United States v. Chodorski, 11699.
| Decision Date | 28 February 1957 |
| Docket Number | No. 11699.,11699. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Ernest CHODORSKI, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Hayden C. Covington, Brooklyn, N. Y., Karl M. Milgrom, Chicago, Ill., for appellant.
Robert Tieken, U. S. Atty., Chicago, Ill. (John Peter Lulinski, James B. Parsons, William T. Hart, Asst. U. S. Attys., Northern Dist. of Illinois, Chicago, Ill., of counsel), for appellee.
Before MAJOR, FINNEGAN and LINDLEY, Circuit Judges.
Defendant, convicted of having failed and refused to perform civilian work, contrary to the Universal Military Training and Service Act, §§ 1-20, 50 U.S.C.A. Appendix, §§ 451-470, appeals from the sentence entered in a trial by the court after a finding of guilt. Upon appeal, defendant contends that he was deprived of procedural due process of law in that the local board applied an erroneous formula of fact and law, to the effect that none of defendant's sect was entitled to be classified as a minister of religion.
Defendant registered with his local board January 16, 1950, stating that he was then employed as a shipping clerk for an undertaker supply company. In his questionnaire he claimed to be a minister but said that his then occupation was that of a drill-press operator, and that he had been working for six months in that capacity, and expected to continue doing so indefinitely. He was then earning $1.35 an hour, working an average of 40 hours per week. He declared that he was a conscientious objector and claimed exemption as a minister of religion. On March 5, 1951, he was classified I-A. He requested a personal appearance hearing and appeared before the board for such a hearing held on August 6, 1951. Thereafter the board again classified him as I-A and mailed to him notice of its action.
On August 20, 1951, defendant filed with the local board an additional statement to the effect that he was then a full-time minister known as a pioneer, and delivered to the board a certificate to that effect. On the same day he appealed to the appeal board, and thereupon the local board delivered his complete file to the appeal board, and defendant filed with that board his additional statement of evidence, renewing his statement that he was a regular minister of religion, setting forth in detail the facts upon which he based his claim.
The board of appeal referred the matter for investigation and report to the Department of Justice, which conducted a hearing and made a report recommending a finding that defendant was a conscientious objector and stating that defendant had informed the hearing officer that he was ordained in 1944, serving as a pioneer for 5 months, but had been obliged to quit serving as pioneer to engage in secular work in order to support himself, and that he was at that time employed as a color matcher by the Internal Chemical Corporation.
Upon the file, the statement filed with the appeal board by defendant and the report of the Department of Justice, the appeal board set aside defendant's classification by the local board as I-A and classified him as I-O, that is, a conscientious objector. Defendant, having been notified of his reclassification, refused to accept civilian work as directed by the local board. On December 30, 1952, he was notified to appear before a representative of the State Director for the purpose of reaching an agreement as to the type of civilian work he should perform. On January 12, 1953, he appeared but refused to make any agreement or to perform civilian work. He was then assigned to work at the Illinois State Hospital at Manteno. On his refusal to comply, he was indicted and convicted.
As we have stated, the question presented is the narrow one of whether defendant was deprived of procedural due process of law before the local board, and whether, if such was the fact, that error affects in any way his final classification by the appeal board. Upon the first question it is obvious from the record, we think, that the local board applied a wrongful test in determining the question presented to it of whether defendant was a minister of religion.
Under the statute the defendant had a right to and did prosecute an appeal to the appeal board. The hearing before that board is de novo. The matter is heard upon the original file of the local board supplemented by such further evidence as the registrant shall offer and as may be obtained by a reference to the Department of Justice and a hearing officer. There is no complaint that the entire file of defendant was not sent to the appeal board by the local board. There is no charge of lack of procedural due process in this respect. It is clear that defendant filed his additional statement with the appeal board, that he appeared before the hearing officer and that the latter, after hearing other evidence, recommended that defendant be classified as a conscientious objector instead of I-A, as the local board had ordered. This classification of conscientious objector, made by the appeal board, was his final classification. Upon its entry the local board ordered him to report for civilian work.
In this situation we think there can be no question but that whether there was lack of procedural due process of law in the local board's refusal to apply the proper test as to what constitutes a minister in defendant's original hearing is wholly immaterial, in view of the appeal board's ultimate hearing and classification. In other words, the decision of the local board, in which it is claimed lack of procedural due process of law occurred, has been set aside and held for naught, in a new hearing, a de novo hearing, by the tribunal created by Congress for the correction of error upon the part of the local board.
We had before us a similar question in United States v. Moore, 7 Cir., 217 F.2d 428, reversed on unrelated grounds, not presented to us, 348 U.S. 966, 75 S.Ct. 530, 99 L.Ed. 753. There, at pages 431 and 432 of 217 F.2d we analyzed the decisions bearing upon the issue and determined that the action of the board of appeal completely supersedes the action of the local...
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