Brief for Petitioner — Gonzales v. United States
Supreme Court brief1955
Ask Donna
What actually matters in this document.
Text
- ie ay, a
“27 ¢ t
fer wt i EOE” - ’
E P| oe
Supreme Gourt of the Buited WHE
Ocroper Term, 1954
No. 69
JOE VALDEZ GONZALES,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATIS COURT OF APPEALS
FOR THF SIXTH CIRCUIT
BRIEF FOR PETITIONER
Haypen C. Covincton
124 Columbia Heights
Brooklyn 1, New York
Counsel for Petitioner
SUBJECT INDEX
SN hoe ae Ca i a Ne |
i EEE IRERS Percent Se Oa AARC a aes a
Statutes and regulations involved ................
Ce ee wane uous
I CA en ee nT
Summary of argument .....................000.
SE a 64 ccs Wb we ntieed ica dE canwe ences
ONE
There was no basis in fact for the denial of the
conscientious objector status by the appeal board to
petitioner ; consequently, the final I-A classification is
arbitrary and capricious.
TWO
The hearing officer of the Department of Justice
arbitrarily and capriciously recommended against
petitioner’s claim by rejecting the undisputed evidence
that showed he was a conscientious objector to both
comb-tant and noncombatant military service, on the
ground that he became one of Jehovah’s Witnesses and
a conscientious objector too recently and that, there-
fore, he was not in good faith a conscientious objector.
THREE
The Department of Justice deprived Gonzales of
his procedural rights to due process of law by not
mailing a copy of the report of the hearing officer
and its proposed recommendation to the appeal board
to petitioner before the recommendation was mailed
to the appeal board, and by not giving him an oppor-
tunity to rebut the adverse recommendation before
the final appeal board c’assification, contrary to due
ee WE GES vai cure eebebaseveakes oeabedbeckes
CS dc ahaa us dbus eee er curn ce seeeoeeewe
27-41
41-51
Cases CITED
PAGE
Annett v. United States
10th Cir., 1953, 205 F. 2d 689, GOD, 691, G92... npg 24,
25, . of, 39, 47
Bejelis v. United States
Gth Cir., 1953, 206 F’. 2d 354, 358 ............ 49
Brewer v. United States
4th Cir., 1954, 211 F’. 2d 864, 866 .............. 26, 53
Clementino v. United States
9th Cir., Sept. 27, 1954, — F. 2d— ...... Aer geee 25, 50
DeGraw v. Toon
kt oe 6! UG Le 8 ey 26, 53
Dickinson v. United States
9th Cir., 1953, 203 F. 2d 336, 346 U.S. 389,
392-393, 395, 396-397, 399 (1953) .... 20, 21, 22, 24, 32,
33, 38, 39, 42, 46, 48, 49
Estep v. United States
ae UU. UNG, 120-182 (IGG) .nn ccc cccccccccss 24, 49
Fabiani, In re
KE. D. Pa., 1952, 103 F. Supp. 139, 147-148 ...... 49
Franks v. United States
9th Cir., Oct. 4, 1954,—F. 2d— ............ 37
Girouard v. United States
wee Us. Gh, GEG (IBGE) nc ccccccctveccces 20, 3
Goetz v. United States
9th Cir., Oct. 14, 1954, — F. 2d—.......... 37, 50, 51
Gonzales v. United States
6th Cir., April 15, 1954, 212 F. 2d 71 (No. 69,
ee vn nc wn ws cede acneneredes 1
Hinkle v. United States
9th Cir., Sept. 24, 1954, — F.2d — ... 20, 25, 34, 50, 51
Hull v. Stalter
7th Cir., 1945, 151 F. 2d 633, 635, 637-638 .. 21, 22, 33,
40, 42, 49
i |
SO UE Pee
Cases Cirres continued
PAGE
Interstate Commerce Comm. v. Louisville & N. R. R.
Co.
937 U.S. 88, 91-92, 93 (191S) ......cccccecess a)
Jessen v. United States
10th Cir., 1954, 212 F. 2d 897, 899, 900 ..... 20, 33, 54
Jewell v. United States
6th Cir., 1953, 208 F. 2d 770, 771-772 ...... 32, 34, 38
Johnson v. United States
Sth Cir., 126 F. 2d 242, 247 ......-.ceeeeeeee. 32
Kwock Jan Fat v. White
953 U.S. 454, 459, 463, 464 (1920) ............ 53
Morgan v. United States
304 0.8. 1, 19, 22, 23 (19GB) ... ccc ccevccees 26, 53
Niznik v. United States
6th Cir., 1950, 184 F. 2d 972, 974 ........ lad abn 33
N.L.R. B. v. Cherry Cotton Mills
5th Cir., 1938, 98 F. 2d 444, 446 .............. 24, 49
N.L.R. B. v. Dinion Coil Co.
ee ec ondenewnscadesoness 47
Phillips v. Downer
2d Cir., 1943, 135 F. 2d 521, 525-526 ........ 5]
Pine v. United States
4th Cir., 1954, 212 F. 2d 93, 96-97 ............ 32, 34
Reel v. Badt
9d Cir., 1944, 141 F. 2d 845, 847 ..........-... 51
Schuman v. United States
9th Cir., 1953, 208 F. 2d 801, 802, 803, 804, 805,
SE cboceadantsessededaneses 24, 33, 34, 40, 46, 47, 48
Sheats v. United States
10th Cir., 1954, 215 F. 2d 746 22... .6--- ee eee 26, 53
Sicurella v. United States
No. 250, October Term, 1954 .........-6.-5055 30
ili
Cases Creep continued
PAGE
Taffs v. United States
Sth Cir., 1953, 208 F, 2d 329, 330, a3i1, 332 (No.
076, October Term, 1953), 347 U. S.928 (1954) .. 20, 25,
32, 33, 34, 36, 39 51
i nited States v. Abilene & ©. Ry. Co.
ge Se | eee 53
United States v. Balogh
2d Cir., 1946, 157 F. 2d 939, 943-944, 329 U.S.
692 (1947), 20 Cir., 1947, 160 F. 24 999 ........ 26, 53
United States v. Bortlik
M.D. Pa., 1954, 122 F. Supp. 225, 227 ........ 35
United States v. Bouziden
W. D. Okla., 1952, 108 F. Supp. 395, 397-398 .... 25, 51
United States v. Clark
W.D. Pa., 1952, 105 F. Supp. 613, 614 .... 2i, 41, 44
United States vy. Close
7th Cir., 1954, 215 F. 2d 439, 441, 442 (No. 447,
CPE ONE, BOGE ccccccccccuctcseuess 20, 33, 34
United States v. Everngam
D. W. Va., 1951, 102 F. Supp. 128, 130-131 ..... 19, 25,
28, 36, 39, 50, 51
United States v. Gonzales
K. D. Mich. 8. D., 120 F. Supp. 730 ............ 1
United States v. Graham
N. D.N. Y., 1952, 108 F. Supp. 794, 797 ...... 49
United States v. Hagaman
ard Cir., 1954, 213 F. 2d 86, 89 .............. 34
United States v. Hartman
2d Cir., 1954, 209 F. 2d 366, 368, 369 370, 371... 20, 32,
34, 36
United States v. Packer
2d Cir., 1952, 200 F. 2d *40, 541, 346 U.S. 1
(1953) (No. 573, October Term, 1953) ........ 21, 41
iv
8 RMS err SER
yee
Cases Cirep continued
PAGE
United States v. Pekarski
34 Cie., 19638, 207 F. BB GSD, GS... cc cccccees 33
Ll nited States vo Romano
S. DIN. Y., 19852, 102 FL Supp. 597, 600-001...
United States v. Sage
D. Nebr., 1954, 118 F. Supp. 33, 36 ............ 35
United States v. Simmons
7th Cir., 1954, 215 F. 2d 901, 903 (No. 251, Octo-
ey A CO 6 oa, cal de beeebe des 33
United States v. Vineelli
2d Cir., 1954, 215 F. 2d 210, 212-213... 21, 25, 41, 45, 44
United States v. Wilson
7th Cir., 1954, 215 F. 2d 445, 445, 446 |... 20, 33, 34, 37
United States v. Zieber .
Sed Cie.. 1067, B65 FF. BO GO, GE... nccvcccceses: 25, 49
Ver Mehren v. Sirmyer
Sth Cir. 1909. 36 FF. Bb STG, Bl . ww cee ees 49
Weaver v. United States
Sth Cir., 1954, 210 F. 2d 815, 822-823 ...... 20, 32, 47
White v. United States
9th Cir., Sept. 14, 1954, 215 F. 2d 782.2... 24, 40, 46, 47
Witmer v. United States
No. 164, October Term, 1954 .................. 37, 38
STATUTES CITED
Act of Congress, February 24, 1s04 (15 Stat.6,9) .. 27
Senate Report No. 1268, 80th Cong., 2d Sess., May 12,
1948 (to accompany Senate Bill No, 2655) ..... 19, 28
United States Code
» Pp § gC | FREE 2
Title 50, Appendix, § 201 (Act of 1917, 40 Stat.
OE a ae 19, 27
STaTurEs Cirep continued
PAGE
United States Code, continued
‘litle 50, Appendix, 5 305(g) (Selective Training
and Service Act of 1940, P.L. No. 783, 76th
Cong., 2d Sess., 54 Stat. 887), Section Og)... 19,27
Title 50, Appendix, Sections 451-470 (Universal
Military Training and Service Act (1951)),
Section:
'(c) (62 Stat. 604, 65 Stat. 75) ...... 2, 26, 52, 54
6(j) (62 Stat. 604, 612, 65 Stat. 79, 83, 86) ... 2,19,
a te I i a 4
United States Constitution
PIE sania se ve es oe go oe 29, 44
ee ec bi ee oP Ta ee 26, 52, 5
SELECTIVE SERVICE MatTeriAL Crrep
Regulations (22 C.F. R. § 1602 et seq.), Seetion:
1622.14 (E.O. 10292, 16 F.R, 9862, Sept. 28,
NES 5 parame Vee eke GANT Stee S 49
ne I Oe Re ont tL 40, 49
1625.2 (.O. 10292, 16 F.R. 9862, Sept. 28,
ect, REE RE ee ee men ees 49
1626.25 (E.O. 10292, 16 F.R. 9862, Sept. 28,
WE SEC ess na Nolin k cule ece deus 4, 14, 25, 52
1626.26 (FE. O, 9988, 13°F. R. 4874, Aug. 21,
1948, redesigned at 14 F.R. 5021, Aug. 13,
ST A ane nee A AN i ee) Snead 4, 52
MIsceELLANEouS CrraTtions
Michigan Law Review, Volume 30 (1941), pp. 913,
145-946, Marcus, “Some Aspects of Military Serv-
iY. Kis sas dant kee eee Lae Li
SES 9 Leite Ney
MisceLLangous Citations continued
Selective Service System, Conscientious Objection,
Special Monograph No. 11, Volume I, pp. 29-66,
Washington, Government Printing Office, 1950 . .
Sibley & Jacob, Conscription of Conscience, Cornell
University Press, Ithaca, N. Y., 1952, pp. 45-52 . .
Times, The New York, March 25, 1954 ...........
Vii
PAGE
Supreme Court of the United States
Octoser Term, 1954
No. 69
JOE VALDEZ GONZALES,
Petitioner
U.
UNITED STATES OF AMERICA,
Respondent
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR PETITIONER
OPINIONS BELOW
The opinion of the Court of Appeals is reported. (@on-
zales v. United States, 6th Cir., April 15, 1954, 212 F. 2d 71)
It appears in the record. [R.98] A memorandum opinion
of the district court also appears in the record. [R. 81-92]
This opinion is also reported.—-United States v. Gonzales,
120 F. Supp. 730.
to
JURISDICTION
The judgment of the Court of Appeals was entered on
April 15, 1954. |R. 97] The petition for writ of certiorari
was filed within 30 days of the date of such judgment. The
jurisdiction of this Court was invoked under 2&8 U.S. C.
