Ehlert v. United States

• Decision Date: 04 May 1970
• Docket Number: No. 21930.,21930.
• Citation: 422 F.2d 332
• Parties: William Ward EHLERT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

422 F.2d 332 (1970)

William Ward EHLERT, Appellant, v. UNITED STATES of America, Appellee.

No. 21930.

United States Court of Appeals, Ninth Circuit.

February 2, 1970.

Certiorari Granted May 4, 1970.

Arthur Wells, Jr. (argued), Berkeley, Cal., for appellant.

Paul G. Sloan (argued), Asst. U. S. Atty., Cecil F. Poole, U. S. Atty., San Francisco, Cal., for appellee.

Before CHAMBERS, BARNES, HAMLEY, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, CARTER, HUFSTEDLER, WRIGHT, KILKENNY and TRASK, Circuit Judges.

Certiorari Granted May 4, 1970. See 90 S.Ct. 1525.

KILKENNY, Circuit Judge:

Appellant, on June 14, 1964, was ordered to report for induction and thereafter sought to reopen his classification in order to establish his status as a conscientious objector. Subsequently, he was convicted of failing to submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462.

Selective Service Regulations, 32 C.F. R. § 1625.2, in pertinent part, provide:

"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 that there has been a change in the registrant\'s status resulting from circumstances over which the registrant had no control."

In refusing to reopen his classification, the local board advised appellant that its action was based upon its determination that "the information submitted on SSS form 150 was not a change in your status which was beyond your control."

The district court, in denying motion for acquittal, ruled as a matter of law that changes in status involving conscientious objection were not beyond the control of the registrant. That ruling is here asserted as error.

Whether the crystallization of a conscientious objection to war can constitute a circumstance over which the registrant has no control is a question upon which the circuits have disagreed. Upon the affirmative side, among others, are United States v. Sandbank, 403 F.2d 38 (2d Cir. 1968), cert. denied 394 U.S. 961, 89 S.Ct. 1301, 22 L.Ed.2d 562 (1969); United States v. Gearey, 368 F.2d 144 (2d Cir. 1966), cert. denied 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368 (1967), rehearing denied 389 U.S. 1010, 88 S.Ct. 561, 19 L.Ed.2d 611 (1967), and Keene v. United States, 266 F.2d 378 (10th Cir. 1959). Upon the negative side, among others, are United States v. Schoebel, 201 F.2d 31 (7th Cir. 1953), with approving dicta in Davis v. United States, 374 F.2d 1 (5th Cir. 1967); United States v. Jennison, 402 F.2d 51 (6th Cir. 1968), cert. denied 394 U.S. 912, 89 S.Ct. 1024, 22 L.Ed.2d 225 (1969); United States v. Helm, 386 F. 2d 434 (4th Cir. 1967), cert. denied 390 U.S. 958, 88 S.Ct. 1045, 19 L.Ed.2d 1153 (1968), and United States v. Al-Majied Muhammad, 364 F.2d 223 (4th Cir. 1966).

This court has never definitively ruled upon the question. In two cases relied upon by the district court, language suggests our alignment with Schoebel. Parrott v. United States, 370 F.2d 388 (9th Cir. 1966); Boyd v. United States, 269 F.2d 607 (9th Cir. 1959). In Dugdale v. United States, 389 F.2d 482 (9th Cir. 1968), the difference between Gearey and the language in Boyd and Parrott was noted and the choice of rule was expressly reserved. Briggs v. United States, 397 F.2d 370 (9th Cir. 1968) and Oshatz v. United States, 404 F.2d 9 (9th Cir. 1968) also distinguish Gearey. At first glance, Boswell v. United States, 390 F.2d 181 (9th Cir. 1968), would seem to support appellant's views. While some of the language there employed points in that direction, a close analysis reveals that the precise point here presented was not there in issue. To the extent, if any, that Boswell may be in conflict with our views herein expressed, it is overruled.

The statutory authorization for 32 C.F.R. § 1625.2 is found in 50 U.S.C. App. § 460, which provides, among other things, that the President may "prescribe the necessary rules and regulations to carry out the provisions of this title." All of the authorities agree that the regulation is within the perimeter of the grant of power. Moreover, it is conceded that registrants, eligible for the draft, should not be permitted, without limitation, to challenge their status. Without such a regulation, the manpower quotas of Selective Service could not be met with any degree of certainty. An orderly administration of the Selective Service System requires such a regulation. Appellant does not really challenge the reasonableness of the regulation, nor its application to one whose conscientious objection matures prior to the notice to report. He urges that his views on the subject "crystallized" after he received the notice, and that we should follow the lead of Sandbank, Gearey, Keene and other similar cases.

