In re Kanas

385 F.2d 506
CourtCourt of Appeals for the Second Circuit
DecidedNovember 13, 1967
DocketNo. 120, Docket 31516
StatusPublished
Cited by2 cases

This text of 385 F.2d 506 (In re Kanas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Kanas, 385 F.2d 506 (2d Cir. 1967).

Opinion

FEINBERG, Circuit Judge:

Stuart M. Kanas was inducted into the Army on June 28, 1967. His father, Matthew Kanas, petitioned the United States District Court for the Eastern District of New York, on his son’s behalf, for a writ of habeas corpus. The application claimed that Stuart’s induction was unlawful because he was a cantor employed by a Jewish congregation in Pennsylvania, and thus entitled to ex[507]*507emption from the draft as a “minister of religion.” 1 On June 29, following a hearing, Judge Dooling denied the writ, but stayed his order pending this court’s review. We reverse. The writ releasing Stuart M. Kanas from the Army is granted without prejudice to any reclassification his local board finds proper following a new hearing.

From September 1961 until June 1966, the registrant was a student at the Hebrew Union College — Jewish Institute of Eeligion, School of Sacred Music in New York. There, while he studied to become a cantor, he enjoyed a II-S deferment.2 In a June 1962 letter to the local board, the Hebrew Union College described the registrant’s program and the College’s goal as follows:

The program of studies in which Mr. Kanas is currently enrolled * * * requires five full years of attendance and leads to the degree of Bachelor of Sacred Music and diploma as Cantor. Our graduates are trained to serve as qualified functionaries in conducting religious worship and other religious activities in synagogues of all denominations in Judaism.

Upon graduation, the registrant received this degree and certification as a cantor. On June 24, 1966, the registrant notified his local board, No. 66 in Flushing, New York, of the change in his status, and told the board that he had been “elected as a resident clergyman” by Congregation Melrose B’nai Israel, a synagogue in Cheltenham, Pennsylvania. On July 7, the Congregation informed the board that the registrant was employed “for an initial period of two years as Cantor and Musical Director of our Synagogue,” and that the Cantor and his wife “have taken residence close to the Synagogue.”

The local board thereupon initiated reclassification procedures; it invited the registrant to appear at the next board meeting and to bring all information pertinent to his status. The board also sent him SSS Form 127, entitled “Current Information Questionnaire.” The registrant did not attend the meeting, but completed and returned the Form; on it he characterized his job as “Cantor” and, in response to the request that he “give a brief statement of his duties,” described them as “Pastoral duties, Conduct Worship Services, Teach children in Hebrew School.” He also noted “other occupational qualifications” — “Play Saxophone & Clarinet.” On this record, without written opinion, the local board on August 10, 1966 unanimously classified registrant I-A.

By letter to the local board dated August 14, 1966, the Congregation defined [508]*508the position of “Reverend Cantor Kanas” in more detail.

He is a regular minister of our Congregation, co-officiating with the Rabbi at all worship services. As a minister of our Congregation he also has the right to perform marriages and funerals and any other such ministerial duties.
Reverend Kanas is also a teacher of the principles of our faith in our Religious School and is director of all music at the synagogue, etc.

This letter was construed as an appeal by the registrant’s employer from the I-A classification, see 32 C.F.R. § 1626.2. The Government Appeal Agent also appealed. The latter referred to the Congregation’s letter, and then stated his “strong personal belief” that IV-D should and does include cantors, because they are “vitally needed as an instrument of the Jewish religion and its observance.” He also thought that IV-D should include “lesser officers than merely ministers and priests in other religions.”

In January 1967, the New York City appeal board, two to one, upheld the I-A classification. The board found that registrant’s “regular” vocation was that of “Cantor and Musical Director,” and that “by far the major portion of his time” was spent in that capacity. Moreover, “most, if not all, of his claimed ministerial functions involve, in major degree, the exercise of his ability and qualifications as Cantor.” The board concluded, without more explanation, that these ministerial functions in his role as cantor were “more or less irregular and incidental to his duties as Cantor and Musical Director.” The board also noted the apparent “concession” of the Appeal Agent that cantors were not presently within the IV-D exemption, and refused to act in a manner which might enlarge the class of those eligible for IV-D. An appeal to the President was unavailing, and the registrant’s induction in June 1967 followed.

Judicial review of Selective Service determinations is severely limited; only if there exists “no basis in fact” for a classification will a court interfere. See United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), quoting from Estep v. United States, 327 U.S. 114, 122-123, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Cox v. United States, 332 U.S. 442, 452-453, 68 S.Ct. 115, 92 L.Ed. 59 (1947).3 This does not mean, however, that a local board is free to disbelieve all evidence in the record in the absence of any impeaching or contradictory material.

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.
******
But when the uncontroverted evidence supporting a registrant’s claim places him prima facie within the statutory exemption, dismissal of the claim soler ly on the basis of suspicion and speculation is both contrary to the spirit of the Act and foreign to our concepts of justice.

Dickinson v. United States, 346 U.S. 389, 396-397, 74 S.Ct. 152, 157-158, 98 L.Ed. 132 (1953).

We have carefully searched the record before us, and have set out its relevant portions above. We note that there is no intimation in the record that the registrant is not in fact performing full time the duties for which the congregation hired him. Moreover, the basic facts in the record appear undisputed. We find that the registrant made out a prima facie case for classification IV-D and that there is no affirmative evidence to rebut his claim. We make these findings with full awareness that the registrant must bear the burden of establishing his right to an exemption, and that the ministerial exemption is a [509]*509narrow one. See Dickinson v. United States, 346 U.S. at 394-395, 74 S.Ct. 152 at 157-158; 32 C.F.R. § 1622.1(c).

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385 F.2d 506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kanas-ca2-1967.