Fitts v. United States

• Decision Date: 10 July 1964
• Docket Number: No. 20973.,20973.
• Citation: 334 F.2d 416
• Parties: Lydle Wayne FITTS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

334 F.2d 416 (1964)

Lydle Wayne FITTS, Appellant, v. UNITED STATES of America, Appellee.

No. 20973.

United States Court of Appeals Fifth Circuit.

July 10, 1964.

Victor V. Blackwell, Covington, La., for appellant.

Thomas G. Lilly, Asst. U. S. Atty., H. M. Ray, U. S. Atty., Oxford, Miss., for appellee.

Before TUTTLE, Chief Judge, and RIVES and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

We are asked to review a conviction under the Universal Military Training and Service Act, 50 U.S.C.A. App. §§ 451-470. Lydle Wayne Fitts, one of Jehovah's Witnesses, was charged under Section 462 of the Act with failing to report to his local selection service board at Indianola, Mississippi, for assignment for civilian work as a conscientious objector.¹ He contends that as an "ordained minister of religion"² he was exempt from selective service. The district court, sitting without a jury, held that the defendant failed to establish his exemption as a minister of religion. We affirm.

I.

August 10, 1955, Fitts registered in accordance with the Act. His registration card shows that his occupation was farming. August 11, 1956, he became a member of Jehovah's Witnesses. Fitts promptly notified his local board of this fact, obviously because he considered that it affected his draft status, but he did not request a ministerial exemption. September 25, 1956, his board classified him as a Conscientious Objector (Class I-O) and mailed to him a notice of classification (SSS Form No. 110). He took no formal appeal. In the Special Form for Conscientious Objector which Fitts filled out August 20, 1956, he listed "farming work" as his occupation. In a questionnaire, February 6, 1961, he stated that his occupation then was "Farmer serving as an ordained minister while undergoing further training in the ministry." August 23, 1961, the board mailed him another SSS Form No. 110, again classifying him in Class I-O.

Major Shed Weeks, Occupational Advisor to the local board, visited Fitts's farm October 31, 1961, to discuss work appropriate to the defendant. Major Weeks had had other interviews with Fitts. According to Major Weeks, the defendant said that he considered farming his primary vocation. Since no understanding was reached as to the nature of the civilian work Fitts was to perform, Major Weeks advised him to appear before his local board.

November 1, 1961, the defendant appeared before his board to discuss the obligations of his I-O classification and the kind of civilian work he could perform. At this meeting Fitts affirmed as correct Major Weeks's report that he was not a full-time minister "and he was not claiming to be one".³ According to the memorandum of Mr. Hayden Covington, attorney for Watchtower Bible and Tract Society, the governing body of Jehovah's Witnesses, the Society claims ministerial classifications only for Pioneers and Congregational Servants; and only then when the Congregational Servant is doing field work in addition to taking care of his ministerial duties to the congregation. Fitts said that he was not a Congregational Servant or a Pioneer, or an assistant, and he had no evidence to show that he held any official position with the Society. Fitts told the board that he conducted Bible study classes as an Assistant Bible Study Conductor on Wednesday nights and distributed material relating to Jehovah's Witnesses, but he admitted that farming came first with him. When he was informed of the nature of the work he would be required to do as a conscientious objector, he stated that he was unwilling to perform such work because it was contrary to his religious beliefs. After a full discussion of the nature of Fitts's religious activities, the board refused to reconsider his classification. The board advised him of this decision by letter enclosing a blank SSS Form No. 152 to be returned with information on his work qualifications. By letter dated November 13, 1961, the defendant returned the form, still in blank and, for the first time, contended that his primary vocation was that of "preaching and teaching about the Kingdom of God." The board acknowledged the defendant's letter returning the blank form sent him and informed him that he could choose any one of three approved types of work. He refused to make a choice.

Fitts met with his board again April 5, 1962. Again, he reaffirmed the accuracy of Major Weeks's report to the board, but refused to make himself available for civilian work. He stated that his ministerial work totalled about forty-eight hours a month; Major Weeks had estimated ten hours a week based, in part, on Fitts's admissions. Again the board refused to reopen his classification.

April 11, 1962, the defendant's father requested a deferment for his son so that he might be available for the summer farming duties. The local board made no specific reply but in a letter dated May 31, 1962, it ordered the defendant to report for work on June 11, 1962. After he failed to appear for work, the United States brought this criminal action for violation of the Act, 50 U.S.C.A. App. § 462.

