Petition for Writ of Certiorari — Dodez v. United States

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: GORGE WHLLAAM. LM DIEZ, PetWioner . oS i4

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UNITED STATES OF AMERICA, Pepondent

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Petition for Writ of Certiorari to the

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United States Circuit Court of -Appeals >

for the Sixth Circuit:

VICTOR FL SCUIMIDY

HAYDEN C, COVINGTON

Attorneis for re fifione?

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INDEX

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Sussect INpEx .

PAGE

Summary of matters involved pbcalabieds donadekcaitanaaiaeadnies ]

Statement of case tee =. ati ocendienshanabeta aeons 4-5

’

Form of. action ... eee Nes Di Tate RRNA Ae 4

2 .

Facts ecgoaunet : a. ened Genioniati PS ielaonaa 5

How Issies were raised ‘ . i oni 8

Specification of errors veal -- ~d 1

, ~

Reasons relied on for granting the writ ' 11

‘

Conelision i P 12

‘ . ‘

Supporting brief me .. 18-2]

2 :

Preliminary Ses 13

Additional argument _— 13

yy . : .

Cpe}

, Nelusion

Cases Cirep

Billings v. Truesdell ie

OR U8. G00, G66-G00. oe veessieee WL, 15, 17,18 |

. Estep v. United States

7-U.8.—, 66 8. Ct. 423, 436-420 vezeinee By 1, 15

.Falbo v. United States

Re BR ee Pe 2,11, 13, 14, 15,17

Gibson v. United States

—U.8.--,.66 8. ‘Ct. 677 :

' No. 221 Oct. T. 1945, argued ‘and submitted

Jan. 2-3, 1946; on Feb. 25, 1946,

‘ordered reargued before full court ee ey /11, 12, 13,21

oe

Government’s brief :

Gonzales v. Williams =~ f, : .

canta te 5 aE A A RRERIE AEIR ESaT) Vetoes

Kansas City S. Ry. v. Ogiten. Levee Dist.” : mata

sod toothy tate Oe aes EE NSEOE RN) PD lat Nee S De

Smith v. United States

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Utley v. St. Petersburg

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STATUTES AND RecuLavions crrep

Judicial Code, Sec, 240 (a), as amended by Act of

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United States Code, Title 50, App. ss. 301-318.

"Selective Training and Service Act of 1940”,

_ 48 amended ] i oe

See. 3-(a)} i... CRETE SLITS esis ae pidiielllp dante eS Ns

dees. 5 (dd), 10 (a), 11} Misdiadedapidigncncd cuisine is) Na

7 a4 i nas te ea a Romat saan eaddes eS Seatac ere eee ee lt “45

vaited States Constitution / ese 7 eRe en

Article I, Sec. 9, clause 3 sep havetenbdun nace fcinhcansbpenesinatnnbiaaieneinpaica’ aya

RO Us an COMERS sind + cate

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Amendment ) Sea Rees, Di i SRA Tee a nebpiassians S ccabiiecngietcatany 3, 8

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Ocroper TERM 1945

“

GEORGE WILLIAM DODEZ, Petitioner

: es ».

_ UNITED STATES OF AMERICA, Respondent

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Petition for Writ of Certiorari to the -

United States Circuit Court of Appeals

for the Sixth Circuit

To, THE . PREME CeaKe OF THE Unitep States:

Petitioner, George William Dodez, presents this his

petitionfor writ of certiorari and shows unto the Court

as follows:

%

Summary of Matters Involved

1. Opinion of the court helo.

“Opinion of the United States Cireuit Court of Appeals

is not yet reported in the Federal Reporter. It appears in

the record certified to this Court. [189-2007*

2. Jurisdiction. »

The jurisdiction of this Court is conferred by Section

*4) (a) of the Judicial Code,/as amended by the Act of

February 13, 1925. See also’ Rules XI and XIII of the

May 7, 1984.

orief. refer ta pages of printe transeript of the record. |

*

L

SUPREME COURT OF THE UNITED STATES |

Criminal Appeals ‘Rules promulgated by this [Court on:

*Bracketed figures appearing in this petition and thy: supporting

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ge en em nnd ee pene fe ne anne my eee tenet a a Se

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3 Timeliness of this petition. eats eis"?

The judgment of the Cireuit Court of Appeals was

rendered and entered on March 18, 1946. [189] The peti-

tion for writ of certiorari is filed within thirty days of -

that date. sa 3

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way 3

4. Statutes and Regulations Involved. Bs a

Sections 3\(a), 5 (d), 10. (a) anrid-11 of thé Selective ©

Training and Servi ice Act of 1940, as amended (50 U.S.C.