§ 1254(1). (See also Rules 37(b)(2) and 45(a), Federal
Rules of Criminal Procedure.) This Court granted the writ
of certiorari on October 14, 1954. [R. 100]
STATUTES AND REGULATIONS INVOLVED
Section l(c) of the Universal Military Training and
Service Act (50 U.S.C. App. § 451(¢)) provides:
“The Congress further deciares that in a free society
the obligations and privileges of serving in the armed
forces 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. 925, 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
title shall be construed to requi2 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
belief, 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
Being involving duties superior to those arising from any
human relation, but does not include essentially political,
sociological, or philosophical views or a merely personal
moral code, Any person claiming exemption from com-
hatant training and service because of such conscientious
objections whose claim is sustained by the local board shall,
if he is inducted into the armed forces under this title, be
assigned to noncombatant service as defined by the Presi-
3
dent, 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 per-
form for a period equal to the period prescribed in section
4(b) such civilian work contributing to the maintenance of
the national 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
required of him under this title. Any person claiming ex-
emption from combatant training and service because of
such conscientious objections shall, if such claim is not
sustained by the local board, be entitled to an appeal to
the appropriate appeal board. Upon the filing of such ap-
peal, the appeal board shall refer any such claim to the
Department of Justice for inquiry and hearing. The De-
partment of Justice, after appropriate inquiry, shall hold
a hearing with respect to the character end good faith of
the objections of the person concerned, and such person
shall be notified of the time and place of such hearing. The
Department of Justice shall, after such hearing, if the ob-
jections are found to be sustained, recommena to the ap-
peal board that (1) if the objector is inducted into the
armed forces under this title, he shall be assigned to non-
combatant service as defined by the President, or (2) if the
objector is found to be conscientiously opposed to partici-
pation in such noncombatant service, he shall in lieu of
such induction, be ordered by his local board, subject to
such regulations as the President may prescribe, to per-
form for a period equal te the period presribed in section
4(b) such civilian work contributing to the maintenance of
the national health, safety, or interest as the local board
may deem appropriate and any such person who knowing-
ly 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 required of him under this title. If after such hear-
ing the Department of Justice finds that his objections are
not sustained, it shall recommend to the appeal board that
such objections be not sustained. The appeal board shail,
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 lo-
eal board. Each person whose claim for exemption from
combatant training and service because of conscientious ob-
jections is sustained shall be listed by the local board on
a register of conscientious objectors.”
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 shall knowing-
ly fail or neglect or refuse to perform any duty required
of him under or in the execution of this title, or rules, reg-
ulations, 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.F. R. § 1622.14 (K.0. 10292, 16 F. R. 9862, Sept. 28,
1951)) provides:
“Class 1-O: Conscientious objector available for ci-
vilian work contributing to the maintenance of the national
health, safety, or interest.—(a) In Class I-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 be conscientiously opposed
to both combatant and noncombatani training and service
in the armed forces.”
Section 1626.25 of the Selective Service Regulations (32
C. F. R. § 1626.25) provides:
H)
“Special provisions when appeal involves claim that
registrant is a conscientious objector. (a) If 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 serv-
ice in the armed forces, but not conscientiously opposed to
noncombatant training and service in the armed forces, the
appeal board shall first determine whether or not such reg-
istrant is eligible for classification in a class lower than
Class I-A-O. If the appeal board determines that such reg-
istrant 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 classification 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 re-
ligious training and belief, conscientiously opposed to par-
ticipation in war in any form and to be conscientiously op-
posed to participation in both combatant and noncombatant
training and service in the armed forces, the appeal | oard
shall first determine whether or not the registrant is eligi-
ble 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
6
that the registrant is eligible for classification in Class I-O,
it shall place him in that class.
“(4) If the appeal board determines that such regis-
trant is not entitled to classification in either a class lower
than Class |-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 Unit-
ed States Attorney by any appeal board and any file so
forwarded shall be returned, unless in the ‘Minutes of Ac-
tion by Local Board and Appeal Board’ on the Classifica-
tion 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 registrant. 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 sustained, the
Department of Justice shal) recommend to the appeal board
(1) that if the registrant is inducted into the armed forces,
he shall be assigned to noncombatant service, or (2) that
if the registrant is found to be conscientiously 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 to the appeal board that such objections be not
sustained.
7
“(d) Upon receipt of the report of the Department of
Justice, the appeal board shall determine the classification
of the registrant, and in its determination it shall give con-
sideration to, but it shall not be bound to follow, the ree-
ommendation 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 recommen-
dation of the Department of Justice and the report of the
Hearing Officer of the Department of Justice.”—-E. O. 9988,
13 F. R. 4874, Aug. 21, 1948, as amended by EF. O. 10292,
16 F. R. 9862, Sept. 28, 1951.
Section 1626.26 of the Selective Service Regulations (32
C.F. R. § 1626.26 (KE. O. 9988, 13 F. R. 4874, Aug. 21, 1948,
redesignated at 14 F. R. 5021, Aug. 13, 1949) provides:
“Decision of appeal board. (a) The appeal board shall
classify the registrant, giving consideracion to the various
classes in the same manner in which the local board gives
consideration thereto when it classifies a registrant, except
that an appeal board may not place a registrant in Class
IV-F becanse of physical or mental disability unless the
registrant has been found by the local board or the armed
forces to be disqualified for any military service because
of physical or mental disability.
“(b) Such classification of the registrant shall be finai,
except where an appeal to the President is taken; Provia-
ed, That this shall 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
I.
Whether the denial of the claim for classification of
petitioner as a conscientious objector was without basis in
fact and, consequently, the final I-A classification was ar-
bitrary and capricious.
Il.
Whether petitioner’s willingness to defend himself and
his Christian brothers by the use of force in event of at-
tack is basis in fact for a denial by the appeal board of the
conscientious objector classification claimed by petitioner.
III.
Whether a sincere and bona fide member of a religious
group having religious objections to performance of mili-
tary service may be denied his conscientious objector status
under the act and the reguletions for the reason that he
is a recent convert and his conscientious objections are not
old enough because they were acquired shortly before liis
registration under the draft law.
’ IV.
Whether the act and the regulations permit the draft
boards or the courts to deny the conscientious objector sta-
tus because the objector to direct participation in the
armed forces is willing to work in a defense plant that
might be held to be indirect participation in the war effort.
V.
Whether the fact that some members of Jehovah's Wit-
nesses may choose to enter the armed forces and have done
so may he considered as a basis in fact for the denial of
the conscientious objector status to petitioner, notwith-
standing that he sincerely believes in the tenets of Jeho-
vah’s Witnesses against direct participation in the armed
forces, to such an extent that he cannot participate in the
armed forces.
VI.
Whether petitioner was denied his rights to procedural
due process of law contrary to the act and the Fifth
Amendment to the Constitution when the appeal board
considered and acted upon the adverse recommendation
9
against petitioner without first giving petitioner an oppor
tunity to answer the recommendation.
STATEMENT OF THE CASE
Petitioner was indicted and charged in the district court
with violation of the Universal Military Training and
Service Act by refusing to submit to induction. [R. 2]
On May 14, 1953, petitioner was arraigned. He pleaded
not guilty. [R. 1] He waived the right of trial by jury on
July 7, 1953, the date his trial began in the district court.
The trial continued to the next day. The court heard evi-
dence. At the conclusion of the evidence a motion for judg-
ment of acquittal was filed. The court took the case under
advisement and reserved decision on July 13, 1953. Ou Sep-
tember 22, 1953, the trial court filed a memorandum opin-
ion denying the motion fer judgment of acquittal and find-
ing petitioner guilty. [R.1] The opinion is printed in the
record. |.%. 81-92] On October 26, 1953, the trial court sen-
tenced petitioner to the custody of the Attorney General
for a period of three years and ordered him to pay a fine
of $500.00. [R. 1, 93]
A notice of appeal was timely filed. [R. 94] Motion for
bail was denied by the trial court. [R.94] Application for
bail pending appeal was made to the Court of Appeals
and allowed by it. The record was duly filed and case was
fully argued, briefed and submitted to the Court of Ap-
peals. [R. 97] On April 15, 1954, the Court of Appeals en-
tered its judgment of affirmance. The opinion of the Court
of Appeals is in the record. [R. 97-99] The clerk of the
Court of Appeals has filed in this Court a certified copy of
the printed transcript of the record. R. [1-99]
Petitioner was born July 22, 1931, at San Antonio, Tex-
as. [R. 35] He registered with Local Board No. 95, Wayne
County, Michigan, at Detroit, on January 4, 1950. [R. 34]
10
A classification questionnaire was mailed to him on Feb-
ruary 28, 1951. [R. 34] He answered the questionnaire and
returned it to the board on March 9, 1951. [2.35]
lle gave his name and address. [R. 36] In Series VI he
stated he was a minister of religion and that he regularly
and customarily served as such. He stated that he had been
a minister of Jehovah's Witnesses since I’ebruary 19, 1950.
He stated that he had been formally ordained on Febru-
ary 19, 1950. [R. 37]
In Series VII he stated that he was married and lived
with his wife and that they had been married at San An-
tonio on September 27, 1948. [R.27] He showed that he
was employed by the Great Lakes Steel Corporation and
devoted forty hours per week to this work. {| R. 37-38]
In Series X he said he had completed eight years of
elementary education and two years of high school, but
had not graduated from high school and that he had re-
ceived private instruction and Bible training by H. Graffis
from November 19, 1949, to October 1, 1950. [R. 38]
He signed Series XIV showing that he was conscien-
tiously opposed to participation in war and desired to
be furnished the special form for conscientious objector.
[R. 39]
On page seven of the questionnaire, under “Registrant's
Statement Regarding Classification,” he requested the lo-
eal board to classify him as a regular or ordained minister
of religion. [R. 39]
In response to the request contained in Series XIV of
the questionnaire certifying that he was a conscientious ob-
jector, on March 27, 1951, the local board mailed to him
the special form for conscientious objector. [R.40] He
answered the questions therein and on April 2, 1951, re-
turned it to the local board, after having signed series
1(B) showing he was opposed to both combatant and non-
combatant military service. {| R. 42-47]
In the special form he answered that he believed in
the Supreme Being. |R. 43] He said that his duties to the
1]
Supreme Being were superior to any duties be owed as a
result of any human relationship. He said he believed his
obligations to the Creator were higher than those owed to
the state. He relied on the Ten Commandments and the
Bible. He believed ini the love of God and the love of neigh-
bor. He added that anything that caused him to violate any
of God’s commandments he could not do. [R. 43] He stated
that he had learned his conscientious objections as a result
of intensive Bible study. [ R. 43-44]
He stated that P. C. Truscott was the presiding minister
of the congregation that he customarily attended. He relied
entirely on the knowledge of the Bible for the basis of his
belief. [R. 46}
He gave references of persons who could corroborate
his stand as one of sJehovah’s Witnesses and who could
certify that he was a consientivus objector. He then signed
the form. [R. 47 |
The local board considered the questionnaire and the
special form and on April 10, 1951, classified him in III-A
as a married man. {[R.40! This classification made it un-
necessary for the board to consider his claim for exemp-
tion as a minister. It signified, however, that the board had
bypassed his conscientious objector form. [R. 40] On
April 25, 1951, the local board notified petitioner of the
classification. [R. 40]
On May 7, 1951, Gonzales filed a request for a personal
appearance to discuss his classification. On May 15, 1951,
the board decided not to grant the personal appea:ance but
rather to send his file to the appeal board, according to a
notation in the margin of the letter requesting the appear-
ance. On May 16, 1951, the local board forwarded the file
of Gouzales to the appeal doard on its own motion. [R. 49-
50} The appeal board affirmed the III-A classification on
June 12, 1951. [R. 40, 50] Notice of this was sent to him
on June 15, 1951. [R. 40]
He remained in the classification of a married man until
January 8, 1952. On that date he was placed in Class I-A
12
by the local board and so nx ‘ified. [R. 40} On January 16,
1952, petitioner requested a personal appearance. [ R. 50}
The local board set January 29, 1952, for the hearing.
| R. 40, 51] This was first postponed to February 4, 1952,
and then adjourned, because of a lack of a quorum, to Feb-
ruary 12, 1952. | R. 40, 51]
On February 12, 1952, a personal appearance was con-
ducted. A stenographer was present and made a transcript
of the hearing. [R. 40, 52-60} The memorandum of the per-
sonal appearance showed that Gonzales was ordained in
February, 1950. | R.51] He testified that he became a full-
time pioneer minister on October 1, 1950. He said: “I give
100 hours per month or about 1200 hours per year to min-
isterial activity.” [R. 51, 53)
He pointed out that working 40 hours per week did not
interfere with the performance of his ministerial duties
and that the reason he did not quit Great Lakes Steel Cor-
poration was that it did not interfere with the performance
of his full-time pioneer ministry. [R. 53]
He stated he based his conscientious objections upon
the teachings of the Bible that “we should not kill and
should love our neighbors as ourselves.” [R.54] He said
he did not have a certificate of ordination but that his min-
istry was proved by the bours he worked and the knowledge
he had of the Bible. He said he was the advertising servant
for the Downtown Unit of Jehovah's Witnesses in Detroit.
