James F. McFadden v. Selective Service System, Local Board 40

Ninth Circuit

James F. McFadden v. Selective Service System, Local Board 40

423 F.2d 1291, 1970 U.S. App. LEXIS 10743

CourtCourt of Appeals for the Ninth Circuit

DecidedFebruary 12, 1970

Docket23591_1

StatusPublished

Cited by2 cases

This text of 423 F.2d 1291 (James F. McFadden v. Selective Service System, Local Board 40) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

James F. McFadden v. Selective Service System, Local Board 40, 423 F.2d 1291, 1970 U.S. App. LEXIS 10743 (9th Cir. 1970).

Pincite

Opinion

PER CURIAM.

It is the court’s view that McFadden, a registrant, is not entitled to a three-judge district court trial run on his constitutional views as ,to his draft classification. This is based on our reading of Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567; Oestereich v. Selective Service Board, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402; and Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968).

As to the 11 priests and one seminarian who appeal, we conclude that they are probably entitled to a three-judge district court to determine the issue they tender, if they show after a hearing that there is an imminent threat of their being prosecuted for their counselling. It may well be that Department of Justice policy now does not favor prosecution of counsellors, either professors or clergymen, at least until and unless the issues are resolved favorably to the Department on criminal appeals of convicted registrants which are almost certain to settle the constitutional questions.

The recent decision in United States v. Bowen, N.D.Cal., (No. 42,499, decided December 24, 1969) gives plausibility to the contention that the question the priests and seminarian present is a substantial one. If a real threat of imminent prosecution is found to exist, the district court should certify the necessity of a three-judge district court.

The order of the district court is reversed as to all appellants other than McFadden and Bowen (Bowen’s appeal has already been decided here adversely to him 415 F.2d 1140) and the case is remanded for proceedings consistent herewith.

The order as to McFadden is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

It is the court’s view that McFadden, a registrant, is not entitled to a three-judge district court trial run on his constitutional views as ,to his draft classification. This is based on our reading of Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567; Oestereich v. Selective Service Board, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402; and Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968).

As to the 11 priests and one seminarian who appeal, we conclude that they are probably entitled to a three-judge district court to determine the issue they tender, if they show after a hearing that there is an imminent threat of their being prosecuted for their counselling. It may well be that Department of Justice policy now does not favor prosecution of counsellors, either professors or clergymen, at least until and unless the issues are resolved favorably to the Department on criminal appeals of convicted registrants which are almost certain to settle the constitutional questions.

The recent decision in United States v. Bowen, N.D.Cal., (No. 42,499, decided December 24, 1969) gives plausibility to the contention that the question the priests and seminarian present is a substantial one. If a real threat of imminent prosecution is found to exist, the district court should certify the necessity of a three-judge district court.

The order of the district court is reversed as to all appellants other than McFadden and Bowen (Bowen’s appeal has already been decided here adversely to him 415 F.2d 1140) and the case is remanded for proceedings consistent herewith.

The order as to McFadden is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

423 F.2d 1291, 1970 U.S. App. LEXIS 10743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-f-mcfadden-v-selective-service-system-local-board-40-ca9-1970.

Opinion

Related

Cite This Page — Counsel Stack