_ App. §§ 301-318) are drawn in question liere, as well as _

‘Sections 621.13, 622.44, 622.51, 623.1 (e), 627.25, 629.1, 629.2,

629.32, 651.1 -691.8, 651.10, 651.31, 652.1, 652.2, 652.11, 652.13,

653.1, 653.5 and 653/11 of the Selective Service Regulafons

(32 C.F. R. 601.5 et seq.) a by - President

under said Act. - . :

5. Questions presented. ) “ae

(1) Does acceptance upon preinduction pivsiaal exami-

nétion of one classified as a congcientious objector consti-

tute. completion of the selective process and exhaustion

of administrative remedies so as to qualify petitioner to

chailenge the legality of the administrative action in, de-

_ fense to an indictment charging him with failure to report

for work of national importance in a civilian public service

camp?

(2) Did the courts below err in bstdiae that the rule

of Falbo v. United States (320 U.S. 549) applied and that

the rule of Estep \ v. i States (66 S. Ct. 423) did not

control? :

(3) Where the ie eee evidence shows -that the

local board was pre judiced against petitioner and violated

his rights to procedural due process by denying him 4.

full and fair hearing, may he show in defense to the in-

dictment . that. the administrative gency acted. illegally.

and unconstitutionally, and that the order on which ‘the

indictme nt is hygsed is yoid? .

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wo

2 al

(4) Did “the trial court err in refusing to’ allow peti-

tionér the tight to show, and in refusing the jury the right »

to consider that the order on which the indictment was

based is void because petitioner is a minister: of religion

exempt from all Sing and service for the reason that it .

was made (a) 4m’ eXcess of authority of the boards, (b) be- |

yond the. jurisdiction of the boards, (c) eqatrary to law,

(a) contrary to the undisputed evidence, (e) without sup-

port of substantial evidence, (f) arbitrarily and capri-

~ ¢lously, () tontrary to the Constitution by depriving

petitioner of his rights and liberty without due process of

law,-and (h) in violation of the Act and ‘Regulations?

' (5) Did the trial court err in holding that it and the

jury could: not, consider the illegal and unconstitutional |

“action of the draft boards and in ‘limiting the issue to -be

_ decidedto whether or not petitioner knowingly failed to

report ‘for work of national importance? oe

(6) Does the construction placed upon thé” Act and

- Regulations by the courts below, requiring’ petitioner to

Teport at a civilian publie service camp for work of national

importance as a condition precedent to judicial review of

the illegality and unconstitutionality of the action of tlie

Selective Service System, violate Clause 3, Section-9 of .

Articie I, Artitle III, and the Fifth and Sixth Amendments.

0 the United States Constitution? © - |

=“

ton to quash the indictment, motion for an instructed ver-

diet and Yor a judgment of acquittal, in excluding. proffered °

‘vidence, in denying requests for charges and in charging

“3) ae : ‘ 2 P 2 SPR ‘ f

the juty, all of -which pertained to the illegality of the

adiminisiratiy order?

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(7) Did the trial court err in denying -petitioner’s mo-

Statement of Case |

FORM or.

This eriminal action as inetit ted by indictment re-

turned against petitioner‘ ¢harging him with violation ‘of

- the Selective Training and Service Act of 1940, as —

and the Regulations thereunder. [2-3]

The indictment charged that petitioner, a registrant:

- classified-as a conscientious objector, “did knowingly, wil:

fully, unlawfully and feloniously, fail te perform such duty |

required of him; that is to o. say, that the said defendant, .

did fail to réport for work of national — as OF-

dered by said Board”. [3]: ,

“. Thereafter petitionet pleaded “not guilty”, 3) He filed ~

a motion to quash the indictment on the-grounds that the —

construction placed upon’ the cripinal sanctions -clause 80

as to deny him his right to show, in defense to the indiet-

-ment, that the orders of thé Selective Service System

were void and illegal,. violated the Constitution of the

United States. {35] The motion to quash was overruled,

after argument to the court, en December. 7, 1944. [9]

The trial to a jury before the court. began on December /,

1944, [9] The court excluded and .received evidence upon

the trial. The case closed when all the evidence was in 00

December 7, 1944. [3,67]°.At the close of the evidence, |

petitioner moved for dismissal of the indictment and for a

judgment of acquittal [6-8, 16, 65, 127-130]. and ‘for a di

ae

. rected verdi¢tt of not guilty: (6-8, 16, 65, 127-130] In these

. motions the reasons were stated extensively. [6:8] The -

motions were denied with exceptions to petitioner. [16-

65] Petitioner duly submitted to the court, before argt-

ment of counsel to the jury, his requested. instructions to.

the jury. [66-10F]

On December 8, 1944, the cause was ‘argued to the jury —

by counsel. [60-104] Thereupon the caurt\charged the jury. °

[104-108] The court refused all of petitioner's requested

sae

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charges to the jury and ‘allowed exceptions to his ruling.

