United States v. Simmons, 11011.

• Decision Date: 15 June 1954
• Docket Number: No. 11011.,11011.
• Citation: 213 F.2d 901
• Parties: UNITED STATES v. SIMMONS.
• Court: U.S. Court of Appeals — Seventh Circuit

213 F.2d 901 (1954)

UNITED STATES v. SIMMONS.

No. 11011.

United States Court of Appeals Seventh Circuit.

June 15, 1954.

Hayden C. Covington, Brooklyn, N. Y., Karl M. Milgrom, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., James B. Parsons, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

Defendant was charged with willfully refusing to submit to induction into the armed forces of the United States in violation of the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 462. He admitted that he had refused to submit, but averred that the induction order was void by reason of the invalidity of his selective service classification which denied his claim of exemption from service as a conscientious objector. This appeal followed a judgment of conviction entered by the court sitting without a jury.

We are faced with a situation where repetition of certain basic concepts may not be amiss. The issues before us, subject as they are to exaggerated emotionalism, are difficult for an impartial arbiter since they demand reconciliation of an apparent conflict between a paramount right of freedom of conscience and religion and an equally paramount duty of every individual to defend his sovereign nation. This conflict is ably discussed in United States v. Tetsuo Izumihara, D.C., 120 F.Supp. 36. Congress, as the legislative voice of the sovereign, might have demanded unequivocal support from every person within its jurisdiction when it framed the selective service laws. As an obvious expression of conviction that greater strength lay in the preservation thereby afforded to freedom of conscience than in universal participation in the armed forces, Congress provided an exemption from military service to those who, by reason of their religious training and belief, are conscientiously opposed to participation in war. 50 U.S. C.A.Appendix, § 456(j). This exemption, however, is an exception to a general statute applicable to "every male citizen" within a defined age group, 50 U.S.C.A.Appendix, §§ 453, 454(a), and is, therefore, a privilege extended by legislative grace. To avail one of this privilege, application must be made to the agency established by the statute, the local board, which is empowered to decide each such claim of privilege, subject to administrative appeal as provided by statute. 50 U.S.C.A.Appendix, § 456 (j).

The task of probing into and intelligently appraising the conscience of another is a difficult and unhappy one; but we should bear in mind that Congress has imposed this onus not upon the courts but upon the local board whose orders "within the respective jurisdictions" are expressly made final "subject to the right of appeal to the appeal boards herein authorized". 50 U.S.C.A. Appendix, § 460(b) (3). See United States v. Adamowicz, D.C.N.D.Ill., 119 F.Supp. 635. Judicial review of such orders is severely restricted. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567. Our duty is done if we be solicitous that our decision on the issues before us accords to the individual defendant due process of law without losing sight of the full purpose of the Act which Congress has determined to be in the best national interest.

The teachings applicable to the general field of administrative law are of little aid in judicial review of orders issued by the selective service agencies. The phrase "within the respective jurisdictions" employed in 50 U.S.C.A.Appendix, § 460(b) (3) has been interpreted to limit finality of such orders to those which the administrative agency has jurisdiction to make. In the language of the Supreme Court, this jurisdictional question is reached by the courts in any case "only if there is no basis in fact for the classification which an administrative board gave the registrant." (Emphasis supplied.) Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 427.

Though the scope of judicial review within the "basis in fact" concept lacks exact definition, certain definite conclusions follow from pronouncements by the court in Estep and subsequent cases. Obviously the burden is on the claimant to prove himself to be within the group entitled to claim the privilege. The court reviewing an order denying such a claim of privilege may not weigh the evidence. The selective service file may be scrutinized only for the narrow purpose of determining whether any factual basis supports the classification, and in its scrutiny the reviewing court may not require adherence by the administrative body to the niceties of judicial rules of evidence. When and if the court determines that the contested order rests on a basis in fact, its jurisdiction ends, even though the court be convinced that the order is erroneous. See generally Estep v. United States, supra; Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152; Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L. Ed. 59; Eagles v. U. S. ex rel. Samuels, 329 U.S. 304, 67 S.Ct. 313, 91 L.Ed. 308; Eagles v. U. S. ex rel. Horowitz, 329 U.S. 317, 67 S.Ct. 320, 91 L.Ed. 318; Gibson v. United States, 329 U.S. 338, 67 S.Ct. 301, 91 L.Ed. 331.

