Davis v. United States

• Decision Date: 30 April 1969
• Docket Number: No. 19329.,19329.
• Citation: 410 F.2d 89
• Parties: Ardith Alvin DAVIS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

410 F.2d 89 (1969)

Ardith Alvin DAVIS, Appellant, v. UNITED STATES of America, Appellee.

No. 19329.

United States Court of Appeals Eighth Circuit.

April 30, 1969.

Dan Johnston, of Jesse, Le Tourneau & Johnston, Des Moines, Iowa, for appellant; Lawrence Le Tourneau, Des Moines, Iowa, on brief.

James P. Rielly, U. S. Atty., Des Monies, Iowa, for appellee; Jerry E. Williams and Claude H. Freeman, Asst. U. S. Attys., Des Moines, Iowa, with him on brief.

Before VAN OOSTERHOUT, Chief Judge and MATTHES and BRIGHT, Circuit Judges.

BRIGHT, Circuit Judge.

Ardith Alvin Davis, who claims to be a conscientious objector to military service, appeals from his conviction for willfully refusing induction into the armed forces. The incident which gave rise to the prosecution occurred on November 8, 1967, at Des Moines, Iowa. This appeal deals with Davis' basic claim that the induction order was illegal and void because the local Selective Service board improperly refused to reopen his I-A draft classification.

The trial court's opinion is reported at 284 F.Supp. 93 and the facts, there stated in detail, shall be repeated only in so far as necessary. We believe that the trial court misapplied the appropriate Selective Service regulation to the undisputed facts. We reverse the conviction.

Davis, who had registered for the draft with a local board in Oklahoma City, Oklahoma, had been deferred as a student, both undergraduate and graduate, until the events of 1966-1967 which climaxed with his refusal to be inducted into the armed forces. In the fall of 1966, Davis accepted a full-time position as a sociology instructor at the Muscatine (Iowa) Community College. During the latter part of that year, Davis, with the support of the college, sought an occupational deferment (II-A) but, in January of 1967, this request was refused. Davis then elected to take an appeal to the Iowa Selective Service Appeal Board, which on issues relating to occupational deferment had concurrent jurisdiction with the Oklahoma Appeal Board. 32 C.F.R. 1626.11(b). The Iowa Appeal Board classified Davis II-A signifying that he was deferred because of his civilian occupation. This classification was to continue until mid-June.¹ During the first week of June, the local board reclassified Davis I-A. Davis immediately appealed on the basis that his teaching services were urgently needed at the college. The Oklahoma Appeal Board unanimously denied this claim on June 26, 1967. Thereafter, Davis sought a classification as a "conscientious objector to war and militarism" and, by letter dated August 8, he requested that his local board immediately send him Selective Service Form 150, the special form to be used by persons claiming to be conscientious objectors. 32 C.F.R. 1621.11. This request crossed in the mail an induction order dated August 9, which directed him to report for processing into the armed services on August 31. The Oklahoma local board delayed mailing to Davis the requested form and notified him that he should re-submit his request and indicate whether it was based on "religious or pacifist" reasons. Davis renewed his request on August 15, writing:

"By reason of my religious beliefs I wish to apply for classification as a conscientious objector to war and militarism, and therefore request that Form 150 be sent to me immediately.

As a Christian I cannot in good conscience join any organization which is designed to achieve its objectives by means of killing, violence and destruction.

If the Board so desires, I will make every effort to appear for a personal interview."

The next day, Davis completed the appropriate form which he had obtained from the Muscatine, Iowa, local draft board and he forwarded this form to his own local board with a request that his current induction order be cancelled and his classification reopened. Hearing nothing immediately from the local board, he wrote the Oklahoma State Selective Service Director on August 25 and requested that the director intercede, cancel the induction order and reopen his classification so that his claim to conscientious objector status could be considered. Colonel Hope, the Oklahoma State Selective Service Director, responded to that letter and notified the local board that he was appealing Davis' classification.² Complying with Hope's instructions, the local board informed Davis on August 29 that an appeal had been taken, that his order to report for induction was cancelled and that his file was now with the Oklahoma State Appeal Board.³ On September 1, Davis wrote his local board, with a copy to the state director, and contended:

"If my file goes to the State Appeal Board I will be deprived of my right to a personal appearance before my Local Board in connection with my CO claim. I therefore request that my file not be sent to the State Appeal Board, but rather that my request for reclassification to I-O be acted upon by my Local Board in the normal way."