He then added that he had a regular parish or person-
ally assigned territory where he preached. [R. 55-56] He
showed he had a congregation and place of meeting and
that he preached in various places in the homes of the
people as w.'l as in the hall where the ministry school is
conducted. [ R. 55-56 |
He stated he was employed at the Great Lakes Steel
Corporation on the midnight shift because he had put his
“minister's duties first” and that if he could not put them
first he would have to get another job. He said the Great
Lakes Steel Corporation “worked it out for me.” [R. 56]
He informed the members of the local board that he
had attended a regular Theocratic Ministry School where
he prepared himself for the ministry, He stated that it is
not a school of theology, but rather a sehool where the
Bible is taught. He referred to the textbook Theocratic Aid
to Kingdom Publishers. | R. 56-57 |
Ile answered that the Great Lakes Steel Corporation
manufactured some articles that are used in war. He said
that did not have any bearing on his belief any more than
did his paying an income tax. He said he would not assist
a person injured in battle. When ask: | why he helped the
war effort by working in a defense plant he stated he had
to make his living some way. ven if he raised pigs, he
said, he would be doing the same thing when he paid his
income tax. He said he did not know wher the money went
and that it was not his business. He said by working and
paying income taxes he was rendering to Caesar the things
that were Caesar's. | R. 56-58 |
He was asked if he would be willing to fight for Caesar.
He said he would not give his life to Caesar, because it did
not belong to Caesar: it belonged to God who gave it. He
could obey only those laws of man that are not against
Giod’s commands. The judge of what belongs to God and
what te Caesar was God's Word, the Bible: he would de-
termine what he should do by using the Word of God.
LR. 58]
He asked permission te call before the board the pre-
siding minister of his congregation, Paul Truscott, to veri-
fy his testimony that he was a pioneer full-time roinister.
The board assured him that since he had made these state-
ments under oath, ‘we do not doubt it.” [| R59)
The local board made no decision on February 12. It
did so at a later date and on Feoruary 19, 1952, 1 classi-
fied petitioner in I-A. [ R. 40)
On February 19, 1952, the local beard ordered him te
report for armed foerees physical examination on Febru-
ary 28. | R. 40, 60-61) On February 20, Gonzales appealed
14
to the appeal board. The appeal was filed on February 25.
| R. 40, 61] On February 28 he appeared for the examina-
tion and on April 8 he was mailed a certificate of aceept-
ability. | R. 41, 61-62] His file was forwarded to the appeal
board on April 8, 1952. [h. 40) On April 14, 1952, the State
Director of Selective Service transmitted the file to the
appeal board. [{ R. 62-64]
On June 6, 1952, the appeal board, having determined
that petitioner should not be classified in I-O or in a class
lower than 1-O, forwarded the file to the United States At-
torney, under the provisions of Section 1626.25, for advi-
sory recommendation by the Department of Justice. | R. 41,
64-66 |
After the file was forwarded to the Department of Jus-
tice an extensive FBI investigation was conducted. [R. 66-
68| This was foliowed by a reference of the file to a hearing
officer of the Department of Justice. The hearing officer
notified petitioner to appear before him on August 5, 1952,
for a hearing on the sincerity of his conscientious objec-
tions. | RK. 11-12]
The hearing officer, John C. Ray, was called as a wit-
ness and testified in behalf of the Government in the trial
court. [R. 10-20] He identified the report of the hearing
made by him and mailed to the Department of Justice.
{R. 11-12] The hearing officer's report was read into the
record, | R. 11-16}
The FBI report showed that petitioner was “well re-
garded in the several communities in which he has lived and
that he and his wife are said to be very religious.” {R. 13-
14| They held Bible studies in their home and devoted con-
siderable time to religious work. The investigation of the
FBI disclosed that he was “a devoted member of the sect
and applies himself earnestly to his religious work” | R. 12-
14|: that he served as advertising servant and supervisor
of the distribution of the religious magazines for the con-
sregation with which he was associated; and that from
February, 1950, to September, 1950, he “worked at least
15
twenty hours each month doing public preaching, distribut-
ing literature, conducting Bible studies and making ‘back
calls’ [on] interested persons.” |R.14] The report showed
that Gonzales thereafter became a pioneer or full-time min-
ister of Jehovah's Witnesses. |[R.14| As such he was re-
quired to put in a minimum of one hundred hours monthly
in preaching. [R. 14]
The hearing officer found: “[Gonzales] appeared to be
a sincere Jehovah’s Witness and as such is conscientiously
opposed to war. He refuses combatant and noncombatant
service and claims classification as an ordained minister by
virtue of his baptism in the Jenovak’s Witnesses sect in
February, 1950. As is enstomary with Jehovah's Witnesses,
registrant claimed that his regular bread-earning work was
merely an avocation and that his ministry was his true vo-
cation. Besides his claim of being a minister, registrant
also alternatively claimed to be a conscientious objector.
Ile disclaimed being a pacifist and under certain circum-
stances, if attacked, he would defend himself and members
of his family to the point of taking life.” [R. 15]
The hearing officer concluded (although Gonzales was a
full-time minister) : “his affiliation with the sect has been too
recent to warrant acceptance thereof as a deep-seated con-
viction. Until the fall of 1949 he was a Catholic and his con-
version to the Jehovah's Witnesses is too closely related to
his selective service staius to he accepted yet as genuine.”
(R. 15] The hearing officer recommended egainst both the
ministerial and conscientious objecto: classifications. He
suggested the I-A classification. |R. 15-16] On August 11,
1952, his repor: was mailed to T. Oscar Smith, Special As-
sistant to the Attorney General, Washington, D. C. [R. 16]
The hearing officer testified at the trial. [R. 10-20] He
said that Gonzales gave the usual grounds given by others
of Jehovah's Witnesses as basis fer his claim as a con-
scientious objector, making the usual Bibh ‘1 quotations
[R.16}; that Gonzales had applied himself to his belief
{R. 17]; and that he got the impression that Gonzales was
16
a sincere Jehovah's Witness. | R. 18-19! He basec his de-
nial of the conscientious objector claim to Gonzales solely
on the fact that petitioner’s “conversion to the Jehovah's
Witnesses is too closely related to his selective service sta-
tus,” since petitioner had been a Catholic until the fall of
1949, [R. 13, 15, 19-20]
When asked whether a person “could not be a conscien-
tious objector today because he was not yesterday” the
hearing officer refused to answer. [R. 19-20} He again said
on cross-examination that the only basis for the adverse
recommendation was the time element. [ R. 20]
The report of the hearing officer to the Attorney Gen-
eral does not appear in the file. [ R. 20-21]
The local board clerk testified that only the reeommen-
dation from the Department of Justice (a letter from the
Assistant to the Attorney General) appeared in the file.
The recommendation of the Attorney General merely re-
ferred to the report. [|R. 21] The clerk testified about the
recommendation of the Attorney General. It was read into
evidence. [R. 21]
The recommendation of the Attorney General referred
tu the fact that Gonzales was “a sincere Jehovah’s Wit-
ness” but concluded that his affiliation “with that sect has
been too recent and too closely related to his draft status
to warrant the acceptance of his conscientious objector po-
sition as genuine.” |R. 67-68] The Attorney General stated
that Gonzales became a member of Jehovah's Witnesses in
February 1950, one month after his registration in January
1950. He said that this was despite “the fact that his wife
had been a member for many years,” and that it “lends
weight to this conclusion. [R. 68]
The recommendation of the Attorney General to the ap-
peal board is dated December 1, 1952. It appears in the
draft board file. [R. 66-68] No notice of filing it was given
to petitioner, The appeal board acted upon the recommen-
dation without giving Gonzales an opportunity to answer
the report and classified him in I-A on December 11, 1952.
17
[R. 41, 69] This made him liable for military training and
service and denied his claim for exemption as a minister
or classification as a conscientious objector. He was noti-
fied of this classification on December 15, 1952. [R. 41]
On December 21, 1952, Gonzales wrote to the state di-
rector, requesting a review of his case, [R.69} On Jan-
uary 6, 1953, the local board transmitted his file to the state
director upon request of that official. [R. 70-71] On Jan-
uary 13, 1953, the state director informed Gonzales and
the local board that no action would be taken and no fur-
ther review was permitted. [R. 71-72]
On February 3, 1953, petitioner was ordered to report
for induction on February 19. [R. 41, 73] He reported on
February 19, 1953, but refused to submit to induction.
[R. 41, 77-78] He was reported to the United States Attor-
ney as a delinquent. [R. 41, 76] He was indicted for refus-
ing to submit to induction. [R. 2]
Question I (supra, page 7, this brief) was raised in
the trial court under ground 4 of the motion for judgment
of acquittal. [R. 78-79] The trial court recognized this con-
tention. [R.83] It found that there was basis in fact fer
the denial of the conscientious objector status. [R. 83-85]
One basis for the denial of the conscientious objector claim,
the trial court declared, was the fact that Gonzales was a
late convert of Jehovah’s Witnesses. [R. 83-84] The trial
court also found as basis in fact for the denial of the full
conscientious objector status that Gonzales was engaged in
work in a defense plant engaged in the manufacture of
some articles of war. [R.84] The finding that Gonzales
was a late-comer as one of Jehovah's Witnesses is made
the basis of point IIT (supra, page 8, this brief). The re-
liance upon the employment in a defense plant as basis in
fact for the deniai of the conscientious objector status is
made the basis of question IV (supra, page 8, this brief).
The trial court also found that because some of Jeho-
18
vah’s Witnesses had joined the army, and Gonzales stated
it was up to each one to determine whether he was con-
sientiously opposed to service in the armed forces, this was
basis in fact. [R. 84] This is made the basis of question V
(supra, page 8, this brief).
Petitioner also complained of the making of the recom-
mendation by the Department of Justice against his con-
scientious objector claim without giving him an ovportu-
nity to defend himself against the unfavorable recommen-
dation before the appeal board acted upon it. This was
raised in ground 11 of the motion for judgment of aequit-
tal. [R. 80] The trial court held that failure to include the
adverse recommendation in the file did not constitute a vio-
lation of procedural due process of law. [R. 87]
The Court of Appeals stated that the judgment of the
trial court was affirmed “for the reasons set forth by Judge
Koscinski in his order denying judgment of acquittal.”
{R. 99] In the per curiam opinion of the Court of Appeals
some of the facts are stated. [R. 98] The court below held
that that part of the recommendation of the Department
of Justice (that Gonzales be denied the conscientious ob-
jector status because he was a late-comer to Jehovah’s Wit-
nesses) was not illegal. [R. 98-99] The court relied upon
the statement made by Gonzales that others of Jehovah's
Witnesses had joined the army and that conscientious ob-
jection was an individual choice for each to make. [R. 98]
The court found that the Department of Justice recognized
Gonzales to be sincere and conscientiously opposed to war,
but that he stated that if attacked he “ ‘would defend hin-
self and members of his family to the point of taking life.’ ”
[R. 98]
The court below relied upon the oral testimony of the
hearing officer that, while Gonzales was sincere, because of
his late conversion there were “cther factors” the court
based the opinion upon. [R. 99] In one sentence the court
states that claiming conscientious objection “shortly before
being subject to the draft law” has no connection with
19
the claim for classification “as a conscientious objector.”
(R.99] Yet the court, without explanation, says it bears
upon whether Gonzales was “sincere” in making the claim.
{R. 99] The court held that the recommendation of the
Department of Justice was “merely aavisory.” [R. 99]
The court below fonnd that failure to give Gonzales
notice of the adverse recommendation by the Department
of Justice and classifying him without an opportunity to
defend himself against the recommendation were not a de-
nial of procedural due process of law. [R. 99]
SUMMARY OF ARGUMENT
ONE
There was no basis in fact for the denial of the conscien-
tious objector status by the appeal board to petitioner;
consequently, the final I-A classification is arbitrary and
capricious.
Section 6(j) of the Universal Military Training and
Service Act (62 Stat. 604, 612; 65 Stat. 75, 86, 50 U.S.C
App. §456(j)) is altogether different from the Selec-
tive Service Act of 1917 (40 Stat. 76, 78, 50 U.S.C.
App. § 201). In the 1940 act (Pub. L. No. 783, 76th
Cong., 2d Sess., 54 Stat. 887, 50 U. S. C. App. § 305 (g))
the Congress eliminated the requirement of pacifistie be-
lief. Under present law all that is required is an individual
belief in the Supreme Being. It is not necessary to be a
member of any church. All that is required is religious
training and belief. (United States v. Everngam, D. W. Va.,
1951, 102 F. Supp. 128, 130-131) The change in the 1948
act eliminated political and philosophical beliefs.—See Sen-
ate Report 1268, 80th Cong., 2d Sess., May 12, 1948, accom-
panying Senate Bill 2655.
