Wiggins v. United States, 17094.

• Decision Date: 26 November 1958
• Docket Number: No. 17094.,17094.
• Citation: 261 F.2d 113
• Parties: Elmer B. WIGGINS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

261 F.2d 113 (1958)

Elmer B. WIGGINS, Appellant, v. UNITED STATES of America, Appellee.

No. 17094.

United States Court of Appeals Fifth Circuit.

November 26, 1958.

Victor V. Blackwell, Covington, La., for appellant.

Ralph Kennamer, U. S. Atty., Thomas M. Haas, Asst. U. S. Atty., Mobile, Ala., for appellee.

Before RIVES, BROWN and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This is another case in which a Jehovah's Witness claims an exemption from selective service on the ground that he is a minister. The Court's review is directed to determining whether there was any basis in fact for the local draft board's denial of the ministerial exemption to the registrant.

Elmer Wiggins, defendant, of Bay Minette, Alabama, claimed an exemption as a minister and also claimed status as a conscientious objector. His local board classified him as a conscientious objector, denying him the ministerial exemption. On refusing to perform the civilian duty prescribed for him as a conscientious objector, Wiggins was indicted for violating the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 462. He was tried without a jury, convicted, and sentenced to serve two years in the custody of the Attorney General of the United States. He appeals to this Court. We reverse the judgment of the district court.

I.

In the Universal Military Training and Service Act Congress limited the scope of judicial review more severely than Congress usually limits review of administrative action. The Act provides that decisions of the local board are "final". 50 U.S.C.A.Appendix, § 460(b) (3). Judicial interpretation of "final" however is that it means something quite short of finality in the congressional grant of jurisdiction to local draft boards. Dickinson, following Estep, has established beyond any argument at this point that "courts may properly insist that when a local board denies a claimed exemption there must be some proof that is incompatible with the registrant's proof of exemption"; "a local board loses jurisdiction if there are insufficient facts in the record to support its conclusion¹". In applying this principle, an expanding group of cases² seems to bear out the minority opinion's construction of the majority opinion in Dickinson as to the consequences of the Estep-Dickinson doctrine: "It is not sufficient that the board disbelieve the registrant. The board must find the record affirmative evidence that he has misrepresented his case — evidence which is then put to the test of substantiality³ by the courts. In short, the board must build a record."

Wiggins' local board built no record. The board called no witnesses and made no effort whatever to put any evidence in the record (the selective service file) to rebut Wiggins' claim to exemption. We have to hold therefore that there was no basis in fact for the board's decision unless it can be found in Wiggins' own testimony and in the letters and statements he submitted to the board. This requires us to decide whether Wiggins made out a prima facie case.

II.

What constitutes a prima facie case for a registrant's ministerial exemption is especially unclear when the registrant is a Jehovah's Witness. Congregation Servants, Pioneer Ministers, Bible Study Conductors, and other members of Jehovah's Witnesses who correspond to ministers in a conventional organized religion usually do not receive a salary. They must engage in some secular work in order to earn sufficient funds to carry on their religious work. To a draft board, therefore, a Witness steadily employed and earning fifty dollars a week may seem no different from any other draftee gainfully employed — although the Witness may sincerely regard the ministry as his vocation and other Witnesses may accept him as a minister. This situation is not adequately covered in the Act and Regulations. A draft board and a reviewing court are placed in the position of balancing the secular against the religious interests and activities of the registrant with uncertain guides at best and subject to conflicting philosophies of individual board members and judges in their approach to selective service. Is a ministerial exemption a grant of legislative grace to be construed narrowly in the light of the Act's purpose that the obligation of serving in the armed forces should be shared universally and equally among all American citizens? Or is a ministerial exemption a statute of religious liberty, a draft board's actions to be scrutinized closely because of somewhat considerable authoritarian powers vested in a non-legal board? A further word from Congress would be helpful⁴.

Congress exempts from training and service "regular or duly ordained ministers of religion⁵". 50 U.S.C.A. Appendix, § 456(g). A minister is one who as his regular and customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he is a member. The term "minister" does not include a person "who irregularly or incidentally preaches and teaches * * * or who does not regularly, as a vocation teach and preach". 50 U.S.C.A.Appendix, § 466(g).