II.

Congress exempts from training and service "regular or duly ordained ministers of religion". 50 U.S. C.A. App. § 456(g). A minister is one who as his regular and customary vocation "preaches and teaches" the principles of religion, of a church, a religious sect, or organization of which he is a member.⁴ The term "minister" does not include a person "who irregularly or incidentally preaches and teaches * * * or * * * who does not regularly, as a vocation, teach and preach". 50 U.S.C.A. App. § 466(g).

This Court has adopted a liberal construction of the ministerial exemption. As Judge Hutcheson has said:

"(1) the statute under construction is a statute of religious liberty; (2) the blood of the martyrs is the seed of the church; and (3) liberty and law must go hand in hand, neither must outrun the other". Olvera v. United States, 5 Cir. 1955, 223 F.2d 880, 883.

In Pate v. United States, 5 Cir. 1957, 243 F.2d 99, 103, this Court emphasized that local draft boards must not "fit the garments of orthodoxy on a pioneer minister of Jehovah's Witnesses". We held:

"Therefore, here, in addition to the non-existence in the record of evidence to rebut the defendant\'s prima facie case, there are the further undisputed facts that the draft boards employed standards applicable to ministers of orthodox churches instead of those standards fixed in the law and applicable here, and thus erroneously held: that part time secular work, from which defendant earned all his livelihood, defeated the ministerial claim; and that, because he did not earn any part of his livelihood from his ministry, he could not be regarded as a minister. * * * Nowhere in the Act or Regulations is there a requirement that a minister earn his livelihood from the ministry or from a particular congregation, or that he have a pulpit before he can claim and receive classification as a minister. All that the act and regulations require in order for one to qualify as a minister and to receive the classification is that the ministry be his vocation, not an incidental thing in his life."

Again, in Wiggins v. United States, 5 Cir. 1957, 261 F.2d 113, 115, this Court pointed out:

"Congregation Servants, Pioneer Ministers, Bible Study Conductors, and other members of Jehovah\'s Witnesses who correspond to ministers in a conventional organized religion usually do not receive a salary. They must engage in some secular work in order to earn sufficient funds to carry on their religious work. To a draft board, therefore, a Witness steadily employed and earning fifty dollars a week may seem no different from any other draftee gainfully employed — although the Witness may sincerely regard the ministry as his vocation and other Witnesses may accept him as a minister. This situation is not adequately covered in the Act and Regulations."

We adhere to these views, notwithstanding expressions to the contrary from some courts. See, for example, United States v. Tettenbaum, D.C.Md. 1960, 186 F.Supp. 203, 206 and United States v. Stewart, D.C.Md.1963, 213 F. Supp. 497. Nevertheless, the scope of review is narrow. The "registrant bears the burden of clearly establishing a right to the exemption" (Dickinson v. United States, 1953, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132) and the Act provides that decisions of the Board are "final" (50 U.S.C.A. App. § 460(b) (3)). The critical question before the reviewing court is whether there are "insufficient facts to support the Board's conclusion." Estep v. United States, 1945, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567. There must be "no basis in fact" for the classification before the reviewing court should intervene and set aside a decision of a local board:

"If the facts are disputed the board bears the ultimate responsibility for resolving the conflict — the courts will not interfere. Nor will the courts apply a test of `substantial evidence.\' However, the courts may properly insist that there be some proof that is incompatible with the registrant\'s proof of exemption." Dickinson v. United States, 1953, 346 U.S. 389, 396, 74 S.Ct. 152, 157, 98 L.Ed. 132, 138.

The record in this case does not bring Fitts under the protective cover of Pate and Wiggins. In Pate the Court held:

"The board\'s conclusion was reached without any evidence to sustain it; the board seemed to base its classification on the fact that the 1200 hours per year which registrant stated he was obligated to give to the ministry was all the time that he gave to it, and that this was not enough; * * * Finally, it appears beyond question from the testimony of the members of the local board, that the board did not consider the defendant\'s status from the standpoint of the facts of his case as applied to the law and regulations but upon the erroneous conclusion emphasized and acted upon, that, since all of Jehovah\'s Witnesses claimed to be ministers and all could

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