Bradshaw v. United States, 5422.

• Decision Date: 26 February 1957
• Docket Number: No. 5422.,5422.
• Parties: James Wesley BRADSHAW, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

242 F.2d 180 (1957)

James Wesley BRADSHAW, Appellant, v. UNITED STATES of America, Appellee.

No. 5422.

United States Court of Appeals Tenth Circuit.

January 30, 1957.

Rehearing Denied February 26, 1957.

COPYRIGHT MATERIAL OMITTED

W. H. Erickson, Denver, Colo., and Hayden C. Covington, Brooklyn, N. Y., for appellant.

Donald E. Kelley and John S. Pfeiffer, Denver, Colo., for appellee.

Before PHILLIPS, MURRAH and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

Appellant was charged by indictment with knowingly failing, refusing and neglecting to report to his local board under the provisions of the Universal Military and Service Act for assignment to civilian work, in lieu of induction, as a conscientious objector to combatant and noncombatant service in the armed forces. 50 U.S.C.A.Appendix, §§ 456(j), 462(a). He entered a plea of not guilty and waived trial by jury. He was tried, convicted and sentenced by the District Court for the District of Colorado and now appeals.

Appellant concedes that he failed to report after having been ordered to do so by Local Board No. 4 in the City and County of Denver, but contends that he was denied due process under the Fifth Amendment to the Constitution of the United States in the procedures concerning his classification and that therefore the acts of the board were a nullity. He sought a 4-D classification which would exempt him as a minister from training and service, 50 U.S.C.A.Appendix, § 456(g), but received instead a 1-O classification which relieves him as a conscientious objector from military combatant and noncombatant service, and requires a period of service in civilian work contributing to the maintenance of the national health, safety or interest. 50 U.S.C.A.Appendix, § 456(j).

Appellant, whose date of birth was September 9, 1932, stated in his classification questionnaire that he was a minister of the Jehovah's Witnesses and that his ordination occurred on August 5, 1941. From that date to October 1, 1950, he was a minister known as "Company Publisher". For the next eleven months he was a full-time minister but then took a "leave of absence" to take care of family expenses. He works approximately forty hours a week as a machinist or truck driver in order to support his family but also devotes forty hours a week to ministerial activities, spending one-half to two-thirds of that time studying at home and the remainder visiting and talking with members of the congregation and doing missionary work in the field. He has attended the Theocratic Ministerial School of Jehovah's Witnesses in Denver and the Brooklyn Headquarters of the Watchtower Bible and Tract Society. He is recognized as a minister in his sect, makes door to door visitations, and at times makes speeches at meetings of Jehovah's Witnesses. His file included two affidavits supplied by him to corroborate his ministry.

Appellant first appeared before his local board on November 5, 1951, at which time the board denied his request for a 4-D classification and placed him in a 1-O classification. There is no transcript of this hearing in the file nor is there a summary of the oral testimony presented; a memorandum simply shows that the registrant appeared and that his request was denied. He testified in the District Court:

"Well, I believe at that time I tried to present scriptural proof of my ministerial status and requested that I be placed in classification 4-D as a minister. At that time the board indicated to me that they thought I was extremely lucky to be a 1-O as other nineteen year olds were being sent to Korea which was the war at that time and they indicated that whatever the evidence I presented it wouldn\'t influence them in any degree."

He appealed his classification to the appeal board, again asserting his claim to be exempt from induction as a minister. That board preliminarily determined that appellant was not entitled to classification as a conscientious objector (1-O or 1-A-O) and thereupon forwarded his file to the Department of Justice.¹ After investigation by the Federal Bureau of Investigation, the matter was duly heard by a Department of Justice hearing officer. His report was filed with the Department. Upon advice of departmental counsel, appellant's file was returned to the appeal board without recommendation and with a report stating that, since the question involved was not whether the registrant should be sustained in his claim that he is a conscientious objector, there was no occasion for referral to the Department of Justice. The file as returned to the appeal board did not include the F.B.I. reports, the report of the hearing officer, affidavits submitted by appellant, nor correspondence in regard thereto.

On February 10, 1953, the appeal board unanimously set Bradshaw's classification as 1-O. He appeared before the local board on April 20, 1953, and again on August 4, 1953, but on each occasion refused to discuss the initiation of a work program. On September 14, 1954, the local board wrote to the State Director requesting a sixty-day postponement for Bradshaw because his wife was expecting a child. In the meantime Bradshaw moved his family to California and inquired of the California Selective Service authorities about jobs which would meet the requirements of civilian service. On January 26, 1955, he wrote to the Denver board saying that he had found "difficulty in finding suitable work or work which has wages high enough to cover the necessities of life for me and my family."

To this letter the board replied on March 31, 1955, advising him that if he could not find approved work in California within two weeks the board would order him to perform hospital work in the Denver General Hospital. On April 17, 1955, Bradshaw wrote the board as follows:

"In regard to my employment in suitable work of national importance. I have found none that would pay the expenses of life and I must insist on a job that will pay for these as you know I have two dependents besides myself that makes finding suitable work difficult."

On April 27, 1955, the board ordered Bradshaw to appear before it on May 16, 1955, for assignment to hospital work at the Denver General Hospital. He failed to appear or report. The instant prosecution followed.

Induction into the armed services, the allowance of exemptions, and the determination of various classifications are matters peculiarly within the field of Congressional activity and Congress has given the power to make decisions concerning facts of a particular case to the administrative facilities of the Selective Service. 50 U.S. C.A.Appendix, § 460 provides for the agencies, the local boards and the appeal boards, grants them power to hear and determine all questions or claims concerning exemption from training, and makes their decisions final. The Supreme Court has held in interpreting this section, "The provision making the decisions of the local boards `final' means to us that Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified." Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 427, 90 L.Ed. 567.

Before the local board the registrant bears the burden of proving his entitlement to exemption as a regular or duly ordained minister of religion. The subjective beliefs of the registrant and his church cannot alone furnish the proper criteria for the determination of the question. Mere membership in an organization whose creed includes the conviction that all who sincerely work in the sect are ministers does not exempt the registrant from induction into military service. The test must be based upon all of the facts known as to whether or not the claimant devotes his time to preaching and teaching in the manner of a "vocation", whether or not the functions which he performs are those normally performed by ministers of other religions and whether or not he bears that relationship to a congregation ordinarily occurring between a cleric and his flock. Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59; Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132.

The courts have the power to overturn the findings of the draft boards only where the court concludes that such findings have no basis in fact. Estep v. United States, supra; Dickinson v. United States, supra; Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428.

The trial court in the present case allowed the accused to testify and then present other witnesses as to his status as a minister, over objections, and observed in a well-reasoned opinion:

"In my opinion the board had a rational basis for its classification. The defendant claims to have been ordained before he was nine years old. His questionnaire shows secular work for several employers. While the religious attitude of the defendant is commendable and his study of the Bible and loyalty to his people are worthy, the fact remains that the denial of a 4-D classification to an individual who claims to have been a minister since the age of eight, who admittedly has engaged in considerable secular employment, and who devotes to home study one-half to two-thirds of the forty hours per week spent on ministerial activities, cannot be said to be irrational and without basis in fact."

Recognizing the fact that the determination of his proper status is primarily one for the administrative bodies created by the Selective Service Act, appellant contends that because of procedural irregularities he was denied a full and fair hearing during his personal appearance before the local board and that hence his file did not reflect a complete record of his evidence for review by the board of appeals. He complains that due process was denied him in that (1) the local board failed to have posted...