Almost without exception courts have interpreted the ministerial exemption broadly in a Jehovah's Witness case. In Dickinson the Supreme Court said:

"That the ordination, doctrines, or manner of preaching that his sect employs diverge from the orthodox and traditional is no concern of ours; of course the statute does not purport to impose a test of orthodoxy. * * * The statutory definition of a `regular or duly ordained minister\' does not preclude all secular employment. Many preachers, including those in the more traditional and orthodox sects, may not be blessed with congregations or parishes capable of paying them a living wage. A statutory ban on all secular work would mete out draft exemptions with an uneven hand, to the detriment of those who minister to the poor and thus need some secular work in order to survive. * * *" Dickinson v. United States, 1953, 346 U.S. 389, 392, 395, 74 S.Ct. 152, 157.

This Court has been consistent in construing the Act broadly, having in mind: "(1) the statute under construction is a statute of religious liberty; (2) the blood of the martyrs is the seed of the church; and (3) liberty and law must go hand in hand, neither must outrun the other". Olvera v. United States, 5 Cir., 1955, 223 F.2d 880, 883. In Pate v. United States, 5 Cir., 1957, 243 F.2d 99, 103, we said that once a registrant makes a showing that ministry is his vocation "he is entitled, not as a matter of grace but as a matter of right to the statutory exemption".

In Pate we emphasized that local draft boards must not "fit the garments of orthodoxy on a pioneer minister of Jehovah's Witnesses". We held:

"Therefore, here, in addition to the non-existence in the record of evidence to rebut the defendant\'s prima facie case, there are the further undisputed facts that the draft boards employed standards applicable to ministers of orthodox churches instead of those standards fixed in the law and applicable here, and thus erroneously held: that part time secular work, from which defendant earned all his livelihood, defeated the ministerial claim; and that, because he did not earn any part of his livelihood from his ministry, he could not be regarded as a minister. * * * Nowhere in them the Act and the Regulations is there a requirement that a minister earn his livelihood from the ministry or from a particular congregation, or that he have a pulpit before he can claim and receive classification as a minister. All that the act and regulations require in order for one to qualify as a minister and to receive the classification is that the ministry be his vocation, not an incidental thing in his life.

Similarly, in United States v. Ransom, 7 Cir., 1955, 223 F.2d 15, 18, the court pointed out:

"We cannot validly distinguish for draft purposes between ministers of Jehovah\'s Witnesses who preach from door to door and on street corners at their vocations, and ministers of more conventional faiths who preach in pulpits, teach in church schools or carry on various other religious activities for their churches."

See also Rowell v. United States, 5 Cir., 1955, 223 U.S. 863, and Williams v. United States, 5 Cir., 1934, 216 F.2d 350.

III.

We turn now to the facts on which the Board based its denial of Wiggins' claim for a ministerial exemption.

Wiggins registered April 6, 1953. He was eighteen years old. In his classification questionnaire and repeatedly thereafter he stated that he had been an ordained minister in Jehovah's Witnesses since he was twelve. He has always asserted conscientious objection to war, subject to his claim for a ministerial exemption. From the very first, he has presented numerous affidavits, certificates, and letters, from his parents, from other members of Jehovah's Witnesses, and from non-members. The board classified him as 1-A.

August 26, 1953 Wiggins appeared before the local board to ask that his classification be reconsidered. The local board refused. Wiggins appealed to the regional Appeal Board. The Appeal Board sent Wiggins' file to the Department of Justice to obtain its advice on his claim as a conscientious objector. The Department of Justice recommended a 1-O classification, as a conscientious objector. There is nothing to indicate that the Department of Justice considered the ministerial exemption. In its letter of recommendation to the board, the Department pointed out that: "The Hearing Officer stated further that no one has appeared before him who impressed him more with his uprightness, his fine character and with his genuine sincerity and truthfulness than did the registrant". We have examined the file closely. There is little doubt as to Wiggins' character and sincerity. But the local board has never questioned his character and sincerity. Still, the board classified Wiggins as a conscientious objector only.

Wiggins...