The law does not permit comparisons between religious
belicfs of consientious objectors. In determining whether
petitioner is a conscientious objector the judicial inquiry
is limited to (1) belief in a Supreme Being, (2) belief in
obligations higher than those owed to the state, (3) oppo-
20
sition to combatant and noncombatant service, and (4) no
political beliefs.
The historic fair treatment of conscientious objectors
in the United States runs back to colonial times. This his-
tory was relied upon by Congress in reaching a liberal
definition of conscientious objector.—Girouard v. United
States, 328 U.S. 61, 68-69 (1946).
The undisputed documentary evidence showed that
Gonzales had sincere conscientious objections against com-
batant and noncombatant military service, based on his be-
lief in a Supreme Being involving duties higher than those
arising from any human relation. No question of his sin-
cerity is involved. There is no dispute as to the facts ap-
pearing in the file. The draft boards did not question his
sincerity. The boards merely demurred to his evidence
rather than denied it. Nowhere in the file did Gonzales
agree to do military service. He at all times opposed it.
The absence of contradictory evidence permits petition-
er to invoke Dickinson v. United States, 346 U.S. 389, 396-
397 (1953).—See Weaver y. United States, 8th Cir., 1954,
210 F. 2d 815, 822-823; Jessen v. United States, 10th Cir.,
1994, 212 F. 2d 897, 899-900; United States v. Close, 7th
Cir., 1954, 215 F. 2d 439, 441; Taffs v. United States, 8th
Cir., 1953, 208 F. 2d 329, 331-332; United States v. Hart-
man, 2d Cir., 1954, 209 F. 2d 366, 368, 369, 371.
Neither petitioner’s willingness to defend himself nor
his employment in a civilian defense plant constitutes basis
in fact for the denial of the conscientious objector status.
—Annett v. United States, 10th Cir., 1953, 205 F. 2d 689,
692; Taffs v. United States, 8th Cir., 1953, 208 F. 2d 329,
331-332; United States v. Hartman, 2d Cir., 1954, 209 F.
2d 366; Jessen v. United States, 10th Cir., 1954, 212 F, 2d
897, 899-900; Hinkle v. United States, 9th Cir., Sept. 24,
1954, — F. 2d — ; United States vy. Wilson, 7th Cir., 1954,
215 F. 2d 443, 445, 446.
The mere fact that Jehovah’s Witnesses permit each
individual to make his own determination as to the dictates
21
of his conscience does not give basis in fact for the denial
of the conscientious objector status. While Jehovah's Wit-
nesses have no publications against war there are innum-
erable statements of belief in respect to the neutrality of
Jehovah’s Witnesses and their nonparticipation in military
service.
There was no exercise by the hearing officer of his right
to question the credibility of Gonzales. The fact that there
was a hearing in the Department of Justice does not per
se give rise to the conclusion that the hearing officer dis-
believed Gonzales. A speculation that he did not think Gon-
zales was credible must be rejected for the lack of a mem-
orandum in the file specifically showing such fact.—Annett
v. United States, 10th Cir., 1953, 205 F. 2d 689, 690-691;
Dickinson v. United States, 346 U.S. 389, 396, 399 (1953).
The late change from Catholicism to the belief of Jeho-
vah’s Witnesses preceded the registration by Gonzales.
The law contemplated a late change of religions, to allow con-
scientious objectors to make their claims even though they
are late converts. Gonzales filed his conscientious objector
claim in time. This was before he was first classified. Even
if he had filed the conscientious ob; ector claim after he had
been classified, this would not be untimely. The law contem-
plates a change of status even after registration and classi-
fication.—Dickinson v. United States, 346 U.S. 389, 392-393,
395 (1953); Hull v. Stalter, 7th Cir., 1945, 151 F. 2d 633,
635; United States v. Packer, 2d Cir., 1952, 200 F. 2d 540,
041, reversed on other grounds, 346 U.S. 1 (1953); United
States vy. Clark, W. D. Pa., 1952, 105 F. Supp. 613, 614;
United States v. Vincelli, 2d Cir., 1954, 215 F. 2d 210, 212-213.
Permission by law to file a conscientious objector form
late after a conversion to religious opposition to service
prohibits the court below from finding basis in fact for the
denial of the conscientious objector status because Gonza-
22
les quit the Catholic Church and became one of Jehovah's
Witnesses shortly before his registration.
TWO
The hearing officer of the Department of Justice arbi-
trarily and capriciously recommended against petitioner’s
claim by rejecting the undisputed evidence that showed he
was a conscientious objector to both combatant and noncom-
batant military service, on the ground that he became one of
Jehovah’s Witnesses and a conscientious objector too recent-
ly and that therefore he was not in good faith a conscien-
tious objector.
The recommendation of the Department of Justice was
illezal. The hearing officer found Gonzales to be sincere
and en active member of Jehovah’s Witnesses, believing
in opposition to both combatant and noncombatant mili-
tary service. The Department of Justice recommended that
because Gonzales quit the Catholic Church when he mar-
ried his wife in 1948 and later became one of Jehovah's
Witnesses in 1949 (before he registered) such was basis
in fact for the denial of the conscientious objector status.
This recommendation was illegal because the change of
religions does not per se mean that Gonzales was insincere.
Gonzales became one of Jehovah’s Witnesses and began
preaching in December, 1949; he was ordained in February,
1950, and entered the full-time ministry of Jehovah’s Wit-
nesses in October of 1950. He was a conscientious objector
before January, 1950, the date of his registration. He was
a full-time minister before he filed his questionnaire on
March 9, 1951.
The recommendation of the Department of Justice was
contrary to the regulations of the Selective Service System
authorizing a change in status. It was in defiance of the
principle announced in Hull v. Stalter, 7th Cir., 1945, 151
F. 2d 633, 635; and Dickinson v. United States, 346 U.S.
389, 392-393, 395 (1953).
23
The recommendation of the Department of Justice mis-
interpreted the facts. It stated that Gonzales became one
of Jehovah’s Witnesses after he registered in January,
1950. This recommendation defied the record showing that
Gonzales began preaching in December of 1949, This was
one month before he registered under the law. He was not
baptized until one month after he registered. He was active
and fully dedicated to serving as a full-time minister of Je-
hovah’s Witnesses long before he filed his classification ques-
tionnaire in March of 1951. The recommendation of the De-
partment of Justice is not in accordance with the facts.
The switch of Gonzales from Catholicism to the religion
of Jehovah’s Witnesses after the law was passed was not
illegal. It was not basis in fact. The law permits even the
late filing of the conscientious objector claim and reopen-
ing of the case after the original classification. (United
States v. Vincelli, 2d Cir., 1954, 215 F. 2d 210, 212-213) If
a conscientious objector claim can be filed after classifica-
tion, then there is no basis in fact in the late conversion of
Gonzales, which was before he registered for the draft.
Not one word can be found in the act or the regulations
that indicates that the privilege of conscientious objection
was confined to long-time conscientious objectors before
the passage of the act. The conscientious objector status
is like any other claim. It can be made before a board at
any time. The recommendation of the Department of Jus-
tice (that the late conversion of Gonzales to the beliefs of
Jehovah’s Witnesses was per se evidence of bad faith) is
illegal, arbitrary and capricious.
Freedom of religion guarantees freedom to change re-
ligions. Congress did not intend to deny this freedom to
persons converted to beliefs in conscientious objection. All
religions are constantly proselytizing the millions of non-
church members and members of other religions, Tie
change of religions is going on constantly in time of peace
as well as in time of war, This well-known practice was not
24
intended by Congress to be basis in fact for the denial of
the rights of the convert.
The recommendation of the hearing officer, that Gonza-
les’ failure to show a religious belief of long standing was
basis in fact for the denial of the conscientious objector
status, is speculative, irrelevant and immaterial. (Dickin-
son v. United States, 346 U.S. 389, 396-397 (1953) ; Schu-
man v. United States, 9th Cir., 1953, 208 F. 2d 801, 802-803,
805; compare White v. United States, 9th Cir., Sept. 14,
1954, — F. 24 —) The recommendation ignores the facts.
Gonzales married one of Jehovah’s Witnesses in 1948. He
quit the Catholic church one year before he registered. He
was proseclytized by his wife and finally became active one
month before he registered. He was a fuli-time duly or-
dained minister one year before he filed his Selective Serv-
ice questionnaire. He therefore stood on the same basis as
a matter of fact and law as would a person born into Je-
hovah’s Witnesses. His late activity as one of Jehovah's
Witnesses was no basis in fact for the denial of the con-
scientious objector status. Without a finding that Gonzales
was a hypocrite it was illegal, arbitrary and capricious for
the Department of Justice to recommend that the conscien-
tious objector status be denied.—Annett v. United States,
10th Cir., 1953, 205 F. 2d 689, 691; Schuman v. United
States, 9th Cir., 1953, 208 F. 2d 801, 805; compare White
v. United States, 9th Cir., Sept. 14, 1954, 215 F. 2d 782.
The recommendation of the Department of Justice dis-
criminates between a new convert and an old believer in
a religious belief with conscientious objections to military
service. The law did not intend to discriminate between
newcomers and old-timers in a religion.
The scope of review in draft cases is limited. (Estep v.
United States, 327 U.S. 114 (1946)) This commands strict
compliance with the procedural requirements of the act.
(National Labor Relations Board v. Cherry Cotton Mills,
Sth Cir., 1938, 98 F. 2d 444, 446) The Department of .Jus-
25
tice and the appeal board were required to comply strictly
with the act and were not permitted to speculate outside
the law. (United States v. Zicber, 3rd Cir., 1947, 161 F. 2d
9), 92) It is true that the recommendation of the Depart-
ment of Justice is advisory. It was, however, considered
and apparently adopted by the appeal board. That board
denied the conscientious objector claim. It classified Gon-
zales in Class I-A as recommended. The chain of admin-
istrative proceedings took on, therefore, a broken link. The
eracked link in the chain was the report and recommenda-
tion of the Department of Justice, embraced by the appeal
board. When a recommendation is made it is presumably
followed. (Clementino v. United States, 9th Cir., Sept. 27,
1954, — F. 2d — ; Hinkle v. United States, 9th Cir., Sept. 24,
1954, — F.2d — ) Reliance upon the recommendation of the
Department of Justice invalidated the appeal board’s classi-
fication, which became part of the administrative proceed-
ings.—United States v. Everngam, D.W.Va., 1951, 102
F. Supp. 128, 131; United States v. Bouziden, W. D. Okla.,
1952, 108 F. Supp. 395, 397-398; compare Taffs v. United
States, 8th Cir., 1953, 208 F. 2d 329, 330-331; Annett v.
United States, 10th Cir., 1953, 205 F. 2d 689, 691.
THREE
The Department of Justice deprived Gonzales of his pro-
cedural rights to due process of law by not mailing a copy
of the report of the hearing officer and its proposed recom-
mendation to the appeal board to petitioner before the rec-
ommendation was mailed to the appeal board and by not
giving him an opportunity to rebut the adverse recommenda-
tion before the final appeal board classification, contrary to
due process of law.
The Department of Justice recommendation is made
pursuant to Section 1626.25 of the regulations. The classi-
fication of the appeal board is made in accordance with
Section 1626.26. The Department makes the recommenda-
26
tion and the appeal board acts upon it without giving notice
to the registrant of the unfavorable nature of the recom-
mendation. There is nothing in the act or regulations that
forbids the giving of notice. Section 1(c) of the act requires
that the classification be arrived at by fair and just
methods.
It has uniformly been held that a local board classifi-
cation based upon reports and information of which the
registrant has no notice is illegal, Failure by the local
board to give notice of the unfavorable evidence received
by it and acted upon is a denial of due process of law.
—Brewer v. United States, 1954, 211 F. 2d 864, 866; Sheats
v. United States, 10th Cir., 1954, 215 F. 2d 746: De-
Graw v. Toon, 2d Cir., 1945, 151 F. 2d 778, 779; United
States v. Balogh, 2d Cir., 1946, 157 F. 2d 939, 943-944, va-
cated 329 U.S. 692 (1947) and affirmed, 2d Cir., 1947, 160
I’, 2d 999.
