subject to

combatant training and service in the armed forces of the

United States who, by reason of religious training and be-

lief, is conscientiously opposed to participation in war in

any form. Religious training and belief in this connection

means an individual’s belief in a relation to a Supreme Be-

ing involving duties superior to those arising from any hu-

man relation, but does not include essentially political,

sociological, or philosophical views or a merely personal

moral code. Any person claiming exemption from combat-

ant training and service because of such conscientious objec-

tions whose claim is sustained by the local board shall, if

he is inducted into the armed forces under this title, be as-

signed to noncombatant service as defined by the President,

or shall, if he is found to be conscientiously opposed to

participation in such noncombatant service, in lieu of such

induction, be ordered by his local board, subject to such

regulations as the President may prescribe, to perform for

a period equal to the period prescribed in section 4(b) such

civilian work contributing to the maintenance of the nation-

al health, safety, or interest as the local board may deem

appropriate and any such person who knowingly fails or

neglects to obey any such order from his local board shall

be deemed, for the purposes of section 12 of this title, to

have knowingly failed or neglected to perform a duty re-

quired of him under this title. Any person claiming exemp-

tion from combatant training and service because of suc’,

conscientious objections shall, if such claim is not sustained

by the local board, be entitled to an appeal to the appropri-

ate appeal board. Upon the filing of such appeal, the appeal

board shall refer any such claim to the Department of Jus-

tice for inquiry and hearing. The Department of Justiec,

after appropriate inquiry, shall hold a hearing with respect

to the character and good faith of the objections of the per-

son concerned, and such persun shall be notified of the time

and place of such hearing. The Department of Justice shall,

after such hearing, if the objections are found to be sus-

tained, recommend to the appeal board that (1) if the ob-

jector is inducted into the armed forces under this title, he

shall be assigned to noncombatant service as defined by the

President, or (2) if the objector is found to be conscien-

tiously opposed to participation in such noncombatant serv-

ice, he shall in lieu of such induction be ordered by his

local board, subject to such regulations as the President

may prescribe, to perform for a period equal to the period

prescribed in section 4(b) such civilian work contvibuting

to the maintenance of the national health, safety, or interest

as the local board may deem appropriate and any such per-

son who knowingly fails or neglects to obey any such order

from his loeal board shall be deemed, for the purposes of

section 12 of this title, to have knowingly failed or nevlect-

ed to perform a duty required of him under this title. If

after such hearing the Department of Justice finds that his

objections are not sustained, it shall recommend to the ap-

peal board that such objections be not sustained. The ap-

peal board shall, in making its decision, give consideration

to, but shall not be bound to follow, the recommendation

of the Department of Justice together with the record on

appeal from the local board. Each person whose claim for

exemption from combatant training and service because of

conscientious objections is sustained shall be listed by the

local board-on a register of conscientious objectors.”—50

U.S.C. App. § 456(j), 65 Stat. 75, $3, 86.

Section 12(a) of the act (50 U.S.C. App. § 462(a))

provides:

“,., Any... person...who... refuses... service

in the armed forces ... or who in any manner shail know-

ingly fail or neglect or refuse to perform any duty required

of him under or in the execution of this title, or rules, regu-

lations, or directions made pursuant to this title . . . shall,

upon conviction in any district court of the United States

of competent jurisdiction, be punished by imprisonment for

not more than five years or a fine of not more than $10,000,

or by both such fine and imprisonment.

Section 1622.14 of the Selective Service Regulations (32

C. FL R. § 1622.14 (E. O. 10292, 16 F. R. 9862, Sept. 28,

1951)) provides in part:

“Class 1-O: Conscientious objector available for civilian

work contributing to the maintenance of the national health,

safety, (a) In Class 1-O shall be placed every

registrant who would have been classified in Class I-A but

for the fact that he has been found, by reason of religious

training and belief, to he conscientiously opposed to both

combatant and noncombatant training and service in the

armed forces... .”

Section 1624.1(a) of the Selective Service Regulations

(32 C.F. R. § 1624.1(a), E.O. 9988, 13 FL R. 4874, Aug. 21,

1948, redesignated at 14 F. R. 5021, Aug. 13, 1949) prevides:

“Opportunity to appear in person.—(a) Every regis-

trant, after his classification is determined by the local

board (except a classification which is itself determined

upon an appearance before the local board under the pro-

visions of this part), shall have an opportunity to appear

in person before the member or members of the local board

designated for the purpose if he files a written request

therefor within 10 days after the local board has mailed a

Notice of Classification (SSS Form No. 110) to him. Such

10-day period may not be extended, except when the local

board finds that the registrant was unable to file such re-

quest within such period because of circumstances over

which he had no control.”

Section 1624.2 of the Selective Service Regulations (32

C.F. R. $ 1624.2, h.0. 9988, 13 F. R. 4874, Aug. 21, 1948,

redesignated at 14 F. R. 5021, Ang. 13, 1949) provides:

“Appearance before local board.—(a) At the time and

place fixed by the local board, the registrant may appear in

person bevore the member ur members of the local board

designated for the purpose. The fact that he does appear

shall be entered in the ‘Minutes of Actions of Local Board

and Appeal Board’ on the Classification Questionnaire (SSS

Form No. 100).

“(b) At any such appearance, the registrant may discuss

his classification, may point out the class or classes in which

he thinks he should have been placed, and may direct atten-

tion to any inforination in his file which he believes the local

board has overlooked or to which he believes it has not given

sufficient weight. The registrant may present such further

information as ke believes will assist the loeal board in de-

termining his proper classification. Such information shall

he in writing, or, if oral, shall be summarized in writing and,

in either event, shall be placed in the registrant's file The

information furnished should be as concise as possible un-

der the circumstances. The member or members of the local

board before whom the registrant appears may impose such

limitations upon the time which the registrant may have for

his appearance as they deem necessary.

“(c) After the registrant has appeared before the mem-

ber or members of the local board designated for the pur-

pose, the local board shall consider the new information

which it receives and shall again classify the registrant in

the same manner as if he had never befere been classified.

“(d) After the registrant has appeared before the mem-

ber or members of the local board designated for the pur-

pose, the local board, as soon as practicable after it again

classifies the registrant, shall mail notice thereof on Notice

of Classification (SSS Form No. 110) to the registrant and

on Classification Advice (SSS Form No. 111) to the persons

entitled to receive such notice or advice on an original clas-

sification under the provisions of section 1623.4 of this chap-

ter.

“(e) Each such classification shall be followed by the

same right of appeal as in the case of an original classifi-

cation.”

Section 1624.3 of the Selective Service Regulations (32

C.F. BR. § 1624.3, E. O. 10001, 13 F. R. 5488, Sept. 21, 1948,

redesignated at 14 F. R. 5021, Aug. 13, 1949) provides:

“Induction Postponed.—A registrant sha!l not be in-

ducted during the period afforded him to appear in person

before a member or members of the local board, and if the

registrant requests a personal appearance he shall not be

inducted until 10 days after the Notice of Classification

(SSS Form No. 110) is mailed to him by the local board,

as provided in § 1624.2(d).”

Section 1626.25 of the Selective Service Regulations (32

C.F. R. § 1626.25 (i. O. 9988, 13 F. R. 4874, Aug. 21, 1948,

as amended by KE. O. 10292, 16 F. R. 9862, Sept. 28, 1951))

provides:

“Special provisions when appeal involves claim that reg-

istrant is a conscientious objector.—(a) Uf an appeal in-

volves the question whether or not a registrant is entitled

to be sustained in his claim that he is a conscientious ob-

jector, the appeal board shall take the following action:

“(1) If the registrant has claimed, by reason of reli-

gious training and belief, to be conscientiously opposed to

participation in war in any form and by virtue thereof to be

conscientiously opposed to combatant training and service

in the armed forces, but not conscientiously opposed to non-

combatant training and service in the armed forces, the ap-

peal board shall first determine whether or not such regis

trant is eligible for classification in a class lower than Ciass

I-A-O. If the appeal board determines that such registrant

is eligible for classification in a class lower than I-A-O, it

shall classify the registrant in that class. If the appeal board

determines that such registrant is not eligible for classifi-

cation in a class lower than Class I-A-O, but is eligible for

classification in Class I-A-O, it shall classify the registrant

in that class.

“(2) If the appeal board determines that such regis-

trant is not eligible for classification in either a class lower

than Class I-A-O or in Class I-A-O, the appeal board shall

transmit the entire file to the United States Attorney for

the judicial district in which the office of the appeal board

is located for the purpose of securing an advisory recom-

mendation from the Department of Justice.

“(3) If the registrant claims that he is, by reason of

religious training and belief, conscientiously opposed to

participation in war in any form and to be conscientiously

opposed to participation in both combatant and noncombat-

ant training and service in the armed forces, the appeal

board shall first determine whether or not the registrant

is eligible for classification in a class lower than Class I-O.

If the appeal board finds that the registrant is not eligible

for classification in a class lower than Class I-O, but does

find that the registrant is eligible for classification in Class

1-O, it shall place hin in that class.

“(4) If the appeal board determines that such regis-

trant is not entitled to classification in either a class lowet

than Class 1-O or in Class I-O, it shall transmit the entire

file to the United States Attorney for the judicial district

in which the office of the appeal board is located for the

purpose of securing an advisory recommendation from the

Department of Justice.

“(b) No registrant’s file shall be forwarded to the

United States Attorney by any appeal board and any file

so forwarded shall be returned, unless in the ‘Minutes of

Action by Loeal Board and Appeal Board’ on the Classifi-

cation Questionnaire (SSS Form No. 100) the record shows

and the letter of transmittal states that the appeal board

reviewed the file and determined that the registrant should

not be classified in either Class I-A-O or Class I-O under

the circumstances set forth in paragraph (a) (2) or (4) of

this section.

“(c) The Department of Justice shall thereupon make

an inquiry and hold a hearing on the character and good

faith of the conscientious objections of the registrants.

The registrant shall be notified of the time and place of

such hearing and shall have an opportunity to be heard.

If the objections of the registrant are found to be sus-

tained, the Department of Justice shall recommend to the

appeal board (1) that if the registruat is inducted into

the armed forces, he shall be assigned to noncombatant

service, or (2) that if the registrant is fonnd to be con-

scientiously opposed to participation in such noncombatant

service, he shall in lieu of induction be ordered by his local

board to perform for a period of twenty-four consecutive

months civilian work contributing to the maintenance of

the national health, safety, or interest. If the Department

of Justice finds that the objections of the registrant are

not sustained, it shall recommend te the appeal beard

that such objections be not sustained.

“(d) Upon receipt of the report of the Department

of Justice, the appeal board shall determine the clas-

sification of the registrant, and in its determination it shall

give consideration to, but it shal! not be bound to follow,

the recommendation of the Department of Justice. The

appeal board shall place in the Cover Sheet (SSS Form

No. 101) of the registrant both the letter containing the

recommendation of the Department of Justice and the re-

port of the Hearing Officer of the Department of Justice.”

Section 1626.26 of the Sclective Service Regulations (3°

C. F. R. § 1626.26 (18. O. 9988, 13 F. R. 4874, Aug. 21, 1948,

redesignated at 14 F. R. 5021, Aug. 18, 1949)) provides:

“Decision of appeal board.—ta) The appeal board

shall classify the registrant, givigg consideration to the

various classes in the same manner in which the local board

gives consideration thereto when it classifies a registrant,

except tiiat an appeal board may not place a registrant in

Class IV-i because of physical or mental disability unless

the registrant has been found by the local board or the

armed forces to be disqualified for uny military service

because of physical or mental disability.

“(b) Such classification of the registrant shall be final,

except where an appeal to the President is taken; Pro-

vided, That this shal] not be construed as prohibiting a

local board from changing the classification of a registrant

in a proper case under the provisions of part 1625 of this

chapter.”

QUESTIONS PRESENTED

Whether the derial of the claim for classification of

petitioner as a conscientious objector by the appeal board

was without basis in fact and, consequently, the final I-A

classification was arbitrary and capricious.

Il.

Whether the act and the regulations permit the Depart-

ment of Justice to recommend to the appeal board to deny

and whether the appeal board may deny the conscientious

objector status because the petitioner, an objector to direct

participation in the armed forces, is willing to work on

a farm and produce food that might be held to be indirect

participation in the war effort.

ITT.

Whether a local board ean deny a full and fair hearing

upon personal appearance through refusal to reopen and

reclassify petitioner and then cure that deprivation of due

process of law by merely giving notice of such iegal action.

STATEMENT OF THE CASE

This criminal action was started by indictment charging

petitioner with violating the Selective Service Act of 1948,

as amended, and the regulations thereunder, by failing to

submit to induction. [R. 1, 3] The indictment charged that

the petitioner refused to be inducted into the armed forces

of the United States after having been properly classified

and ordered to report for induction by his local board.