(109) Petitioner duly objected and excepted to. the court’s

. ¢harge. [109-111] The jury retired to consider the verdict

December 8, 1944, at 3:00 p.m. [112,127] On December'15, —

upon the verdict and séntenced petitioner, committing him

to the custody of the Attorney General for a period of

five. years. [121, 130-131] \ Jee eee ;

Petitioner duly served and filed his written notice of

appeal in the time \and manner required by law. [132]

ie timely filed his assignments of error which support each

sround of this petition. [135-142] In due course the ease

was argued and submitted to the United States Circuit

Court of Appeals fos the Sixth Wireuit. The judgment of.

_ conviction was affirmed: by that coyrt ‘on March 18, 1946.

eh _FACTS: : ee Po al

Petitioner registered] pursuant. te—the Selective Train-

ing and Sdrvice Act on June 30, 1942. [156]. On’ Septem-

her 2%, 1942, he filed his Selective Service Questionnaire.

(H46] He showed his occupation to be that of a duly or- :

dained minister of religion since January 1941. [\17, 146-

148) in his\ questionnaire he asserted: “In view lof the

facts set forth in this Questionnaire it is my opinion that

ny classification should be 4D.” [18,148] He filed with

‘ls questionnaire certificates of ordination showing that

he was recognized by the Watchtower Society, the legal

governing body ‘of Jehovah's witnesses, as an ordained

mimister of the gospel. [157-159] Affidavits were also filed

showing that petitioner's full time was devoted to the reg-

lar performance of ‘his ‘duties as a minister of relizion

and that he stood in relation to the congregation of Jeho>

Yah’s Witnesses as do the ministers of orthodox denomi-.

' Bations. (759. 165] On “November. 25, 1942, the local board

at 2:00 p.m. [12] The jury rendered its verdict of guilty on: -

» 1944, the United States District Judge rendered judgment .

6 \

classified him in Class I-A, sending him notice thereof on”

November 30, 1942. [150] Thereafter, on December 8, 1942,

he requested a. personak appearance b..ore the local board

pursuant to the Regulations. [167-168] On’. December 7,

1942, lie appeared before the, local board and submitted a

: petition signed by forty-four persons stating that ty ree-

‘. “ognized him as a inimister of Jehovah's witnesses and the

Watchtower Society and that he regevlarly me and

‘taught the. principles of Jehovuh’s witnesses. [ 168-169} At

.- such personal appearance the local board denied him a full.

hearing but ‘evidence of the denial was excluded from the

record. An offer éf proof was made. [33-36] He was con- ©

tinued in Class I-A’ an December 7, .1942, notice thereof

being mailed to him on December 8,. 1942, (450] Petitioner

. thereafter requested a rehearing for the /opportunity to

present auditional evidence. This proof A pas Tejected by

the court. [36-37] - a! ere

” He appealed- ‘to The board of appent on December 17,

- 1942, (149) In his notice of appeal he complained of the

failare of the local board to give him a full and fair heat-

ing. He also comptained of the refusal of the local board to

grant him a: rehearing in order to enable him ‘to. offer.

_additional evidence, {170}. He:accused the local board of

being prejudiced, unfair and capricious. [171] Pending the

determiffition of his appeal, he notified the local board

‘that na been appointed as the presiding minister of

the congfegation of Jehov ah’s witnesses at W voster, Qhio.

[172- 17h

On J 11, 1943, be was notified that the }oard bt appeal

had se halon to Class IV-K, [150] which made him

liable to diy work of national importance ina civilian publie

- service camp. Thereafter .he attempted to have his 2a‘?

reopened. In dealing with the Government ‘Appeal Agent

and members of.the local board, there were statements

— made about prejudice on the part of the loeal board. He

.

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ever, eviderice as to this was excluded by the court. It is

shown in an offer of proof, [37-44] .

Additional evidence was submitted and request again*

made to have his classification reopened in January 1944,

Such evidence consisted of an affidavit and petition stating

that petitioner’ regularly and ‘customarily served as and

> 3 7

. performed the duties of a duly ordained minister and presid- .

ing minister over the congregation of Jehovah's witnesses,

teaching and preaching the beliefs of Jehovah’s Witnesses,

and certifying that he was authorized to perform marriages,

baptism, funeral and ‘other ceremonies generally performed

by ordained ministers. [174] The signers of the petition

alleged that it would result in a hardship to them if péti-

tioner was taken away from the congregation. [174-176]

With this was submitted a certificate issued May 13, 1943,

by the State of Ohio, licensing petitioner to solemnize mar...