In Morgan v. United States, 304 U.S. 1, 19, this Court
held that a person before an administrative tribunal is en-
titled to have given to him what the Government proposes
to recommend to the administrative agency. This Court
held that failure to give a party an opportunity to answer
the proposed adverse recommendation to the Government
without notice is a violation of procedural due process of
law. The identical procedure there condemned was employed
by the Department of Justice in this case. Since a local
board cannot act upun any information or a recommenda-
tion received by it without giving the defendant notice,
then by force of the same reason the appeal board, which
stands in the same shoes as does the local board, may not
receive adverse recommendations against the registrant
and act upon them without notice. The action of the appeal
board and the Department of Justice in this case was a fla-
grant violation of due process of law. It was a star-cham-
ber procedure prohibited by the fair and just provisions of
Section 1(¢) of the act and the Fifth Amendment of the
United States Constitution.
ua ok abe incest
FAA AT ia A SRR AE IN ON ca S edly Pee. RLS
Ree BRE
er Rr Tre ee. ee ar oa Le
27
ARGUMENT
ONE
There was no basis in fact for the denial of the conscien-
tious objector status by the appeal board to petitioner;
consequently, the final I-A classification is arbitrary and
capricious.
Section 6(j) of the Universal Military Training and
Service Act, supra, page 2 (62 Stat. 604, 612, 65 Stat.
75, 86, 50 U.S.C. App. § 456(j)) is altogether different
from the Selective Service Act of 1917 (40 Stat. 76,
78, 50 U.S.C. App. § 201). Section 4 of that act limited
the conscientious objector status to members “... of any
well recognized religious sect or organization at present or-
ganized and existing and whose existing creed or principles
forbid its members to participate in war in any form and
whose religious convictions are against war or participa-
tion therein in accordance with the creed or principles of
said religious organizations. . . .” This provision above
quoted was similar to that appearing in Section ‘7 of the
Act of February 24, 1864 (13 Stat. 6,9).
Section 5(g) of the Selective Training and Service Act
of 1940 omitted completely the requirement of pacifism or
membership in a “peace church.” The 1940 act provided
that a conscientious objector, “who, by reason of religious
training and belief, is conscientiously opposed to participa-
tion in war in any form,” was exempt from participation in
combatant training and service.—Pub. L. No. 783, 76th
Cong., 2d Sess., 54 Stat. 887, 50 U.S. C. App. § 305 (g).
For a detailed statement of the legislative hearings and
the history of the deveiopment of the 1940 law relating to
conscientious objection, see Sibley and Jacob, Conscription
of Conscience, Cornell University Press, Ithaca, New York,
1952, pp. 45-52. There is an interesting discussien of the
1917 and the 1940 conscientious objector provisions appear-
ing in an article written by Marcus entitled “Some Aspects
of Military Service,” 30 Micn, L. Rev. (1941) 913, 943-946.
28
The present law is different from the 1917 act, which
limited the protection to the pacifist religions. Both the
diseussions in Congress and the reports on the 1940 act
show that Congress changed the law for conscientious ob-
jectors. It let the exemption stand on an individual basis,
so long as tie person based his objections on belief in the
Supreme Being.
Under this present law the objections need not be paci-
fistic. They are sufficient when based on the Bible. Neither
the 1948 act nor the 1951 act made reference to pacifism.
Neither act fixed the religious standard of any certain re-
ligion as the yardstick. The conscientious objection provi-
sion extends even to members of churches whose principles
do not oppose war. It is an individual objection.—U nited
States v. Everngam, D. W.Va., 1951, 102 F. Supp. 128,
130-131.
The only change that the 1948 act made was to prevent
the nonreligious political, philosophical and sociological ob-
jectors from claiming the exemption.
Senate Report 1268, 80th Cong., 2d Sess., May 12, 1948,
accompanying Senate Bill 2655, provided as follows:
“(j) Conscientious objectors.—This section re-
enacts substantially the same provisions as were
found in subsection 5 (g) of the 1940 act. Exemp-
tion extends to anyone who, because of religious
training and belief in his relationship to a Su-
preme Being, is conscientiously opposed to com-
batant military service or to both combatant and
noncombatant military service. (See United States
v. Berman, 156 F. (2d) 377, certiorari denied, 329
U.S. 795.) Elaborate provision is made for deter-
mining claims to exemption on this ground and
provision is made for the assigament of persons
who object to both combatant and noncombatant
military service to work of national importance
under the immediate direction of a civilian. The
exemption is viewed as a privilege.”
BAe |
Bes els oak ? ‘ -
VR fat Afar: eed ck PR EE RS Eire hee
oz We
BRING O Oren eae Ble RRR EPS SON cA IG ED
TOL ARIS MED
29
Under the law, whether the path of the objector is
through the bible or through the writings of the Shintoists,
Mosiems or Buddliists, he is entitled to his exemption. The
1948 and 1951 acts protect him. The law does not preseribe
any fixed religious path through any of the writings. It
did not to avoid invading religious freedom in violation
of the First Amendment. To do so would make the draft
boards and the courts a religious hierarchy to determine
what is orthodox in conscientious objection, That Congress
did not intend.
The Government cannot compare Gonzales’ beliefs witu
the pacifisae beliefs of other religions and thus determine
whether the beliefs fit the statute. To do this, as suggested
by the Government in the courts below, also will convert
the Court into a heresy tribunal. To reject religious be-
liefs on conscientious objection by comparison of Jehovah's
Witnesses’ beliefs with other religious beliefs is in viola-
tion of the “fair and just” provisions of the act and the
First Amendment to the Constitution.
All the Court can inquire about is confined to what the
act says. The act says that one is a conscientious objector
entitlh.d to the benefits of the law if he shows that (1) he
helieves in the Supreme Being, (2) his belief imposes obli-
gations higher than those owed to the state, (3) he onposes
both combatant and noncombatant military service, and
(4) his beliefs are not poltical, sociological or philosophi-
cal but are based on belief in God.
A strict construction of the act was not intended by
Congress. It had in mind a liberal interpretation of its
provision for conscientious objectors to protect the reli-
zious objector. Congress knew that objection to war is a
part of the religious history of this country. Conscientious
objection was recognized by Massachusetts in 1661, by
Rhode Island in 1673 and by Pennsylvania in 1757. It be-
came part of the laws of the colonies and states throughout
American history. It finally bevame part of the national
fabrie during the Civil War and has grown in breadth and
30
meaning ever since, (Selective Service System, Conscien-
tious Objection, Special Monograph No, 11, Vol. 1, pp. 29-
66, Washington, Government Printing Office, 1950) So
strongly was the principie of conscientious objection imi-
beded in American principles that President Lincoln and
his secretary of wer thought that conscientions objectors
had to be recognized, This is impressed upon us by Special
Monograph No. 11, Vol. I, at page 43: “At the end of hos-
tilities Secretary of War Stanton said that President Lin-
coln and he had ‘felt that unless we recognize conscientious
religious scruples, we could not expect the blessing of
Heaven.’ ”
As it appears above. the Selective Service System, in
Special Monograph No. 11, Vol. I, carries the history far
back, even before the American Revolution. (/bid., pages
29.35) Virginia and Mervland exempted the Quakers from
service. (/bid., page 57) From the Revolutionary War to
the Civil War provision for exemption of conscientious ob-
jectors appears in the state constitutions.
The welll:nown governmental sympathy toward the
Quakers and others was not ignored by Congress when the
act was passed, Congress must have had in mind the his-
toric considerations enumerated by the Supreme Court in
Girouard vy. United States, 328 U.S 61, 68-69. In passing
the provisions for conscientious objection to war in al} the
draft laws Congress had this long history in view. It in-
tended to preserve the freedom of religion and conscience
in regard to conscientious objection and it provided a law
Wher dv such freedom could be preserved.
The documentary evidence submitted by the petitioner
establishes iat he had sincere and deep-seated conscien-
tious objections against combatant and noncombatant mili-
tary service that were based on his “relation to a Supreme
Being involving duties superior to those arising from any
human relation.” | R. 37, 39, 41-42, 43-49, 51-60, 69-70] This
material also showed that his belief was not based on “po-
itical, sociological, or philosophical views or a merely per-
apie. pA, CES SiS AES EBS SI SEIS,
é
31
sonal code,” but that it was based upon his religious train-
ing and belief as one of Jehovah's Witnesses, being deep-
seated enough to drive him to enter into a covenant with
Jehovah and dedicate his life to the ministry.
There is no question whatever on the veracity of the
petitioner. The local board and the appeal board accepted
his testimony. The local board, the Department of Justice
and the appeal board all failed to raise any question as to
his veracity, | R. 51-52, 66-68] Thev merely misinterpreted
the evidence. The question is not one of fact but is one of
law. The law and the facts irrefutably establish that peti-
tioner ix a conscientious objector, opposed to combatant
and noncombatant service.
In view of the fact that there is no contradictory evi-
dence in the file disputing petitioner's statements as to his
conscientious objections and there is no question of verac-
ity presented, the problem to be determined here by this
Court is one of law rather than one of fact. The question
to be determined is: was the holding by the appeal board
(that the undisputed evidence did not prove petitioner was
a conscientious objector opposed to both combatant and
noncombatant service arbitrary, capricious and without
basis in fact?
There is absolutely no evidence whatever in the draft
board file that petitioner was willing to do military service.
All his papers and every document supplied by him
staunchly presented the contention that he was conscien-
tiously opposed to participation in both combatant and
noncombatant military service. The appeal board, without
any justification whatever, held that he was willing to per-
form military service. Never, at any time, did the petition-
er suggest or even imply that he was wiiling to perform
any military service. He at all times contended that he was
unwilling to go into the armed forces and do anything as
a part of military machinery.
Congress did not intend to confer upon the draft boards
arbitrary and capricious powers in the exercise of their
32
discretion. They have discretion to follow the law when
the facts are undisputed. If there is a dispute tne boards
have the jurisdiction to weigh the testimony. In the case
of a denial of the conscientious objector status if there is
no dispute in the evidence and the documentary evidence
otherwise establishes that the registrant is a conscientious
objector, it is the duty of the court to hold that there is no
basis in fact. It must concluce that there is an abuse of dis-
cretion and that the classification is arbitrary and capri-
cious, It is submitted that such is the case here. The un-
disputed evidence shows that the petitioner is a conscien-
tious objector, entitled to the I-O classification. The denial
of the classification is without basis in fact. The classifica-
tion of I-A flies in the teeth of the evidence. Such classifi-
cation is a dishonest one, making it unlawful—Johnson v.
United States, 8th Cir., 126 F. 2d 242, 247; Dickinson v.
United States, 346 U.S. 389, 396-397 (1953).
The undisputed documentary evidence in tne file before
the appeal board showed that the petitioner was conscien-
tiously opposed to participation in combatant and noncom-
batant military service. This showing brought him squarely
within the statute and the regulations providing for classi-
fication as a conscientious objector. This entitled himn to
exemption from combatant and noncombatant military
training and service.
It has been held by many courts of appeals that the rule
laid down by this Court 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 exemp-
tion as a minister there is no basis in fact for the classifi-
cation, also applies in cases involving claims for classifica-
tion as conscientious objectors.—Weaver v. United States,
Sth 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 466, 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;
33
Schuman v. United States, 9th Cir., 1953, 208 F. 2d 801,
804-803; Jessen v. United States, 10th Cir., 1954, 212 F. 2d
897, 899-900; Uniied Siaics ve Cluce, 7th Cir, 1954, 215 F.
2d 439, 441; United States v. Wilson, 7th Cir. 1954, 215
I. 2d 443, 445, 446; contra Uniied States v. Simmons, 7th
Cir. 1954, 213 F. 2d 901, 903.
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 par-
ticipation in war in any form. There was a com-
plete absence of any impeaching or contradictory
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 above holdings. In those cases the appellants, like peti-
tioaer 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 cases, the courts were
also called upon to say, on facts identical to the facts in
this case, whether there was basis in fact for the denial of
the conscientious objector status. For instance, see Jessen
(10th Cir., 1954, 212 F. 2d 897, 899), where the Tenth Cir-
cuit (after following Taffs v. United States, 8th Cir., 1953,
certiorari denied 347 U.S. 928 (1954) ), said: “The remain-
ing question is whether there was any basis in fact for the
classification made by the State Appeal Board.”
The holdings of other circuits with which the holding of
the court below (that there was basis in fact for the de-
nial of the ele ssification) directly conflicts are: Annett v.
