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UNITED STATE EX REL. MORTON v. MCBEE

March 5, 1970

UNITED STATES OF AMERICA EX REL. JOHN FRANKLIN MORTON, PETITIONER,
v.
LT. COL. WILLIE H. MCBEE, RESPONDENT.



The opinion of the court was delivered by: Will, District Judge.

  MEMORANDUM OPINION

Petitioner came before this Court on December 1, 1969 on a petition for a writ of habeas corpus urging that this Court grant a temporary restraining order until such time as the respondent could answer or otherwise plead.*fn1

Jurisdiction of the Court is based on 28 U.S.C. § 2241(a), §§ 2241(c)(1), 2241(c)(3) and 28 U.S.C. § 1651. Respondent has not contested the propriety of our entertaining jurisdiction.

The relevant facts are as follows. Petitioner is a registrant of Selective Service Board number 216. Within the appropriate time period, he requested and was granted a personal appearance before the Board. At his appearance on September 19, 1968, petitioner requested a II-A deferment because of his activities with Volunteer Projects, Inc., a social service agency which operated under the auspices of the Department of Labor. The Board refused petitioner's II-A classification and retained petitioner within class I-A. Petitioner appealed to the Selective Service Appeal Board for the State of Illinois on December 23, 1968. The Appeal Board affirmed the local board's I-A determination.

Petitioner then sought leave of the local board in December of 1968 to reopen his classification and to apply for a I-O "conscientious objector" status based upon his "matured and crystalized" religious views. Petitioner filed the appropriate documents and claimed therein that he had presented a prima facie case for exemption as a conscientious objector. Before local board 216 reopened petitioner's classification to consider his conscientious objector's status, it mailed petitioner an induction order. That order was admittedly illegal and void. United States v. Freeman, 388 F.2d 246 (7 Cir. 1967); 32 C.F.R. sec. 1622.14. Military Selective Service Act of 1967, sec. 6(j), 50 U.S.C.App. 456(j). On February 25, 1969, the board cancelled the void induction order and reopened petitioner's classification.

Prior to a further personal appearance on the question of a I-O classification, petitioner furnished the board with additional and supplemental information supporting his religious beliefs. On May 20, 1969, petitioner appeared before the board, and on May 21, 1969 the board refused to grant his request. Another appeal was taken to the State Selective Service Appeal Board. There the local board's determination was again affirmed.

On September 1, 1969, petitioner became engaged in full time employment at the University of Illinois. Since then, he has been teaching and doing research as a member of the political science department and the public affairs department of that University. Because of this employment, petitioner again sought a II-A classification. The local board, however, refused to reopen petitioner's classification. In so refusing, the board made the finding that there was "* * * no change in your status resulting from circumstances over which you had no control."

On November 10, 1969, petitioner was ordered to report for induction at Eureka, Illinois on December 1, 1969. Petitioner reported for induction as ordered and was transported to the Armed Forces Examining and Entrance Station in Chicago. Prior to his release by order of this Court on February 16, 1970, petitioner was held in the custody of respondent, pursuant to the induction order, pending the outcome of this lawsuit.

Respondent contends that the issue is whether a "basis-in-fact" existed for the local board's denial of petitioner's conscientious objector application. He argues that such a basis in fact existed because the views expressed by petitioner are essentially political, sociological or philosophical.

Petitioner avers further that the local board failed to provide him with any ground for its determination and that such a failure deprived him of an opportunity to explain or to rebut the findings of the board on appeal and thereby avail himself of an effective administrative review.

We agree with respondent, that the issue before us is not the veracity of the petitioner, but rather whether or not there is a "basis-in-fact" for the local board's denial of petitioner's "C-O" application. Respondent is also correct in his contention that the mere fact the local board reopened petitioner's case, accorded him a personal appearance, deliberated upon his claim for exemption, denied the classification and transmitted the entire file for the Appeal Board's consideration, does not warrant the assumption that a prima facie case had been established. Considerable dispute exists as to whether or not petitioner has established a prima facie conscientious objector case. Notwithstanding, we do not pass on this question, for it is not for district courts to sit "* * * as super draft boards, substituting their judgments on the weight of the evidence for those of the designated agencies. Nor should they look for substantial evidence to support such determinations." Witmer v. United States, 348 U.S. 375, 380, 381, 75 S.Ct. 392, 395, 99 L.Ed. 428 (1955). The cases are replete with admonitions limiting the scope of judicial review of Selective Service Board determinations. See, also, United States v. Haffner, 301 F. Supp. 828 (D.C.Haw. 1969). Despite such limitations, it is clear that a district court can, upon a showing of "no basis in fact," overturn the local board's determination, Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953).

Following the submission of the petitioner's entire conscientious objector application and after a hearing, petitioner was denied I-O classification by the local board with only a general conclusory statement that the expressed views of the registrant did not meet the requirements of Class I-O. A local draft board's denial of a I-O classification without delineating in what respect the registrant failed to meet the statutory standard prevents any effective review of their action and precludes the appeals board or a district court from intelligently determining that there was or was not a basis in fact for their determination. As indicated earlier, we will not intervene unless there is no "basis-in-fact" for a board's determination or an appeals board's affirmance thereof. Without any finding by the local board as to why a requested classification was denied, however, it is impossible to tell on what ground the board acted. The board here may indeed have had a proper basis in fact for their determination, but the record of their action fails to disclose it. And it is not the proper role of a reviewing body, whether appeals board or court, to supply it.

Although we are not examining the substance of a petitioner's C-O file, we note that neither the local board nor the appeals board apparently questioned petitioner's sincerity. Courts have frequently held that where the local board wishes to rely upon the registrant's lack of veracity, the record must contain some statement of disbelief if the I-A classification is to be upheld on judicial review. United States v. James, 2 SSLR 3231 (5 Cir., 1969); United States v. Washington, 392 F.2d 37, 39 (6 Cir. 1968); ...


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