Schuman v. United States, 13692.

• Decision Date: 21 January 1954
• Docket Number: No. 13692.,13692.
• Citation: 208 F.2d 801
• Parties: SCHUMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

208 F.2d 801 (1953)

SCHUMAN v. UNITED STATES.

No. 13692.

United States Court of Appeals Ninth Circuit.

December 21, 1953.

Rehearing Denied January 21, 1954.

J. H. Brill, San Francisco, Cal., for appellant.

Lloyd H. Burke, U. S. Atty., Richard H. Foster, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before DENMAN, Chief Judge, and BONE and ORR, Circuit Judges.

DENMAN, Chief Judge.

David Don Schuman appeals from a judgment of conviction in the district court on a charge of refusing to submit to induction into the Armed Forces of the United States.¹ Trial by jury was waived in accordance with the provisions of Rule 23(a), Fed.R.Crim.P., 18 U.S.C. A.

Schuman, a resident of San Francisco, California, duly registered with Local Board No. 40 of that city in 1948. In September of 1949, he filed his Selective Service Classification Questionnaire² in which he gave his occupation as a premedical student, stated that he was not a minister nor a student minister, and made no claim to exemption as a conscientious objector. On October 10, 1950, Schuman was classified as 1-A.

Schuman sent Local Board No. 40 a letter on August 14, 1950, advising that body that in November of 1949 he had begun studies of the Bible with the Jehovah's Witnesses; that he was enrolled in the Theocratic Ministry School; that he was engaged in various religious activities; and that he spent many hours in study at home and requested classification as IV-D (minister or student minister). On November 30, 1950, he was advised that his classification in 1-A would continue. When it was determined in July of 1951 that Schuman had been registered with the wrong local board, his files were transferred to Local Board No. 38, from which he ultimately received his orders to report for induction. This board classified Schuman anew, again in 1-A, in September of 1951. In a personal appearance, sought by Schuman and granted by the board, he requested classification either as an ordained minister or as a conscientious objector. The local board refused to change his classification.

Schuman appealed from the decision of the local board, requesting the appeal board to classify him as an ordained minister who is also a conscientious objector opposed to all forms of service in the Armed Forces. The appeal board, after receiving a report from a Department of Justice Hearing Officer³ continued Schuman in Class 1-A. Schuman finally received orders to report for induction, went through the induction process up to the point where he was asked to take the step forward which signifies induction into the Armed Forces, but refused to take this final step. The indictment and the trial below followed.

Schuman stipulated at the trial that he had been classified 1-A by the proper local board, that he had been ordered to report for induction, that he had so reported, but that he had refused to take the step forward which signifies induction into the Armed Forces. Thus the only question presented in this case is whether there was a basis in fact for the classification of Schuman in 1-A rather than in IV-D (minister or student minister) or 1-A-O or 1-O (conscientious objector). See Cox v. United States, 332 U.S. 442, 448-452, 68 S.Ct. 115, 92 L.Ed. 59.

While it is true that we have no power to weigh the evidence which the board considered in making its classification, Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567, we have recently been instructed by the Supreme Court that our task (at least insofar as the claim to exemption as a minister is concerned) is "to search the record for some affirmative evidence to support the local board's overt or implicit finding that a registrant has not painted a complete or accurate picture of his activities. * * * The courts may properly insist that there be some proof that is incompatible with the registrant's proof of exemption." Dickinson v. United States, 74 S.Ct. 152, 157.

All of the evidence bearing upon Schuman's claim for exemption as a minister⁴ that is contained in the Selective Service file was placed therein by Schuman. This evidence tends to prove the following: At the time Schuman was requesting classification as a minister, he had given up all secular work and studies because they interfered with his religious studies; that his position in the Witnesses' sect is that of a "presiding minister" or "overseer" whose job it is to "direct others" in their religious work, to give public lectures on the faith, to perform marriages, and to speak at funerals. These latter functions, he claimed, are what makes him a "minister" within the Act — e. g., that while all members of the sect claim to be ministers ordained by God, he is a leader of ministers, with a position analogous to the ministers or pastors of the more orthodox religions. The only activity to which Schuman adverted that was not strictly a religious one was the study of philosophy in San Francisco City College in order to "aid him in his ministry and to give him a better understanding of his fellow man." Affidavits in support of the above assertions were filed by superiors in the sect as well as a letter signed by sixty-two persons attesting to the fact that Schuman preaches and participates in all phases of the ministry.

In arguing that the local board and appeal board had basis in fact for denying Schuman's claim as a minister, the Government points out that all members of the Jehovah's Witnesses sect claim to be ministers ordained by God, and that Congress obviously did not mean to exempt all members of a religious sect when it provided that "regular⁵ or duly ordained⁶ ministers of religion * * * shall be exempt from training and service." 50 U.S.C.A.Appendix, § 456(g). In this we agree, for as stated in Martin v. United States, 4 Cir., 190 F.2d 775, 777: "Congress undoubtedly intended to exempt such persons as stand in the same relationship to the religious organizations of which they are members, as do regularly ordained ministers of older and better known religious denominations." However, it does not follow that no member of such a sect may qualify as a minister. Those who preach and teach the principles of the sect as a regular vocation and who are recognized by the sect as regular ministers are entitled to exemption under the Act. 50 U.S.C.A.Appendix, §§ 466(g) (2), 456(g); see Smith v. United States, 4 Cir., 157 F.2d 176, 181, certiorari denied 329 U.S. 776, 67 S.Ct. 189, 91 L.Ed. 666; Id., 329 U.S. 831, 67 S.Ct. 367, 91 L.Ed. 704. The undisputed evidence in the file shows that Schuman devoted his entire life⁷ to spreading the gospel as interpreted by the Witnesses and that he is recognized as a minister by the other members of the sect.

The Government has also attempted to show that only those members of Jehovah's Witnesses who bear the title "company servant" are entitled to exemption as a minister. The Selective Service file does not show the exact position of a "company servant" in the hierarchy of the sect, but since the uncontroverted evidence clearly supports Schuman's claim that he is a minister, we do not need to consider the position of these "company servants."

There is nothing inconsistent with Schuman's claim to exemption as a minister in the fact that he is attending San Francisco City College with a view to obtaining a degree in philosophy. The study of philosophy...