Dodez v. United States

• Decision Date: 06 May 1946
• Docket Number: No. 9947.,9947.
• Citation: 154 F.2d 637
• Parties: DODEZ v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

154 F.2d 637 (1946)

DODEZ v. UNITED STATES.

No. 9947.

Circuit Court of Appeals, Sixth Circuit.

March 18, 1946.

Writ of Certiorari Granted May 6, 1946.

Victor F. Schmidt, of Rossmoyne, Ohio, for appellant.

Francis X. Feighan, of Cleveland, Ohio (Don C. Miller, of Cleveland, Ohio, on the brief), for appellee.

Before HICKS and SIMONS, Circuit Judges, and PICARD, District Judge.

Writ of Certiorari Granted May 6, 1946. See 66 S.Ct. 1017.

PICARD, District Judge.

Appellant, member of Jehovah's Witnesses, was convicted by a jury in the District Court for the Northern District of Ohio, for violation of the Selective Training and Service Act of 1940, as amended, 50 U.S. C.A.Appendix, § 301 et seq., and regulations pursuant thereto. He failed to report for work of national importance and was sentenced to five years' imprisonment.

The issues are three, though under numerous headings, and cover questions that have heretofore been settled by our courts in many instances since administrators of the Act and members of this particular religious sect have clashed during the past five years in prolific litigation.

Appellant first claims — that the Selective Training and Service Act, as amended, and regulations adopted, constitute a Bill of Attainder or ex post facto law contrary to Clause 3, Section 9, Article I and the Sixth Amendment to the United States Constitution.

Our answer is in the negative.

In Cummings v. State of Missouri, 4 Wall. 277, at page 323, 71 U.S. 277, 18 L. Ed. 356, a Bill of Attainder is defined as "a legislative act which inflicts punishment without a judicial trial."

The Act and regulations, as they affect the status of an unwilling draftee who has become a member of the armed forces, do not by that test constitute a Bill of Attainder. The Act does not impose punishment without a judicial trial, even under decisions of our several courts, before Estep v. United States of America and Smith v. United States of America, 66 S.Ct. 423, were decided by our Supreme Court February 4, 1946, and which we will hereinafter discuss. As pointed out in Billings v. Truesdell, 321 United States 542, 64 S.Ct. 737, 88 L.Ed. 917; Smith v. United States, 4 Cir., 148 F.2d 288; Gibson v. United States, 8 Cir., 149 F.2d 751; United States v. Estep, 3 Cir., 150 F.2d 768; United States ex rel. Hull v. Stalter, 7 Cir., 151 F.2d 633, the writ of habeas corpus is available to protect rights of the individual after his induction into the service. The Constitution does not guarantee one the right to select his own tribunal or his own method of procedure. Emmons v. Smitt et al., D.C., 58 F.Supp. 869.

The recent case of United States v. Gosciniak, 7 Cir., 142 F.2d 240, likewise dealt with this phase of the Selective Training and Service Act, and other citations holding the Act constitutional are: United States v. Herling, 2 Cir., 120 F.2d 236, and United States v. Lambert, 3 Cir., 123 F.2d 395.

Defendant's second contention, that he had exhausted his administrative remedies so as to permit a judicial review of his classification as a defense to the indictment, calls for extended remarks in view of the recent opinions of the Supreme Court in Estep v. United States and Smith v. United States, supra.

Up to those decisions there had been a practically unbroken line of authorities holding that the administrative remedies of a draftee did not terminate until after he had been inducted into the service when he must resort to habeas corpus in order to question his classification. Sirski v. United States, 1 Cir., 145 F.2d 749; United States v. Flakowicz, 2 Cir., 146 F.2d 874; United States v. Estep, 3 Cir., 150 F.2d 768; Smith v. United States, 4 Cir., 148 F.2d 288; Koch v. United States, 4 Cir., 150 F.2d 762; Fletcher v. United States, 5 Cir., 129 F.2d 262; Klopp v. United States, 6 Cir., 148 F. 2d 659; United States v. Rinko, 7 Cir., 147 F.2d 1; Gibson v. United States, 8 Cir., 149 F.2d 751; United States v. Grieme (United States v. Sadlock), 3 Cir., 128 F.2d 811. See, contra, United States v. Peterson, D.C., 53 F.Supp. 760.