United State , 10th Cir., 1942, 205 F. 2d 689, 692; United
States v. Pekarski, 2d Cir., 1953, 207 F. 2d 930, 931; Taffs
of
v. United States, 8th Cir., 1953, 208 F. 2d 329, 331-332, cer-
tiorari denied 347 U.S. 928 (1954) ; Jewell v. United States,
6th Cir., 1953, 208 F. 2d 770, 771-772; Schuman v. United
States, 9th Cir., 1953, 208 F. 2d 801, 804-805 ; United States
v. Hartman, 2d Cir., 1954, 209 F. 2d 366, 368-369, 370-371;
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; United States v. Close, 7th Cir., 1954, 215 F. 2d 439,
441; United States v. Wilson, 7th Cir., 1954, 215 F. 2d 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 these cases discussed the speculation 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 we.‘e
opposite to that made by the court below in this case. Such
attempted distinction would be a distinction without a
difference.
That petitioner believed in a position of strict neutiaity
and had no objection to defending himself, his ministry and
his brothers does not prove that he was no‘ a conscientious
objector. It was error, therefore, to conclude that this re-
ligious belief deprived the petitioner of the right to claim
that there was no basis in fact for the denial of the con-
scientious objector status by the appeal board. The argu-
ment that belief in self-lefense deprives one of the right
to claim classification as a conscientious objector has been
rejected in many cases. (Annett v. United States, 10th Cir.,
1953, 205 I’. 2d 689, 691-692; United States v. Pekarski, 2d
Cir., 1953, 207 F. 2d 930, 931; Taffs v. United States, 8th
Cir., 1953, 208 F. 2d 329, 331; United States v. Hartman,
2a Cir., 1954, 209 F. 2d 366, 370-371; Jessen v. United
States, 10th Cir., 1954, 212 F. 2d 897, 899; see also United
States v. Hagaman, 3rd Cir., 1954, 213 F. 2d 86, 89; United
States vy. Close, 7th Cir., 1954, 215 F. 2d 439, 442; Hinkle
v. Uniied States, 9th Cir., Sept. 24, 1954, — F. 24 —- ; United
39
States v. Sage, D. Nebr., 1954, 118 F. Supp. 33, 36; United
States v. Borthk, M. D. Pa., 1954, 122 F. Supp. 225, 227)
This is discussed at greater length in the brief in the com-
panion case, Sicurella v. United States, No. 250, October
Term, 1954, at pp. 44-55.
There is no basis in fact for the classification in this
case, because there are no facts that contradict the doecu-
mentary proof submitted by the petitioner. The facts es-
tablished in his case show that he is a conscientious objec-
tor to both combatant and noncombatant service and, there-
fore, the classification given is beyond the jurisdiction of
the boards.
The undisputed evidence shows that petitioner is sin-
cere in his objections. He is opposed to any form of partie-
ipation by himself in war. This objection comes from an
immovable belief in the Supreme Being. It is not based on
sociological, political 01 philosophicai beliefs. It is support-
ed by the direct Word of God, the Bible. It is not a limited
objection that he has. He is not wiiling to join the army
as a noncombatant soldier or to go in as a consientious ob-
jector to actual combat service only. He objects to doing
anything in the armed forces. He will not be a soldier.
It is said by the courts below that because Gonzales
stated that some of Jehovah’s Witnesses have gone into
the army, therefore not one of Jehovah’s Witnesses is en-
titled to be classified as a conscientious objector, This posi-
tion taken by the courts is an effort to deny to Jehovah's
Witnesses, as a group, classification as conscientious objec-
tors and thereby include the petitioner in such group and
cause him to be denied the conscientious objector classifi-
cation to which he is entitled. This type of judicial process
and argument was condemned by the court below in Niznik
Vv. United States, 6th Cir., 1950, 184 F. 2d 972, 974. In Hull
Vv. Stalter, 7th Cir., 1945, 151 F. 2d 633, 637-638 it was held
that each registrant is entitled to be classified according to
the facts of his own case. The courts below also say that
because each one of Jehovah's Witnesses must decide for
36
himself whether he wants to make the claim as a conscien-
tious objector this constitutes a basis in fact for the denial
of the claim when made by the petitioner. The mere fact
that Jehovah's Witnesses permit each one to make a de-
cision for himself and a group determination is not made
for each member does not in any way deprive each one of
his legal rights under the law. The courts have held that
every member of a religious organization that does not
have tenets against participation in war (unlike Jehovah's
Witnesses) is nevertheless entitled to be classified as a
conscientious objector and he may not have his claim de-
nied him because his church does not take such stand.—See
United States v. Everngam, D. W. Va., 1951, 102 F. Supp.
128, 130-131.
In the court below the Government placed some empha-
sis upon the fact that Gonzales stated that Jehovah’s Wit-
nesses have no official statement as to their views on war.
This statement does not authorize the court to hold that
Jehovah’s Witnesses or Gonzales are not eniitled to the
conscientious objector status. The argument made by the
Government should not, therefore, be accepted here. While
the record shows that Jehovah’s Witnesses are not paci-
fists, the Court can take judicial notice that Jehovah's Wit-
nesses have published articles showing their stand of neu-
trality. These publications contain official statements by
Jehovah’s Witnesses against their participation in combat-
ant and noncombatant military service. These articles do
not take an open, bold and defiant stand against war as
the extreme pacifists take. They are not war resisters’ pub-
lications. They merely state the conscientious objections of
Jehovah’s Witnesses. These publications have been referred
to in Taffs v. United States, 8th Cir., 1953, 208 F. 2d 329,
331, and United States v. Hartman, 2d Cir., 1954, 209 F.
2d 366, 370-371. The fact, therefore, that Gonzales stated
that there were no official views of the organization on the
subject of conscientious objection to war does not mean
that there are not publications on the neutrality of Jeho-
37
vah’s Witnesses._-See the brief for petitioner in the com-
panion case, Witmer v. United States, No. 164, October
Term, 1954, pp. 28-32.
It was held by the courts below that the willingness of
Gonzales to do civilian work in a steel plant constitutes an
implied consent on his part to do noncombatant military
service. The unreasonableness of this position taken by the
courts below is clearly demonstrated by the terms of the
act itself. The act provides for civilian work outside the
army that may contribute to the national welfare. Should
this civilian work be considered equivalent to a consent in
private to do noncombatant military service in the armed
forces, then it was useless for the Congress to provide for
the exemption from such noncombatant army service for
persons willing to do alternate civilian work that contrib-
utes to the national welfare.
The Court should notice that the appeal board classified
Gonzaies to make him liable for combatant service, not non-
combatant service. Yet the Government below argued that
he is willing to do noncombatant service, because of the fact
that he works in a steel plant that has defense orders. The
argument by the courts below falls on its face. It becomes
mere dust to be quickly blown away with one breadth of
truth and reason.
Since Congress stated the difference between civilian
work and noncombatant military service, then how can the
Governinent argue that there is no difference? Congress
has stated the difference. This statement by Congress of
the difference does not justify the Government now to
argue that because a man is willing to do some work that
might have a connection with the defense effort it is equiv-
alent to agreeing to do military service. There cannot be
such a connotation placed on the fact in this ease. (See
United States v. Wilson, 7th Cir., 1954, 215 F 2d A43, 446;
Goetz v. United States, 9th Cir., Oct. 14, 1954, — F. 24 — ‘
Franks v. United States, 9th Cir., Oct. 4, 1954, — F. 2d —.)
This point is discussed more extensively in the brief for
38
petitioner in No, 164, October Term 1954, Witmer v. United
States, a companion case to this one, at pp. 40-49 of that
brief.
The courts below take the pe tion that the conscien-
tious objector status of petitioner is a question of fact. It
is stated that it involved the weighing of the evidence when
the board classified the petitioner. It is said that it was for
the draft board alone to determine whether petitioner is a
conscientious objector and that it is not for the court to
say whether in this case there is no basis in fact.
This contention of -he respondent would be true if the
respondent could point to any part of the record where
the statements of petitioner are contradicted or impeached,
but there is no place in the record where Gonzales was
questioned in his testimony and doubted. }evyhere was any-
thing stated by Gonzales that was disputed. The Govern-
ment must accept, therefore, what Gonzales said to be true,
because it can find no controverting evidence in the file.
There was no weighing of the evidence, therefore, to
stay the hand of the court, because there was no dispute
in the record made before the draft board.—Dickinson v.
United States, 346 U.S. 389, 396-397, 399 (1953) ; Jewell v.
United States, 6th Cir., 1953, 208 F. 2d 770, 771.
The courts below rely upon the report of the hearing
officer and the recommendation of the Department of Jus-
tice to the appeal board, but there are no contradictory
facts appearing in either of these documents. Nowhere in
either of them are any facts turned up that in any way
dispute the accuracy of the statements made by Gonzales.
The documents merely accept what Gonzales says to be
true. Both the hearing officer and the Assistant Attorney
General, in order to reach a conclusion that Gonzales was
not entitled to a conscientious objector status, indulged in
speculation. This was done without any factual basis for
the conclusion reached.
Since the boards are precluded from indulging in spee-
ulation as a basis in fact for the denial of a claim, then
39
by force of the same reason the recommendations of the
Department of Justice, based on speculation or conjecture,
are not basis in fact for the denial of the conscientious ob-
jector status, even when accepted and relied upon by the
appeal board.— Annet! v. United States, 10th Cir., 1953, 205
F. 2d 689, 691; Taffs v. United States, 8th Cir., 1953, 208
F’. 2d 329, 331; cf. United States v. Everngam, D. W. Va.
1951, 102 F. Supp. 128.
The respondent argued below that the hearing officer
had the right to observe the demeanor of petitioner. This
may be true as a matter of law. It is not true as a matter
of fact. The hearing officer found Gonzal.s to be a sincere
member of Jehovah’s Witnesses. Nowhere does he state or
even infer that Gonzales was shifty or that his conduct as
a witness indicated that he was not believable. Even in a
judicial proceeding the jury or the judge (if it is a trial
without a jury) may observe witnesses and judge their
credibility. The mere fact that the jury or judge has this
right does not mean that every witness that appears be-
fore the court has been found to be unbelievable. In re-
viewing the administrative proceedings it is beyond the
competency of the courts to speculate about the right of
an administrative agent to observe the demeanor of the
registrant. This argument was accepted in the case of Dick-
inson v. United States, 9th Cir., 1953, 203 F. 24 336, by the
Court of Appeals for the Ninth Circuit, but it was rejected
by this Court.—346 U. S. 389, 396-397 (1953).
Unless and until the administrative records show that
there was an exercise of the right to observe the demeanor
and that the demeanor of a registrant was found to estab-
lish a lack of credibility it cannot be speculated or assumed
that the credibility of the registrant was questioned. (See
Annett v. United States, 10th Cir., 1953, 205 F. 2d 689, 690-
691.) The argument of respondent, therefore, on this point
is irrelevant and immaterial.
It is said by the courts below that, beeause Gonzales did
not show any interest in Jehovah's Witnesses until after
40
he married and did not become ordained until after the
time of his registration, this may be considered as basis in
fact. Emphasis is placed upon his having been reared as a
Catholic and his continuing to be a member of the Catholic
church until the time of his registration.
The late change from Catholicism to the belief of Je-
hovah’s Witnesses is no basis in fact whatever. This type
of argument is rejected by the Court of Appeals for the
Ninth Cireuit. In Schuman vy. United States, 1953, 208 F.
2d 801, the registrant did not show he was a conscientious
objector until long after he filed his questionnaire. This
was much later than when petitioner made this fact known,
which was in the questionnaire. In that case Chief Judge
Denman cited the sudden conversion of the apostle Paul
as proof that a recent convert can be as sincere as one who
is reared inthe faith.—See the opinion, 208 F. 2d at pp. 802,
804-805. Compare White v. United States, 9th Cir., Sept. 14,
1954, 215 F. 2d 782.
The act and the regulations contemplate and permit a
change in status after registration and after classification.
The act makes mandatory that a registrant inform the lo-
cal board of any facts that would affect his present status
or that would change his classification. (See Section 1625.1
of the Selective Service Regulations.) The fact that these
changes are provided for in the regulations rejects the ar-
gument that a revelaticn of the change in such circum-
stance of being a new convert after registration is basis
in fact for the denial of the classification. The argument of
the respondent nullifies the spirit of the regulations. It
completely cuts the reason out from the regulation above
cited providing for a revelation of a change in status after
registration. The position of respondent runs counter to
Hull y. Stalter, 7th Cir., 1945, 151 F. 2d 633, 635.
The courts have held that the late filing of the special
form for conscientious objector, even after classification,
requires a reopening. It is necessary to allow the reopen-
ing to provide for the appeal. An administrative interpre-
41
tation has been put upon this by the Selective Service Sys-
tem.—See United States v. Packer, 2d Cir., 1952, 200 F.
