United States v. George Llewellyn Jones, III

468 F.2d 454, 1972 U.S. App. LEXIS 7041

Opinions

OPINION ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

ADAMS, Circuit Judge.

This controversy is here once again,¹ this time on remand from the United States Supreme Court where the Solicitor General, in a memorandum, confessed error and urged vacation of this Court’s judgment and reversal of appellant's conviction. Under these circumstances, we reverse the conviction without prejudice to the Selective Service System’s reprocessing of appellant.

Appellant was convicted of willful refusal to submit to induction, in violation of 50 U.S.C. App. § 462(a). He registered with his local draft board in August 1964 and was classified I-A. In October, 1964, upon matriculation at college, he was reclassified II-S. After graduation from college in 1968, he received a I-A classification. On November 21, 1968, after a pre-induction physical examination, appellant was found acceptable for military service. On that day he requested a conscientious objector Form 150 which he returned completed on December 20, 1968. In the form, appellant made detailed statements about his beliefs, but submitted no letters in support of his application for C. O. status.² He requested a personal appearance to discuss his claim with the board members; the request was granted. After appellant’s appearance on February 2, 1969, the local board voted unanimously not to reopen his classification. No reasons were given for its action. He was informed of the board’s decision and advised of his right to an administrative appeal.

On March 11, 1969, appellant informed the local board of his intention to appeal. A number of letters were submitted to the local board attesting to his sincerity.³ Jones also filed with his notice of appeal a supplementary statement explaining in detail the crystallization of his objector beliefs.⁴ These letters and appellant’s supplemental statement were included in his Selective Service file which was then forwarded to the State Appeal Board. On July 25, 1969, the Appeal Board voted unanimously to retain appellant in Class I-A. It gave no reasons in support of its decision. On August 20, 1969, appellant was ordered to report for induction. When the time for induction came, he refused to take the symbolic step forward. After a non-jury trial in the district court, Jones was convicted, and this Court affirmed in a 2-1 decision.

Jones then sought a writ of certiorari from the Supreme Court within the time period provided by the rules. The Solicitor General submitted a memorandum to that Court in which he stated that “petitioner had satisfied the prima, facie requirement,” and that “the failure of [the State Appeal Board] to state reasons for its classification decision was sufficiently prejudicial to invalidate the induction order.” The Solicitor General concluded that “the judgment of the court of appeals should be vacated and the judgment of conviction should be reversed.” The Supreme Court, in an order dated June 19, 1972', vacated the judgment and remanded the case to this court “for reconsideration in light of the position presently asserted by the Government.”

A careful review of the record clearly indicates that the information contained in Jones’ Selective Service file, including his supplemental letter, forwarded by the local board to the Appeal Board constitutes a prima facie claim of conscientious objection under 50 U.S.C. App. § 456(j).⁵ Because a prima facie case was presented at least to the Appeal Board,⁶ that body was obliged, in rejecting his claim, to state reasons for its denial. In the absence of such a statement of reasons by an appeal board, despite the existence of a prima facie case, a subsequent induction order is invalid.⁷ This Court can no more exercise effective review over an appeal board decision failing to state reasons than it can over such determinations by local boards.⁸ For this reason, Appeal Boards, as well as local boards,⁹ must state reasons for a denial of a request for conscientious objector status when a prima facie case is presented.

Moreover, any disposition by this Court other than a reversal of Jones’ conviction would offend the letter as well as the spirit of the rule recently enunciated in Cale v. Volatile, 465 F.2d 1110 (3d Cir., filed Sept. 7, 1972). In that case, the Government took a position different from that which it had taken in another case. In an opinion by Judge Aldisert, this Court said: “If this was the position taken by the government in confessing error in Joseph, a selective service case emanating from this circuit, . . . basic maxims of equality of justice compel us to require the government to maintain a consistent position in the case at bar.”

Here, the Government has confessed error before the Supreme Court, in this very same case. Under these circumstances, stronger than those prompting the Court in Cale to require the Government to maintain consistent positions, appellee will not be heard to suggest that other than a prima facie case was presented to the Appeal Board and that, therefore, that body was not obliged to state reasons for its denial of appellant’s claim.