, Tiages within the State of- Ohio as long as he continued’

.. 48 @ minister of the Watchtower Society. [176] This ‘ad-

\ditional proof was accompanied. by a letter to the local

beard: [179-180] The local board declined to reopen his

classification, 2 Sere: 2

On February 10, 1944, the petitioner was mailed Order

'o Report Preindiction Physical Examination directing ©

him to appear at the local board located at 243 West Market

| Street, Orrville, Ohio, on February 21, 1944. [182-183] He

appeared as directed and was thereafter given preinduc-

tion physical’ examination at the induction station on

February, 21, 1944. [150, 184-186] Cértificate of Fitness

Was thereafter sent petitioner on February 28, 1944. [150,

184-185]. It certified that petitioner, after having been

‘xamined upon a preinduction physical examination, had

been declared “Physically fit, aeceptable by Army for.

peral military service”. | (51-52, 184-195]. The report of

Physical Kxamination, ‘dated: February 21, 1944, appears

in the Reeord. [185-186] i is ec

On April 8, 1944, petitioner was ordered to report for

“

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work of national importance. [150, 155-156] The order re-

- citéd that he had been assigned to C. P.S. Camp No. 28, at

MedaryVille, Indiana. It commanded him to appear at his

local board at 5 a.m. on April 21, 1944. [150,155] On

April 19, 1944, petitioner, by letter, acknowledged receipt

of the Order to Report for Work of National Importance.

[186-187] He reviewed the illegality of the action of the

_ administrative agency and, for the reasons stated in his

letter, declared that he would not: report because he could

not turn aside from and quit his preaching occupation

that he was bound to perform in accordance: with the

covenant made with Almighty God. [186- 187] The petitioner -

failed to report at the local board, as commanded, to do

work of national importance. [ 14-15, 150] |

_ How. fanes Were Raised

By motion. to quash the indictment petitioner claimed

os that the administrative process had been sufficiently com-

‘pleted so as to permit him to challenge the legality of the

classification and orders based thereon. [35] He asserted ~

‘that if the Act: and Regulations were so, ‘eonstrued as

- . to deny him these defenses, they were ‘unconstitutional

because a Bill of Attainder, contrary to ‘Clause 3, Section 9

of Article I of the United States Constitution ; because they

- surrendered the judicial power to the draft boards con-

trary to Article III of the Constitution; because they denied

the right to a judicial trial contrary to the dtie process

clause of the Fifth Amendment to the United States Con-

stitution, because they deprived the petitioner of his right

of trial by jury contrary to the Sixth Amendment to the.

United States. Constitution. [35] The trial court overruled

the motion to quash-with exception to petitioner. [9, 10]

The trial court erroneously excluded from evidence,

over the objection of petitioner, his own testimony offered

de novo to show his activity as an ordained minister. This

9

testimony was offered for ‘the purpose. of showing that

‘petitioner was exempt from all training and service under

the Selective Training and Service Act. [30-32], =

> The trial court erroneously excluded from evidence,

over the objection of petitioner, testimony tending to show

prejudice and discrimination hy the local board against

‘petitioner, and. evidence tending to show that the members

of the local: board had denied him a full and fair hearing

hefore that board. (33-35, 36-44] ; .

The trial court’ erroneously excluded from evidence, - 3

-, over the objection of petitioner; testimony offered de novo.

by petitioner to establish his background and training for

the ministry. [50-51] | : i

At the close of the evidence petitioner moved for a

. dismissal of the indictment [127-128] and for a directed —

verdict [128-130] on the grounds that the undisputed -evi-

dence showed that the draft board order was void because |

the board acted in excess of its authority in that petitioner |

Was a minister of Teligion exempt from all training and

_. Service and. was not liable for training and.service under

the Act; that he had exhausted his administrative remedies

and was in a position to challenge the actian of the adminis-

trative agency and the orders on which the indictmerit was

based ; that the board had denied him his rights of pro-

cedural due process by rejecting the evidence and that the

court had construed the Act ‘and Regulations so as to Te.

{ire -him to report for work of national ‘importance at -

a CPS camp as a condition precedent to « judicial review,

Which denies the petitioner the right of a judicial trial

fontrary to the Constitution of the United States, [127-

130] Fach motion was denied with exception to petitiorier:

[65] ott

Petitioner duly tendered to the court requested charges .

to the jury. [67-100]. The requested charges defined what

“onstituted a regular or duly ordained minister of religion,

- Stated the duties of draft boards in considering the minis-

10

terial status of Jehovah's witnesses under the Act.and Reg-

ulations as declared by the Director of Selective Service

in Opinion No. 14. The-court was requested to charge the

jury that if'they concluded and found that the undisputed

evidence before the draft boards showed that petitioner

was a minister of religion and of Jehovah's witnesses and

there was no substantial evidence that he was not such a

minister as claimed, that they could aequit the petitioner

by their verdict saying he was not guilty. The. court was

requested to charge the jury that if they found that the

boards acted in excess of authority, without jurisdiction,

contrary to law, without support of substantial evidence,

contrary to the ‘undiaputed evidence, contrary to the Con-

stitution, the Act and Regulations and arbitrarily or-ca-

priciously, they could render a verdict of not guilty. These

requests were each refused separately and — al-

lowed to each refusal.

