Julita David Robertson v. United States ( 1969 )

AINSWORTH, Circuit Judge;

Appellant Julita David Robertson, a Jehovah’s Witness, having waived jury trial, was tried and convicted by the District Judge for failure to report as a conscientious objector for civilian employment in lieu of military service, in violation of 50 U.S.C. App. § 462. He appealed on the principal ground that the local Selective Service board improperly declined to grant him a ministerial exemption and therefore that his conviction was erroneous. A panel of this Court, by a 2-to-l vote, reversed the conviction. Robertson v. United States, 5 Cir., 1968, 404 F.2d 1141. On motion of one of the regular active judges of this Court (see Federal Rules of Appellate Procedure, Rule 35), en banc rehearing was ordered. We conclude on rehearing that the judgment of conviction below should be affirmed, and accordingly reverse the decision of the panel of this Court.

Robertson, then 18 years of age, registered with his local board at Gulfport, Mississippi, on February 11, 1963 and was classified thereafter as II-S (student). He withdrew from school on January 14, 1965, and was classified 1-0 (conscientious objector) on March 12, 1965, and 1-0 Acceptable on August 13, 1965. No appeals were taken by him from these classifications nor did he seek a personal interview with the local board about them. After he left school he had no employment except various odd jobs such as grass cutting and occasionally photography. He lived at home with his parents who supported him and gave him an allowance of $10 per month.

On August 13, 1965, he was mailed a Special Report for Class 1-0 Registrants and informed that under Selective Service Regulations he was required to submit to the local board three types of approved civilian work “which you are qualified to perform and which you offer to perform in lieu of induction into the Armed Forces.” His response on August 17,1965, was that he had chosen the ministry as his primary purpose in life and was submitting it as “my first choice and my only preference of civilian work.”

On August 27, 1965, he was given a conference with Colonel Shed H. Weeks, Chief, Administrative Division, Mississippi State Headquarters, Selective Service System, at the local board office in Gulfport, Mississippi, where in company with his father and two other Jehovah’s Witness workers he met with Colonel Weeks to discuss his eligibility for a IV-D (minister’s) classification. He was given the reasons why he was not now eligible for such classification and was instructed as to how he could qualify under the Selective Service Regulations. He was informed of the requirements to qualify as a Regular Pioneer preacher, Congregational Servant and Assistant Congregational Servant of his religious sect, and was told that he must be putting in enough time in his preaching activities to consider this as his vocation and must be preaching regularly. At that time he told Colonel Weeks that he was not attempting to get a IY-D (ministerial) classification and further said that he was not qualified either under Selective Service Regulations or requirements of the Watchtower Bible and Tract Society (Jehovah’s Witnesses). On the same day his local board sent a letter to him submitting three types of work in the Mississippi State Hospital deemed appropriate for him to perform in lieu of induction into the armed forces. He was informed that he would work as a civilian, in civilian clothes and be paid the prevailing wage scale by the hospital and would be given the rights and privileges offered all other civilian employees of similar employment, that his work would be under the direct supervision of the hospital.

Robertson came to the local board office on September 3, 1965, and submitted two letters signed by fellow Jehovah’s Witnesses stating that he averaged 30 to 40 hours each month in the ministry, that he attended Congregation Book Study every Tuesday night, Theocratic Ministry School and Service Meeting Friday night and the study of the Bible on Sunday afternoon, that he assisted his Magazine-Territory Servant, was engaged as a Vacation Pioneer, and had applied for Regular Pioneer appointment. He declined to say whether he would perform any kind of civilian work in lieu of going into the armed forces.

On September 8, 1965, he wrote to his local board declining to accept civilian employment in lieu of induction, stating he had chosen the full-time ministry as “my goal in life.” At that time he submitted two additional statements from fellow Jehovah’s Witnesses, one of which indicated he was spending 30 to 35 hours a month in the ministry, that he was attending a Theocratic Ministry School every week, was assistant to the Magazine-Territory Servant and was engaged as a Vacation Pioneer. On September 14, 1965, he submitted to the local board office a retroactive two-week Vacation Pioneer Appointment dated September 2, 1965, appointing him to serve as a Vacation Pioneer Minister from August 18 to August 31, 1965. Robertson’s Selective Service File discloses that on September 15, 1965, the local board met and “registrant’s file was studied by them carefully.” The board digested the Watehtower Society letter of September 2, 1965, and the two-week retroactive Vacation Pioneer Appointment of registrant, reviewed “other statements and reports in his file, and from their interpretation of Local Board Advice No. 97 and other Memorandums and Selective Service Regulations, they were under the impression that this registrant had only recently applied for appointment as a vacation pioneer and had not * * * made application for appointment as a regular pioneer, nor would he qualify if he had.” The board strongly suspected registrant “was stalling for time.” No action was taken at that time by the board.