[R. 1, 3] Petitioner was arraigned. He pleaded not guilty.

{R. 1] There was a trial to the jury, [R. 1, 4] The ease

was called for trial on March 27, 1952, and was concluded

on Monday, March 31, 1952. [R. 1, 4, 15] Evidence was

received, [R. 4-16] The jury found petitioner guilty. [R. 1]

The court heard argument on the motion for acquittal and

took the case under advisement. [R. 1] An opinion was

written and an order entered denying the motion. [R.1,

92-99] The court sentenced petitioner to serve three years

in the custody of the Attorney General. [R. 16] Notice of

appeal was duly and timely filed. [R.2] The court below

affirmed. | R. 61-62]

Petitioner was born February 7, 1930. [R.16] He reg-

istered with Local Board No. 28, Reading, Pennsvivania.

| R. 16-17] On January 23, 1951, the local board mailed him

a classification questionnaire (SSS Form No. 100). [R. 16]

This was returned to the local boaid properly filled out on

January 31, 1951. [R.16] On page 7 of the questionnaire

petitioner indicated that he had conscientious objections

to combatant and noncombatant military service. He signed

the statement requesting that the special form for consci-

entious objector be mailed to him. [R. 20]

In the classification questionnaire petitioner showed

that he worked at a hat factory. [R. 20] He also showed

that he operated his father’s farm of 116 acres, 30 acres

of which were under cultivation. [R. 19] He showed that

he had completed eight years of elementary schooling.

[R. 20]

The local board mailed to the petitioner a special form

for conscientious objector (SSS Form No. 150) on January

31, 1951. [R. 21, 23] It was returned properly signed and

filled out by the petitioner on February 5, 1951. [R. 23]

Although Series I(B) of the form (page 1) was not signed,

on page 4 of the form petitioner wrote as follows:

“My training and belief in relation to a Su-

preme Being involves duties superior to those

arising from any human relation. This prevents

me from turning aside from those superior duties

which I owe to a Superior Being.

[signed] Philip A. Witmer

“for section I (B)

“Page 1” [R. 27]

Under Series Il of the special form for conscientious

objector petitioner stated that he believed in a Supreme

Being. He described the nature of his beliefs involving du-

ties superior to those arising from any human relation by

the following:

“Tl um absolutely neutral toward the political

disputes and the international controversies and

combats of this world. I take no active or violent

part for either side, but pay my vows to God and

always advocate his kingdom and way of salve-

tion.” {| R. 24]

Petitioner showed the source of his training and belief

supporting his claim by stating that he had been instructed

by his parents in the study of the Bible and that at the age

of eleven he himself began to study the Bible with the aid

of the Watchtower publications. |R. 24] He stated in the

form that he believed in the use of force only at the com-

mand of Almighty God. [R. 24] He further stated that he

had demonstrated his convictions by the study of the Bible

and by telling others about God’s kingdom and “of how

he will put a stop to all wars.” |R. 24] He answered ques-

tions showing his general background, including schooling

and employment. [R. 24-25] He showed that he was an

active member of Jehovah’s Witnesses and acknowledged

the Watchtower Bible and Tract Society, Inc., of Brooklyn,

New York, as the governing body of Jehovah’s Witnesses.

He stated that he had always been one of Jehovah's Wit-

nesses. He gave references to the local meeting place and

named the presiding minister, Richard Pa!ms. Also, he

attached to the special form for conscientious objector the

February 1, 1951, issue of the Watchtower magazine (Ap-

PENDIx A to this brief) for a description of the official

statement of Jehovah’s Witnesses in relation to participa-

tion in war. He referred to this publication in his answers

to Series IV 2(e). [R. 25-26]

Petitioner also gave references and signed a certificate

that he had truthfully answered all the questions pro-

pounded in the form. [ R. 26-27]

Petitioner was classified I-A (making him liable for

unlimited military training and service) on February 21,

1951. [R. 21] On March 1, 1951, petitioner wrote a letter

requesting a personal appearance, in which he also request-

ed an appeal. | R. 12-13, 27-28] The local board notified pe-

titioner to appear before the board for a personal appear-

ance on March 19, 1951. | R. 27]

At the trial in the court below a question was raised as

to whether the request for personal appearance was within

ten days as required by the regulations. The letter request-

ing personal appearance and appeal was written on March

1, 1901, and mailed on that date but not received by the

board until March 5, 1951, which was more than ten days

from the date of classification. The reason for the delay in

receiving the letter was that the office of the board was not

open on Saturday, March 3, and was closed on Sunday,

March 4, as usual. The clerk found the letter at the office

on arrival on March 5. [R. 11-12] Neither the trial court

nor the local board held that the petitioner was too late

in making the request. [R. 11, 53]

Petitioner appeared on March 19, 1951. [R. 4, 5, 9-10,

21, 33-34, 53-55] He submitted new information verbally

and also filed with the board a letter and an affidavit. [R.

9, 28-29, 29-33, 54] The affidavit is by Richard B. Palms,

the presiding minister of the local congregation of Je-

hovah’s Witnesses. It vouches for the sincerity of the peti-

tioner and his membership in the organization. [R. 9, 28-

29, 53] A typewritten statement attached to the affidavit,

consisting of three pages, explained why petitioner felt

that he was a minister of religion and entitled to clas-

sification as such. [R. 9, 29-33, 53-54] The local board made

a memorandum of what transpired upon the occasion of the

personal appearance. It was dictated by the chairman of

the board. [R. 7, 10, 33-34, 54-55] It reads as follows:

“March 19, 1951

“Re: Order #36-28-30-71 Philip Andrew Witmer

“The Board met with registrant today. The

registrant informed the Board that he left his

place of employment on March 3, where he had

worked for three years in a hat factory. The

Board chairman immediately pointed out that he

was classified as 1-A on February 21, which meant

he left his position about two weeks later. He then

mentioned that his father had a farm which had

not been worked as a farm for 23 years but that

he felt he was going to start getting this farm in

shape. Prior to this time he stated he had gotten

a few acres in shape for their own family use so

that they would not be dependent upon other

people.

“The registrant then pointed out that he was a

minister of the Gospel and the only evidence he

presented to substantiate this fact was some para-

phernalia from the Watchtower Association of

the Jehovah [sic] Witnesses. The registrant

was asked if he was an ordained minister and he

said Jehovah [sic] Witnesses became ordained

when they started distributing their literature.

The Board felt this was not sufficient evidence to

warrant a 4-D Classification and informed the

registrant his case would be sent up to the Appeal

Board following his physical examination.” [R.

33-34, 54-55]

There was considerable interrogation by counsel and

the court as to what transpired upon the occasion of the

personal appearance. The undisputed evidence developed

at the trial establishes that petitioner was told that because

he had requested an appeal no action would be taken upon

his case; the classification would not be changed; no new

classification card would be mailed and the file would be

forwarded to the appeal board. The board admittedly in-

formed petitioner at the conclusion of the personal appear-

ance that the case was out of their hands because he had

appealed. [R. 4, 5, 6-7, 8, 10, 13]

The clerk of the local board testified that it was the

policy of the board, when no new evidence was presented

justifying a change of classification, not to notify the regis-

trant by mailing a notice of classification and not to consid-

er the classification anew, but automatically to send the file

to the appeal board without further action. [R. 4, 5-7, 10]

Following the personal appearance the file was sent to

the appeal board. On April 24, 1951, the appeal board de-

termined that petitioner should not be classified as a con-

scientious objector, either tc combatant or noncombatant

military service. In the same order the appeal board, as re-

quired by statute, ordered the entire file forwarded to the

Department of Justice for an investigation and report to

the appeal board on the validity of petitioner's claim for

classification as a conscientious objector. This action is not

referred to in the testimony. It appears in the draft board

file. [R. 21, 34-35, 55]

The report of the Federal Bureau of Investigation was

that the grade school teacher informed that petitioner had

a high character and thought that he was “a sincere objec-

tor.” [R. 37] Members of petitioner’s church reported that

he was active in the work of Jehovah’s Witnesses and be-

lieved “him to be sincere.” [R. 37] The employer of petition-

er reported that petitioner was “very religious and very

sincere in his beliefs.” [R. 37] A fellow employee remem-

bered him as being a very aggressive talker on religion and

that he had heard him say “long ago that it is wrong to go

to war.” [R. 37] Petitioner’s neighbors reported that the

character of petitioner was good and that they thought his

conscientious objector stand was made sincerely. [R. 37]

The facts stated by the hearing officer were that peti-

tioner was one of Jehovah's Witnesses and that he signed

Series XIV in the classification questionnaire showing that

he was conscientiously opposed to participation in war,

combatant and noncombatant. He refers to Form 150, sub-

mitted by petitioner, where he took the position all Jeho-

vah’s Witnesses take, that they were neutral in their atti-

tude toward war by the worldly governments and their ob-

ligations to God were superior to any other obligation.

[R. 37-38] The hearing officer stated [R. 38]:

«| This position is a form of pacifism peculiar

to this group. They say that they would fight at

the Lord’s command, but that there is now no such

command to them. They say that the ancient Jews

were justified in making war because Jehovah

commanded them to. They claim to be ministers

of the gospel and object to army service because

it will interfere with their ministry. They usually

refer also to the Christian obligation to love oth-

ers and not to hate or harm them. The registrant

says on this point: ‘We believe in love and you

are supposed to love everybody even your ene-

mies’ This registrant’s pacifism is based on all

these considerations. His position is the same as

that of many members of this group whom I

heard during the war and who were classified 4K.

“As to taking noncombatant service, he quotes

his old school teache. who used to say, the boy

who makes the snow balls is just as responsible as

the boy who throws them....

“The registrant is evidently a life-long and

rather active Jehovah’s Witness. His desire to be

deferred on other grounds does not seem to me to

invalidate his claim to be regarded as a conscien-

tious objector... .”

The hearing officer recommended in favor of petitioner’s

claim for classification as a conscientious objector, report-

ing [R. 39]:

“T recommend that the registrant be classified

IV-E.”

On October 18, 1951, A. Devitt Vanech, Deputy Attorney

General, reviewed the file and the report of the hearing

officer. [R. 35-36] He rejected the recommendation of the

hearing officer and recommended that petitioner’s claim for

exemption as a conscientious objector be not sutsained:

“After consideration of the character and good

faith of the objections of the registrant, the De-

partment of Justice recommends to your Board

that his claim for exemption from combatant and

noncombatant training and service be not sus-

tained.

“You will note that this Department does not

concur in the recommendation of the Hearing Of-

ficer. January 30, 1951, while employed in a hat

factory, registrant wrote a letter to the local

board, in which he states: ‘It is my ambition to

become a farmer and devote all my time to farm-

ing. For this reason | am appealing to you to

grant me an agricultural classification as I assure

you that I will increase production year after

year, and contribute a satisfactory amount for the

war effort and civilian use.’ In his letter to the

local board dated March 1, 1951, registrant claims

to be a minister of the Gospel. Registrant’s ineon-

sistent statements and his offer to contribute to

the war effort are believed to be incompatible with

a sincere conscientious objector claim.” [R. 36]

The Deputy Attorney General added:

“Tt is also noted that registraut did not sign

series 1 (A) or (B) on SSS Form No, 150.” [R. 36]

It should be observed that this comment by the Deputy

Attorney General is without weight or moment in the con-

sideration of the claim of petitioner as a conscientious ob-

jector, because, as stated at page 11, supra, although

petitioner did not sign the printed statement on page 1 of

the special form for conscientious objector (SSS Form No.

150), he wrote out and signed a statement on page 4 of the

special form that is identical to that appearing in the

printed statement in Series 1(B). [R. 27]

On November 6, 1951, petitioner was notified of a I-A

classification by the appeal board. [R.21] This is shown by

the appeal record that appears in the draft board file. | R. 39]

Petitioner was mailed a notice to report for induction.

[R. 21, 44] It was dated November 21, 1951. He was com-

manded to report and submit to induction on December 5,

1951. [R. 44]

Petitioner reported at the induction station but refused

to submit to induction. [R. 48] He was taken out of the line-

up and admonished if he did not submit to induction he

would be prosecuted. He was offered noncombatant service

in the armed forces as a conscientious objector, which he

refused. He was again ordered to take one step forward

when his name was called and he again refused to step for-

ward and be inducted into the armed forces. | R. 49-50} The

army officers reported from the induction station back to

the local board that petitioner was a conscientious objector,

that he was one of Jehovah’s Witnesses and that because

of conscience and religion he could not enter military serv-

ice “even in a noncombat status.” [R. 48, 49-50]

Witmer certified that he was a conscientious objector

in his classification questionnaire. |R. 20] He filled out the

conscientious objector form showing that he fit the definition

of a conscientious objector. [R. 23-27] A ground for the

motion for judgment of acquittal was that there was no basis

in fact for the denial of the status. [R. 51-52] Both the trial

court and the Court of Appeals held that there was basis

in fact. [R. 52-54, 55-58, 61-62]

The hearing officer of the Department of Justice found

that Witmer was sincere and possessed the necessary qual-

ifications for classification as a conscientious objector. [R.

