United States v. Campbell, 25418.

• Decision Date: 02 March 1971
• Docket Number: No. 25418.,25418.
• Citation: 439 F.2d 1087
• Parties: UNITED STATES of America, Appellee, v. Wayne Lee CAMPBELL, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

439 F.2d 1087 (1971)

UNITED STATES of America, Appellee, v. Wayne Lee CAMPBELL, Appellant.

No. 25418.

United States Court of Appeals, Ninth Circuit.

March 2, 1971.

David M. Rothman, Los Angeles, Cal., for appellant.

David Fox (argued), Asst. U. S. Atty., Robert L. Meyer, U. S. Atty., David R. Nissen, Chief Crim. Div., Michael Heuer, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BROWNING, ELY, HUFSTEDLER, Circuit Judges.

ELY, Circuit Judge:

Campbell was convicted for having violated the Military Selective Service Act of 1967, 50 U.S.C.App. § 462, in that he failed to report, as ordered, for civilian employment in lieu of induction into the armed forces. A Jehovah's Witness, Campbell argues that such order to report was invalid, and that, in any event, to order a Jehovah's Witness to perform civilian employment in lieu of induction infringes the Witness' First Amendment rights. We affirm.

Campbell's principal contention is that his claim for a IV-D (ministerial) exemption was denied without a basis in fact for such denial. He was dedicated as a Jehovah's Witness in December, 1965, and in 1967, when he was classified by his local board, he was devoting approximately forty hours per month to bible study, personal study, and preparation for meetings. He also spent about ten hours a month in preaching and teaching from door to door. At that time, however, he was occupied with a full-time, forty hour a week, secular job. He admitted to his local board that he did not consider himself to be a "full-time" minister, although he expressed his desire to study and become one.

In order to qualify for a ministerial exemption, one must be either a "regular" or a "duly ordained" minister of religion. 50 U.S.C.App. § 456 (g). A "duly ordained minister of religion" is defined as

"a person who has been ordained, in accordance with the ceremonial, ritual, or discipline of a church, religious sect, or organization established on the basis of a community of faith and belief, doctrines and practices of a religious character, to preach and to teach the doctrines of such church, sect, or organization and to administer the rites and ceremonies thereof in public worship, and who as his regular and customary vocation preaches and teaches the principles of religion and administers the ordinances of public worship as embodied in the creed or principles of such church, sect, or organization."

50 U.S.C.App. § 466(g) (1) (emphasis added). A "regular minister of religion" is "one who as his customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he is a member, without having been formally ordained as a minister of religion, and who is recognized by such church, sect, or organization as a regular minister." 50 U.S.C.App. § 466(g) (2) (emphasis added).

Thus, in order to meet either of these standards, Campbell had to carry the burden of showing that his ministerial duties were not part-time, but comprised his "regular and customary vocation" or his "customary vocation."

"Preaching and teaching the principles of one\'s sect, if performed part-time or half-time, occasionally or irregularly, are insufficient to bring a registrant under 50 U.S.C.App. § 456(g). These activities must be regularly performed. They must, as the statute reads, comprise the registrant\'s `vocation.\' And since the ministerial exemption is a matter of legislative grace, the selective service registrant bears the burden of clearly establishing a right to the exemption."

Dickinson v. United States, 346 U.S. 389, 395, 74 S.Ct. 152, 157, 98 L.Ed. 132 (1...