Niznik v. United States, 10622

• Decision Date: 06 June 1949
• Docket Number: No. 10622,10623.,10622
• Citation: 173 F.2d 328
• Parties: NIZNIK v. UNITED STATES. COMODOR v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

173 F.2d 328 (1949)

NIZNIK v. UNITED STATES.

COMODOR v. UNITED STATES.

Nos. 10622, 10623.

United States Court of Appeals Sixth Circuit.

March 7, 1949.

Writ of Certiorari Denied June 6, 1949.

COPYRIGHT MATERIAL OMITTED

Hayden C. Covington, of Brooklyn, N. Y. (Victor F. Schmidt, of Rossmoyne, Ohio, on the brief), for appellants.

Ferdinand Powell, Jr., of Knoxville, Tenn. (Otto T. Ault, of Chattanooga, Tenn., on the brief), for appellee.

Before ALLEN, MARTIN, and McALLISTER, Circuit Judges.

Writ of Certiorari Denied June 6, 1949. See 69 S.Ct. 1169.

McALLISTER, Circuit Judge.

In the above cases, which were consolidated for trial and appeal, appellants were convicted by a jury of the offense of willfully leaving, and thereafter absenting themselves from a Civilian Public Service Camp in violation of the Selective Training and Service Act of 1940, as amended.¹ They claim error in the refusal of the district court to grant their motions for judgment of acquittal which they made on the trial, at the conclusion of the proofs.

On appeal, their principal contentions are: (1) that they were deprived of a fair hearing before the appeal draft board because of the failure of the local board to reduce to writing and make part of the record on appeal certain oral evidence offered by appellants upon their personal appearance before the board; and (2) that the local board illegally refused to consider the evidence offered by appellants upon their personal appearance because of prejudice and unfair discrimination.

The Selective Service Regulations² pertinent to the first issue provide:

"Section 625.1 Opportunity to appear in person. (a) Every registrant, after his classification is determined by the local board * * *, shall have an opportunity to appear in person before the member or members of the local board designated for the purpose if he files a written request therefor within 10 days after the local board has mailed a Notice of Classification (Form 57) to him. * * *"

"Section 625.2 (b). At any such appearance, the registrant may discuss his classification, may point out the class or classes in which he thinks he should have been placed, and may direct attention to any information in his file which he believes the local board has overlooked or to which he believes it has not given sufficient weight. The registrant may present such further information as he believes will assist the local board in determining his proper classification. Such information shall be in writing or, if oral, shall be summarized in writing and, in either event, shall be placed in the registrant's file. * * *" "Section 627.2 (a). The registrant, * * * may appeal to a board of appeal from any classification of the registrant by the local board * * *."

"Section 627.13 (a). Immediately upon an appeal being taken to the board of appeal, the local board shall carefully check the registrant's file to make certain that all steps required by the regulations have been taken and the record is complete. If any facts considered by the local board do not appear in the written information in the file, the local board shall prepare and place in the file a written summary of such facts. * * *"

"Section 627.24 (b). In reviewing the appeal, no information shall be considered which is not contained in the record received from the local board and the decision of the board of appeal shall be based solely thereon."

Appellant Comodor, in his Selective Service questionnaire, stated that he was a minister of religion and that, in his opinion, he should be given such classification, known as IV-D. Appellant Niznik stated in his questionnaire that he was a student preparing for the ministry. He did not indicate what classification he thought should be given him. Approximately four months after the filing of his questionnaire, in answer to a request for information from the local board as to whether there had been any change in his status, Niznik wrote that he was a minister, serving as one of Jehovah's Witnesses. Both appellants signed the Special Form for Conscientious Objectors, reciting at considerable length their religious views, their training, and their services in the work of religion. Both appeared before the local board and gave information as to their conscientious objection to war, as well as the nature of their work, services, and claims of status as ministers of religion. A brief memorandum purporting to contain the additional oral information given by appellants on the hearing was placed by the local board in each of their files. The local board classified them as I-A, available for full military service, and on appeal, the appeal board also classified them as I-A, apart from the question of conscientious objection, and in accordance with the statute and regulations, referred their files to the Department of Justice for hearings and reports upon their conscientious objection to war in any form. After a hearing before the designated official of the Department of Justice, and upon his recommendation, both appellants were classified by the appeal board as IV-E, conscientious objectors opposed to both combatant and non-combatant military service and available for work of national importance. However, on October 8, 1943, following physical examinations, both appellants were found physically unfit for such service, with the result that the local board classified them as IV-F, a disability classification.

On February 25, 1946, the local board again classified appellants as I-A. They appeared personally before the board, claiming ministerial status, repeated what they had said on the previous hearings, and told of the training and services which they were rendering in their religious work. Comodor also stated that he had been appointed as assistant to the presiding elder, and thereby occupied a position toward the congregation, similar to that of a member of the orthodox clergy. Again, a brief memorandum purporting to contain the oral information given by appellants on these hearings was placed in the file of each. After the hearing, the local board again classified appellants as I-A, and, on appeal, their classification was changed to IV-E, available for work of national importance. They later reported to a public service camp, but immediately left the camp and were afterward indicted and convicted.

It is the claim of appellants that they asserted, on their appearance before the local board, their claims to be exempt from all military training and service on the ground that they were ministers of religion; and that the local board deprived them of their right to a full and fair hearing de novo before the board of appeal to which they were entitled, by failing to summarize in writing and placing in their files the new and additional oral information which they submitted before the board to the effect that they were exempt from service because they were ministers of religion. They contend that the local board thereby withheld from the appeal board the entire record and thus denied them the right of fair review to which they were entitled by law, inasmuch as they were not permitted by the regulations to appear in person before the appeal board.

On the trial, and at the conclusion of the proofs in the case, appellants moved the district court for a judgment of acquittal on the ground that they had been deprived of a fair hearing by the local board on their appeal to the appeal board for the reason that their records on appeal did not contain the evidence required to be therein set forth; that their classifications were, therefore, illegal; and that, accordingly, they had been guilty of no offense in leaving the camp. They, therefore, contend that the district court erred in not granting their motion for a judgment of acquittal.

In considering the requirements of Section 627.13 (a) of the regulations, which is similar to Section 625.2 (b) to which appellants refer in the foregoing contentions, it was said, in Smith v. United States, 4 Cir., 157 F.2d 176, 182, that they clearly required that the record of a registrant on appeal to the board of appeal shall contain a written summary of all the facts considered by the board in making its classification; and since the conclusions of the board of appeal are necessarily based upon the written record, omission of material facts deprives the registrant of his right to an adequate consideration of his case on appeal and amounts to a denial of due process by the local board which invalidates its classification. Whether there was such an omission of material facts from the record in this case must be determined largely from the testimony of appellants, and a consideration of the written evidence in their Selective Service files.

Comodor testified that on his appearance before the board, he pointed out that he had been trained for the ministry since the age of eleven years; that he had spent many hours regularly each week studying at home and under special teachers from 1935 to 1940; that, in September, 1940, he was ordained for the ministry; that he had participated in various phases of the ministry work of Jehovah's Witnesses. He stated that he explained in detail about the course of study that he had undergone and the number of private studies that he conducted in the homes of the people; that he called the board's attention to the fact that he was ordained and recognized by the Watch Tower Bible and Tract Society; and was qualified to teach and preach the Bible and tenets of the organization. At the time of his second appearance, Comodor filed a lengthy letter with the local board, calling attention to additional information as to his ministry and attaching several affidavits and other documentary evidence containing details of his preaching activity and his standing and recognition as an ordained minister. He offered additional oral evidence about a special course in what is known as the Theocratic Ministry...