Defendant contends, on authority of Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, that the denial of a conscientious objection claim has a basis in fact only when the board has procured affirmative evidence which contradicts the representations made by a registrant in his application for exemption, — that the board must make a record to support its order. The Dickinson opinion has been so construed in Weaver v. United States, 8 Cir., 210 F.2d 815, 822-823; Schuman v. United States, 9 Cir., 208 F.2d 801; and Jewell v. United States, 6 Cir., 208 F.2d 770, 771. However, we do not read the decision as authority for this proposition.

Dickinson was convicted of refusing to submit to induction into the armed forces in violation of an order based on a selective service determination that he was not entitled to a claimed minister of religion classification. After reaffirming the "basis in fact" test of Estep, the court found no factual basis in the record to support the denial of the claimed exemption. The court said, 346 U.S. at pages 396-397, 74 S.Ct. at page 157: "The court below in affirming the conviction apparently thought the local board was free to disbelieve Dickinson's testimonial and documentary evidence even in the absence of any impeaching or contradictory evidence. * * * However, Dickinson's claims were not disputed by any evidence presented to the selective service authorities, nor was any cited by the Court of Appeals. The task of the courts in cases such as this is to search the record for some affirmative evidence to support the local board's overt or implicit finding that a registrant has not painted a complete or accurate picture of his activities. We have found none here. (The court then states that local boards are not bound by traditional rules of evidence and that courts may not apply a test of substantial evidence.) However, the courts may properly insist that there be some proof that is incompatible with the registrant's proof of exemption. * * * when the uncontraverted evidence supporting a registrant's claim places him prima facie within the statutory exemption, dismissal of the claim solely on the basis of suspicion and speculation is both contrary to the spirit of the Act and foreign to our concepts of justice." Thus the court says that once a registrant has made out a prima facie case, which is not contradicted, a denial of the exemption claimed is without factual basis. We cannot apply this principle generally to every case without regard to the quality of the proof made by the registrant.

Furthermore, this language must be interpreted in the light of the claim and proofs made by Dickinson. Thus, a distinction must be drawn, we believe, between a claim of ministerial status and a claim of conscientious objection status as to susceptibility of proof. Whether a registrant is a minister in the statutory sense, having as his principal vocation the leadership of and ministering to the followers of his creed, is a factual question susceptible of exact proof by evidence as to his status within the sect and his daily activities. No search of his conscience is required. Even though the only tenet of his cult be a belief in war and bloodshed, he still would be exempt from military service if he were, in fact, a minister of religion. Is he affiliated with a religious sect? Does he, as his vocation, represent that sect as a leader ministering to its followers? These questions are determinative and subject to exact proof or disproof.

The conscientious objector claim admits of no such exact proof. Probing a man's conscience is, at best, a speculative venture. No one, not even his closest friends and associates, can testify to a certainty as to what he believes and feels. These, at most, can only express their opinions as to his sincerity. The best evidence on this question may well be, not the man's statements or those of other witnesses, but his credibility and demeanor in a personal appearance before the fact-finding agency. We cannot presume that a particular classification is based on the board's disbelief of the registrant, but, just as surely, the statutory scheme will not permit us to burden the board with the impossible task of rebutting a presumption of the validity of every claim based ofttimes on little more than the registrant's statement that he is conscientiously opposed to participation in war. When the record discloses any evidence of whatever nature which is incompatible with the claim of exemption we may not inquire further as to the correctness of the board's order.

Conscientious objector cases cannot be rationalized as defendant's argument would have us do and as some courts seemingly have tried to do. Affiliation with a particular...