The final clarifying decision was that of Falbo v. United States, 320 U.S. 549, 64 S. Ct. 346, 88 L.Ed. 305, which did not involve the exact points of the Estep and Smith cases but which is on all fours with the case at bar. There Mr. Justice Black significantly and hitting the target squarely, on page 553 of 320 U.S., page 348 of 64 S.Ct., 88 L. Ed. 305, said: "Completion of the functions of the local boards and appellate agencies, important as are these functions, is not the end of the selective service process. The selectee may still be rejected at the induction center and the conscientious objector who is opposed to noncombatant duty may be rejected at the civilian public service camp. The connected series of steps into the national service which begins with registration with the local board does not end until the registrant is accepted by the army, navy, or civilian public service camp. Thus a board order to report is no more than a necessary intermediate step in a united and continuous process designed to raise an army speedily and efficiently."

But as it can be anticipated that many deductions not intended by the Supreme Court will be drawn from the recent Estep and Smith cases it is imperative to determine what legal changes, if any, have been made by these decisions, and analyzing them we conclude that the majority opinion holds:

First, that registrant's administrative remedies are exhausted only when he presents himself at the induction center;

Second, if indicted for refusal to be inducted he may urge in his defense, that the draft board (a) had no jurisdiction; or (b) was prejudiced against him because, for example, his race, politics, or religion; or (c) failed to follow the machinery and procedure provided for in the draft act and regulations, such as not giving him a hearing or not permitting him to appeal; and

Third, that the courts may not set aside a classification honestly and fairly determined by the draft board no matter how "erroneous" that classification may be unless one of the above three defenses (a, b, or c) is clearly proven.

Let us check these conclusions.

Estep presented himself for induction but refused to be inducted and the record showed that he had been denied his right to make an effective appeal to the President. Smith also reported (or was forced to report) at the induction station and also refused to be inducted. The trial court had not permitted him to present proof that the draft board classified him 1-A without foundation, discriminated against him, and denied him the right to prove that he was a minister.

It was on these grounds that the majority opinion in the Estep and Smith cases found reasons to reverse the Court of Appeals. 4 Cir., 148 F.2d 288; 3 Cir., 150 F.2d 768. (Justices Douglas, Black, and Reed.)

But it is well also to note the three concurring, and one dissenting, opinions.

Mr. Justice Murphy concurred in the result restating in effect his reasons given in the Falbo case, supra, in which he had dissented, and insisting in his present opinion that in these types of cases habeas corpus is a meaningless illusory remedy at best. He questioned that every defendant would receive a fair hearing through habeas corpus after draftee was once inducted into the service, while Mr. Justice Rutledge, concurring in the result reached by the majority, ridicules the thought of courts "marching up the hill in the criminal case and down again in habeas corpus." 66 S.Ct. 432.

Mr. Justice Frankfurter (in Part I), after reciting cogent and compelling reasons why classifications by draft boards are "final," Section 10(a) (2), 54 Stat. 885, 893, 50 U.S. C.App., § 310(a) (2), 50 U.S.C.A.Appendix § 310(a) (2), concurred in the result in the Estep case because Estep had been denied his right to appeal and in the Smith case because of the confused theory upon which defendant had been tried in the District Court.

The dissent by Mr. Justice Burton concurred in by Chief Justice Stone relies upon Part I of Mr. Justice Frankfurter's opinion and adheres to the rule that had been followed consistently by the several Circuit Courts of Appeals (Mr. Justice Frankfurter enumerates 40 Judges so holding from the first 8 circuits), to wit, that the registrant's remedy was habeas corpus and only after he has been actually inducted into the service.

So after reviewing Estep 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 decisions applies here. We believe the cases are identical since neither Falbo nor Dodez had exhausted his administrative remedies by reporting for induction. In the case at bar had draftee so reported and then refused to be inducted, the Estep and Smith decisions would have been controlling.

Defendant in his third claim insists that the draft board refused to grant him a fair hearing contrary to the due process provisions of the Fifth and Sixth Amendments to the Constitution of the United States and specifically contrary to provisions of the Selective Training and Service Act, as amended, and regulations. This point becomes important only if the Estep and Smith decisions can be interpreted as holding that such a defense may be raised at any point in draftee's journey and that it is not necessary for him to go through the formality of presenting himself at the induction center when he is going to refuse to be inducted after he gets there.

In approaching this question we believe it advisable to record chronologically the events leading up to draftee's present status as outlined in the main by his segregated testimony when he was given carte blanche to explain his position.

Defendant registered with the Selective Service System on June 30, 1942, asserting that he was an ordained minister of Jehovah's Witnesses at Wooster, Wayne County, Ohio.

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