36-39] The Department of Justice recommended that peti-

tioner be denied the conscientious objector status because

of his willingness to assist in the war effort by farming.

[R. 35-36] In the motion for judgment of acquittal it was

contended that there was no basis in fact for the denial of

the conscientious objector status. [R.51-52] The district

court and also the Court of Appeals held that willingness

to assist in the war effort by farming was sufficient basis

for the denial of the conscientious objector status. [R. 55,

58-61 |

The undisputed evidence showed that upon the oceasion

of the personal appearance the local board failed to reopen

the case of petitioner and reclassify Witmer as required

by Section 1624.2(c) of the Selective Service Regulations.

The record also showea that the bourd, on personal appear-

ance, considered the.case to be out of its hands. | R. 4-10, 13,

21, 28-34, 55-55] Several grounds of the motion for judgment

of acquittal complained of the denial of procedural due proe-

ess of law on personal appearance. [R.51] The trial court

and the Court of Appeals held that there was no denial of

procedural due process of law. [ R. 56-59, 62] See also United

States v. Hagaman, 3rd Cir., 1954, 213 F. 2d 86, which opin-

ion in the companion ease in the court below appears as an

appendix to the petition for writ of certiorari in this case,

page 37.

SUMMARY OF THE ARGUMENT

ONE

The denial of the conscientious objector status by the

appeal board was without basis in fact; consequently, the

final I-A classification was arbitrary and capricious.

The undisputed documentary proof showed that Witmer

came within the definition of conscientious objector in the

act. It showed his belief in the Supreme Being, his objection

to military service, his religious training and belief as one of

Jehovah's Witnesses and that his objections did not come

from political, sociological or philosophical grounds. The

draft board file contains two articles on the conscientious

objections of Jehovah's Witnesses. These appear in the

Watchtower magazine of February 1, 1951. One is entitled

“Why Jehovah’s Witnesses Are Not Pacifists.” The other is

entitied “Pacifism and Conscientious Objection—Is There

a Difference?” (This magzzine is AppeNnprx A to this brief.)

These articles are summarized in the main part of this

argument under this point, infra, pp. 29-32.

The proof showed that Witmer, as one of Jehovah's Wit-

nesses, is separate and apart from this world. He relied on

the statement of Jesus that Christians are no part of this

world. (John 17:14) His citizenship is in heaven. (Philip-

pians 3: 20) He believed in the commandment of the apostle

not to entangle himself with the affairs of this life. (2 Tim-

othy 2:35, 4) The weapons of warfare that petitioner is au-

thorized to use are limited to words, oral and printed. He

is authorized to fight for the faith, using the sword of the

spirit, which is the Word of God. (Ephesians 6:17) He is

forbidden to use the weapons of warfare of this world. He

declared that he cannot desert the Lord’s army to do serv-

ice in the armies of this world.

Witmer believes in self-defense, but this does not mean

that he is authorized to engage in service in the armed

forces. He maintains a position of strict neutrality. It

should be remembered that neither Jesus nor the early

Christians enrolled in the Roman armies. They refused to

do military service and were persecuted.

In situations where there is no contradiction of the docu-

mentary evidence, as here, the courts have held in consci-

entious objector cases that the rule laid down in Dickinson

v. United States, 346 U.S. 389, 396-397, 399, (1954), applies.

(Weaver v. United States, 8th Cir., 1954, 210 F. 2d 815, 822-

823; Taffs v. United States, 8th Cir., 1953, 208 F. 2d 329,

331-332; United States v. Hartman, 2d Cir., 1954, 209 F. 2d

366, 368, 369, 371; Pine v. United States, 4th Cir., 1954, 212

F. 2d 93, 96-97; Jewell v. United States, 6th Cir., 1953, 208

F. 2d 770, 771-772; Jessen v. United States, 10th Cir., 1954,

212 F. 2d 897, 899-900; United States v. Wilson, 7th Cir.,

1954, 215 F. 2d 443, 445, 446) These cases are not to be

distinguished because of the rejection of the various specu-

lations urged as basis in fact. The documentary evidence

in each case showed the same facts as those established in

this case.

The failure of Witmer to sign the conscienticus objector

blank is immaterial. Local Board Memorandum No. 41 au-

thorized the preparation of his own statement containing

the same language that appears in Series 1(B) of the con-

scientious objector form.

That Witmer may have changed his claims for classifi-

cation three times during the history of his case before

the board does not give basis in fact for the denial of

the conscientious objector claim. Section 1625.1(h) of the

Selective Service Regulations required him to state all facts

that would justify different classification. The giving of

information and the making of three claims at one time

or consecutively may not be relied on as basis for the denial

of the conscientious objector status. Witmer was not in-

consistent in making his several claims before the board.

—Taffs v. United States, 8th Cir., 1953, 208 F. 2d 329, 331.

TWO

The act and regulations do not permit the Department of

Justice to recommend, or the appeal board to accep: the

recommendation, that willingness to work on a farm and

produce food to assist in the war effort is basis in fact for

the denial of the conscientious objector status.

Section 6(j) provides for the recommendation of the

Department of Justice. This ix implemented by Section

1626.25 of the regulations. These make the recommen-

dation a vital link in the chain of administrative proceedings.

It is necessary that the Department of Justice proceed-

ings be in accordance with law; otherwise the draft board

proceedings are void.

In Section 6(j) of the act Congress did not confine con-

scientious objections to war in any form but extended

them to direct participation in the armed forces. Nothing

can be found in the act that indicates that performance of

civilian work that indirectly contributes to the war effort

is basis in fact for the denial of the conscientious objector

claim. Congress did not intend to allow reliance upon will-

ingness to participate indirectly in war by performance

of civilian work as a basis for the denial of the conscien-

tious objector claim. The performance of civilian work by

a conscientious objector to military service is not basis

in fact for the denial of the claim for exemption.—United

States v. Wilson, 7th Cir., 1954, 215 F. 2d 443, 446; Hinkle

v. United States, 9th Cir., Sept. 24, 1954, — F. 2d — ; Franks

v. United States, 9th Cir., Oct. 4, 1954, — F. 2d — ; Goetz

v. United States, 9th Cir., Oct. 14, 1954, — F, 2d —.

The interpretation of the statute to allow the forfeiture

of Witmer’s claim for conscientious objection because of

his willingness to help in the war effort by farming is un-

reasonable. A proper interpretation of the act should limit

consideration to his willingness to participate in military

training and service directly. If the statute is not inter-

preted to limit consideration of the type of service to direct

participation in the armed forces and allow the board to con-

sider indirect participation by civilian work, then it will

be impossible fer a conscientious objector to do anything.

In time of war every civilian activity is indirectly a par-

ticipation in the war effort. The interpretation by the court

below completely nullifies the exemption extended to con-

seientious objectors because of willingness to perform

civilian work contributing to the war effort. This inter-

pretation is judicial legislation that flies in the face of the

act. The construction is subversive of the intent of Congress.

Congress was dealing only with the problem of raising

an army. It was not interested in the type of work per-

formed by persons that it exempted from training and serv-

ice as soldiers. The nearer the participation in the war

effort by civilians outside, the better it was for the nation,

Congress considered. Deferments were granted to per.

sons t) participate in essential work either directly or in-

directly contributing to the war effort. Farmers were ex-

empted because of their contribution to the war effort. So

were men engaged in other necessary services, such as de-

fense work or work in the merchant marine. There is ab-

solutely nothing in the statute or the regulations that says

that a conscientious objector cannot perform essential

work contributing to the national defense or the war effort

as a civilian employee. It is only when the conscientious

objector is willing to perform combatant or noncombat-

ant service that he can be denied his claim for classification.

Congress provided that conscientious objectors be re-

quired to perform civilian work contributing to the national

safety and welfare. There is nothing in the act that for-

bids the Government from requiring conscientious objectors

to work in defense plants or perform services connected

with the war effort. Since a conscientious objector can be

ordered to do defense work or perform services in a war

plant, how can it be said that his willingness to perform

such services without being ordered to do so is basis in

fact for his denial of the claim for exemption?

His sincerity is not questioned even if he is willing to

go into the armed services and do hospital work. He may

wear a uniform and still no one will challenge his good

faith. If a conscientious objector can wear a uniform and

do hospital work in the army and stili be entitled to claim

his conscientious objections, then how can it be said that

the performance of civilian work is basis in fact for the

denial of the conscientious objector status?

The interpretation placed upon the act by the court

below is inconsistent with the act itself. Congress rejected

the specious position of the Government for the reasons

stated by this Court in Girouard vy. United States, 328 U.S.

61, 68, 69 (1946).

Congress did not extend conscientious objections to

objection to war in any form. Congress limited the objection

to direct performance of military service. Nothing is said

in the act that either directly or indirectly limits the type

of civilian work a conscientious objector is willing to per-

form. The interpretation of the court below puts a vague

and indefinite dragnet upon the statute. It places an illegal,

never-ending and uncontrollable scope of inquiry never

contemplated by the act.

The provision for the recommendation by the Depart-

ment of Justice and the consideration thereof by the appeal

board makes the procedure a vital link in the chain of ad-

ministrative proceedings. The recommendstion must be

in accordance with law. When the court below approved the

irrelevant and immaterial recommendation by the Depart-

ment of Justice (because Witmer was willing to assist in

the war effort b: farming) and the appeal board acted

upon it, illegal and fictitious standards were employed to

defeat the valid claim of Witmer. Fictitious and illegal

standards incorporated into the draft board proceedings

destroy the classification.—Annett v. United States, 10th

Cir., 1953, 205 F. 2d 689, 691; Hinkle v. United States, 9th

Cir., Sept. 24, 1954, — F. 2d — ; Clementino v. United States,

9th Cir., Sept. 27, 1954,-— F. 2d —.

That Witmer was willing to do work on a farm does

not in any way provide basis in fact for the denial of the

conscientious objector status. The position of the court

below is contrary to that of President Lincoln on this

question.—See Selectuuve Service System, Conscientious

Objection, Special Monograph No. 11, Vol. 1, pp. 42-43,

Washington, Government Printing Office, 1950.

That Witmer was willing to assist in the war effort to

the extent of farming is wholly irrelevant and immaterial.

—United States v. Wilson, 7th Cir., 1954, 215 F. 2d 443,

446; Goetz v. United States, 9th Cir., Oet., 14, 1954, — F. 2d

—; Franks v. United States, 9th Cir., Oct. 4, 1954, — F. 24d —.

If extended to its logical extreme the interpretation

placed upon the act by the court below would require a

conscientious objector to refuse to pay his income taxes

or any other taxes that indirectly contribute to the war

effort of the nation. The interpretation requires the conset-

entious obje«tor to do nothing in time of war. He is required

to go on a sit-down strike. In fact he is banned by law from

the performance of any sort of work that indirectly con-

tributes to the defense effort of the nation. Such unreason-

able interpretation of the statute should be rejected and

condemned in this case.

THREE

The local board deprived petitioner of his rights guaran-

teed by Section 1624.2 of the Selective Service Regulations by

considering the case as out of its hands and by refusing to

reopen the case and reclassify petitioner upon his personal

appearance.

Petitioner was told by the local board that because he

had appealed his case no action would be taken on his re-

quest for reclassification at his personal appearance. The

undisputed evidence shows that it was the policy of the

board never to reopen and reclassify (as required by the

regulations) on personal appearance when there was no

new evidence presented. This policy is contrary to United

States v. Stiles, 3rd Cir., 1948, 169 F. 2d 455. It denied the

plain mandate of Section 1624.2(b) and (c) of the regula-

tions.

The limitation of the scope of review (Estep v. United

States, 327 U.S. 114, 121-122 (1946) ) requires that the court

insist on a strict compliance with the requirements of pro-

cedural due process fixed by the regulations. (N. L. R.B.

v. Cherry Cotton Mills, 5th Cir., 1938, 9S F. 2d 444, 446)

The draft boards must strictly comply with the procedurai

mandate of the regulations.—Ver Mehren v. Sirmyer, Sth

Cir. 1929, 36 F. 2d 876, 881; United States v. Zieber, 3rd

Cir., 1947, 161 F. 2d 90, 92; United States v. Graham, N.

D. N. Y., 1952, 108 F. Supp. 794, 797; Bejelis v. Uweted States,

6th Cir., 1953, 206 F. 2d 354, 308.

Martin v. United States, 4th Cir. 1951, 190 F. 2d 775 (eer-

tiorari denied 342 U.S. 872 (1951)), is distinguished from

this ease as it is from United States v. Stiles, 3rd Cir., 1948,

169 F. 24 455. This case is the same as United States v.

Stiles, supra. In the Martin case there was a reopening of

the casc and a reclassification. In the Stiles case and in

this ease there was no reopening of the classification. The

local board did not consider the case de novo.