_ "Phe court instructed the jury that the only issue to —

be determined was whether or not the petitioner reported |

for work of national importance, and if the evidenice showed

that petitioner failed to. so report, it would be the duty

of the jury to tind the petitioner guilty. Petitioner objected

and excepted to the court’s charge: om the grounds that —

he was thereby denied the right to urge in defense to- the

indictment that he was exempt from training and service

as a minister of religion; that the court instructed the jury

to convict him; that the mstruction of the court denied him

his right toa judicial trial and a trial by jury, and abridged

his rights and liberty contrary to the due process clause

of the Fifth Amendment to. the U nited States Constitution.

[110-111] ‘ .

Throughout the trial, from beginning to end, the court

held that the actions of the draft boards were binding upon

petitioner, the court and the jury, and that petitioner could

not challenge the same on any ground, or that his failure

i

to report for work of national importance was not a will-

ful Violation of the Act:

| Specification of Errors.

. » Petitioner relies upon every one of his assignments of

_ érror.as grounds for a reversal of the conviction.

Reasons Relied on for Granting the Writ —

The holding of the court below conflicts with the hold, -

. ings of this Court in Billings v. Truesdell, 321 U.S. 542,

WOB-59, and Estep v. United States, 66 S. Ct. 423, 425-429.

The holding of the court below that the questions pre-

sented by petitioner are disposed of in the holding of this

Court in Falbo vy. United States, 320 U.S. 549, which. is

said to be “on-all fours with the case at bar”, is such a

drastic departure from the usual and accepted course of

judicial proceedings as to call for the exercise of the power

. _ Of supervision to halt the same and correct the injustice

committed against petitioner. .

Inasmuch as the ‘Selective Service. Regulations have

heen amended since ‘the Falbo decision so as not to require

4 physical examination at the CPS canip as a condition

' precedent.to determining the acceptability of the registrant

_ dor work of national importance, the decision in Falbo

v. United States, Supra, is not apposite.

_ ” Moreover, the instant case presents to this Court a

question similar to that presented to this Court in Gibson

Vv. United States, No. 221, October Term 1945, argued. and

- submitted January 2-3, 1946, and ordered, on February 25,

1946, reargued before the full court. (66 S. Ct..677) Inas-

much as the petition for writ of certiorari was granted

in the Gibson case, it should be granted in this case. Since

the. questions urged in the Gibson case were sufficiently

Substantial to require reargument in that case, the same

aid correlative questions here presented should likewise

12 eau tree

and for the saine reasons be considered substantial enough

_ to warrant tie granting of the writ of certiorari here.

ial ‘Conclusion.

WHEREFORE your petitioner prays. that this Court

issue.a writ of certiorari to the Cireait Court of Appeals

_for the Sixth Cireuit directing stich court to certify to

this Court for review and determination on a day. certain

to be therein named, a fuli and complete transcript of the

record and all proceedings in the case as numbered and

entitled on the docket of said court; in the event the.

writ of certiorari is granted, petitioner prays that this

cause be set for argument simultaneously or consecutively

_ with No. 221, October Term 1945, Gibson v. United States,

which has Lois ordered restored to the docket for reargu-

ment before the full court; and petiticner further prays

that the judgment of said Circuit Court of Appeals, affirm _

ing. the judgment jof conviction entered by. the District

Court be here set aside and petitioner dismissed -from

custody or, in the alternative, the judgment be reversed

and the cause remanded-for a new trial not inconsistent

with this Court’s opinion; and that your petitioner be.

granted such other and further relief in the premises. as...

. to thig Court may seem just and proper in the circumstances.

GEORGE WILLIAM DODEZ, Petitioner

By VICTOR-F. SCHMIDT

- HAYDEN C, COVINGTON

Counsel for Petitioner

\ ‘ 3 13

_ SUPPORTING BRIEF.

Preliminary

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

hasis.on which the jurisdiction of ‘this Court. is claimed,.

the questions presented, the history of the action, how the

issues were raised, the evidence received and rejected and

the assignments of error relied upon, reference is here made

to the foregoing petition for writ of certiorari. -

The points of law pertaining to the right of the peti-

_tionercto show in defense to the indictment that the admin-

‘ “istrative order is void heeause the selective process has

ended, thus completing the administrative remedies, have .

~ been fully discussed ‘in ‘the briefs of both parties filed in

Gibson v. United States, No. 221, October Term 1945.

ADDITIONAL ARGUMENT.

