Fore v. United States, 9529.

• Citation: 395 F.2d 548
• Decision Date: 21 February 1968
• Docket Number: No. 9529.,9529.
• Parties: David Earl FORE, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

395 F.2d 548

David Earl FORE, Appellant, v. UNITED STATES of America, Appellee.

No. 9529.

United States Court of Appeals Tenth Circuit.

February 2, 1962.

Rehearing Denied February 21, 1968.

COPYRIGHT MATERIAL OMITTED

John P. Kerr, Tulsa, Okl. (Alvin L. Floyd, Tulsa, Okl., on the brief), for appellant.

Hubert H. Bryant, Asst. U. S. Atty. (Lawrence A. McSoud, U. S. Atty., James E. Ritchie, and Robert P. Santee, Asst. U. S. Attys., on the brief), for appellee.

Before BREITENSTEIN, HILL and SETH, Circuit Judges.

HILL, Circuit Judge.

This is an appeal from a conviction for violation of the Universal Military Training and Service Act by failing and neglecting to comply with an order of appellant's local board to report to said board for further assignment to perform civilian work at the University of Kansas Medical Center, Kansas City, Kansas, pursuant to 50 U.S.C.A. App. § 456(j). Jury was waived and appellant was tried and convicted before the district court judge. Appellant's defense to this charge was that the order to report for civilian work was invalid in that he was improperly classified by his local board and that the local board had failed to follow the requirements of the acts and regulations which denied the defendant due process of law. The same basic arguments are presented on appeal as grounds for reversing the district court's conviction.

Appellant became a Jehovah's Witness early in life and in 1956, when he was ten years of age, attained full membership in the sect by being "ordained a minister." In 1964, when he reached the age of 18 years, he submitted his Selective Service System Classification Questionnaire together with various attachments to his local draft board. In support of his claim to a ministerial classification, i.e., IV-D, his answers to questions contained in the questionnaire showed him to be eighteen years of age, a student in high school and working 28 hours a week as a bus boy in the Sears & Roebuck Coffee House since September, 1963, and earning $1.25 per hour. He further states that he was a minister spending all "available time devoted to aiding others study the bible", and that he devoted "an average of 10 hours a month to field service" and listed prior work experience as "mobile home repair." He also stated that he had faithfully dedicated at least one month each summer or 75 hours in making calls on interested individuals about the religion; and, that he had made application to begin full time Pioneer Ministry beginning on June 1 of that year and had "set a goal of not less than 100 hours a month of Field Ministry." Evidence was also presented showing his regular attendance at Friday, Sunday and Tuesday conclaves of his sect. He stated that he was a conscientious objector and requested the local board to furnish him with a "Special Form for Conscientious Objector." The attachments were in the form of letters from various other members of the sect attesting that he was a minister and engaging in activities of the church. In answering the questions contained in the Special Form for Conscientious Objector he reiterated in detail the facts to support a ministerial classification.

With this information Fore was denied his claimed ministerial exemption and was classified I-O, as a conscientious objector, on April 22, 1964. On October 7, 1965, the local board ordered him to report for physical examination and he was found to be physically acceptable. Between the date of this order and the physical examination he requested a personal appearance before the board and was advised that although his ten day time for appeal from his classification had expired he could submit any additional information in writing and thereafter that the board would give consideration to the reopening of his classification. He submitted two additional letters to the board and on November 3, 1965, the board did reopen his classification but retained the I-O classification. He then appealed to the Appeal Board where the I-O classification was sustained. His request for a Presidential appeal was thereafter denied.

