United States v. Norris, 14642.

• Decision Date: 10 February 1965
• Docket Number: No. 14642.,14642.
• Citation: 341 F.2d 527
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Andrew NORRIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

341 F.2d 527 (1965)

UNITED STATES of America, Plaintiff-Appellee, v. James Andrew NORRIS, Defendant-Appellant.

No. 14642.

United States Court of Appeals Seventh Circuit.

February 10, 1965.

Richard C. Ver Wiebe, Fort Wayne, Ind., for appellant.

Alfred W. Moellering, U. S. Atty., Joseph F. Eichhorn, Fort Wayne, Ind., for appellee.

Before DUFFY, CASTLE and KILEY, Circuit Judges.

KILEY, Circuit Judge.

Norris, a Jehovah's Witness, appeals from his conviction by a jury of failure to report for civilian work in lieu of induction under the Universal Military Training and Service Act, 62 Stat. 604, 50 U.S.C.App. § 451 et seq. We affirm the conviction.

He was classified I-A by his Indiana Local Board and the classification was changed by the Appeal Board to I-O (conscientious objector) and he was denied a ministerial exemption. After the Appeal Board's classification, Norris was ordered by his Local Board to report for civilian employment. He disobeyed the order, and his indictment followed.

Before submitting to the jury the factual issue of Norris' wilful failure to report for civilian work the district court decided on examination of his Selective Service file that there was a basis in fact for the Appeal Board's I-O classification and its refusal to grant Norris a ministerial exemption.

In his original classification questionnaire in 1957 Norris claimed that he was a minister, though not regularly serving as one, that he was studying for the ministry, and that he was a conscientious objector. His claim to ministerial status was based on his baptism in 1953, at the age of fourteen. During 1961 he described himself variously to Selective Service authorities as "appointed Minister," "Ministerial Assistant," and "bible study conductor." One of Norris' superiors in the congregation described him to the Local Board as an "appointed Servant."

Norris stated in answer to a 1961 questionnaire that he spent twenty-eight hours a month training others, twelve hours a month giving public sermons, thirty-two hours a month instructing others, twenty hours a month attending ministry school and twenty hours a month distributing literature. He also stated that there were ninety-three members in his congregation, eight of whom were ministers. Supporting letters submitted by the leaders of Norris' congregation are vague as to the extent of his ministerial work, stating only that he assisted the leaders of the congregation and that "he has been given the responsibility of caring for and aiding a small group of witnesses within our Congregation."

Norris claimed that his secular work as a shipping clerk, at which he worked forty hours and earned $72.14 net a week, was necessary for him to support his dependent parents and minor sister and that this employment did not interfere with his ministry in any way. The Assistant Presiding Minister in his letter, however, stated that this secular employment did "to some degree" interfere with Norris' ministry. The file shows that Norris had failed to complete high school and that all of his prior employment had been unskilled labor. He also continually advanced, seemingly as alternate bases for his claim to an exemption, that he supported his parents and minor sister and that he was a conscientious objector to both military and non-combatant training and service.

When ordered by his Local Board to report for civilian work, Norris was in California. He was given an opportunity by the Local Board to select an approved employer for civilian duty and he chose the Watchtower Tract and Bible Society. The Board informed him that the Watchtower Society was not an approved employer and listed three Indiana institutions from which he could choose. He then requested and was told where he could obtain a list of approved employers in California, "since I am now a resident of the state of California and am supporting my mother and father in this locality. * * *" Finally he notified the Board that since he could not be employed by the Watchtower Society he could not accept any of the civilian employment offered to him.

The ministerial exemption¹ is a narrow one, not available to all members of a religious sect "by reason of their membership, even though in their belief each is a minister." Dickinson v. United States, 346 U.S. 389, 394, 74 S.Ct. 152, 156, 98 L.Ed. 132 (1953). The Supreme Court in Dickinson also stated that "each registrant must satisfy the Act's rigid criteria for the exemption," and that "preaching and teaching * * * must be regularly performed * * * and must * * * comprise the registrant's `vocation' * * * who bears the burden of clearly establishing a right to the exemption." 346 U.S. at 395, 74 S.Ct. at 157.

It was for the Appeal Board to decide on the facts whether Norris had sustained his burden of showing that his position in his congregation was such that his removal would leave a "flock * * * without its shepherd * * *," Fitts v. United States, 334 F.2d 416 (5th Cir. 1964); United States v. Stewart, 322 F.2d 592 (4th Cir. 1963), and that this work was his vocation and not his avocation. Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152 (1953); United States v. Ranson, 223 F.2d 15 (7th Cir. 1955). The file shows that the Appeal Board had for its determination some basis in fact² and not mere speculation and suspicion. Dickinson v. United States.

Norris claims that he was denied procedural due process by the failure of the clerk of...