Colonel Hope, in response to this objection, arranged for the return of Davis' file to the local board. By letter of September 6, he instructed the local board that they "may consider all the evidence submitted by the registrant and other parties concerning his claim for conscientious objection, and a decision reached as to whether or not, in your opinion, his classification should be reopened and considered anew". He further requested that, if the board did not reopen Davis' classification, the file should be returned to him so that he could institute an appeal on Davis' behalf. The next day, September 7, the local board considered Davis' claim for conscientious objector status and refused to reopen his I-A classification. The board minutes recited:

"Rec\'d letter from State Director to be considered also at the Local Board meeting. Local Board considered completed SSS 150 and new information submitted and contents of the registrant\'s cover sheet. It was the decision of the local board that the registrant\'s classification not be re-opened."

After notification of the board's rejection of his claim, Davis, on September 13, requested an opportunity to personally appear before the members of the local board. His request went unacknowledged. On September 14, Colonel Hope appealed the local board's action on Davis' behalf. The appeal was unsuccessful and the local board issued a new induction order on September 26. Davis received approval of his request to transfer the place of induction to Iowa and, under the transfer order, his reporting date was set for November 7. Following processing at the induction station, Davis refused induction. This prosecution followed.

In this case, appellant's claim of error rests on the narrow ground that the induction order which he refused to obey had been illegally issued because he was not afforded the opportunity to personally appear before his local Selective Service board. We examine the applicable regulation:

"32 C.F.R. § 1625.2 When registrant\'s classification may be reopened and considered anew.

The local board may reopen and consider anew the classification of a registrant (a) upon the written request of the registrant, * * * if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant\'s classification; or (b) upon its own motion if such action is based upon facts not considered when the registrant was classified which, if true, would justify a change in the registrant\'s classification; provided, in either event, the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds there has been a change in the registrant\'s status resulting from circumstances over which the registrant had no control." (Emphasis added.)

The trial court, applying that portion of § 1625.2 emphasized above, held that the August 9 induction order limited the local board's consideration of Davis' claim and stated:

"The denial of a reopening by the Local Board was in itself a finding that defendant lacked the prescribed change in status due to `circumstances over which the registrant had no control\'." 284 F.Supp at 97.

We disagree. The August 9 induction order had been cancelled. Colonel Hope instructed the local board to consider all the evidence relating to Davis' conscientious objector claim. Such evidence included Selective Service Form 150 and numerous letters from Davis' associates attesting to his sincerity. The action of the draft board in cancelling the induction order, together with the instructions given the local board by the state director, placed Davis in the same situation as he would be if no draft order had ever been issued. Miller v. United States, 388 F.2d 973, 975 (9th Cir. 1967). The clause of § 1625.2 limiting the power of the board to reopen when there is an outstanding induction order is inapplicable in the present case.

Cases relied upon by the government to support the local board's denial of a reopening, such as Davis v. United States, 374 F.2d 1 (5th Cir. 1967); Parrott v. United States, 370 F.2d 388 (9th Cir. 1966), cert. denied, Lawrence v. United States, 387 U.S. 908, 87 S.Ct. 1690, 18 L.Ed.2d 625 (1967); United States v. Al-Majied Muhammad, 364 F.2d 223 (4th Cir. 1966); Keene v. United States, 266 F.2d 378 (10th Cir. 1959), are distinguishable. In each of these cases, the board considered the registrant's claim for a conscientious objector status in the presence of an outstanding order to report for induction. See also, United States v. Jennison, 402 F.2d 51 (6th Cir. 1968); Du Vernay v. United States, 394 F.2d 979, 981 (5th Cir. 1968), aff'd without opinion by equally divided Court, 394 U.S. 309, 89 S.Ct. 1186, 22 L.Ed.2d 306 (1969).

Some of the cases relied on by the government, such as United States v. Al-Majied Muhammad, supra,...