The local board on personal appearance considered

only the ministerial claim for exemption without a re-

opening. Nowhere did the board pass upon the claim for

classification as a farmer or upon the conscientious ob-

jector claim. There was no reclassification. The board mere-

ly declared that there was no new evidence warranting

the granting of the minister’s exemption. This did not spell

out a consideration of the conscientious objector classifi-

cation or the farmer’s deferred status.

The giving of notice of the illegal action by the local

board does not cure the refusal to reopen. The refusal to

reopen was illegal action. Notice of unlawful action (failure

to reconsider) did not make the case the same as that of

Martin, supra, where there was a reopening and a reclassi-

fication. In the Martin case, supra, there was actual notice

orally given of lawful procedure taken by the local board.

Here there was actual notice given of unlawful action taken

by the local board. The board told Witmer that his case

was out of its hands because he had taken an appeal. This

illegal! action is contrary to United States v. Zieber, 3rd Cir.,

1947, 161 F. 2d 90; compare United States v. Stiles, 3rd Cir.,

1948, 169 F. 2d 445.

The oral testimony relied on by the Government cannot

he used to impeach the draft board memorandum made upon

personal appearance that the board refused to reopen

and reconsider the case. This evidence is incompetent. (Unil-

ed States v. Hufford, M. D. Pa., 1952, 103 F. Supp. 8909, S62)

Failure to consider the . onscientious objector claim on per-

sonal appearance was a violation of the reculations.—32

CoF.R. 6 1624.2(¢); Knox v. United States, 9th Cir., 1992,

200 F. 2d 598, 401-402.

The regulations required the local board to give a noti¢e

of reclassification. Notice that the local board refused to re-

open and reconsider the case on personal appearance ts not

equivalent to the statutory following personal appearance,

requiring a new classification. (See United States v. Stiles,

3rd Cir., 1948, 169 F. 2d 455, 458-459; United States v. Gra-

ham, N. D.N. Y., 1952, 108 F. Supp. 794, 796-797.) The iocal

board had no authority to issue the order to report for in-

duction until the notice following reopening on personal ap-

pearance was given.

Witmer’s filing of a dual request for personal appear-

ance and for an appeal was proper. This does not justify the

action of the board in considering the case to be out of its

hands.—Local Board Memorandum No. 5°, Selective Service

System, January 14, 1953.

The failure to give written notice is not harmless error.

It is grievous and fundamental. It was a complete omission

to follow statutory steps required by the Selective Service

Regulations. (United States v. Zieber, 3rd Cir., 1947, 161 F.

2d 90; United States v. Strebel, D. Kans., 1952, 103 F. Supp.

628: United States v. Graham, N. DN. Y., 1952, 108 F. Supp.

794) The regulations that were in force at the time of the

personal appearance required a de novo consideration of the

case and a reclassification. These regulations were changed

on September 25, 1951, after the date of the personal appear-

ance of the petitioner in this case.

Regardless of whether error was committed in failing to

comply with the statutory requirements of Section 1624.2(b)

of the regulations by reopening and reconsidering the case,

it nevertheless remains a fundamental violation of proce-

dural due proces .. It is that the local board refused to con-

sider petitioner's entire case on personal appearance. He

was denied a full and fair hearing. The board rejected his

evidence. It refused to exercise any responsibility whatever

on personal appearance. When the board considered that his

‘ase was out of its hands because he had taken an appeal the

hoard refused to consider the evidence at the personal ap-

pearance. This was equivalent to a denial of personal ap-

pearance. (Morgan v United States, 298 U.S. 468, 480-481

(1936) ; United States v. Zieber, 3rd Cir., 1947, 161 F. 2d 90,

93; United States v. Romano, 8S. D. N. Y., 1952, 103 F. Supp.

097; United States v. Peterson, N. D. Cal. S. D., 1944, 53 F.

Supp. 760; United States v. Laier, N. D. Cal. S. D., 1948, 52

F’. Supp. 392) There has been a denial of due process in this

case.

ARGUMENT

ONE

The denial of the conscientious objector status by the

appeal board was without basis in fact; consequently, the

final I-A classification was arbitrary and capricious.

The undisputed documentary evidence in the file before

the appeal board showed that the petitioner was conscien-

tiously opposed to participation in combatant and noncom-

batant military service. He showed: (1) he believed in the

Supreme Being, (2) he was opposed to participation in com-

batant and noncombatant military service, (3) he based his

bel.ef and opposition to service on religious training and

belief as one of Jehovah’s Witnesses and (4) such stand did

not spring from political, sociological or philosophical be-

liefs. This showing brought him squarely within the statute

and the regulations providing for classification as a consci-

entious objector. This entitled him to exemption from com-

batant and noncombatant military training and service.

As a part of his draft board papers petitioner filed the

Watchtower magazine of February 1, 1951. [R.56] He in-

corporated and made a part of his file two articles. One is

entitled “Why Jehovah’s Witnesses Are Not Pacifists.” The

other is entitled “Pacifism and Conscientious Objection—Is

There a Difference?” Nine copies of this magazine have been

fiied with the Clerk of this Court to accompany the distribu-

tion of tnis brief. They are marked as Aprenprx A. (See also

United States v. Hartman, 2d Cir., 1954, 209 F. 2d 366, 370.)

A summary of these two articles shall now be made.

“Wry JeHOovVAH’s Witnesses ARE Not PaAcIFIsts”

In 1950 Jehovah’s Witnesses assembled in convention

at Yankee Stadium, New York city. Ten thousand foreign

delegates had difficulty in clearing immigration to attend

the assembly because of the false charge that they were

extreme pacifists. The American delegates unanimously

passed a regret and protest—a million copies of which were

distributed.

The definition of “pacifist” found in Webster’s Diction-

ary is relied upon. That definition of pacifist does not fit

a true Christian. Jehovah’s Witnesses began with Abel.

A long list of witnesses for Jehovah have records in theo-

cratic warfare showing they were not pacifists. The exploits

of Abraham, Moses, Joshua, Barak, Gideon, Jephthah,

Samson, Samuel and David demonstrate this.

The fighting experiences of Nehemiah, Mordecai and

Esther while in captivity in Babylon and Persia further

prove Jehovah’s Witnesses of old were not pacifists. The

experiences of Daniel under King Darius the Mede and

Nehemiah under Cyrus and Ahasuerus, the Persian kings,

show tney were not pacifists. The military exploits of all

these famous witnesses for Jehovah were a part of theo-

cratic warfare. However, such witnesses did not fight for

Babylon, the Medes or the Persians. They fought under

the direction of God for the theocratic nation of Israel. Since

the fail of the Jewish nation and the advent of Christianity

the warfare of his Christians has not extended to military

weapons.

Because of this change Jehovah’s Witnesses are, how-

ever, not pacifists. They are conscientious objectors to war

and the “defense efforts” of Christendom and the rest of

the world. The objections of Jehovah’s Witnesses are based

on God’s Word, the Bible. Jehovah’s Witnesses are neutral

toward the wars between the nations. They do not campaign

against the war efforts of the nations, and they do not

oppose those who conscientiously participate in the war

efforts.

Jehovah’s Witnesses take the same neutral stand toward

war as did Jesus. He commanded against the use of the

sword. Jehovah’s Witnesses, while neutral to war, are not

pacifists engaged in resisting war or interfering with the

wars between nations.

Jehovah’s Witnesses do not oppose Jehovah’s great war

that will destroy the nations of the Devil’s world at Arma-

geddon. They proclaim this coming destructive warfare

against the world. Christ Jesus will lead the invisible

forces of Jehovah and bring about the destruction of the

nations of this evil world as Jehovah’s Field Marshal at

Armageddon.

Il.

“PACIFISM AND CoNSCIENTIOUS OBJECTION

—Is THERE A DIFFERENCE?”

Jehovah’s Witnesses will have no part in the violent

warfare of this world and will not participate in the armed

forces of Jehovah at Armageddon. This great battle will

be fought by the angelic forces of Jehovah, led by Christ

Jesus, Jehovah’s Witnesses, while declaring and preaching

the battle of Armageddon, follow the rule laid down by

Christ Jesus. That rule did away with the Mosaic law of

retaliation. This is the philosophy of “eye for eye and tooth

for tooth.” Instead of this rule the modern-day Christians,

Jehovah’s Witnesses, follow the rule of love of God and

love of neighbor. Christians do good to those who speak

and do evil against them. There is no retaliation by Jelo-

vah’s Witnesses. Killing a burglar who breaks in at night

is justified. Killing a thief who breaks in by day is con-

demned.

The rule of love and of no retaliation stated in the ser-

mon on the mount is only part of the basis of conscientious

objection of Jehovah's Witnesses.

Jehovah’s Witnesses are Scripturally authorized to de-

fend themselves according to the law of the land. When at-

tacked they can Scripturally resist attack by the use of

force. They do not arm themselves or carry carnal weapons.

They will not retreat when attacked at their homes or when

at meetings of their church but will retreat when attacked

on public property or on the property of others. In such

situation they shake the dust off their feet and do not give

what is holy to dogs or throw pearls before swine.

Jesus said: “Render therefore unto Caesar the things

which are Ceasar’s; and unto God the things that are God’s.”

(Matthew 22:21) God and not “Caesar” is the giver of

life. The life of a Christian is dedicated to God and can

not be transferred to Caesar. The lives and service of Je-

hovah’s Witnesses belong to God, and not to Caesar. No

man can serve two masters says Jesus’ sermon on the

mount. The dedication of Jehovah’s Witnesses to God is a

relation to the “Supreme Being involving duties superior

to those arising from any human relation.” This is a quota-

tion from the Selective Service Act of 1948. Jehovah’s Wit-

nesses take the position of the apostles of Jesus: “We must

obey God as ruler rather than men.”—Acts 5:29, New

World Translation.

The words of Jesus about paying back to Caesar the

things that are Caesar's were limited by Jesus to payment

of taxes and were not extended by him to military service.

This is emphasized by what Jesus told a representative

of Caesar, Pilate. He said: “My kingdom is no part of this

world. If my kingdom were part of this world, my attend-

ants would have fought that | should not be delivered up

to the Jews.” (John 18:36, New Wo 'd Translation) Jesus

also stated that the world hates Jehovah's Witnesses be-

cause they are neutral.

Jehovah’s Witnesses are minister-ambassadors. They

occupy a neutrality and exempt status from military service

as did the priests and Levites in the nation of Israel. Even

theocratic.warfare does not require a minister to war;

but Jehovah God protects his ministers. This principle is

followed by Jehovah’s Witnesses in dealing with the war-

fare of modern-day nations.

The only weapons of warfare that Jehovah God permits

his witnesses to use are spiritual weapons: oral words,

printed words and the sword of the spirit, which is the word

of God contained in the Bible. Jehovah’s Witnesses are

Christian soldiers enlisted in God’s army and as_ such

cannot desert his forces. They cannot break their agreement

to keep ministering and preach the gospel. To do so would

mean their death.

Jehovah’s Witnesses are an “earth-wide brotherhood”

society. It follows that there cannot be slaying of one

Christian by another Christian. This spiritual brotherhood

is another basis for the conscientious objections of Jeho-

vah’s Witnesses. This is only a partial statement of the

conscientious objections of Jehovah’s Witnesses; it is

enough, however, to prove the consistent neutrality of

Jehovah’s Witnesses and their lack cf pacifism.

Based upon the Watchtower magazine of February

1, 1951, the argument that immediately follows is here

appropriate.

The fact that entering “Caesar’s” armed forces is usual-

ly by conseription or forced service does not make it

Scripturally proper. Regardless of whether the service is

voluntary or by capitulation to commands the situation

is the same: the Christian minister of Jehovah thus gets

unscripturally involved in the affairs of the nations of this

world. Petitioner believes that he who is a friend of the world

is an enemy of God. (James 4:4) A Christian minister does

not take a course of action that is at enmity with God. He

must follow in the footsteps of the Lord Jesus Christ and

keep himself unstained by the world. (1 Peter 2: 21; James

1:27, An American Translation) This he does by faithfully

sticking to his post of duty as a minister of Jehovah. He does

not abandon it to participate in the controversies of this

world of Satan.

It is true that Jehovah’s Witnesses reside in all the

nations of the world. That fact does not mean that they

are mixed up with the political affairs or the international

controversies of such nations. They are in the world but

not of it. Jesus prayed to his Father: “I have given your

word to them, but the world has hated them, because they

are no part of the world just as I am no part of the world.”

(John 17:14, New World Translation) Jehovah, through

Christ Jesus, has taken them out of the controversies and

affairs of this world and drawn them into the exclusive

business of preaching the good news of Jehovah’s kingdom,

and, as ambassadors to the nations of the world, carrying

his warning message of the coming battle of Armageddon.

