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United States v. Isenring

December 17, 1969

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
JAMES HAROLD ISENRING, DEFENDANT-APPELLANT



Castle, Chief Judge, Hastings, Senior Circuit Judge, and Kiley, Circuit Judge.

Author: Kiley

KILEY, Circuit Judge.

Defendant was convicted by the district court, without a jury, of willful failure to report to his draft board for civilian work after having been classified as a conscientious objector in class I-O.*fn1 He has appealed. We affirm.

After filing an initial classification questionnaire with his draft board, defendant executed and returned to the board a Special Form of Conscientious Objector. The board, following defendant's personal appearance before it, classified him I-A. He was subsequently classified I-O by the appeal board. He then met with the local board for a discussion of suitable civilian work to be substituted for military service. Later he was ordered to report for work in a hospital. He failed to report and was indicted, tried, and convicted. This appeal followed.

The issues before us are: (1) whether the civilian work order, as signed by the clerk of the board, is void as offending Selective Service Regulation 32 C.F.R. ยง 1604.59; (2) whether the order was not an order of the local board and thus violative of Section 1660.20(d); (3) whether there is basis in fact for the refusal to classify him IV-D, a minister of religion; (4) whether the board abused its discretion in refusing to reopen the I-O classification; and (5) whether the order issued at an unlawful time sequence and in violation of Section 1660.20(a), (b), (c) and (d).

Defendant's file contains a summary of the meeting held with the local board at which alternatives in civilian work were discussed. The minutes state that on February 13, 1967:

No agreement was reached between the registrant and the local board as to a type of civilian work that this registrant would perform in lieu of induction.

The local board determine that hospital work at Madison General Hospital was appropriate and available, and that the Director of Selective Service be requested to authorize the issuance of an order to the registrant to perform such work.

The clerk wrote the national director pursuant to the board's request. In a letter of April 25, 1967, the local board received authority from the national director to authorize the civilian work the board considered appropriate. The order to report thereafter issued, signed by the clerk, without a further meeting of the board to authorize the clerk to sign it.

Defendant initially contends that the order and his conviction based upon it are void because there was no proof in the record that the board authorized the clerk to sign this "official paper" under Section 1604.59.*fn2 In the absence of proof to the contrary, we believe the judicially recognized presumption in favor of the regularity of board proceedings defeats this contention of the defendant. It was incumbent upon the defendant to prove that the signing of the order by the clerk was an unauthorized action. United States v. Crowley, 405 F.2d 400, 403 (4th Cir. 1968), cert. denied, 394 U.S. 904, 89 S. Ct. 1011, 22 L. Ed. 2d 215 (1969); Rhyne v. United States, 407 F.2d 657, 660 (7th Cir. 1969).

A more substantial question is presented with defendant's second contention that the order to report for civilian work was in violation of Section 1660.20(d) because the local board did not meet, with the approval of the Director of the Selective Service, "to order the registrant to report for civilian work."*fn3

Defendant relies on Brede v. United States, 396 F.2d 155 (9th Cir. 1968) (Brede I), which held that, in order to comply with Section 1660.20(d), a local board, after receiving authorization from the national director, should then meet and order the registrant to report for civilian work. However, Brede was subsequently modified in a per curiam opinion (400 F.2d 599 (9th Cir. 1968)) (Brede II) which stated that though the order must specify the civilian job, the meeting resulting in the order need not be held after the director's approval. The modified opinion recognized as meritorious the contention that a board's recommendation following the meeting with the registrant required by Section 1660.20 may constitute an implied order to report, subject to the national director's approval, if the record discloses that the action of the board comports with its usual administrative construction and practice. Defendant argues that Brede I is the proper decision, but that even on the basis of Brede II his conviction should be reversed, since there was no evidence in the record of the administrative construction and procedure of the local boards in Wisconsin.

Since submission of briefs and oral argument in this case, two important developments have occurred which shed light on the issue now being discussed. This court in the consolidated cases, Hestad v. United States, and Cupit v. United States, 418 F.2d 1063, (1969), dealt with a situation where the facts were virtually the same as those before us. The court decided to follow Brede II as the correct interpretation of Section 1660.20(d). It determined that the essential element in both Brede decisions is that the local board must deliberate upon and approve a reasonably definite proposition ordering the registrant to report for civilian work. On the facts before it, this court set aside the district court findings that there was insufficient evidence in the record that the boards engaged in the "critical exercise of administrative judgment" required by Brede II.

The only factual difference between Hestad and Cupit and the case before us now is that in those cases, in addition to the minutes of the board meeting, there was supplemental testimony that the boards involved followed the administrative practice of all local boards in the state of Wisconsin with respect to the procedure applied ...


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