A regular meeting of the local board was held on October 14, 1965, at which time Robertson was present with members of the board and Colonel Weeks of Selective Service Headquarters. At that time an effort was made to reach an agreement with the registrant as to the type of work he should be ordered to perform in lieu of induction. The minutes of the board show in part :¹ /‘Before discussing the type of work that the registrant should perform, the local board again reviewed the file concerning the registrant’s preaching activities. The local board reviewed photostatic copy of Vacation Pioneer appointment of the registrant and letters of friends and brothers concerning the registrant’s ministerial activities.” The registrant stated, as he had to Colonel Weeks on August 27, 1965, that he did not qualify for a full-time minister as required by the Watchtower Society and that he was not requesting or expecting a IV-D ministerial classification. He declined to accept civilian work at the Mississippi State Hospital or any other type of approved work. He was then informed that his file would be submitted to National Headquarters for their approval to authorize the local board to order him to civilian work at the Mississippi State Hospital. The registrant was orally advised by the board that they would not reopen his classification and classify him anew as he had no new evidence and did not qualify as a minister.

On October 18, 1965, four days later, the board received from registrant a copy of a two-month Vacation Pioneer Appointment dated September 23, 1965, appointing Robertson as a Vacation Pioneer Minister from September 1 to October 31, 1965. Also submitted was a letter from the Watchtower Society to Robertson dated September 20, 1965, stating that Robertson did not “meet all of the established requirements for the regular pioneer service” as to hours, back-calls and Bible studies, and “Since this is the case, we are not able to appoint you to the regular pioneer service at this time.” The letter stated that the appointment would be from October 1, 1965, through January 31, 1966, although as issued three days later it was only for a two-month period, September 1 to October 31, 1965. The postscript to the letter stated, “In view of the fact that your ministry is quite low, you will want to strive to build it up by giving attention to all features of the work.” (Emphasis added by the Court.)

On November 2, 1965, the local board, having obtained the necessary approval from National Headquarters to do so, mailed to Robertson an Order to Report for Civilian Work at its office on November 15, 1965, to receive instructions for proceeding to the place of employment (the Mississippi State Hospital) in lieu of military service. Robertson, then 20 years old, was called up in regular order by the board according to birth date. He failed to report on November 15, 1965, as ordered. After receiving the order to report of November 2, 1965, he wrote a letter to the local board dated November 8, 1965, requesting that the board reopen his classification and that he be accorded a personal appearance before the board on the basis of his ministerial claim. He attached the Watchtower Society letter of September 20, 1965 (the same letter submitted by him to the board on October 18, 1965), relating to his appointment as a Vacation Pioneer, and further stated that he had spent 100 hours in the full-time ministry during the month of October 1965.

With the increased number of Selective Service cases which have come before the federal courts in recent years, certain principles of law have evolved which are now well known. The scope of review in draft cases is very limited, and the range of review is the narrowest known to the law. The courts do not sit as super draft boards, substituting their judgments on the weight of the evidence, nor should they look for substantial evidence to support such determinations. Decisions of local boards are final and the courts are not to weigh the evidence to determine whether the classification made by local boards is justified, for their decisions made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no “basis in fact” for the classification which it gave the registrant. The registrant bears the burden of clearly establishing his right to the ministerial exemption. The Selective Service Act requires that such a person must be a regular minister of religion and one “who is recognized by such church, sect, or organization as a regular minister.” (50 U.S.C.App. § 466(g) (2).) Therefore, there must be regularity of religious activities, a vocation rather than an avocation, and a recognized standing as a minister to a congregation or leader of a group of lesser members of registrant’s faith. See generally McCoy v. United States, 5 Cir., 1968, 403 F.2d 896; Camp v. United States, 5 Cir., 1969, 413 F.2d 419; Clay v. United States, 5 Cir., 1968, 397 F.2d 901; Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953); Wood v. United States, 5 Cir., 1967, 373 F.2d 894, reversed on other grounds, 389 U.S. 20, 88 S.Ct. 3, 19 L.Ed.2d 20 (1967); Matyastik v. United States, 5 Cir., 1968, 392 F.2d 657; Greer v. United States, 5 Cir., 1967, 378 F.2d 931; Foster v. United States, 5 Cir., 1967, 384 F.2d 372; Jones v. United States, 5 Cir., 1968, 387 F.2d 909; Fitts v. United States, 5 Cir., 1964, 334 F.2d 416.