“As for us, our citizenship exists in the heavens, from which

place also we are eagerly waiting for a savior, the Lord

Jesus Christ.”—Philippians 3:20, New World Translation;

John 15 : 19.

Jehovah’s Witnesses do not entangle themselves in the

affairs of this world, because they are soldiers in the

army of Jehovah. “Endure hardness, as a good soldier of

Jesus Christ. No man that warreth entangleth himself

with the affairs of this life; that he may please him who

hath chosen him to be a soldier.” (2 Timothy 2: 3, 4) As such

Christian soldiers they fight to get the message about God’s

kingdom to every creature.—Mark 16: 15.

Jehovah's Witnesses fight lawfully as such dedicated

soldiers with all the legal instruments, such as the con-

stitutional rights, the statutory rights and other lawful

rights granted to them by the nations of this world. They

fight for freedom on the home front of the nation where

they reside. They fight to defend and legally establish the

good news before courts, ministers, officials, adininistrative

boards and other agencies of governments. (Philippians

1:7, 16) They fight with weapons that are not carnal. These

are the mouth, the faculty of reason, the process of logic

and the law of the land. “For though we walk in the flesh,

we do not wage warfare according to what we are in the

flesh. For the weapons of our warfare are not fleshly, but

powerful by God for overturning strongly entrenched

things. For we are overturning reasonings and every lofty

thing raised up against the knowledge of God, and we are

bringing every thought into captivity to make it obedient

to the Christ.”—-2 Corinthians 10 : 3-5, New World Trans-

lation, Weymouth.

In addition to the legal instruments that such Christian

soldiers use the great weapon that they wield among the

nations of the earth is the “sword of the Spirit, which is

the word of God.” (Ephesians 6:17) As soldiers of Jehovah

and Christ they put on only the uniform that is prescribed

by the law of God for Christian soldiers, his witnesses,

to wear. That uniform is the armor of God. They have on

the helmet of salvation and the breastplate of righteousness.

—Ephesians 6 : 10-13, New World Translation.

Since they are in the Lord’s army of gospel preacisers,

they certainly have conscientious objections to serving

in the armies of the evil world of Satan. As soldiers of

God they cannot engage in the conflicts and warfare that

flow from the affairs of this world. They cannot be in

two armies at the same time. Since they have been enlisted

and serve in the Lord’s army as his ministers they must

be at their missionary posts of duty. They cannot leave

such posts in order to take up service in some other army.

To quit the Lord’s army and join the armies of Satan's

world would make the soldiers of God deserters. Deserters

are covenant-breakers. “Covenant-breakers ... are worthy

of death.”—Romans 1: 31, 32.

The nations of this world cannot excuse the Lord's

soldier from the penalty of death prescribed by Almighty

God for deserters from his army. “Caesar,” not being able

to relieve him from his covenant obligations or violations

thereof, should not command him to become a renegade and

deserter from the Lord’s army to join his. That would

result in his everlasting death. “And do not become fearful

of those who kill the body but can not kill the soul; but

rather be in fear of him that can destroy both soul and body

in Gehenna. Do not be afraid of the things you are destined

to suffer. Look! the Devil will keep on throwing some of

you into prison that you may be fully put to the test, and

that you may have tribulation ten days. Prove yourselves

faithful even with the danger of death, and I will give you

the crown of life.’—Matthew 10: 28; Revelation 2: 10, New

World Translation.

The law of God and the law of the land authorize a

person to protect his home against crime or violence. Je-

hovah’s Witnesses are justified in killing a person who

breaks into their home if i s necessary to repel the assault.

(Exodus 22:2) These ar’ he only circumstances when the

use of force or killing i: authorized by the law of God.

There are no other circumstances where the law of God

authorizes killing.

There is no Seriptural authorization for Jehovah’s Wit-

nesses to bear arms in the service of the armed forces of

any nation. Jehovah’s Witnesses have conscientious ob-

jections, based on such training and belief, to rendering

such service. These objections are conscientiously based

upon the law of Almighty God. That law, which is su-

preme, commands the true Christian minister to maintain

an attitude of strict neutrality toward participation in

international, national or local conflicts. This strict neu-

tralitv required by the supreme law ts enforced by the

commands of God that prohibit Jehovah's Witnesses from

bearing arms or joining the armed forces of the nations of

this world.

There is no record that the Lord Jesus or his apostles

or disciples entered the armies of Caesar. The record of

secular history shows that they were thrown to the lions

and persecuted because of following the comimand of Christ

Jesus to disassociate themselves from the affairs of the

evil world.

The basis of objections to military service by followers

of Christ Jesus, including the early Cliristians at Rome and

their modern-day counterparts, Jehovah’s Witnesses, can

best be summed up by Jesus, who declared, “My kingdom

is no part of this world. If my kingdom were part of this

world, my attendants would have fought that I should not

be delivered up to the Jews. But, as it is, my kingdom is

not from this source.” (John 18:36, New World Transla-

tion) Since Jehovah’s Witnesses are not of this world, then,

as the Lord Jesus did not, they cannot fight in or represent

the armed forces of the nations of this world represented

by “Caesar.” Then, accordingly, they render unto God that

which is God’s by remaining steadfastly in his army of

witnesses and refusing to volunteer or submit to the armed

forces of Caesar in international conflicts. They render unto

Caesar all obligations of citizenship that do not require

them to violate God’s law. Thus they do as Jesus said:

“Pay back Caesar’s things to Caesar, but God’s things to

God.”—Mark 12:17, New World Translation.

It has been held by many courts of appeals that the

rule laid down in Dickinson v. United States, 346 U.S. 389,

396-397, 399 (1953), holding that if there is no contradiction

of the documentary evidence showing exemption as a min-

ister there is no basis in fact for the classification, also

applies in cases involving claims for classification as con-

scientious objectors.—Weaver v. United States, Sth Cir.,

1954. 210 F. 2d 815, 822-823; Taffs v. United Staten, Sth

Cir., 1953, 208 F. 2d 329, 331-332; United States v. Hartman,

2d Cir., 1954, 209 F. 2d 366, 368, 369, 371; Pine v. United

States, 4th Cir., 1954, 212 F. 2d 93, 96-97; Jewell vy. United

States, 6th Cir., 1953, 208 F. 2d 770, 771-772; Schuman v.

United States, 9th Cir., 1953, 208 F. 2d 801, 804-805 ; Jessen

vy. United States, 10th Cir., 1954, 212 F. 2d 897, 899-900 ;

United States v. Close, 7th Cir., 1954, 215 F. 2d 439, 441;

United States v. Wilson, 7th Cir., 1954, 215 F. 2d 445, 445,

446.

In Jessen v. United States, 10th Cir., 1954, 212 F. 2d

897, 900, after quoting from Dickinson v. United States,

346 U.S. 389 (1953), the court said:

“Here, the uncontroverted evidence supported

the registrant’s claim that he was opposed to

participation in war in any form. There was a

complete absence of any impeaching or contra-

dictory evidence. It follows that the classification

made by the State Appeal Board was a nullity and

that Jessen violated no law in refusing to submit

to induction.”

The decision of the court below is in direct conflict with

the holdings in other cases decided by other courts of ap-

peals. In those cases the appellants, like petitioner here,

were Jehovah’s Witnesses. They showed the same religious

belief, the same objection to service and the same religious

training. While different speculations were relied upon by

the Government, which were discussed and rejected by the

courts in those eases, the courts were also called upon to

say, on facts identical to the facts in this case, whether

there was basis in fact. For instance, see Jessen where the

Tenth Circuit (after following Taffs v. United States, 8th

Cir., 1953, 208 F. 2d 329) said (212 F. 2d, p. 899): “The

remaining question is whether there was any basis in fact

for the classification made by the State Appeal Board.”

The holdings with which the holding of the court below

directly conflicts on this point are: Annett v. United States,

10th Cir., 1953, 205 F. 2d 689, 692; United States v. Pekar-

ski, 2d Cir., 1953, 207 F. 2d 930, 931; Taffs v. United States,

Sth Cir., 1953, 1953, 208 F. 2d 329, 331-332: Jewell v. United

States, Oth Cir., 1953, 208 F. 2d 770, 771-772; Schuman vy.

United States, 9th Cir., 1953, 208 F. 2d 801, 804-805; Unit-

ed States v. Hartman, 2d Cir., 1954, 209 F. 2d 366, 368-369,

310-371; Pine v. United States, 4th Cir., 1954, 212 F. 2d 93,

96-97; Jessen v. United States, 10th Cir., 1954, 212 F. 2d

897, 899-900; Uniied States v. Close, 7tn Cir., 1954, 215 F.

2d 439, 441; United States v. Wilson, 7th Cir., 1954, 215 F.

vd 443, 445, 446. And these cases ought not to be pushed

aside on the specious but factitious ground that because

the courts in some of those cases discussed the speculations

urged on the courts as basis in fact the cases are different.

They are not different, because on the question of whether

or not there was basis in fact the evidence in each case is

identical to the facts in this case and the holdings were the

opposite to that made by the court below in this case. Such

attempted distinction would be a distinction without a dif-

ference. The cases above cited are identical to the facts

in this case in so far as the statements in the draft board

record showing conscientious objection are concerned.

In the court below respondent placed emphasis upon

the failure of Witmer to sign the Series I(B). Local Board

Memorandum No. 41, issued by National Headquarters,

Selective Service System, November 30, 1951, as amended

August 15, 1952, provides in paragraph 2 as follows:

“2. What constitutes a claim of conscientious

objection— A registrant should be considered

to have claimed conscientious objection to war

if he has signed Series XIV of the Classification

Questionnaire (SSS Form No. 100), if he has

filed a Special Form for Conscientious Objector

(SSS Form No. 150), or if he has filed any other

written statement claiming that he is a conscien-

tious objector.”

It should also be remembered that Witmer actually pre-

pared his own statement containing substantially the same

language as appears in Series 1(B). [R. 27]The court below

has held in Berman v. Craig, 207 F. 2d S88, 891, opinion by

Judge Maris on November 27, 1953, that “Registrants are

not thus to be treated as though they were engaged in

formal litigation assisted by counsel.”

Great emphasis was placed on the fact that Witmer

changed his position three times before the local board in

respect to making his claim for classification. The Selee-

tive Service regulations do not require a registrant to base

his claim upon any one particular claim. Section 1623.2 of

the regulations gives the registrant the right to make, and

places the duty upon the local board to consider, any of 16

different classifications. The local board must classify the

registrant in the lowest classification for which he is quali-

fied. Section 1625.1(b) requires the registrant to notify the

local board in writing of “any fact that might result in the

registrant being placed in a different classification such as,

but not limited to, any change in his occupational, marital,

military, or dependency status, or in his physical condition.”

A man may be a farmer, judge and a father. As a regis-

trant he must file a classification questionnaire setting

forth the truth as to his entire status. He must show the

facts about his being a father. He must show the facts

about his status as a judge. He must show the truth about

his farming operations. The mere fact that a registrant

may give the information about all this different status

under the act does not mean that he has changed his posi-

tion. He is merely telling the board all the facts. The regis-

trant has only one hearing before the local board. He cannot

allege one claim, then come back and make another, then

come back and make a third and then have a hearing and

personal appearance on each one. He must tell all the

facts, and then his personal appearance requires the local

board to consider de novo the entire case, including not

only the farmer’s classification but the claim for classifi-

eation as a judge and as a father in the supposed case

above stated. This illustration and analogy proves that

Witmer was not inconsistent when he stated to the board

the truth about his being a minister, a farmer and a con-

scientious objector.—Taffs v. United States, 8th Cir., 1953,

208 F. 2d 329, 331.

It is submitted, therefore, that there is no basis in fact

for the denial of the conscientious objector status by the

appeal board.

TWO

The act and regulations do not permit the Department of

Justice to recommend, or the appeal board to accept the

recommendation, that willingness to work on a farm and

produce food to assist in the war effort is basis in fact for

the denial of the conscientious objector status.

Section 6(j) of the act (50 U.S. C. App. § 356(j), supra,

p. 2) provides for the appropriate inquiry and hearing in

the Department of Justice. The act and the regulations

provide for the recommendation by the Department of

Justice to the appeal board following the hearing before

the hearing officer. (Section 1626.25 of the regulations,

supra, p. 6) The act and the regulations, therefore, make

the inquiry, the hearing and the recommendation of the

Department of Justice to the appeal board a statutory and

vital link in the chain of administrative proceedings. The

consequence of this is that it is necessary that the pro-

ceedings in the Department of Justice be in accordance with

law and that they do not conflict with and defy the law.