Presumptively, every human is a rational being, having a free will and in complete charge of his own thinking. Section 1625.2, with one exception, was enacted for the specific purpose of putting to an end the function of the Selective Service System once a registrant had received his notice to report. The mentioned exception being those cases where the registrant is in a position to furnish the Board with objective evidence entitling him, prima facie, to a change of status by reason of circumstances beyond his control. True enough, the regulation does create a brief period during which a registrant is not eligible to present a claim of conscientious objection. This result, in our opinion, does not invalidate the regulation. The logic behind requiring a person troubled with conscientious objection to state his claim before receipt of the notice to report is extremely practicable. A Board can readily ascertain the validity of an "extreme hardship",¹ "sole surviving son",² and other such claims and can dispose of them, without difficulty, one way or the other, prior to the reporting date. The exact opposite is true of a claim of exemption based on conscientious objection. An adjudication on the sincerity of a registrant's conscientious objection requires an exploration in depth into his past and present family, religious and vocational life. After such an adjudication, if we followed Gearey and similar authorities, it would then be necessary to make the additional adjudication on when there was a crystallization or maturing of the registrant's views. No such procedure is contemplated by the regulation under scrutiny.

We conclude that a crystallization of, or a change in, a registrant's views on conscientious objection is not a change in his status resulting from circumstances over which he has no control, within the meaning of 32 C.F.R. § 1625.2. The judgment of the lower court is affirmed.

DUNIWAY, Circuit Judge (concurring).

I concur. I do not think that the claimed "crystallization" of conscientious objection can be said to be "a change in * * * status resulting from circumstances over which the registrant has no control." (Emphasis added.) The word "circumstances" indicates to me some fact, act or event external to the mind or consciousness of the registrant, rather than the mysterious and unfathomable internal mental and spiritual processes of the registrant himself. Whether those processes are beyond the registrant's control I leave to the philosophers among us. I think that, whatever the answer to that question may be, they are not circumstances beyond his control.

Dictionary definitions tend to confirm this view. Funk & Wagnall's New Standard Dictionary defines "circumstances" as "1. Something existing or occurring incidental to some other act or event; a related or concomitant act or thing." (Emphasis added.) Webster's New International Dictionary, 2d ed., defines the word as "1. One of the conditions under which an act or event takes place or with respect to which a fact is determined; a condition, fact or event accompanying, or determining the occurrence of another fact or event." (Emphasis added.)

The practical considerations mentioned by my brother Kilkenny strongly reenforce these views. The regulation should be construed in a manner consistent with those considerations.

BARNES, and JAMES M. CARTER, Circuit Judges, concur in the foregoing concurring opinion.

ELY, Circuit Judge (concurring):

I concur in the majority opinion, and I also endorse the logical analysis expressed by my Brother Duniway. At the same time, I believe that additional factors should be recorded.

We took this case en banc for the purpose of considering and resolving the one important problem which the principal opinion attacks, and I am glad that our court has now supplied desired guidance on that issue. My examination of the record convinces me, however, that insofar as this particular appeal is concerned, we may have indulged ourselves in a great deal of unnecessary intellectual exercise. The contents of Ehlert's Selective Service file lead me to believe that there was no alternative to the affirmance of Ehlert's conviction even had the majority adopted the position taken by my Brother Merrill.

The sole question before the District Court was whether Ehlert's local board erred in refusing to reopen Ehlert's classification. Under the applicable Regulation (32 C.F.R. § 1625.2), all recognize that the board was disempowered to reopen the classification without expressly finding that there was a change in Ehlert's status resulting from circumstances over which he had no control. In determining whether or not it could make that finding, the board could, of course, look only to that which Ehlert himself submitted in support of his belated claim for conscientious objector status.¹ Even in cases not involving an alleged change in status after receipt of the induction notice, the registrant must "clearly establish" his right to an exemption or deferred status. Petrie v. United States, 407 F.2d 267 (9th Cir. 1969); Badger v. United States, 322 F. 2d 902, 906 (9th Cir. 1963).

Ehlert set forth his...