The Sclective-Training and Service Act of 1940 ($3a)

in part provides: “... fo“man shall be inducted . . . until

"he is acceptable to the land or naval forces . . . and his

.. Physical and méntal fitnesss for such training and service

~~ flas been satisfactorily determined.” (Italics added) The

| -administrative process beginning “with registration with

the’ local boards” ends “when the registrant is accepted by

} the Army, Navy or civilian public service camp.” Falbo_

V. United States, 320 U.S. 549. dite eee

_> Section 629.1 of tlie’Regulations provides that every.

registrant must be given a preinduction physical examina-

tion, whieh is a-final-type physical examination for revis-

rants classified as conscientious objectors (Reg. °651,1-

691.8). If the conscientious objector is found physically fit,

2 he is then assigned by the National Director of Selective

Service to a designated civilian public service camp (Reg.

PoL.10, 692.1, 652.2). Pursuant to such assignment, the local

tdsawed 5

“StG issies the order to report for work of national im-

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s

“14

portance, After the conscientious objector has been given.

a preinduction physical examination and has been assigned -

‘to a particular camp by. the National Director, the local

- board then orders him to’ report at the board for trans-

portation to the civilian public service camp to which he

is assigned (Reg. 652.11). The Regulations provide that

after arrival at the camp the registrant shall be examined .

to ascertain whether there has been a change in his phys:

ical or mental condition. But irrespective of the result of

the physical examination he is aceepted by -tha, camp ‘for

work of national importance (Reg. 653.11). He cannot be °

rejected at the camp. If a change in his condition is found,

he is hospitalized. The Regulations provide that the accept-

ance shall be noted after the physical examination. The

camp director is required-to place on the form a statement

‘that the registrant is accepted for work of national im-

portance at the civilian public service camp to which the .

registrant has been assigned. The statement shall specify

the date -and place of such acceptance and shall be signed

by the camp director (Reg. 653. 11).

It is to be observed that there is said to be a difference

in procedure as it is under present Regulations ‘and as it

was When Falbo was ordered to report for induction. Now

it is impossible for a registrant to be rejected at the CPS

cainp after having reported: The court has said that this’

was not true at.the time Falbo was ordered to report for

induction (Falbo v. United States, 320 U.S.) : “The selectee

may still be rejected at the induction egnter and the con-

scientious objector who is opposed to nencoimbatant duty

may berejected at the civilian public service camp.”

[t is manifest that the acceptance upén a preinduction

; phy sical examination ends the selective: process, Petitioner

was ordered to report for work of national importance

after an amendment of the Selective Training and Service

Act, dated December 5, 1943, whic h provided for acceptance

!

15

upon-a preindyction physical examination before the order

to report is issued. (50 U.S.@. App. 6304 (a))

In Billings v. Truesdell, 321 U.S. 042, by a construction -

of the Regulations and the Act, it was ruled that at this

point in the proceedings a registrant, when found physically

and mentally fit, was to be deemed “acceptable” and is

“accepted”. The very next step, induction, was not and is

not a part of the selective process. -U nmistakahly, the court ~

pointed out thatthe Falbo decision was not to be construed

as holding that a man must submit to induction before he

could be said to have exhausted his administrative remedies,

_but that. the selective process ended when he was accepted

and that thereafter he could refuse to submit to intluction:

“But we can hardly say that he must’ report to the

military in order to exhaust’ his administrative remedies .

and then say that if he does so report he May be forcibly

inducted: against his will. That would indeed make a trap

of the Falbo ease by- subjecting those who reported for

completion of the Selective Process to more severe penal-

ties than those who stayed away in defiance of ‘the board’s

. order to report.” . “4 eek :

The foregoing quoted portion of the Billings opinion

is a forcible demonstration of the misapprehension by the

court below of the Regulations: governing petitioner's. ac-

teptange and assignmént to a CPS camp, and his status at

the time he received the order to report for work at the

‘camp. The court below said that “after reviewing Este,

and Smith cases in detail and noting that. no attempt is

made therein to reverse-Falbo v. United States (supra), we

conclude that the!Falbo and not the Estep and Smith de-

“elon apply here. We believe the cases are identical since

neither Falbo nor Dodez had exhausted his administrative i.

" Temedies by reporting for induction. In the ease at |}

had drattee so-reported and then refused to be inductéd,

the Estep and Smith decisions would have been controlling.”

(193-194 ] NE 7

My

°o

16 Sp

. It should be cbserved that it was impossible for. peti-

tioner to be inducted at the civilian public service eamp.