In view of the above, the judgment of convictions will be reversed. However, such reversal does not declare Jones to be a conscientious objector, nor does it relieve him of his obligation to the country. Instead, Jones is still in I-A status with an application for a 1-0 classification pending. His local board now has the responsibility, if it chooses to reprocess Jones, of interviewing him again to determine the validity of his C.O. claim. If found to be entitled to I — O status, Jones will be required to perform two years of alternate service. If the local Board denies his claim, it will state its reasons and reprocess Jones for induction.¹⁰

It is often tempting in cases of this kind to read into the law one’s own private notions of policy. This, however, we are not justified in doing, no matter how deep the feeling about these notions, and no matter how mischievous we deem their disregard. The task of a judge is not that of an ordinary citizen. To discharge his duty properly, he must frequently suppress his personal views, and be ever mindful that in the final analysis, the only check upon the exercise of judicial power is a sense of self-restraint.

1 . See United States v. Jones, 456 F.2d 627 (3d Cir., filed Feb. 4, 1972).

2 . In his Form 150, Jones stated that although friends had offered to write letters in his behalf, he had rejected their offers since “they are [not] fully aware of my true feelings. . . . If it is necessary, I will ask these people to write references concerning my sincerity only.”

3 . See fn. 2, supra.

4 . Under 32 C.F.R. § 1626.12 such a statement may be filed with the appeal. An appeal board, though restricted to reviewing information “contained in the record received from the local board,” 32 C.F.R. § 1626.24(b)(1), may consider the registrant’s written statement. See United States v. Speicher, 439 F.2d 104, 107 (3d Cir. 1971). An appeal board examines a registrant’s claim de novo. Bee fn. 8, infra.

5 . The dissent heavily relies on trial testimony in attempting to establish that Jones did not present a prima facie case before the Appeal Board. However, because an indictment for violation of 50 U.S.C.App. § 462 is necessarily based upon the registrant’s response to local board action occurring before trial — the order to report for induction — determining whether a challenged indictment should be dismissed must logically depend solely on the validity of the board’s action. Any evidence later adduced at trial cannot cure the defect. See United States v. Brown, 436 F.2d 1317, 1319 (3d Cir. 1971) (en banc). Here, the Selective Service file reveals only that Jones’ opposition is to war in any form. The record gives no indication of what transpired during Jones’ personal appearance before the local board, and since the Appeal Board did not discuss the conscientious objection claim with Jones, its decision could not have been based on any statements made at trial. Under these circumstances, consideration of the validity of the indictment and the underlying local board order must be limited to the contents of Jones’ Selective Service file, which included the supplemental letter relied upon by the Solicitor General, but not referred to in the dissenting opinion. Bee fn. 5, infra.

6 . In his memorandum submitted to the Supreme Court, the Solicitor General conceded that appellant “had satisfied the prima facie requirement,” before the Appeal Board.

7 . Cf. United States v. Ziskowski, 465 F.2d 480 (3d Cir. 1972); United States v. Stephens, 445 F.2d 192 (3d Cir. 1971); United States v. Crownfield, 439 F.2d 839 (3d Cir. 1971); United States v. Speicher, 439 F.2d 104 (3d Cir. 1971).

8 . See United States v. Speicher, 439 F.2d 104 (3d Cir. 1971), in which this Court said : “The theory, apparently, is that judicial review of two administrative agency actions unsupported by reasons is somehow less futile than judicial review of one such action. We think not.” Id. at 107. Cf. Joseph v. United States, 405 U.S. 1006, 1012 n. 3, 92 S.Ct. 1274, 31 L.Ed.2d 473 (1972) (summary disposition) (Douglas, J. dissenting).

9 . Appeal Boards do not, in fact, exercise the typical powers of review. Instead, they decide cases de novo, see United States v. Speicher, 439 F.2d 104, 107 (3d Cir. 1971), and have the power to reclassify. 32 C.F.R. § 1626.26. “It is universally held that the Appeal Board considers matters of classification de novo and its classification is one of first instance, not a mere affirmance or reversal of the Local Board. . . . ” DeRemer v. United States, 340 F.2d 712, 719 (8th Cir. 1965). See McGee v. United States, 402 U.S. 479, 489, 490, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971), affg. 426 F.2d 691, 699 (2d Cir. 1970). Under these circumstances, the principle requiring the local board to state reasons when denying a prima facie claim for conscientious objector status must apply to decisions by the Appeal Board as well.

10 . Under the new Selective Service Regulations enacted pursuant to § 22 of the Draft Extension Act, Pub.L. 92-129 (1971), 85 Stat. 353, the local board must state reasons for any decision adverse to the claim of the registrant. 32 C.F.R. § 1625.4.