United States v. Mallon, 2556.

• Decision Date: 18 July 1945
• Docket Number: No. 2556.,2556.
• Citation: 61 F. Supp. 671
• Parties: UNITED STATES ex rel. GOODSTEIN v. MALLON, Commanding General, Ft. George G. Meade, Md.
• Court: U.S. District Court — District of Maryland

61 F. Supp. 671

UNITED STATES ex rel. GOODSTEIN v. MALLON, Commanding General, Ft. George G. Meade, Md.

No. 2556.

District Court, D. Maryland.

July 18, 1945.

R. Palmer Ingram and Carroll F. Fitzsimmons, both of Baltimore, Md., for complainant.

Bernard J. Flynn, U. S. Atty., of Baltimore, Md., for respondent.

CHESNUT, District Judge.

In this habeas corpus case the relator, William B. Goodstein, seeks release from military service in the Army of the United States. Having been inducted into the Army on December 12, 1944, in consequence of an order of Selective Service Board No. 7 of New York City, he is presently stationed at Ft. Meade, within the District of Maryland. His petition for the writ was filed in this court on April 28, 1945.

The ground for the petitioner's release as stated in the petition is that at the time of the order for his induction by the Selective Service Board he was a theological student preparing for the Rabbinate in a duly recognized Rabbinical Seminary (Mesifta Talmudical Seminary). The Selective Service Act, § 305(d) of title 50 U.S. C.A. Appendix provides:

"Regular or duly ordained ministers of religion, students who are preparing for the ministry in theological or divinity schools recognized as such more than one year prior to the date of the enactment of this Act, shall be exempt from training and service (but not from registration) under this Act."

The petition further alleges that the action of the Local Board in classifying the petitioner in Class 1-A and ordering his induction into the Army was contrary to the uncontradicted evidence submitted by the petitioner to the Local Board and was therefore an arbitrary, capricious and illegal act by the Board.

When the petition was filed in this court a show cause order was at once passed by the Court directed to the respondent returnable on May 2, 1945. The respondent, Major General Mallon, then Commanding General at Ft. Meade, Maryland, promptly filed a brief answer and on May 3, 1945, a supplemental return which reviewed at great length and in detail the procedure before the local New York Board which finally resulted in the induction order. On May 18, 1945, a hearing was had in the case, and after the introduction of much oral testimony the case was postponed for further hearing in order to give the respondent an opportunity to produce further evidence, particularly the testimony of the Local New York Board either by deposition or personal appearance in court. This postponed hearing was held on June 14, 1945, and very extended testimony of Col. Craig, Chairman of the Local Board, was heard in court.

From the evidence in the case I make the following findings of fact:

1. The relator was born in New York City June 12, 1926, and became 18 years of age and therefore subject to the Selective Service law on June 12, 1944. He filed his selective service questionnaire with Local Board No. 7 on July 5, 1944, and therein claimed exemption from military service on the ground that he was "a student preparing for the ministry in a theological or divinity school and attending the Mesifta Talmudical Seminary." He was later found to be physically fit for military service and it is not contended that the order of the Board for his induction was erroneous in any respect other than on account of the exemption claimed. On July 18, 1944, the Local Board sent the relator's file to the New York Director, and Goodstein was notified to appear before a so-called "theological panel" on July 26, 1944 for examination.

2. On August 16, 1944 the Local Board received a letter from the New York City Headquarters stating that the relator had been afforded a hearing by the theological panel on theological classification, enclosing a typewritten statement from the panel reporting its advice and conclusion as a result of the examination of Goodstein, accompanied by a stenographic transcript of his examination. The text of the report was the following:

"Registrant's claim for exemption is predicated upon his status as a student of the Mesifta Talmudical Seminary. That institution is one of several talmudical academies in this area offering courses based upon intensive study of the talmudical tractates, commentaries and codes. While these courses embrace the subject matter upon which candidates for traditional rabbinic certification are examined, students taking such courses are not necessarily preparing for the ministry.

