Davidson v. United States, 14356.

• Decision Date: 11 February 1955
• Docket Number: No. 14356.,14356.
• Citation: 218 F.2d 609
• Parties: Vern George DAVIDSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

218 F.2d 609 (1954)

Vern George DAVIDSON, Appellant, v. UNITED STATES of America, Appellee.

No. 14356.

United States Court of Appeals, Ninth Circuit.

December 27, 1954.

Rehearing Denied February 11, 1955.

J. B. Tietz, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Cecil Hicks, Jr., Louis L. Abbott, Manuel L. Real, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before MATHEWS and ORR, Circuit Judges, and WIIG, District Judge.

WIIG, District Judge.

Davidson was charged and convicted of the offense of knowingly refusing to submit to induction under the Universal Military Training and Service Act. He now claims that he was denied his rights to procedural due process because on the second "appeal" of his case to the appeal board no hearing was conducted by the Department of Justice as required in the cases of appeals by registrants professing conscientious objection to military training and service.

An examination of Davidson's file reveals the following:

In his classification questionnaire filed with his local board in Los Angeles County, California, he qualified his claim of conscientious objection to war with the following statement:

"It will be noted that I have signed series XIV.

"I would like to make my position clear. I do conscientiously object to war and to conscription for any reason. But my beliefs are not religious, they are basicly political. As a political objector I shall resist this totalitarian move by my own country as I would resist it in any other country. My position is briefly stated in the attached newspaper article by myself. If after considering these facts the board feels that they wish to send me the form for conscientious objectors, I will be glad to fill it out and return it to the board with the understanding that my objectuons are not religious but political." (So in the original.)

In the special form for conscientious objector, Davidson did not sign his name in the appropriate place for claiming exemption, but instead made a notation "Statement attached," and in answer to the question whether he believed in a Supreme Being, his answer was "No." Also, in answer to the question as to whether he was a member of a religious sect or organization, his answer was in the negative. Thereafter, by unanimous vote, he was classified I-A, and notice of the classification was mailed to him on July 13, 1950. Twelve days after receipt of this notice by Davidson, the local board received a letter from him in which he restated his views and requested an appeal of his classification. Nowhere in that letter, or in his file, is it stated that he was a registrant claiming by reason of religious training and belief to be conscientiously opposed to participation in war in any form and by virtue thereof to be conscientiously opposed to combatant training and service in the armed forces. The local board, however, honored his request and forwarded his file to the appeal board. Davidson's case was referred to the Department of Justice, which, after an investigation and hearing, wrote the appeal board, recommending that Davidson be not classified as a conscientious objector. By unanimous vote, the appeal board placed him in Class I-A, and notice of such classification was mailed to the registrant.

An order to report for induction, dated February 19, 1951, was mailed to Davidson, but induction was postponed until June 15, 1951, because he was a student. On September 7, 1951, Davidson was notified that as the reasons for his postponement no longer existed, he was ordered to report for induction on September 18, 1951. By letter dated September 8, 1951, received by his local board two days later, the board was advised as follows:

"This letter was intended to appeal my classification as 1A, but since before the ten days for appeal had ellapsed I have recieved an induction notice, I will address my appeal to the induction notice. (So in the original.)

"This then is a formal appeal for a postponement from the notice to appear for induction at 8 A.M. the 18th of September 1951."

The local board apparently treated Davidson's last letter as a claim for appeal under 32 C.F.R. § 1626.25, his file was sent to the appeal board, and thence to the United States Attorney for the purpose of securing an advisory recommendation from the Department of Justice. His induction was postponed until further notice. On the second "appeal," no hearing was conducted by the Department of Justice, but that Department again recommended to the appeal board that he be not classified as a conscientious objector. The appeal board repeated its former action, as did the local board, and a new order to report for induction, dated October 1, 1952, was sent to the registrant, ordering him to report for induction on October 17, 1952. The indictment and conviction resulted from his refusal to be inducted into the armed forces under the foregoing order.

Davidson conceded that he had no complaint to make in connection with the first appeal, but claims that his denial of due process arose...