Petitioner submits that the Department of Justice mis-

interpreted Section 6(j) of the act. It is to be observed

that Congress did not confine the conscientious objections

to “war in any form” but extended it to direct participa-

tion, Congress did not imply that a conscientious objector

who was not opposed to employment in defense work was

not a conscientious objector. It is participation in war

in any form that is the subject matter of the statutory

provision for the conscientious objector. Nothing can be

found in the act or the regulations or in the iegislative

history that indicates anything to the effect that if a per-

son is willing to do a certain type of work he cannot be

considered a conscientious objector having conscientious

scruples to participation in war in any form even though

he is willing to perform secular defense work as a means

of employment. If the unreasonable interpretacion placed:

upon the act by the trial court and the appeal board is

accepted it will authorize an unending and uncontrollable

scope of inquiry. Every type of work and act that may be

conceivably thought of can be relied upon to determine

and deny the conscientious objector status.

Congress did not intend to allow an inquest to be held

as to the kind of work that a registrant did or was willing

to do. Congress intended to protect every person who has

conscientious objections, based upon religious grounds,

to participation in war in ary form. Congress did not

make the factors relied upon by the trial court and the

local board in this case any basis in fact for the denial of

the conscientious objector claim.—lUnited States v. Wilson,

7th Cir., 1954, 215 F. 2d 443, 446; Hinkle v. United States,

9th Cir., Sept. 24, 1954,—F. 2d-—; Franks v. United

States, 9th Cir., Oct. 4, 1954, — F. 2d — ; Goetz v. United

States, 9th Cir., Oct. 14, 1954, — F. 2d —.

The opinions of the courts below are based on an

unreasonable interpretation of Section 6(j) of the act ex-

tended to forfeit the status if the objector is willing to

engage in “indirect participation.” The proper interpreta-

tion of the act should limit consideration to participation

in military service with the word “direct.” If consideration

of work that the objector is willing to do is not limited to

direct participation but extends to indirect participation,

then the conscientious objector can be denied his status

unless he refuses to do anything in any way indirectly

contributing to the war effort. In time of total war every

civilian is indirectly geared to and participating in the

war effort whether he likes it or not. The argument of the

Government and the construction placed upon the act by

the court below completely nullify the provisions of the

act that conscientious objectors do civilian work contrib-

uting to the war effort. Congress did not intend to be

so unfair or unreasonable.

The holding of the court below is subversive of the

intention of Congress. It ignores completely the criterion

of opposition to participation in the armed forces. The

Government injects the vague and indefinite dragnet of

opposition to war into the statute, nullifying completely

the plain purpose of Congress in passing the law.

In making the law Congress was dealing only with

raising an army. Exemption from becoming a soldier was

given to many different classes of registrants who eon-

tributed to the war effort. The performance of a certain

type of work outside the army deferred must of the ones

excused from training and service. Pursuit of the vocation

of minister is an outstanding exemption. Farming, essen-

tial work in the national defense industry and service to

the state or federal governments in different capacities

are the most common exemptions. The status of severe

hardship and conscientious objection are other deferments

not based on « seupation or work.

The deferred status of hardship or conscientious ob-

Jection does uot at ai depend on the type of work that the

registrant is willing to perform, whether in a defense plant

or not. The statute nowhere makes the kind of work done

by a registrant claiming deferment as a conscientious ob-

jector before induction an element to consider. The only

time that the type of work performed or willing to be per-

formed by a conscientious objector is material (and then

it is after induction, and not work before induction that

is involved) is when it is shown that he performs combat-

ant service or is willing to perform combatant service. Then

aid only then ean it be said that the service performed or

willing to be performed by the registrant disproves con-

scientious objection to service.

It is true that Congress classified the type of work that

a conscientious objector can be drafted to cc. It is any-

thing that contributes to the health, safety and welfare

of the nation. So long as it is of a civilian nature it must be

done «hen ordered by the draft board to be ione by the

conscientious objector under the act. What is there in the

act or the regulations to prevent a draft board from order-

ing a conscientious objector to do work in a war plant?

Nothing! Concerning the similar provision for work by

conscientious objectors under the 1940 act it is said“...

that the Act did not even guarantee that the objector would

not be assigned to do work connected with the war effort.”

(Sibley and Jacob, Conscription of Conscience, Cornell Uni-

versity Press, Ithaca, New York, 1950, p. 50) Since a con-

scientious objector could be o* ered to do work of a ci-

vilian nature contributing to the national welfare in a de-

fense plant, then how can the Government now say that

because a man says he is willing to do work in a war

plant he is not a conscientious objector? The argument of

the Government is incongruous and leads to unreasonable

and harsh results.

Congress has required direct and indirect particaapstion

by conscientious objectors by the law. This is required of

the two classes of conscientious objectors. One classified

in I-A-O as a conscientious objector must go into the army,

wear a uniform and directly participate by performing all

kinds of military service except combat duty. The other

is required to participate indirectly by doing civilian work

contributing to the national health, safety and welfare.

These are the only words of Congress on the type of work

to be done by conscientious objectors, Congress did not

go outside the boundaries of the law and legislate on the

type of work done by the conscientious objector before he

is inducted into service. It is therefore entirely irrelevant,

immaterial and improper for the courts below to amend

the law by now doing what Congress has not done. It is for

Congress to take the step the court has taken. Since Con-

gress has not taken the first step, the courts below cannot

step in and take the leap Congress has not permitted

them to take.—-United States v. Wilson, 7th Cir., 1954, 215

F. 2d 443, 446.

The holding of the courts below is inconsistent with the

act itself. Section 6(j) of the act (supra, p. 2) provides

for the classification as conscientious objectors of persons

who are willing to go into the armed forces and do non-

combatant military service. The argument that one who

is willing to contribute something to the war effort is not

a conscientious objector is inconsistent with the act itself.

This Court rejected the specious and factitious position

of the Government and the courts below in Girouard v.

United States, 328 U.S. 61 (1946), 68-69. Modern-day total

war is designed to be implemented by a conscription system

that gears the total population for contribution either di-

rectly or indirectly to the war effort of the nation. Since

the very act that provides for the conscientious objector

classification also provides for the conscientious objector

to contribute something toward the war effort, the argument

of the Government and the courts below flies in the teeth

of the act.

Petitioner submits that the Government and the courts

below have misinterpretated Section 6(}) of the act (supra,

p. 2). It is to be observed that Congress never extended

conscientious objections to mere objection to “war in any

form.” Congress did not say that a conscientious objector

who was not opposed to employment in defense work was

not a conscientious objector. It is direct participation in

war in any form that is the subject matter of the statutory

provision for the conscientious objector. Nothing whatever

is said in the act or the regulations or in the legislative

history that indicates anything to the effect that if a per-

son is willing to do a certain type of work he cannot be

considered a conscientious objector having conscientious

scruples to participation in war in any form, even though

he was willing to contribute indirectly by defense work as

a means of employment. If the unreasonable interpretation

placed upon the act by the courts below is accepted it will

authorize an unending and uncontrollable scope of inquiry.

Every type of work and act that may be conceivably

thought of can be relied upon to determine and deny the

conscientious objector status.

It is entirely irrelevant and immaterial to hold that

there was basis in faci because Witmer was willing to

assist in the war effort by farming. This ‘vas not an element

to consider and in any event it was no basis in fact, ac-

cording to the law, for the denial of his claim. It did not

impeach or dispute in any way what he said in his ques-

tionnaire and conscientious objector form, all of which was

corroborated by the FBI report. The law does not authorize

the Department of Justice to invent fictitious and foreign

standards and use them to speculate against evidence and

facts that are undisputed.—Annett v. United States, 10th

Cir., 1953, 205 F. 2d 689, 691; Hinkle v. United States, 9th

Cir., Sept. 24, 1954,—F. 2d— ; Clementino v. United

States, 9th Cir., Sept. 27, 1954, — F. 2d — ; United States

v. Alvies, N. D. Cal. 8S. D., 1953, 112 F. Supp. 618, 620,

623-624; United States v. Graham, W.D. Ky., 1952, 109

F. Supp. 377, 378; United States v. Everngam, D. W. Va.,

1951, 102 F. Supp. 128, 130-131; Dickinson v. United States,

346 U.S. 389, 396-397, 399 (1953); United States v. Hart-

man, 2d Cir., 1954, 209 F.. 2d 366, 369, 371; Schuman vy.

United States, 9th Cir., 19538, 208 F. 2d 801, 802, 805;

Weaver v. United States, Sih Cir., 1954, 210 F. 2d 815, 823;

Lowe v. United States, 8th Cir., 1954, 210 F. 2d 823; United

States v. Lowman, W.D.N.Y., 1954, 117 F. Supp. 595,

598; United States v. Benzing, W.D.N. Y., 1954, 117 F.

Supp. 598.

The question of employment and work performed by

one who claims to be a conscientious objector becomes ma-

terial only when the type of work done or agreed to be

done by the conscientious objector is in the armed forces.

In passing the Selective Service Act of 1948 (as amended)

the Congress of the United States provides for two

kinds of conscientious objectors. One is a person who has

objections only to the performance of combatant service.

He is recognized as willing to wear a uniform and do any-

thing in the armed forces except kill or bear weapons.

This type of conscientious objector does not have his

conscience questioned because of the type of work he is

willing to perform, even though it may be in the armed

forces, No board or official of the government may deny a

registrant his conscientious objector claim to the I-A-O

classification (limited military service as a conscientious

objector opposed to combatant military service only) be-

cause of his willingness to perform noncombatant service

in the armed forces, thus helping the armed services do

a job of killing.

It is submitted, also, that the conscientious objector to

both combatant and noncombatant military service ought

not to be denied his conscientivus objector classification

because of the kind of work he is doing outside the armed

services. The law disqualifies no one on such ground. It

seems that a reasonable interpretation of the act and the

regulations would not make the type of employment that

a registrant is willing to do relevant so long as it does not

involve combatant or noncombatant military service.

That Witmer may have been willing to work on a farm

does not in any way constitute basis in fact for the I-A

classification. That classification still remains arbitrary

and capricious. There is nothing in the act or the regula-

tions that authorizes the draft board to order a man to do

combatant military service because he is willing to work on

a farm.—Clementino v. United States, 9th Cir., Sept. 27,

1954, — F. 2d — ; United States v. Wilson, 7th Cir., 1954,

215 F. 2d 448, 446; Goetz v. United States, 9th Cir., Oct.

14, 1954,— F. 2d— ; Franks v. United States, 9th Cir.,

Oct. 4, 1954, — F. 2d —.

During the Civil War the provost marshal general was

authorized to grant special benefits to noncombatants under

Section 17 of the act (approved February 24, 1864). Presi-

dent Lincoln was urged to force conscientious objectors

into the army. He replied:

“No, I will not do that. These people do not

believe in war. People who do not believe in war

make poor soldiers. ... These people are largely

a rural people, sturdy and honest. They are ex-

cellent farmers. The country needs good farmers

fully as much as it needs good soldiers. We will

leave them on their farms where they are at

home and where they will make their contributions

better than they would with a gun.”—Selective

Service System, Conscientious Objection, Special

Monograph No, 11, Vol. I, pp. 42-43, Washington,

Government Printing Office, 1950.

The act and the regulations are specific as to what con-

stitutes a conscientious objector to both combatant and

noncoinbatant military service. Nowhere in the act or in

the regulations is there any basis for the assertion that

performance of work on a farm allows the draft board

to classify a registrant as a combatant soldier. As long

as a registrant can prove that he has conscientious objec-

tions to military service, he is entitled to the conscientious

objector classification. This is true regardless of what sort

of work he does. Whether he contributes directly or in-

directly to the war effort is entirely immaterial as long as

the work is not military service.

If the position be upheld that one who performs work

that directly contributes to, and indirectly participates in,

the war effort is not entitled to the conscientious objector

status, then it will become impossible for any conscientious

objector ever to get the classification. Even a person who

pays income tax or other tax to the federal government is

participating both directly and indirectly in the war effort.

The money that he pays in taxes is used for the financing

of the military machine of this nation. Congress did not

intend to forfeit the conscientious objections on such a

vague and indefinite basis. Congress defined a conscientious

objector. As long as a person meets that definition and fits

the statute and regulations, the fact that he might do

work of any sort is wholly irrelevant and immaterial.

The argument of the Government in defiance of the

intent of Congress by a strange and unreasonable interpre-

tation of the act now would force all conscientious ob-

jectors to go on a sit-down strike and do absolutely nothing,

either directly or indireetly, that might contribute to the

war effort in order to preserve the freedom from participa-

tion in the armed forces granted to them by Congress.

The recommendation of the Department of Justice here.

therefore, that Witmer should be erdered to do combatant

military service in the armed forces because he had worked

on a farm is illegal, arbitrary, capricious and contrary to

the act.

THREE

The local board deprived petitioner of his rights guaran-

teed by Section 1624.2 of the Selective Service Regulations by

considering the case as out of its hands and by refusing to

reopen the case and reclassify petitioner upon his personal

appearance.