Here, as in the trial court, appellant argues that the order for him to report was void for the reason that he was wrongfully denied the classification IV-D. There is no doubt but that the appellant may raise as a defense the argument that the board's classification was void because it had no basis in fact. Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132; Kuykendall v. United States, 10 Cir., 387 F.2d 594; Salamy v. United States, 10 Cir., 379 F.2d 838; Carlson v. United States, 10 Cir., 364 F.2d 914. In Dickinson v. United States, supra, the Supreme Court notes that the Universal Military Training and Service Act does not permit direct judicial review of Selective Service classification orders and that such classification orders shall be considered "final." This is interpreted to mean, however, while courts are not to weigh the evidence to determine whether the classification by the local boards was justified still the orders may be examined to see whether a basis in fact exists for the classification. If no basis in fact is found to exist then the board is considered to be without jurisdiction and the classification is considered void. The appellant in Dickinson v. United States, also a Jehovah's Witness, stated in his application for reclassification that he dedicated approximately one hundred hours each month to actual pioneer missionary work, and an additional fifty hours devoted to religious activities. He lived on $35.00 a month earned by a weekly average of five hours of radio repair work. The Supreme Court held that this evidence was uncontradicted and presented a prima facie case for establishing the right to the minister exemption. In effect, the Supreme Court said that a local board may not refuse a ministerial classification when a prima facie case is presented merely because it does not believe the statements made by the applicant. The court noted that "When the uncontroverted evidence supporting a registrant's claim places him prima facie within the statutory exemption, dismissal of the claim solely on the basis of suspicion and speculation is both contrary to the spirit of the Act and foreign to our concepts of justice." Id. 346 U.S. at 397, 74 S.Ct. at 158. As recognized there, "The ministerial exemption is a matter of legislative grace, and the selective service registrant bears the burden of clearly establishing a right to the exemption." Id. at 395, 74 S.Ct. at 157.

Appellant relies upon the Dickinson case. We have no difficulty distinguishing this case factually from Dickinson. The burden of establishing the right to a particular exemption is upon the registrant and, in this case, Fore simply did not sustain that burden. From the information he furnished to the local board he was granted the classification of a conscientious objector, which was the most favorable consideration the local board could possibly have given to him. His statements to the board about what he expected to do in the future could not receive consideration because the board must classify him according to the existing facts and not by something that might happen or that he intends to do in the near future.

Basically the information before the Appeal Board when it made the final classification of appellant as I-O,¹ revealed that he was a compulsory student at the Tulsa Public School System and worked approximately 28 hours per week as a bus boy. He devoted an average of 10 hours a month to field ministry and during the summers of 1964 and 1965 had worked as a vacation pioneer dedicating one month² each summer to making ministerial calls. Appellant stated he had made application to become a pioneer minister in June of 1964 and to have a goal of 100 hours per month of missionary work. Appellant stated that he regularly attended meetings of the Jehovah's Witnesses, averaging in total five hours per week, which included: Theocratic Ministry School, wherein he was trained to speak publicly and from house to house; Service Meetings, which involved speaking and demonstrations in which the appellant took part; and Public Talk, Watch Tower Study, and Area Book Study Meetings. Numerous letters were submitted with appellant's application each stating that the appellant was recognized as a minister of the Jehovah's Witnesses and that he intended to make the ministry his life work and career. Also included in the file which was before the Appeal Board was a letter from appellant and his minister which noted that appellant had been appointed as a book study conductor after his original classification of I-O by the local board. In considering whether appellant presented a prima facie case for fitting within the ministerial exemption only the basic facts of appellant's case should be considered and not expressions of intent or conclusionary statements.³ These facts show that while the appellant was an active and devout member of the Jehovah's Witnesses he nonetheless was attending high school and working 28 hours a week as a bus boy at Sears as compared to an average of 30 hours per month devoted to religious activities. This simply was not sufficient to sustain his burden of showing he was qualified for the ministerial exemption and certainly did not present a prima facie case as did the registrant in Dickinson v. United States, supra.

Confusion arises in these Selective Service cases when a member of Jehovah's Witnesses sect is involved because of the difference in the meaning of the word "minister" as used by the sect⁴ and as defined by the Congress in the Selective Service Act.⁵ Judge Lewis in Bradshaw v. United States, 10 Cir., 242 F.2d 180, succinctly stated the meaning of the word minister as used in the Act when he said that the registrant must show that he "devotes his time to preaching and teaching in the manner of a `vocation', * * * that the functions which he performs...