Kuykendall v. United States

• Decision Date: 03 January 1968
• Docket Number: No. 9637.,9637.
• Citation: 387 F.2d 594
• Parties: Freddy Dale KUYKENDALL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

387 F.2d 594 (1968)

Freddy Dale KUYKENDALL, Appellant, v. UNITED STATES of America, Appellee.

No. 9637.

United States Court of Appeals Tenth Circuit.

January 3, 1968.

Frank Leslie, Tulsa, Okl., for appellant.

James E. Ritchie, Canton, Ohio (Lawrence A. McSoud, U. S. Dist. Atty., Tulsa, Okl., with him on brief), for appellee.

Before MURRAH, Chief Judge, BREITENSTEIN, Circuit Judge, and DELEHANT^*, District Judge.

MURRAH, Chief Judge.

Appellant Kuykendall, classified by his local draft board as I-O, i.e. a conscientious objector opposed to combatant and noncombatant service in the Armed Forces, was charged under Section 462 of the Universal Military Training and Service Act, 50 U.S.C.A.App. § 462, with knowingly failing to obey an order of the Board to report to a place of civilian employment in lieu of induction. Kuykendall, a member of Jehovah's Witnesses, defended on the ground that he was a minister of religion and consequently entitled to exemption from training or service in the Armed Forces under 50 U.S.C.A.App. § 456(g). The trial judge held that Kuykendall failed to establish his exemption as a minister, and was guilty as charged. We affirm.

The pertinent facts are not in dispute. In 1961, Kuykendall registered in Tulsa, Oklahoma, with Local Board 75 of the Selective Service System. In a classification questionnaire and an accompanying letter submitted to the Board a year later, Kuykendall stated that he worked as a door maker an average of 50 hours per week; that he was ordained as a minister of Jehovah's Witnesses in February, 1961; that he was attending the theocratic ministry school¹; that he presently devoted about 75 hours a month to door to door preaching and preaching from the pulpit at congregational meetings²; that he was "working toward the goal of becoming a pioneer minister"³ and was "confident this goal would be reached in due time"; and that he was entitled to a classification as a minister of religion. Written statements from seven Jehovah's Witnesses were forwarded to the Board attesting that Kuykendall was sincere in his religious beliefs and that he was recognized as a minister in his sect. Kuykendall also filed with the Board a completed conscientious objector form in which he stated that he was opposed to war, that he was associated with the Tulsa West Unit Congregation of Jehovah's Witnesses, and that the leader of the congregation was one Chester Brazeal who held the position of Congregational Servant.

After reviewing the submitted information, the local Board classified Kuykendall I-O, a classification relieving him, as a conscientious objector, from military combatant and non-combatant service, but requiring a period of service in "civilian work contributing to the maintenance of the national health, safety, or interest." 50 U.S.C.A.App. § 456(j). Kuykendall objected to the I-O classification and was granted a personal appearance before the local Board. There he requested a reclassification as a minister of religion, designated as IV-D, which would exempt him from all training and service whatsoever. 50 U.S.C.A.App. § 456(g). Kuykendall admitted to the Board that he did not hold any of several titled positions in his religious organization and that he was not, at the time, a Pioneer Minister. He stated, however, that he was engaged to be married and that both he and his wife planned to become Pioneer Ministers shortly after their marriage. Although the Board declined to reclassify the registrant as IV-D, they advised him that the average age for call by the Selective Service was 23, and that he had plenty of time to qualify as a Pioneer Minister.

Kuykendall's file was reviewed by the Appeal Board who tentatively determined that he was not entitled to either a IV-D or I-O classification. His file was then forwarded to the Department of Justice for an advisory recommendation. The Department of Justice advised that Kuykendall's conscientious objector claim should be sustained only as to combatant military training and service, and that he should be classified I-A-O, a classification requiring induction into the service and assignment to a noncombatant unit such as a hospital. Thereafter the Appeal Board unanimously classified Kuykendall I-A-O.

Following a preinduction physical examination, Kuykendall was ordered to report for induction. He reported on the specified date, but refused to submit to induction into the Armed Forces. His Selective Service file was then forwarded to the United States Attorney for prosecution, which was declined for the reason that no basis in fact existed for a denial of Kuykendall's I-O classification as a conscientious objector. Shortly thereafter, Kuykendall was again classified I-O by his local Board.

In June, 1966, the Board sent Kuykendall a letter offering him three types of civilian work in lieu of induction⁴. He replied that he would not perform any of the types of work suggested. Thereafter the Board held a meeting with Kuykendall to reach an agreement as to the type of work he would perform. At the meeting, he stated that he would not accept any type of civilian work in lieu of military service because to do so would conflict with his religious beliefs. The local Board found that Kuykendall was qualified to perform hospital maintenance work, and he was ordered to report to the University of Kansas Medical Center on August 17, 1966. He failed to report as ordered, and his indictment and conviction followed.

Congress exempts "regular or duly ordained ministers of religion" from training or service in the Armed Forces. 50 U.S.C.A.App. § 456(g). The term "regular or duly ordained minister of religion" is given lengthy definition by the Act⁵, and "does not include a person who irregularly or incidentally preaches and teaches the principles of religion of a church, religious sect, or organization and does not include any person who may have been duly ordained a minister * * but who does not regularly, as a vocation, teach and preach the principles of religion and administer the ordinances of public worship as embodied in the creed or principles of his church, sect, or organization." 50 U.S.C.A.App. § 466(g) (3).

Since the ministerial exemption is a matter of legislative grace, the registrant bears the burden of clearly establishing his entitlement to the exemption, i. e., he must satisfy the statutory criteria. See Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132; Bradshaw v....