Indeed, there is no induction eéremony at the camp. There .

is no line drawn in the Regulations whereby .a point is

fixed permitting the registrant to choose between induc.

tio and refusal to beinducted with prosecution under the

Act, as in the case’ of reg ristrants’ ordered to do training .

and service in the armed forces. In the case of. registrants ~

classified as¢conscientious objectors, the Regulations pro-

‘vide that the registrant is under thé jurisdiction of the

eamp to which he is assigned after leaving the local board -

‘where he has reported in pursuance to the order command,

ing him to, do work of national importance. (Reg. 652.13)

It is manifest thatthe court below confused the distinction -

between the well defined procedure of registrants ordered

. to do'work of national importance and registrants ordered

to do training and service in the armed forces. The fact

that :one classified in 1-A may not exhaust his remedies

until he has undergone the final physical examination at »

the induction station given by the armed forces upon his

reporting pursuant to an order: to report for induction,

cannot be taken as a guide for determination that a regis-

trant classified in IV-E has not exhausted his remedies

until he has ‘reported at the civilian public service camp.

Since it is impossible for a registrant to be rejected at the

civilian public service. camp, and inasmuch as: there is no

physical examination given at said camp for the purpose

of determining. the acceptability of the registrant, it is

unnecessary for one classified as a conscientious objector

to report to the local board or to the CPS camp in response

to an order to report for work of national importance in

order to exhaust his administrative remedies. Indeed the

remedies have been exhausted upon the taking of the pre-

induction. physical examination long «before ine® order to

report for work ‘of national importance is issued. .

Petitioner was not indicted for failing tv perform 227

one of the steps in the selective process, but was prosecuted

and convicted for not having reported for the sole purpose

in the selective’ process liad béen completed before the

order to report for work of national importance had issued. .

He was indicted, prosecuted and convicted for refusal to

report for work of national importance and not for failing ©

to take the last step in the selective proéess. —

Thetefore petitioner's refusal to report for service at

" the camp is the only assignable reason why the covrt below

‘Tiled that he could not contest the legality of his classi-

fication in defense to the indictment. But under-the above _

. quoted portion of the Billings opinion petitioner did ‘not

have to be “actually inducted” or report for:work of na-

tional importance in order to raise his defense. He did not

’ -have to report to the camp, be assigned and start to work

there, any more than did Billings have to take the army

oath, be assigned to service in the armed fordes and shoulder e

ae gun. When petitioner was found physically fit and accept- -

able for general military service upon - his preinduction -

physical exarnination atthe induction station he was “ac- -

ceptable for wei of national importance under civilian.

direction.” (Italiés added) (Reg. 651.31.4a) (1)} He liad

been officially and finally accepted, as‘ indicated by the

subsequent notice

of Selestive ti

(Reg. 653) Thus! petitioner exhausted his administrative

-Temedies and, under the rules set forth in the Falbo opinion

itself as amended and clarified by the Billings opinion, he .

. Was then in a pgsition to urge the illegality of: his classi-

feation as a defense against the indictment: ye /

In the Billings opinion (Supra) it was said that the

lat that one may have been accepted several weeks before

Ne Was ordered to.report for induction would not alter the

_ of submission to work of national importance. The last'step

_ + in result if the interval between the time when he is found

- Regulations are now adverted to show that there was no—

'.. provides for a cursory physi

18

national importance did not change the fact that he/ was

er accepted f¢r work: of naftonal importance/ia a

CPS camp. The final irrepealable order of General H rshey ~ ae

- assigning him to: do work of national importance had ro

theretofore issued. In Biilings v. Truesdell, sup a, it is:

said: “It is ditli¢ It to seé why thére would bea difference

- acceptable or js accented and ‘the ceremony. of induction

were only a few minutes, as in.the ‘present case, rather

than a‘ fdw weeks.” It is nly administrative remedies that »

one is required to exhaust in order to qualify. himself for.

judicial ‘review. Inasniuch as there was. no possibility. of

petitioner's obtaining any remedy by being’ rejected at-the

-. civilian public service camp, it was unnecessary for him to

report atthe camp to dé work of national importance. The

remedy available to him at the camp. Section 653.13, of, the

Regulations provides that the registrant is under the juris-—

diction of ‘the camp after leaving his board, following his

reporting at-the board to be transported to ‘/the camp. -

Section. 653.11 (a) vequires the direetor, on arrivai’ of

the registrant at the canip, to fill-ont the order to repare

for work ef national importance. Section 65 3. 11 (c) of the -

Regulations declares that ac ieee at the camp: is com-

pieted by filling out the ordéf to report: Section 653.11 (b)

i examination, ‘but -jnasmuch

as Section 653:11 (¢) provides that acceptance shall be

‘made irrespective of the physical examination, it, is u- °

possible for a registrant to be rejected at the camp. |

I e Government's brief (pp. 15-16) filed with the

‘Court in Gibson vy. United States, No. 221 October Term

1945, supra? it is said, inter alia, “We are unable to agré

_ with petitioner (Br. 17) that it is necessary for a registrant

‘to undergo the physical.examination at the camp “in order

to finalize and ‘complete lis acceptance at the camp,’ Since’:

every registrant who has passed. his preinduction. 3 nhysioal

inet?