Petitioner was told by the local board that because he

had appealed his case no action would be taken on his

personal appearance. [R. 4-10, 13] it was the policy of the

board not to reopen and reclassify any registrant on per-

sonal appearance, as required by law, when no new evi-

dence was presented. [R. 4-7, 10] This process followed by

the local board was in defiance of the Selective Service

Regulations.—32 C.F. R. § 1624.2(b) and (c) (supra, p.

The holding of the court below on this question ignores

completely the importance of the maintenance of procedural

due process of law in Selective Service cases. It should be

remembered that the scope of review in Selective Service

cases as far as the classification is concerned is limited and

restricted. (Estep v. United States, 327 U.S. 114, 121-122

(1946)) The rule of administrative law is that in cases

where the review is restricted there must be a strict com-

pliance with the requirements of procedural due process

by the administrative agency.—See N.L. R. B. v. Cherry

Cotton Mills, 5th Cir., 1938, 98 F. 2d 444, 446.

It has been uniformly held that for the final order to

report for induction to be valid in Selective Service cases

it must appear that the local board has strictly complied

with the procedural requirements of due process of law.

~—Ver Mehren v. Sirmyer, Sth Cir., 1929, 36 F. 2d 876, 881;

United States v. Zieber, 3rd Cir., 1947, 161 F. 2d 90, 92;

United States v. Graham, N. D. N. Y., 1952, 108 F. Supp.

794, 797; Bejelis v. United States, 6th Cir., 1953, 206 F. 2d

354, 358.

In United States v. Hufford, M.D. Pa., 1952, 103 F.

Supp. 859, 861, the court said:

“If the board did not fully and fairly comply

with the provisions of the Act and the applicable

regulations, the registrant was under no duty to

comply with the order.”

The effort on the part of the trial court to simulate

this case to Martin v. United States, 4th Cir., 1951, 190 F.

2d 775, certiorari denied 342 U.S. $72 (1951), and to dis-

tinguish it from the holding in United States v. Stiles, 3rd

Cir., 1948, 169 F. 2d 455, proceeds on a fundamentally

erroneous basis. The confusion demonstrated by the trial

court may perhaps fog up the view of the law so that the

Court will miss the point unless there is a clarification.

The entire basis of the holding below can be briefly

stated. It is: Witmer had notice of what took place upon

the occasion of the personal appearance. Because he had

actual notice of the proceedings there was a waiver of

the violations of the law by the local board and Witmer

cannot now complain about these violations.

The undisputed evidence shows that the local board de-

fiantly refused to reopen the case and consider it entirely

anew. The local board merely stated that the new evidence

did not show Witmer was entitled to the ministerial ex-

emption. The board then refused to reopen, declaring that

the original classification stood. This was not a de novo

consideration of the case. Admittedly there is no evidence

in the record before this Court that the case was ‘eopened

as required by Section 1624.2(b) and (c) of the regulations.

The record shows to the contrary. It cannot be argued

that because the board considered the IV-D claim there

was a de novo consideration. Nowhere in the record dces

it appear that the locel board reopened the entire case.

Nowhere does it appear that on the personal appearance

the local board considered the conscientious objector form.

Nowhere in the record does it appear that the loeal board

considered the fariner’s classification. The only claim that

was mentioned was the minister’s claim, but even then the

very memorandum in which it is mentioned shows that

the board did not reopen the old classification, as it was

required to do. It merely ordered the old original classi-

fication to stand without any reclassification as required

by Section 1624.2(¢) of the regulations.

It is obvious that the local board defiantly violated

Section 1624.2(¢), refused to conduct a de novo hearing

upon the personal appearance and refused to consider all

the claims for classification and reclassify Witmer, “in the

same manner as if he had never before been classified,”

as required by Section 1624.2(c).

The trial court merely argued that because Witmer

was given actual notice of this procedural violation of his

rights by the local board this was equivalent to the legal

notice of legal procedure required by Section 1624.2(c).

Actual notice of the illegal refusal to reopen the case and

reclassify Witmer was not notice of reclassification on per-

sonal appearance, required by Section 1624.2(d). That see-

tion of the regulations says that the board shall mail the

registrant notice of classification. Since there was no re-

classification upon personal appearance the giving of actual

notice of the determination of the local board not to reopen

cannot be argued or found to be “Notice of Classification”

required by Section 1624.2(d).

In order for the notice of action by the local board to be

good and legal the action taken by the local board upon

personal appearance must be legal action itself. There must

be a reopening of the classification and a reclassification

as required by Section 1624.2(c) of the regulations. Illegal

action and notice of such illegal action are not equivalent

to the legal action required by the regulations and notice

of such legal action.

Actual notice, even though not in writing, of proper le-

gal action makes harmless the failure to give written notice

required by the regulations. (Martin v. United States, 4th

Cir., 1951, 190 F. 2d 775) But where there is illegal action

the actual notice thereof does not make the illegal action

legal or validate the invalid proceedings.

If the holdings below are to be approved, then it will be

the end of procedural due process of law. .A tribunal could

deny procedural due process upon a hearing and then noti-

fy a party of such illegal denial. According to the Govern-

ment’s argument the giving of actual notice of such denial

of procedural due process constitutes a waiver of it. This

extreme position taken by the Government the law of the

land rejects. The position of the Government in this case

is subversive of the maintenance of due process of law and

standards of strict compliance with the procedural require-

ments of law.

The position of the petitioner in answer to the holding

made by the trial court on this point can best be proved by

an illustration. Suppose in a hypothetical case involving

Judicial proceedings the law made mandatory the granting

of a new trial whenever requested by the losing party. This

unusual supposition for judicial proceedings is identically

the same as that provided for in Section 1624.2(c) of the

regulations in effect on January 22, 1951. In such a hypo-

thetical case the failure and refusal of the court to grant

and conduct a new trial made mandatory in the hypotheti-

cal case would be a denial of due process of law. Purely

because the court in the hypothetical case notified the liti-

gant that there would be no de novo hearing on the new

trial would not cure the error in failing to conduct a new

trial properly, enter a new judgment and give notice of

entry thereof. The same violation of procedural due proc-

ess is apparent here in this case.

The testimony giver by the clerk, which is relied upon

by the trial court, supports the undeniable contention that

the local board refused to reopen the case. The clerk said that

the board told Witmer that his case was out of their hands

because he had taken an appeal. This conclusively shows

that the board refused to consider the case entirely de novo

as required by the regulations. [ R. 4, 5-7, 10]

The Government's reliance upon other oral testimony

given by ihe clerk does not support the position taken by

the Government. Nowhere does the clerk testify that the

board reopened and reconsidered the case on the personal

appearance. Any argument that the Government makes

that the testimony of the clerk of the local board can over-

come, alter, change or add to the memorandum by the local

board upon the personal appearance should be rejected.

The court below in United States v. Hufford, M. D. Pa.,

1952, 103 F. Supp. 859, 862, held that the testimony of a

clerk could not be relied upon to add to or take from any

written local board records.

Extensive argument was made by the Government in

the court below that because the local board told Witmer

that the evidence he offered to them on personal appear-

ance “was not suflicient to warrant a IV-D classification”

this was sufficient and equivalent to a reopening and re-

classification upon personal appearance. If this stood alone,

then perhaps something could be said for it in favor of the

Government. But the other records indicate to the con-

trary. The other records show that there was no de novo

consideration. Additionally, the most that can be said for

this entry in the memorandum is that the local board on

personal appearance considered only the one claim, namely,

the ministerial exemption. It shows that the board did not

consider the farmer’s classification and the conscientious

objector’s classification upon personal appearance. The

failure of the local board to consider the conscientious ob-

jector form upon personal appearance is conclusive proof

that there was failure to reopen and reconsider the case

as required by Section 1624.2(c).—See Knox v. United

States, 9th Cir., 1952, 200 F. 2d 398, 401-402.

The Government relies upon Martin v. United States,

4th Cir., 1951, 190 F. 2d 775, and Atkins v. United States,

10th Cir., 1953, 204 F. 2d 269. The facts in both those cases

show an entirely different situation from the facts that

exist in this case on ‘he personal appearance. In both those

cases the only claim made by the registrant was the minis-

terial claim. No conscientious objector claim was made.

There was no other claim for classification made. When

the boards considered only the ministerial claim in the

Martin and Atkins cases they considered the entire case.

Here, however, there was more involved in the case than

the ministerial claim. It was the duty and responsibility of

the board to pass upon the conscientious objector claim and

the farmer claim, Neither of these claims was passed upon

or considered. Moreover, the Martin and Atkins cases are

distinguishable for other reasons. It appears from the opin-

ions of the courts in both those decisions that each local

board did actually reopen the case and consider the classi-

fication entirely anew. Martin was actually reclassified on

the personal appearance and placed in Class I-A. Atkins,

while not reclassified, was notified that his claim for exemp-

tion as a minister had been denied and that the old classifi-

cation would be continued. Therefore, there was an actual

reopening of the cases by the local boards. But such was

not done in this case. Therefore, the doctrine of United

States v. Stiles, 3rd Cir., 1948, 169 F. 2d 455, 458-459, applies

here and should be enforced rather than the rule of Martin

v. United States, 4th Cir., 1951, 190 F. 2d 775.

There is a plain distinction apparent on the face of the

Stiles and Martin opinions. The Martin opinion shows that

the registrant was actually reclassified de novo and on

personal appearance the local board reclassified him I-A.

The memorandum of the local board quoted from in the

opinion of Judge Parker shows that the “registrant is con-

tinued under Class I-A.” The board there did not refuse to

take any action as the record showed in the Stiles case. In

the Stiles case (3rd Cir., 1948, 169 F. 2d 455, 456-457) the

opinion shows that after the registrant appealed on Jan-

uary 21, which was following his letter requesting a per-

sonal appearance on January i7, a hearing was held on

February 4. Stiles appeared and gave evidence. The Stiles

opinion goes on to point out that following the personal

appearance the board did not again classify him or send

another notice but “on the next day sent his file to the board

of appeal which classified him I-A.”

The single narrow question involved in the Stiles de-

cision was “whether under the Selective Service Regula-

tions a local board is required to classify a registrant anew

after his personal appearance before the board even though

he presents no new information to the board when he ap-

pears before it.” This language is taken from the Stiles

opinion, 169 F. 2d, page 457. The court below went on to

hold that “the furnishing of new information” is not made

“a condition precedent to such classification anew and it

thus appears that it is to he done after reconsideration of

the information already in the file in the light of the regis-

trant’s oral discussion of it and of his claim for reclassifi-

cation even though he has furnished no new information.”

—169 F. 2d, p. 458.

hed

The facts in the case at bar are also distinguishable

from the Martin facts (4th Cir., 1951, 190 F. 2d 775) while

the facts in the Stiles case are identical to the facts in this

case. In the case at bar and in the Stiles case there was no

de novo classification as there was in the Martin case.

There was no continuance of classification ordered. The

board in the Stiles case, as well as the board in this case,

considered the case to be out of its hands because of the

prior notice of appeal. The files in both cases were sent to

the boards of appeal without a new I-A classification by the

loeal board, which was given upon the personal appearance

in the Martin case. This distinction was apparently recog-

nized by this Court in the denial of the petition for writ of

certiorari in the Martin case (342 U.S. 872) that was based

on the ground that there existed a conflict.—See also Unit-

ed States v. Fry, 2d Cir., 1953, 203 F. 2d 638, 640.

Under the decision in the Martin case the failure to nail

a classification card was held to be harmless error because

of the actual notice of reclassification given to the appel-

lant in that case. There was oral notice also given in this

case. But the notice was not of a reclassification. Petitioner

was notified that no action was going to be taken on this

classification. This was not a notice of reclassification con-

templated by the regulations and ihe opinion of the court

below in the Stiles ease. It is the lack of notice of reclassifi-

cation that aggravates the error of the board in failing to

consider the case de novo. Notice of any other thing by the

local board is not sufficient. The local board was required

by the regulations to give a certain kind of notice. It was

notice of reclassification. ““» such notice was given. The

notice of no action taken did not comply with the regula-

tions. Until there was a new classification and a notice in

writing of the new classification the local board had no

authority to order the appellant to report for induction.

—United States v. Graham, N. D. N. Y., 1952, 108 F. Supp.

794, 796-797.

In the Stiles case the court below said:

“Moreover the order for his induction was in di-

rect violation of § 625.3 since it was issued after

he had requested a personal appearance but be-

fore notice of his classification anew had been

mailed to him as required by § 625.2 (da), It fol-

lows that the induction order was invalid and that

Stiles, having exhausted his administrative reme-

dies, was entitled to set up its invalidity in his de-

fense. His motion for a judgment of acquittal

should, therefore, have been granted.”—169 F. 2d,

page 459.

The action of the local board is illegal, beeause when it

entertained petitioner's application for a personal appear-

ance as a matter of law the entire proceedings were stayed

and nullified until such time as the petitioner had received

a Classification card. The local board not having mailed him

a reclassification card following his personal appearance,

the entire action taken by the local board and the board

of appeal was ultra vires and contrary to the regulations.