"Orthodox tradition has always encouraged advanced study of talmudic literature, both privately and at academies instituted for that purpose, irrespective of the specific occupational objectives of those engaged in such study, and all courses offered by these academies are open to qualified students without regard to the individual student's specific intention to prepare for a career in the service of the rabbinate.

"Thus, a student ultimately intending to enter business or a profession, or some nonrabbinic activity in the field of religion, may be enrolled in the same courses attended by other students who are specifically concerned with preparation for the rabbinate. It is, therefore, essential for purposes of Selective Service classification to determine in each individual case the purpose which the registrant has in mind in pursuing his course of study.

"Moreover, the fact that the religious tradition in question does not attempt to distinguish between the serious student of talmudic literature and the student preparing for a professional career in the rabbinate, tends to make it extremely difficult for school officials, ministers, and others identified with that tradition, to have and express an objective judgment in such matters.

"To the extent that the distinction is understood, there is a tendency to accept at face value assertions made by the registrant and members of his family and to resolve any doubt in his favor, where it is at least apparent that he is a serious and pious talmudic student.

"Accordingly, this panel is of the opinion that the proper evaluation of the registrant's status must take into consideration the character of the institution he is attending and the relevant circumstances presented on the record and disclosed at the examination before this panel. Furthermore, in seeking to assess the sincerity of the registrant's declared purpose, due weight must be given to the registrant's manner of answering questions, his demeanor, and, in general, the total impression accruing relative to registrant's candor, trustworthiness and integrity.

"Upon all the information presented and our examination of the registrant, the panel is convinced that registrant is not preparing in good faith for a carrer of service in the practicing rabbinate. The panel is also convinced that he does not aspire to enter the rabbinate as a matter of spiritual conviction and that his professed aspirations in this regard are prompted by the desire to secure a basis for exemption from training and service in the Armed Forces."

3. Goodstein was classified in Class 1-A by the Local Board August 16, 1944. On August 21, 1944, he requested a hearing on this classification. He was permitted to examine the file in his case, including the report of the panel and the stenographic transcript of his hearing before the panel. He made some objections to the accuracy of the stenographic transcript in certain minor respects which, however, I find were immaterial. From time to time thereafter Goodstein submitted numerous other papers to the Board protesting against his classification in 1-A, including some 19 letters from persons purporting to be acquainted with him and certifying generally to their information and belief that he was in good faith studying for the Rabbinate. He stated also that he was assisted in preparation of his several protests by the Registrar of Mesifta Talmudical Seminary and also by the lawyer for the school. Subsequent to the receipt of the report from the theological panel and in response to several protests and requests from Goodstein, he was given three separate hearings (August 30, September 13 and October 4, 1944) with regard to his proper classification. On one or more of these occasions the Local Board reviewed at least in part with him specifically the answers to his questions as stenographically reported in his examination by the panel. Col. Craig, Chairman of the Board, testified without successful contradiction or impeachment of his testimony, that the Board carefully and independently considered Goodstein's case and unanimously reached the conclusion as a result of the several hearings accorded him, that he was not in good faith actually preparing for the ministry. Col. Craig stated that this conclusion was reached by the Board as a result of Goodstein's answers to questions, by his appearance and manner in answering them, and as a result of all the proceedings and hearings before the Board including but not based exclusively on the report of the theological panel. Particularly it was his testimony that the conclusion as to the ultimate fact as to the good faith of the relator was reached independently by the Board and not merely by an adoption by the Board of the panel's conclusion. The Board adhered to the classification of Goodstein as 1-A.

4. Goodstein then noted an appeal to the Local Selective Service Board and conferred with the Government's appeal agent with respect to his case. The appeal agent filed a statement of his interview with Goodstein on October 16, 1944. This is set out in full in the supplemental return in this case by the respondent. After a careful review of the procedure in the case, the statement of the appeal agent continued:

"The Local Board took additional testimony and evidence into consideration which was not before the Panel. The Local Board has had occasion frequently to deal with claims for exemptions by students of the rabbinical school of which Rabbi Quinn is the Registrar and...