We have carefully examined the facts in this case in light of the above principles of law, and we are convinced that there was not only a “basis in fact” for the local board’s denial of a ministerial exemption to appellant, but that the board’s findings were correct. The record indicates that the board gave patient and deliberate consideration to appellant’s case over a long period of time, and that it considered all of the applicable facts. Prior to receiving the November 2, 1965 notice to report for civilian work, the only supporting evidence which appellant furnished the local board of his ministry were several written statements from fellow Jehovah’s Witnesses that he was spending 30 to 40 hours per month in the ministry as a Vacation Pioneer, assistant to the Magazine-Territory Servant and attendant at the Congregation Book Study and Theocratic Ministry School once a week. All of these statements were considered by the board at its October 14,1965 meeting, as they had at the September 15, 1965 meeting as well. By definition, Vacation Pioneers are not regular ministers of the Watchtower Society. They are on the Pioneer List temporarily, as we said in McCoy v. United States, supra, 403 F.2d at 901. The Superintendent of Ministers and Evangelists of the Watchtower Society, T. J. Sullivan, described a Vacation Pioneer appointment as follows: “It is an arrangement whereby persons can engage in the Pioneer ministry for shorter periods, such as when one is on vacation or when one is free for a month or two or longer and can engage in the Pioneer ministry.” We also pointed out in McCoy, supra at 901, that according to a memorandum to the National Selective Service Appeal Board by Hayden Cov-ington, General Counsel of Jehovah’s Witnesses, the Watchtower Society would not contend for a IV-D classification for Jehovah’s Witnesses except for those who qualify as Pioneers and as a Congregation Servant and who are devoting their time to ministerial work sufficiently to claim it as their vocation rather 'than their avocation. The Pioneers to which Mr. Covington referred are a Regular Pioneer who is required to spend an average of 100 hours per month or a total of 1,200 hours annually in ministerial work, and a Special Pioneer who is required to put in an average of 150 hours per month. Thus Robertson, a Vacation Pioneer, did not qualify for the ministerial exemption even within the hierarchy of that religious sect. His situation was therefore similar in that respect to that of McCoy. See McCoy v. United States, supra at 901. Nevertheless, independently of this consideration, the local board reviewed all of the facts pertaining to Robertson’s case at the September 15, 1965 meeting and again at the October 14, 1965 meeting, at the latter of which appellant Robertson was personally present and Colonel Weeks of the State Selective Service Headquarters was also in attendance. The minutes of the October 14, 1965 meeting clearly show that the local board reviewed, as it was its duty to do, all of the facts pertaining to appellant’s “preaching activities” and that it reviewed the photostatic copy of the Vacation Pioneer Appointment as well as letters of friends and religious brothers concerning appellant’s ministerial activities. It is contrary to the evidence of record, therefore, to say that Robertson’s request for a ministerial exemption was denied solely due to the fact that he was only a Vacation Pioneer. Denial of the IV-D classification was based on all of the facts and circumstances which the board believed were insufficient to justify such a classification. We are convinced from the evidence of record that the local board considered all of the facts and circumstances of appellant’s case which they received from appellant, together with copies of Vacation Pioneer Appointments and letters of fellow Jehovah’s Witnesses attesting to the extent — limited though it was — of his ministerial activities. The evidence fell far short of substantiating a full-time ministry as a vocation for appellant. None of the Vacation Pioneer Appointments to Robertson constituted a certificate that he was spending 100 hours per month in the ministry. One hundred hours was a goal toward which a Vacation Pioneer aspired. The two-month appointment dated September 23, 1965 stated in part: “Arrange to devote at least 100 hours to the ministry each month of your vacation pioneer service.” It was likewise apparent that appellant did not have a recognized standing as a minister to a congregation or leader of a group of lesser members of his faith, which is critically important and necessary under the Selective Service law. McCoy v. United States, supra at 901; United States v. Hull, 4 Cir., 1967, 391 F.2d 257. We are satisfied, therefore, that a “basis in fact” existed for the denial of ministerial exemption claimed by appellant, and that it was established not from any single fact or circumstance as controlling but from the record as a whole. Cf. Swaczyk v. United States, 1 Cir., 1946, 156 F.2d 17, 19.