—United States v. Graham, supra.

It is said that since the petitioner had already filed a no-

tice of appeal it was unnecessary to give him a new notice

of classification following his personal appearance and, ac-

cordingly, the oral notice given by the loeal board upon the

occasion of the personal appearance was adequate and suf-

ficient.

The filing of a double request—for a personal appear-

ance and appeal—has caused confusion for some time. Un-

der the present regulations the Director of Selective Serv-

ice has given some help. The boards are directed as to how

to deal with this situation. In Local Board Memorandum

No. 52, issued January 14, 1953, among other things, he

Says:

“é

2. When personal appearance is a procedural

right... . (d) Frequently, after classification by

the local board and within 10 days after the mail-

ing of the Notice of Classification (SSS Form No.

110), registrants will request a personal appear-

ance and also appeal to the appeal board. In such

a case, the fact that an appeal has also been taken

does not deprive the registrant of his procedural

right of personal appearance. The local board

must give the registrant an opportunity to ap-

pear. If the local board determines not to reopen

the registrant’s classification after the personal

appearance, the registrant’s file must be for-

warded to the appeal board without further ac-

tion on the part of the registrant since he has al-

ready appealed from that classification. If the

local board reclassifies the registrant after the

personal appearance, his file need not be for-

warded to the appeal board unless he thereafter

appeals from his new classification.”

In Paragraph 2(b) of the above local board memoran-

dum General Hershey says further:

“ ... It is important that the required notice

and advices be mailed promptly by the local board

since the right to appeal may continue indefinitely

unless they are mailed.”

The de novo consideration and the de novo classification

are jurisdictional. The fact that the registrant may have

notice of the violation of the regulations that makes “its

action... lawless and beyond its jurisdiction,” as stated in

Estep v. United States, 327 U.S. 114, 121 (1946), does not

cure the want of jurisdiction any more than notice of the

refusal to “reopen on the written request of the State Di-

rector a registrant's classification,” which was stated in the

Estep opinion to make the determination lawless, would

cure the want of jurisdiction in such a situation. The :nail-

ing of the classification card following personal appearance

and the new classification are equivalent to the requirement

of the entry of a written judgment in a court of law. No

lawyer or judge would have the audacity to contend that

an oral opinion expressed by a judge from the bench consti-

tuted the written judgment of the court or the docket en-

tries that make up a record in a case. This situation is anal-

ogous here. No amount of oral notice cures the violation of

the regulations by the local board.—See United States v.

Graham, 108 F. Supp. 794, 797,

As to the argument that failure to give written notice is

harmless, the Court is referred to the language ia Smith v.

United States. 4th Cir., 1946, 157 F. 2d 176, 182. There the

local board failed to reduce to writing and prepare a writ-

ten summary of the facts considered by the loeal board

in making its classification. The Government argued that

the failure to comply with the regulations was harmless

error in view of the fact that the defendant had the right

to make a written statement or summary himself upon the

appeal to the appeal board.—See also Niznik v. United

States., 6th Cir., 1949, 173 F. 2d 328.

The error here is grievous and fundamental. It preju-

diced the petitioner's rights. It is unlike the harmless error

in the Martin case. There the court held that in a case

where there was a full compliance with the personal ap-

pearance regulation (except for the giving of written notice

of the new classification) it was harmless because Martin

was told by the board when he was called back five minutes

after the new classification what it was. Also, later the clerk

of the board read the memorandum of the action of the

board to him. We have no situation of a substantial com-

pliance with the board here. Here was a rank and complete

omission to follow the necessary steps required by the Se-

lective Service Regulations. What the court below said

in the last paragraph of its opinion in United States v.

Zicher, 1947, 161 F. 2d 90, 93, is still the law today and

applies here.

In United States v. Strebel, D. Kan., 1952, 103 F. Supp.

28, 631, the court refused to extend the doctrine of the

Martin case and chose to follow the Stiles case. There no

new classification notice Was mailed after the board decided

to let the original classification “drift along.” This is the

situation here.—See also United States v. Graham, N. D.

N. Y., 1952, 108 F. Supp. 794.

The United States District Court for the Eastern Dis-

trict of Pennsylvania in Ex parte Fabiani, E. D. Pa., 1952,

105 F. Supp. 139, held that a liberal and serutinous review

of draft board classifications is demanded under the 1948

and 1951 draft acts and that the courts are not required to

follow the stricter view adhered to under the 1940 act.

In a consideration of the Selective Service Regulations

the Court ought to be careful not to confuse the regulations

in force at the time of the progress of tue petitioner’s case

through the local board with the regulations amended at a

later date. This danger was called to the attention of the

trial court and he avoided the pitfall but fell into the well

on a decision of the case on other points, See the transcript

of the testimony for the effect of the change in the amend-

ments and the inapplicability of the new regulations.

Under the new regulations it is not necessary to reclas-

sify unless new and additional evidence, sufficient to justify

a change in classification is given. If the new evidence is

sufficient, then the classification is reopened and the regis-

trant is then classified anew. There must, however, even

under the new regulations, be a written notice of the action

taken by the local board. See Section 1624.2(¢) and (d) as

amended by Executive Order of the President No. 10,292

on September 25, 1951, which was after the date of the per-

sonal appearance of the petitioner in this ease.

The trial :ourt made a point about the petitioner's mak-

ing a double-barreled complaint of the classification by the

local board in that he requested an appeal and a personal

appearance in the same letter. This was the same situation

in the Stiles case. Before the personal appearance Stiles

had requested both a personal appearance and an appeal.

A cursory consideration of the facts might lead one to

the conclusion that the board was confused by the action.

This is a common procedure followed by registrants. (See

".ocal Board Memorandum No. 52, issued January 14, 19%.3,

supra, p. 56) The practice is due to the printed notice ap-

pearing on the original classification card mailed to all

registran*s. (SSS Form No. 110) The notice reads:

“Appeal from classification by local board must

be made within 10 days after the mailing of this

notice by filing a written notice of appeal with the

local board. Within the same 10-day period you

may file a written request for personal appear-

ance before the local board.”

The above form has in the same paragraph a notice

that says if the request is made the time to appeal is ex-

tended ten days from the mailing of the new notice follow-

ing personal appearance. Section 1606.51 (of which the

Court can take judicial notice) makes the form a part of

the Selective Service Regulations.

It is seen that if any confusion was caused the board, it

was set in motion by the provisions of the Form No, 110

used by the board. The petitioner, being a layman and un-

learned in the law, cannot be judged on the basis that he

was skilled in the knowledge of the regulations. He could

have gotten by with a request for personal appearance but

this was not plainly called to his attention on the card. The

language of the card is ambiguous. A registrant reading

the words would very easily take the two courses of making

a dua] request in order to play safe and not lose his rights.

In any event the taking of the appeal simultaneously with

requesting the personal appearance does not forfeit the

rights of personal appearance. The fact that it was granted

put the duty on the board of proceeding as though he had

not mailed the notice of appeal.—See Local Board Memo-

randum No, 52, issued January 14, 1953, supra, p. 56.

The undisputed evidence shows that the board consid-

ered that the case was out of its hands upon the personal

appearance, | R. 4, 5-7, 10] The hearing was a sham and a

shell because of his misinterpretation of the law. [R. 4, 5.

6-7, 8, 10, 13] If they considered and honored his request

to the point of notifying him to appear for a personal ap-

pearance it was their duty to consider his arguments, his

statements and his evidence. The rejection of these because

the case was out of the hands of the board constituted a

denial of a full and fair hearing.

There is an opinion of the court below directly in point

on this question. It is United States v. Zieber, 1947, 161 F.

2d 90.—See also Bejelis v. United States, 6th Cir., 1953,

206 F. 2d 354, 356-358.

The right of a full and fair hearing is guaranteed by

the regulations. The rights of the registrant upon a person-

al appearance are explicitly set forth in Section 1624.2(b).

It is obvious that the purpose of the regulations was to

afford the registrant a full and fair hearing. The right to

a persoual appearance is an important one. The petitioner

in this case, as a registrant, was entitled to be heard in

person. It is fundamental that a personal appearance be-

fore a tribunal deciding any matter at issue is absolutely

essential to insure justice and proper administration of

law. In fact, the matter of personal appearance is recog-

nized by the judiciary as being an indispensable factor of

equal justice under law in the trial courts. It is fundamen-

tal that the appellate courts alweys yield to the finding of

the trial court or jury upon issues of fact, because the trial

court is in a better position to judge the matter that is at

hand than the appellate court, inasmuch as the trial court

has the advantage of the personal appearance of the liti-

gants and witnesses. Indeed it would be a rank departure

from due process of law were a trial court to refuse to per-

mit parties or witnesses to make a personal appearance be-

fore the court. It is the purpose of the jaw to insure to liti-

gants the right of personal appearance before tribunals,

judicial or administrative.

The purpose of the regulations providing for personal

appearance was to guarantee the rights of registrants to

procedural due process of law and to a full and fair hear-

ing. These regulations cannot be circumscribed by arbi-

trary actions or wanton disregard for the rights of regis-

trants or a mere desire to be free of a vexatious problem

and to pass it on toa higher tribunal.

It certainly will be conceded that in judicial proceedings

there would be a violation of procedural due process were

the trial judge to deny the right of the litigants to appear

personally and to force them to submit their case upon affi-

davits. The right to such a personal appearance would be

defeated and frustrated in such an instance. While there is

no constitutional guarantee of the right of a personal ap-

pearance before an administrative tribunal, if the regula-

tions provide for the right of a personal appearance before

such tribunal-the persona! appearance cannot be denied. If

it is refused, then that constitutes a violation of procedural

due process.

In this case the action of the local board was tanta-

mount to a denial of the right of a personal appearance.

The local board illegally regarded that the petitioner had

appealed his case to the appeal board. The personal ap-

pearance before the local board was a hollow formality.

Concededly the local board failed to consider the evidence

of the petitioner. This was not a hearing upon a personal

appearance of the type required by law. (Bejelis v. United

States, 6th Cir., 1953, 206 F. 2d 354, 356, 358) “If one who

determines the facts which underlie the order has not con-

sidered evidence or argument, it is manifest that the hear-

ing has not been given.”"—Morgan v. United States, 298

U_S. 468, 480-481 (1936).

The local board’s action in arbitrarily and capriciously

refusing to give petitioner a full and fair hearing comes

squarely within the statements allowing judicial review of

draft board determinations in Ex parte Stanziale, 3rd Cir.,

1943, 138 F. 2d 312.

In Estep v. United States, 327 U.S. 114 (1946), the Su-

preme Court held that draft board determinations and rul-

ings were final only when they were made in conformity

with the law and the regulations. The Court mentioned a

few of the violations of the rights of registrants that would

constitute a violation of procedural due process. The Court

then added: “In all such cases its action would be lawless

and beyond its jurisdiction.”—327 U.S., page 121.

In United States v. Zieber, 3rd Cir., 1947, 161 F. 2d 90,

93, the Government centended that honest, good-faith mis-

takes of a draft board in the denial of procedural due proe-

ess constituted harmless error. This Court rejected this

argument.

This regulation was considered by the United States

District Court for the Southern District of New York in

United States v. Romano, 1952, 103 F. Supp. 597.

In United States v. Peterson, N. D. Cal. S. D., 1944, 53

fF’. Supp. 760, the defendant requested a personal appear-

ance. There, as here, it was granted. There the defendant

appeared and his case was heard while he sat in an anteroom.

In that case the hearing was denied completely in the

»resence of the defendant when he appeared.—See also

United States v. Laier, N. D. Cal. 8S. D., 1948, 52 F. Supp. 392.

It is plain, therefore, that the local board did not carry

out the burden placed upon it by Section 1624.2(b) and (c)

of the regulations. The board did not consider the case de

novo but refused to reopen the case and reclassify petition-

er, because he did not offer any new evidence. (United

States v. Stiles, 3rd Cir., 1948, 169 F. 2d 455) This deprived

petitioner of his rights to procedural due process of law

upon personal appearance.

CONCLUSION

It is submitted that this Court should hold that the

draft board order made the basis of the prosecution is void.

The reasons are (1) there was no basis in fact for the de-

nial of the conscientious objector status, (2) the recam-

mendation by the Department of Justice that willingness

to assist in the war effort by working on a farm was basis

for the denial of the conscientious objector status and (3)

the local board denied petitioner his rights guaranteed by

Section 1624.2(b) and (c) of the Selective Service Regula-

tions. Therefore, the judgment of the court below should

be reversed and this case remanded to the district court

with directions to enter a judgment of acquittal.

Respectfully submitted,

Hayven C. Covinctron

124 Columbia Heights

Brooklyn 1, New York

Counsel for Petitioner

November, 1954.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.