2d 540, 541, reversed on other grounds, 346 U.S. 1
(1993); United States v. Clark, W. D. Pa., 1952, 105. F.
Supp. 613, 614; United States v. Vineelli, 2d ('r., 1954, 215
F. 2d 210, 212-213.
Since the regulations allow the late filing of the con-
scientious objector form to require a reopening of the clas-
sification, then what authority do the courts below have for
the holding made, that the conversion of Gonzales at about
the time of his registration is basis in fact for the denial
of the conscientious objector claim? The holding repeals
the act and waters down completely the strength of the
regulations authorizing a reopening of the classification.
It makes void the statutory right of appeal guaranteed by
Section 6(j) of the act. This is argued at greater length
under point Two of this brief, infra, pp. 41-51. It is submitted
that there was no basis in fact whatever for the denial of
the conscientious objector status and that the fina] I-A clas-
sification is arbitrary and capricious.
TWO
The hearing officer of the Department of Justice arbi-
trarily and capriciously recommended against petitioner’s
claim by rejecting the undisputed evidence that showed he
was a conscientious objector to both combatant and noncom-
batant military service, on the ground that he became one
of Jehovah’s Witnesses and a conscientious objector too re-
cently and that. therefore, he was not in gocd faith a con-
scientious objector.
The report and recommendation from both the hearing
officer of the Department of Justice and the Attorney Gen-
eral showed that Gonzales was a sincere and active member
of Jehovah's Witnesses. [R. 12-16, 66-68] They agreed that
he did not falsify in any of his statements appearing in
lis conscientious objector form. They held that, except for
lus affiliation with Jehovah's Witnesses shortly prior to
42
his registration, his conscientious objector claim was bona
fide. [R. 12-16, 66-68 |
The undisputed evidence in this case showed that Gon-
zales was a Catholic at the time he married his wife, who
was one of Jehovah's Witnesses in 1948. The evidence
showed that she encouraged him to quit the Catholic church
and take up the faith of Jehovah’s Witnesses. This he did
gradually. He studied and became an active minister in
the organization. In February, 1950, he dedicated himself
formally. However, he began preaching as a minister
before that date in December, 1949. In October, 1950, after
being a part-time minister for nearly a year, he took up
the full-time ministry as a pioneer of Jehovah’s Witnesses.
He registered with the local board on January 4, 1950, At
this time he had been a bona fide worker and active minis-
ter for a month or more before he registered. He filed
his classification questionnaire with the local board on
March 9, 1951. At that time he had been active as a min-
ister of Jehovah’s Witnesses for more than a year.
It was the duty and responsibility of the Selective Serv-
ice System to classify and the Department of Justice to
recommend on Gonzales according to his status at the time
he filed the questionnaire and not according to his former
status before he became one of Jehovah’s Witnesses.—Hull
v. Stalter, 7th Cir., 1945, 151 F. 2d 633, 635; Dickinson v.
United States, 346 U.S. 389, 392-393, 395 (1953).
The effect of the recommendation of the hearing officer
was to make it appear that petitioner did not start preach-
ing or become interested in the work of Jehovah's Witness-
es until after he registered. He registered in January, 1950.
[R. 34] The record showed activity by Gonzales as an un-
ordained or regular minister of religion before the date of
his registration. The record shows that he began preaching
in December, 1949. [R. 44, 46] However, the record shows
that he was ordained in February of 1950. [R.53] Gonza-
les had conscientious objections, therefore, before he reg-
43
istered and before he was ordained. He was convinced of
the beliefs of Jehoval’s Witnesses sufficiently to be preach-
ing them as a regular or unerdained ininister before
he registered. The report of the hearing officer did not take
these vital and significant facts into account when it was
imade to the Department of Justice and by the Assistant
Attorney General adopted and transmitted to the appeal
board, To be fair and just as required by the act it was
important that the hearing officer at least give the right
interpretation of the true facts, which were that Gonzales
had been active as one of Jehovah's Witnesses before he
registered and had conscientious objections before he reg-
istered. A false impression was therefore conveyed by the
hearing officer in his report. This report, when adopted by
the Department of Justice in its recommendation to the
appeal board (which relied on the report and recommenda-
tion), deprived Gonzales of a substantial right. It was not
a fair and just report that could be expected from a fair
and impartial hearing officer, as required by the act and
the regulations.
Late conversion of Gonzales before registration is no
worse than making a claim after the filing of the question-
naire and the classification of a registrant. In such case
the board is obliged to reopen the classification. See to the
contrary United States v. Vincelli, 2d Cir., 1954, 215 F. 2d
210, 212-213. This argument ignores the provisions of Sec-
tion 6(j) of the act. That law allows an appeal from any
denial of the conscientious objector claim when made, re-
sardless of the time of making the claim. (50 U.S. C. App.
§ 456(j), 56 Stat. 83, supra, p. 2) Now that Congress has
provided for the right of an appeal from the denial of the
claim without regard to when the claim is made, to accept
the argument of the respondent that the late conversion
of Gonzales is basis in fact is also equivalent to saying that
a local board is net required to reopen the classification.
That would merely mean to deny completely the right of
an appeal guaranteed by the statute——lUnited States v.
44
Clark, W. D. Pa., 1952, 105 F. Supp. 6138, 614; United States
v. Vincelli, 2d Cir., 1954, 215 F. 2d 210, 212-213.
Neitu.er the act nor the regulations mention the fact
that a late-comer cannot be a conscientious objector. The
act did not confine its privileges to conscientious objectors
who were conscientious objectors before the act was passed
or before hostilities began. The act deals with conscientious
objection as it does any other claim for exemption that may
arise after the passage of the act after registration and
after classification. That status is tc be determined acccord-
ing to the facts existing at the time of the final classifica-
tion of the registrant.
The hearing officer relied upon arbitrary and capricious
grounds for denial of petitioner’s claim as a conscientious
objector. He said that petitioner was formerly a Catholic
but quit the Catholic church. This has ao relevancy what-
ever to the claim for classification as a conscientious objec-
tor based on the beliefs of Jehovah’s Witnesses. The mere
fact that petitioner recently came to a knowledge of God’s
Word as taught by Jehovah’s Witnesses i: of no conse-
quence. The undisputed evidence showed that he was one
of Jehovah’s Witnesses and a conscientious objector at the
time he filed his questionnaire and at the time of his final
classification by the local board on the occasion of his per-
sonal appearance. There was no dispute of such contention.
There wee nothing whatever to dispute in any way the
evidence filed by petitioner showing that he was a conscien-
tious objector.
It is a part of the basic fabric of the nation that the
people have freedom of religion guaranteed by the First
Amendment of the United States Constitution. This con-
stitutional guarantee not only gives freedom of worship in
the religion of one’s choice but also secures the right to
change to another religion. This freedom to shift churches
or views is inherent. Congress certainly intended to protect
the full freedom. The hearing officer was unauthorized by
45
Congress and prohibited by the Constitution to penalize
petitioner because he changed his religion.
No one questioned the good faith of petitioner in be-
coming one of Jehovah's Witnesses. His good faith in be-
coming one of Jehoval’s Witnesses is not disputed in the
evidence. There is absolutely no evidence whatever that he
fictitiously or fraudulently assumed the robe of conscien-
tions objection believed by Jehovah's Witnesses, for the
purpose of evading inilitary service. The conscientious ob-
Jector form, the affidavits of the witnesses and the evidence
given before the hearing officer completely corroborated
his bona fide beliefs as one of Jehovah's Witnesses.
It is arbitrary and capricious for the hearing officer to
reject all the undisputed evidence purely because petition-
er was a late-comer to Jehovah's Witnesses. Religions of
all denominations are constantly acquiring new converts
and losing old worshipers. There is a constant turnover of
membership among the various religions. This is going on
in time of war as well as in time of peace. Since the practice
is not criticized and the change of religions is not evideace
of bad faith in time of peace, then by force of the same
reason a change of religions from a nonpacifist group to
a religion believing in conscientious objection is not proof
of evasion. This change cannot be held to be per se fraud-
ulent or in bad faith. ~.
Proselyting is going on all the thue. The New York
Times (Thursday, March 25, 1954) carried an account of
a change in religions durin; the last ten years. It showed
that 4,114,366 Roman Catholics have become Protestants
and 1,071,897 Protestants have become Catholies during
the last decade. There must be something expresed in the
act that would compel an interpretation of bad faith as
claimed by the Government. The spirit of the act and the
history of freedom of religion in this country compels a
different construction, especially in the case of conscien-
tous objectors.
46
The hearing officer's report failed to show that Gonzales
was not a sineere and active member of Jehovah's Witness-
es. Nowhere in the report of the hearing officer does it ap-
pear that Gonzales falsified any of his statements appear-
ing in his conscientious objector form. The hearing officer
merely determined that because Gonzales recently took his
stand as one of Jehovah's Witnesses he was not entitled
to the conscientious objector status.
These findings by the hearing officer a.. not findings of
fact. They are speculative, irrelevant and immaterial. (See
Dickinson ©. United States, 346 U.S, 389, 396-397 (1953):
Schuman v. United States, 9th Cir., 1953, 208 F. 2d 801,
802-803, 805: compare White v. United Stctes, 9th Cir.,
Sept. 14, 1954, 215 F. 2d 782.) It is apparent, therefore, that
the conclusion reached by the hearing officer, that Gonzales
was noi a conscientic is objector, because of the reason of
a late change of religion, specified by him, made the report
and recommendation illegal, arbitrary and capricious.
The change of religious belief by Gonzales was natural.
There was nothing in the change that would indicate any
suspicions. The faci that the petitioner entered into the
full-time ministry certainly ought to prove his sincerity.
Cannot the injustice of the Government's position be shown
in this? One of Jehovah's Witnesses born into a family of
witnesses may rock along and be a part-time minister. Yet
he still may be held to be a sincere conscientious objector.
On the other hand and at the same time, a man who evi-
dences his sincerity by extreme sacrifice, by holding a full-
time secular job at night and becoming a full-time minister
during the day, is held to be insincere. This purely because
he was a recent convert, Recent conversion is not some-
thing positive. It is not something direct. This is not affirm-
ative evidence in the file. There must be something affirm-
ative, more than mere proof of being a late-comer, that dis-
putes the statements appearing in the file and in papers
signed and filed by Gonzales.
47
The hearing officer's reports and the Department of
Justice reports should be scrutinized for facts, not specu-
lations. If it appears that there is nothing affirmatively de-
nying the statements of the registrant, and the recommen-
dation is based on the fact that Gonzales’ religious training
and belief were not deep-seated, this standing alone is not
a contradiction of the proof of sincerity. The reeommenda-
tion is based largely, if not exclusively, on the proposi-
tion that Gonzales has not been long and deeply trained in
religion.
One fallacious defense of the report of the hearing offi-
ver Was ade by respondent in the court below. It was that
he exercised his right of judging the credibility of the pe-
titioner. The hearing officer did not undertake to say that
he disbelieved what Gonzales said. | R. 12-16] At the hear-
ing he made no challenge of the credibility of the petition-
er. It cannot be speculated that he disbelieved Gonzales.
(Annett v. United States, 10th Cir., 1953, 205 F. 2d 689,
691) A draft board or a hearing officer has the right io
challenge the believability of a registrant but if he does so
le must make a record of the exercise ot the right and
state expressly that he does not believe the claimant. Fail-
ure thus to make an entry that he disbelieved the regis-
trant precludes the Government from arguing it here. Na-
ional Labor Relations Board vy. Dinion Coil Co., 201 F. 2d
484, is therefore not in point.—See also Weaver v. United
States, 8th Cir., 1954, 210 F. 2d 815.
A case directly in point is Schuman vy. United States,
9th Cir, 1953, 208 F. 2d 801. (Compare White v. United
States, 9th Cir., Sept. 14, 1954, 215 I. 2d 782.) Schuman filed
the conscientious objector form late. He became one of Je-
hovah’s Witnesses after he filed his classification question-
naire. The facts are stated in the opinion in that case.—See
208 F.2d, pp. 805-806.
The fact that the record showed that Gonzales was a
late-comer to Jehovah's Witnesses did not in any way show
that he was any less sineere in his acts and conduct than
48
one of Jehovah's Witnesses who had been born and reared
in the faith or who was one of Jehovah’s Witnesses when
he registered. The record showed that Gonzales took a
stand and course of action that proved genuinely his
sincerity.