Nor was the local board required to reopen appellant’s classification pursuant to his written request of November 8, 1965 (six days after the November 2, 1965, Order to Report for Civilian Work). The local board considered the documents attached to this letter, but did not believe there was any new evidence. Selective Service Regulations, 32 C.F.R. § 1625.2,² provide that a local board may reopen and consider anew the classification of a registrant upon his written request “if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant’s classification.” The same regulation also provides, however, that the classification shall not be reopened after the local board has mailed to the registrant an Order to Report for Civilian Work “unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” There were, of course, no changed circumstances over which the registrant had no control which might have brought about a change in his status. For this reason the local board had no authority under the circumstances to reopen the registrant’s classification after the order to report for civilian work had already been mailed. See United States v. Arthur C. Banks, III, 5 Cir., 1969, 413 F.2d 435. Nor was the board required by the circumstances of the case to exercise its discretion to reopen the classification as a result of information submitted by the registrant in his personal appearance before the board on October 14, 1965, or thereafter on October 18, 1965, when he filed a copy of the Vacation Pioneer Appointment for the period September 1 to October 31, 1965 with the board. The board was already familiar with his Vacation Pioneer status, a temporary ministry, and with the facts which surrounded it. Registrant had not made out a prima facie case for reopening of his classification. None of the evidence submitted by the registrant was sufficient to warrant reclassification of registrant. The board, therefore, had no duty to reopen his case, and did not abuse its discretion in declining to do so. Nothing we said in McCoy v. United States, 5 Cir., 1968, 403 F.2d 896, requires a different result — to the contrary, the conclusion we reach here is in accord with the principles and holding in McCoy.

Proceedings before a draft board are not stages in a criminal prosecution, and there, therefore, is no merit to appellant’s contention that Selective Service Regulations are constitutionally deficient under the Fifth and Sixth Amendments in denying the right to assistance of counsel, to compulsory attendance and confrontation of witnesses, or to silence and freedom from incrimination in such proceedings. McCoy v. United States, 5 Cir., 1968, 403 F.2d 896, 904; Merritt v. United States, 5 Cir., 1968, 401 F.2d 768, 769.

The judgment of the panel of this Court is therefore reversed, and the judgment of conviction entered in the District Court is affirmed.

1 . The full text of the minutes is as follows:

“SUMMARY OF LOCAL BOARD MEETING WITH REGISTRANT IN ACCORDANCE WITH SECTION 1660.20 (C) OF THE REGULATIONS

“Subject: ROBERTSON, Julita David SS No 22 26 45 35

“In accordance with Section 1660.20 (c) of Selective Service Regulations, the local board met with the subject registrant and the representative of the State Director in an effort to reach an agreement as to the type of work that the registrant should be ordered to perform in lieu of induction into the armed forces.

“Local board members present were Dr. John B. Anderson, Chairman; Mr. Alex W. Roy, Jr.; Mr. Joe M. Petro; and Mr. Claude B. Lundy, Jr. Local board clerks present were Mrs. Virginia R. Hall, Clerk; and Mrs. Carole May-atte, Assistant Clerk. Lt. Colonel Shed H. Weeks, Mississippi State Headquarters, represented the State Director of Mississippi at this meeting.

“Before discussing the type of work that the registrant should perform, the local board again reviewed the file concerning the registrant’s preaching activities. The local board reviewed photostatic copy of Vacation Pioneer appointment of the registrant and letters of friends and brothers concerning the registrant’s ministerial activities. The local board asked the registrant if he felt he was qualified for a IV-D classification under the criteria of Selective Service Regulations. He not only replied in the negative, but stated that he did not qualify for a full-time minister as required by the Watehtower Bible and Tract Society. The registrant further stated that he was not requesting or expecting the local board to grant him a IV-D classification, therefore the type of civilian work for him to perform in lieu of induction was then discussed. Colonel Weeks explained to the registrant the type of work that was available at approved agencies in Mississippi. The local board advised the registrant that rehabilitation work located at Mississippi State Hospital, Whitfield, Mississippi was available for him to perform in lieu of induction, along with other acceptable types of work. The local board then asked the registrant if he had any work that he would be willing to perform if approved by the Selective Service. He stated that he did not. They then offered him rehabilitation work located at Mississippi State Hospital, Whitfield, Mississippi, which he declined to accept. He was then asked if he would accept approved work at any other approved agencies in this state or any other state, which he also declined to accept. He was then informed that his file would be submitted to National Headquarters for their review and approval for the local board to order him to rehabilitation work which was available and which he was qualified to perform, located at Mississippi State Hospital, Whitfield, Mississippi. The board further declined to reopen his classification and classify him anew.

“FOR THE LOCAL BOARD: /s/ Mrs. Virginia R. Hall Mrs. Virginia R. Hall, Clerk

“This meeting held 14 October 1965 in the office of Local Board No. 26, Gulfport, Mississippi”

2 . The full text of the regulation reads as follows:

“§ 1625.2 When registrant’s classification may be reopened and considered anew.

“The local board may reopen and consider anew the classification of a registrant (a) upon the written request of the registrant, the government appeal agent, any person who claims to be a dependent of the registrant, or any person who has on file a written request for the current deferment of the registrant in a case involving occupational deferment, if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant’s classification; or (b) upon its own motion if such action is based upon facts not considered when the registrant was classified which, if true, would justify a change in the registrant’s classification; provided, in either event, the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction (SSS Form No. 252) or an Order to Report for Civilian Work and Statement of Employer (SSS Form No. 153) unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.”