-

See . airy -

‘ ose Wes Ae 19

examination and is assigned toa camp by the Direetor-of

“Selective Service must be accepted at the camp (Reg. 653.11

(c)), it is plain that the examination at the camp is nota

part of the precess of determining the registrant's accept-

ability. Indeed, in petitioner’s case, he was accepted at the |

camp sevéral days before he was examined by the camp —

doctor (sé fn. 8, ‘p. 17, and pp. 53-58, infra). : mit

“\. Itisin eo that the procedure differs

from that whieli. prevailed -at the time of Falbo's case. At

that time it was possible for a registrant to be rejected upon.’

examination at the ‘camp (see 320 U.S. at D023) and the

procedure thus paralleled the procedure for inducting men

into the armed forces.... eat

“Unlike the procedure ‘which prevails for registrants

‘going into the armed forces (see Biliings vy. T) uesdell,

821: U.S. 542, 503-594), in the case of a registrant assigned”

‘0 a Civilian Public Serviée Camp there-is no induction

process. The reason for the. difference in procedure may

‘e found in the fact: that only & registrant who has claimed

‘xemption from military ‘service becauseshe_is consei-n- |

tiously opposed to all war is classified IV-F and assigned. .

‘oacamp. Section 5 (gf of the Act requires that any person

aiming such exemption’ shall ‘be assigned tg work of

_ National importance:’. Since’ by asserting the claim the. reg-

_ IStrant necessarily acquiesces in his assignment to work

of national importance, there is no oceasion for an induec- — :

‘tion ceremony in which he will be able to choose between

‘ubmijting to work of national impertance and defying

the Act,”* TSE Se © Fee ea

_It.would be a hollow formalism to require petitioner to

‘eport for work of national imp |

the camp for the mere purpose of having the director. fill -

outa form showing that he had been acceptéd, when there -

_ “The material mentioned -in footnote 5: of the Government's brief .

mn the Gibson case (quoted above) is a letter from the Seleetive Service

System to the Attorney Genvral, which leiter is set Yorta j said brief

* pages 33-58. a

s a /

ortance and to appear at”

9

20 e

, >.

wo”

‘e

is no. possibility for appellant to get any. relief by being

rejected. Indeed, Section 653.12 of the Regulations mak

or mandatory duty for a registrant to remain at the-eamp

ter reporfing there. Such further step of reporting need

10% be complied with as a condition precedent to judicial

.refiew. Utley v. St. Petersburg,.292 U.S. 106; Kansas City.’

8. Ru. y. Ogden Levee Dist. (CCAS) 15 F.2d. 637. See

. also Gonzales v. Wilkains, 192 U.S. ¥,15, where, with..

reference to an argument about exhaustive administrative —

remedies, the court said:.“She was not obliged to resort”

to the superintendent or the sectetary.” 2

The efforts on the part of the court below. to hold the

action of the trial: court in rejecting evidence pertaining’

to, and. in refusing to consider or permit, the jury to-cén-

pe hether the local board had denied petitioner, a full

and fair -hearing, was harmless error, fails to make the

judgnients of the courts below impervious fo attack here.

‘A similar effort was attenipted by the court of appeals

in the ease of Smith v. United States, 148 F. 2d 288, (See

the last point dise massed in that opinion) This Court re-

versed the judgment in. the Smith case because the trial

‘court refused to exercise.its judicial function. There the

trial court failed to pass upon the issué raised. It refused

to permit the jury to consider the issue. The questions -

for determination by the court and jury were limited to

whether or not-the defendant complied with the order. The.

same failure to exercise the judicial function is prevalent

here, The trial court did not pass upon the merits of peti-

* tioner’s-defense. It was'error for the court of appeals to

weigh the dnerits of the defense in affirming the judgment.

If the Court of Appeals-can consider the defense, then

it was also the duty of the trial court to consider the defense.

Inasmuch as the trial court did not consider it or permit

the jury to consider it, the error cannot be cured by the -

"rationalization of the court of appeals, (Sunith v. United

States, supra) - 3

21

f/-8.:- Cenelweten

- It is submitted that this case is one calling for the

-fxercise by. this Court of its ‘Supervisory powers under

the Judicial Code and the Rules of this Court. To that end —

the petitton for writ of certiorari should be granted so

as to gorrect the assigned errors committed; in event the

‘rit of certiorari is granted petitioner prays that this

' cause be set for argument simultaneously or consecutively

with No. 221, October Term 1945, Gibson v. United States,

which has, been ordered restored to the docket for reargu-

ment before’ the full court; and pei:tioner further prays

that the judgment rendered by the Circuit Court of Appeals

and the District Court against petitioner should be reyersed

and petitioner discharged, or, in the alternative, the judg-

ments rep be reversed and a new trial ordered.

Respectfully submitted, - -

+ VICTOR F. SCHMIDT

HAYDEN C.:COVINGTON

Counsel for Petitioner

_