Why should one who has recently become one of Jeho-
vah’s Witnesses and who carries on in the same devout
and sincere way as one who has been born and reared in
the faith be treated differently? What is the basis for the
discrimination? There is none. The absence of some posi-
tive evidence that shows the registrant is a faker or is
feigning to be a conscientious objector for the sole purpose
of evading the draft is then used as an argument that be-
cause he is a late-comer this ipso facto constitutes basis in
fact for the denial of the conscientious objector status. The
report and recommendation of the hearing officer and the
final recommendation by the Assistant Attorney General
were not findings of fact. They refer to no facts or evidence
that disputed the testimony given by Gonzales. The con-
clusions of fact and Jaw made by the hearing officer and
the Assistant Attorney General were erroneous and con-
trary to fact and law. They do not constitute any facts.
They may not be relied upon as basis in fact. This is espe-
cially true since no facts were referred to by the hearing
officer or the Assistant Attorney General that in any way
contradicted the testimony of Gonzales.
The rule of Dickinson v. United States, 346 U.S. 389,
396-397 (1953), applies here. This rule also rejects the con-
clusion of the hearing officer of the Department of Justice
and the report of the Assistant Attorney General in the
same way that it also rejects the final I-A classification by
the appeal board. Neither of these officers is authorized to
speculate and guess or draw inferences contrary to the un-
disputed evidence.—Dickinson vy. United States, 346 U.S.
389 (1953); see also Schuman v. United States, 9th Cir.,
1953, 208 F. 2d 801, 862, 805-806.
49
Since the hearing officer and the Assistant Attorney Gen-
eral cannot speculate, then thei, specula.ions are unauthor-
ized and cannot be relied upon by this Court as basis in fact
for the denial of the conscientious objector status. It should
be remembered that registrants are authorized to change
their status after the filing of their classification question-
naires. There was a change of the status of the registrant
in Dickinson v. United States, 346 U.S. 389, 392-393, 395
(1953). This was held not to be any basis in fact for the
denial of the classification. Section 1625.1(a) of the Selec-
tive Service Regulations provides that “no classification is
permanent.” Section 16252 provides for the reopening of
the classification when there has been a change in the status
of the registrant, following his classification. These regula-
tions were interpreted by the court in Hull v. Stalter, 7th
Cir., 1945, 151 F. 2d 633, 635, to mean that a registrant
must have his status determined according to the time of
the final classification rather than his status at the time of
his registration or at the time of his first classification.
—See a:so Brown v. United States, 9th Cir., Oct. 4, 1954,
—F, 2d—.
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)) In
cases where the review is restricted there must be a strict
compiiance wit); the requirements of procedural due proc-
ess by the administrative agency. (N. L. R. B. v. Cherry
Cotton Mills, Sth Cir., 1938, 98 F. 2d 444, 446) For the final
order to be valid the local board must strictly comply with
the procedural requirements.—I’er Mehren v. Sirmyer, 8th
Cir., 1929, 36 F. 2d 876, 881; United States v. Zieber, 3rd
Cir, 1947, 161 F. 2d 90, 92; Ex parte Fabiani, E. D. Pa.,
1992, 105 F. Supp. 139, 147-148; 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.
The report of the hearing officer was adopted by the De-
partment of Justice and forwarded to the appeal board
50
with a recommendation that it be followed. The appeal
board followed the recommendation. While the recommen-
dation was only advisory, the fact is that it was accepted
and acted upon then by the appeal board. The appeal board
concurred in the conclusions reached by the hearing officer.
It gave petitioner a I-A classification and denied his con-
scientious objector status. This action on the part of the
appeal board prevents the advisory recommendation of the
Department of Justice from being harmless error.—Uniied
States v. Everngam, D. W. Va., 1951, 102 F. Supp. 128, 131;
Goetz v. United States, 9th Cir., Oct. 14, 1954, — F. 2d —;
Hinkle v. United States, 9th Cir., Sept. 24, 1954, — F. 2d —;
Clementino v. United States, 9th Cir., Sept. 27, 1954, — F.
2d —.
A chain is no stronger than its weakest link. The recom-
mendation of the Department of Justice and its acceptance
by the appeal board become a link in the chain. Since it is
one of the links of the chain, its strength must he tested.
(United States v. Romano, 8. D. N. Y., 1952, 103 F. Supp.
597, 600-601) The illegal recom:nendation by the hearing
officer and the Department of Justice to the appeal board
produces a break in the link and makes the entire Selective
Service chain useless, void and of no force and effect. In
Kessler v. Strecker, 307 U.S. 22, 34 (1939), the Court held
that if one of the elements is lacking the “proceeding is
void and must be set aside.” Acceptance of the recommen-
dation of the Department of Justice that has been made up
without producing the FBI report to the registrant in the
proper time and manner makes the proceedings illegal,
notwithstanding the faci that the recommendation is only
advisory. The embracing of the report and recommenda-
tion by the appeal board jaundiced and killed the validity
of the proceedings.—H inkle v. United States, 9th Cir., Sept.
24, 1954, — F. 2d —; Clementino v. United States, 9th Cir.,
Sept. 27, 1954, — F. 2d —.
This view of the reliance upon the recommendation of
the Department of Justice making the report of the hearing
ol
officer and the recommendation a vital link in the adminis-
trative chain is supported by Hinkle v. United States, 9th
Cir., Sept. 24, 1954, — IF. 2d —; United States v. Evern-
gam, D. W. Va., 1951, 102 F. Supp. 128, 130, 131; see also
Goetz v. United States, 9th Cir., Oct. 14, 1954, — F. 2d —;
United States v. Bouziden, W. D. Okla., 1952, 108 F. Supp.
395, 397-398 ; compare Taffs v. United States, 8th Cir., 1953,
208 F’. 2d 329, 330-331.
The report of the hearing officer and the recommendation
of the hearing officer to find against petitioner on grounds
outside the law are condemned by Leel vy. Badt, 2d Cir.,
1944, 141 F. 2d 845, 847. In that case the court said: “In
other words he reached a conclusion as a matter of law
which was directly opposed to our decision in U.S. v. Kau
ten, 2 Cir., 1383 F. 2d 703.”—See also Phillips v. Downer,
2d Cir., 1943, 135 F. 2d 521, 525-526.
It is respectfully submitted, therefore, that the recom-
mendation by the hearing officer and the Department of
Justice to the appeal board is illegal, arbitrary and ca-
pricious, and jaundiced and destroyed the appeal board
classification upon which the order to report was based.
THREE
The Department of Justice deprived Gonzales of his pro-
cedural rights to due process of law by not mailing a copy
of the report of the hearing officer and its proposed recom-
mendation to the appeal board to petitioner before the rec-
ommendation was mailed to the appea! board, and by not
giving him an opportunity to rebut the adverse recommenda-
tion before the final appeal board classification, contrary to
due process of law.
In carrying out the conscientious objector procedure of
Section 6(j) of the Universal Military Training and Serv-
‘ce Act it has always been (and still is) the policy of the
Department of Justice not to give an opportunity to the
registrant to answer an unfavorable recommendation. It
o2
sends its recommendation to the appeal board without no-
tice to the conscientious objector. (Sections 1626.25 and
1626.26 of the regulations, supra, pp. 4-7) The appeal
board acts on the recommendation without first notifying
the registrant. It does not give him a chance to answer an
unfavorable recommendation made by the Department of
Justice. These acts of the Department of Justice and the
appeal boards in not giving notice are not commanded by
the regulations and violate the act and the due-process
clause of the Fifth Amendment.
The act says that classifications must be fair and just.
(Section 1(c), supra, p. 2) The Fifth Amendment guar-
antees due process of law. When the departinental ree-
ommendation is adverse and is acted upon by the appeal
board to deny his cl..im for classification as a conscientious
objector it is neither fair and just nor in accordance with
due process.
It seems, therefore, that the procedure followed by the
Department of Justice and the Selective Service System in
all conscientious objector cases handled by the Department
of Justice is invalid, The registrant should have the right
to answer the unfair report and recommendation before the
appeal board. Since he does not have notice he is not given
a full and fair hearing before the appeal board. The recom-
mendation is made available to the registrant after the
appeal board has denied his conscientious objector claim,
classified him and returned the file to the local board. After
he has lost the appeal it is too late for the registrant to
have notice or to see the adverse recommendation. He must
have notice and see it in time to protect himself before the
appeal board. Sin:e the adverse recommendation is consid-
ered without notice to the registrant and is followed, there
is a denial of due process in violation of the act and the
Fifth Amendment.
The court below held that the procedural rights of peti-
tioner were not violated when the appeal board considered
and acted upon the adverse recommendation of the Depart-
53
ment of Justice. |R. 100] It was against the conscientious
objector claim of petitioner. It was considered by the ap-
peal board without giving him an opportunity to answer
it before that appeal board made the final classification.
This holding is out of harmony with the principle stated by
United States Court of Appeals for the Fourth Cireuit in
Brewer v. United States, 1954, 211 F. 2d 864, 866. Compare
Sheats v. United States, 10th Cir., 1954, 215 F. 2d 746.
The court held that consideration by the appeal board
of the secret FBI investigative report, inadvertently sent
to the board by the Department of Justice, deprived him
of due process of law. The court found that the regis-
trant was denied the right to answer the FBI report before
the appeal board. The court, however, said erroneously that
a registrant was given the right by the regulations to see
and answer the recommendation of the Department of Jus-
tice to the appeal board. Contrary to that statement are
the regulations that do not grant the right. The holding by
the court below on this point is also in direct conflict with
DeGraw v. Toon, 2d Cir., 1945, 151 F. 2d 778, 779: and
United States v. Balogh, 2d Cir., 1946, 157 F. 2d 939, 943-
944, vacated, 329 U.S. 692 (1947) and affirmed, 2d Cir.,
1947, 160 F. 2d 999.
The holding by the court below [R.99] (that action on
secret reports of a trial examiner or agency hearing officer
without notice and an opportunity to reply before final de-
cision is made by the administrative agency is not a viola-
tion of due process of law) conflicts directly with Kwock
Jan Fat v. White, 253 U.S. 454, 459, 463, 464 (1920); Mor-
gan Vv, United Statcs, 304 U.S. 1, 22, 23 (1988): Interstate
Commerce Commission v. Louisville & Nashville R. R. Co.,
227 U.S. 88, 91-92, 93 (1913): United States v. Abilene &
S. Ry. Co., 265 U.S. 274, 290 (1924); Oregon R. R. & N. Co.
v. Fairchild, 224 U.S. 510, 524 (1912).
In the case of Morgan v. United States, 304 U.S, 1, 19
(1938), the Court said: “Those who are brought into con-
test with the Government in e quasi-judicial proceeding
o4
aimed at the control of their activiiies are entitled to be
fairly advised of what the Government proposes and to be
heard upon its proposals before it issues its final command.
No such reasonable opportunity was accorded appellants.”
Identically the same secret proposal was made here by the
Department of Justice, and the appeal board acted upon it
in this case without the knowledge of the petitioner in time
to protect himself. This star-chamber procedure prescribed
by the regulations is a denial of due process of law. It con-
flicts with the “fair and just” provisions of Section 1(c)
of the act and the Fifth Amendment to the United States
Constitution.
It is submitted, therefore, that petitioner was denied
procedural due process of law when he was tried behind
his back in the appeal board and denied the right to rebut
the adverse recommendation before the final I-A classifi-
cation by the appeal board, contrary to due process of law.
CONCLUSION
This Court should hold that there was no basis in fact
for the denial of the conscientious objector classification.
It should be declared, therefore, that the final I-A classifi-
cation by the appeal board was arbitrary and capricious.
This Court should hold that the facts that Gonzales was a
late-comer to Jehovah's Witnesses, that others of Jehovah's
Witnesses went into the army and that each individual
may determine whether or not he is a conscientious objec-
tor or to do defense werk, all are no basis in fact for the
denial of the conscientious objector status, in the face of
the finding that Gonzales was sincere and in the lack of
iny affirmative evidence that he was not conscientious. It
:aould also be held that the recommendation of the Depart-
n. ™ of Justice (that Gonzales be denied the conscientious
obj) or status because of his late conversion as one ‘of
Jehovah's Witnesses) is illegal and no basis for the denial
of the conscientious Gbjector status on the record in this
= ee ee
Jo
case. It should also be declared that the petitioner was de-
prived of procedural duc process of law when the Depart-
ment of Justice and the appeal board failed to give him
notice and an opportunity to rebut the adverse recommen-
dation of the Department of Justice before the final I-A
classification was made by the appeal board.
It is submitted, therefore, that the judgment of the
courts below should be reversed and the cause remanded
to the district court with directions that the motion for
judgment of acquittal be sustained and the petitioner be
discharged.
Respectfully submitted,
Hayven C. Covinctor
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.