Swaczyk v. United States

• Decision Date: 14 October 1946
• Docket Number: No. 4082.,4082.
• Citation: 156 F.2d 17
• Parties: SWACZYK v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

156 F.2d 17 (1946)

SWACZYK v. UNITED STATES.

No. 4082.

Circuit Court of Appeals, First Circuit.

June 13, 1946.

Writ of Certiorari Denied October 14, 1946.

Hayden C. Covington, of Brooklyn, N. Y. (Alfred A. Albert, of Boston, Mass., of counsel), for appellant.

Thomas P. O'Connor, Asst. U. S. Atty., of Boston, Mass. (Edmund J. Brandon, U. S. Atty., of Boston, Mass., of counsel), for appellee.

Before DOBIE (by special assignment), MAHONEY, and WOODBURY, Circuit Judges.

Writ of Certiorari Denied October 14, 1946. See 67 S.Ct. 77.

DOBIE, Circuit Judge.

Sigismund Francis Swaczyk, hereinafter referred to as defendant, has appealed to this court from his conviction by the District Court of the United States for the District of Massachusetts on an indictment charging that he violated § 11 of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 311, in that he refused to submit to induction when properly so ordered. In the court below, he waived trial by jury. After hearing all the evidence which was offered, the District Judge denied defendant's motion for a directed verdict, found him guilty, and sentenced him to three years' imprisonment.

Defendant is a member of the sect known as Jehovah's Witnesses and has held the position of Assistant Company Servant of the Malden (Massachusetts) Company of this group since November 27, 1942, by appointment of the Watchtower Bible and Tract Society, Inc., of Brooklyn, New York, which is the governing body of this sect. In common with many other members of this group, he sought exemption from service as a "regular or duly ordained minister of religion." When this was denied him, after three periods of deferment on other grounds and five different considerations of his case by the Appeal Board, he was duly ordered to report for induction. At the induction station, he was found to be mentally and physically qualified for service, but, after completing all preliminary steps, he refused to submit to induction. Defendant's prosecution and conviction followed.

Before detailing more fully the circumstances surrounding defendant's claim of exemption, we think it is appropriate to review briefly what seems to be the present state of the law in this connection. Section 10(a) (2) of the Selective Training and Service Act, 50 U.S.C.A.Appendix, § 310(a) (2), after referring to the appeal boards to be set up within the Selective Service System, sets forth the jurisdiction of the local boards "to hear and determine * * * all questions or claims with respect to * * * exemption * * * from, training and service under this Act * * *." This section further provides: "The decisions of such local boards shall be final except where an appeal is authorized * * * in accordance with such rules and regulations as the President may prescribe."

The precise legal effect of this finality provision has been the subject of much litigation. Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305, established that no judicial review whatever of a selective service board's decision was available to a registrant who failed to exhaust all available administrative remedies. But where such remedies have been exhausted, a registrant may attack the validity of his induction order, based upon an allegedly erroneous classification by the appropriate board, as a defense in criminal proceedings. The review thereby obtained, however, is not a full rehearing de novo. The Supreme Court has very recently defined the scope which this review does encompass, in the following language:

"The provision making the decisions of the local boards `final' means to us that Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant. See Goff v. United States, 4 Cir., 135 F.2d 610, 612." Estep v. United States, 66 S.Ct. 423, at page 427, decided February 4, 1946.

That case involved two registrants, also members of Jehovah's Witnesses, who had fully exhausted all available administrative remedies, only to be told in the lower courts that no review was available except on petition for habeas corpus after induction. This interpretation the Supreme Court rejected and it remanded the case for retrial to allow the registrants "the opportunity to show that their local boards exceeded their jurisdiction." Estep v. United States, supra, 66 S.Ct. at page 429.

Accordingly, we understand the law to be that a selective service registrant, who believes that he has been rendered subject to service by an erroneous classification by his local board (or by the appropriate appeal board), must exhaust all opportunities for administrative review before his claim may be heard in the courts. But when the administrative remedies have been pursued to the end, the courts must grant him an opportunity to show that "there is no basis in fact for the classification", either as a defense to criminal prosecution for non-compliance with orders under the Act or in habeas corpus proceedings after his induction. This opportunity will be effective, however, only where there was indeed no basis in fact for the board's action. The board is not required to weigh the evidence as would a jury and the courts are not permitted to do so.

"It should be remembered that immunity from military service arises not as a matter of constitutional grant, but by virtue of Congressional deference to conscientious religious views. Rase v. United States, 6 Cir., 129 F.2d 204. The burden, therefore, is not upon the government, but upon one claiming exemption to bring himself clearly within the excepted class." Seele v. United States, 8 Cir., 133 F.2d 1015, at page 1022.

Unless, then, the registrant can establish the complete lack of a factual basis for his classification, or, perhaps, some controlling bias or prejudice against him, his defense is ineffectual and he is subject to criminal penalties for his failure to comply with the board's order. See Lancaster v. United States, 153 F.2d 718, 722, decided by this Court February 19, 1946.

In connection with the application of these rules to the instant case, it is conceded that Swaczyk had exhausted all available administrative remedies and also that no evidence which he offered was excluded, either by his local board or by the trial court. Further, no procedural error, bias or prejudice on the part of either his board or the trial court is alleged. Accordingly, the sole point before us on this appeal is: Was there any basis in fact for the denial of ministerial exemption to this registrant?

In answering this question, we do not believe that any single standard, fact or circumstance is controlling. Rather, it is a matter to be judged from a view of the record as a whole. In a quite similar case, Circuit Judge Simons set forth in very clear language the problem which arises from the interpretation which this sect seeks to give to the term "minister of religion."

"The phrase `minister of religion' as used in the Act is...