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United States v. Hawver

January 26, 1971


Kiley, Fairchild and Kerner, Circuit Judges.

Author: Fairchild

FAIRCHILD, Circuit Judge.

Appellant Hawver was convicted of failure to report for civilian work as ordered by his draft board. The order was based on a I-O classification as a conscientious objector. Appellant's defense and this appeal are based upon the claim that the order was invalid because he was entitled to classification IV-D as a minister exempt from service. The district court denied a motion for judgment of acquittal.

The board actions under scrutiny are as follows: (1) On August 18, 1966 the local draft board classified him IV-D. (2) On January 18, 1967 the local board classified him I-O, and on appeal the appeal board classified him I-O. (3) The local board failed to reopen in response to information which appellant filed April 24, 1967. In essence, the August 18, 1966 IV-D classification was based upon a decision that Hawver was a regular pioneer minister, Jehovah's Witnesses, and the January 18, 1967 I-O classification on the board's belief that his status was less than that of regular pioneer minister. We think the claim that the board should have reopened in April needs no separate consideration. If the board's January 18 decision be sustainable, the failure to reopen was likewise sustainable, for the differences between the information before the board on January 18 and that on April 24 seem to be insignificant in terms of the applicable legal principles.

The information before the board on August 18, 1966, when it granted the IV-D, included the following:

Appellant became 18 April 16, 1964. He was about to finish high school and claimed both that he was a conscientious objector and a minister of Jehovah's Witnesses, ordained October 26, 1963.*fn1 He presented statements of himself and others (including the presiding minister of the Watertown congregation) describing his preaching and teaching the principles of religion, but he conceded his attendance at school made it difficult for him to spend as much time in that activity as he hoped to do in the future. It seems clear that he failed to make out a claim that such activity was then his regular and customary vocation. The board classified him I-A June 15, 1964, and I-O on July 18, 1964.

On July 8, 1966, appellant wrote the board asking that his I-O classification be reopened because he had been appointed a regular pioneer minister. He presented a letter of the Watchtower Bible & Tract Society entitled "Regular Pioneer Appointment". It was dated June 10, and stated that the appointment was as of July 1. The board again classified him I-O and he requested a personal appearance.

At the board's request, appellant filed a current information questionnaire in which he said the job at which he was working was "regular pioneer minister", describing his work as "door to door ministry, conduct home Bible studies, hold public meetings". Previous questionnaires had indicated employment in automobile body repair, and this was now referred to under "other occupational qualifications".

The summary of his personal appearance, August 18, shows that he said under oath that he had been devoting full time to his ministerial duties since February 1, 1966, with approximately 100 hours spent per month, and that he worked only 20 hours per week at the auto repair job, to maintain himself. The IV-D classification was then granted.

There is testimony by the clerk of the local board that another document, although stamped to show receipt by the board on August 18, the date of the personal appearance and IV-D classification, was not actually before the board at the meeting. This document was entitled "Certificate for Servant in Congregation". It was signed by the society and also by its Superintendent of Ministers and Evangelists, and dated August 9, 1966. It certified, in material part, as follows:

"James J. Hawver is a duly ordained minister of Jehovah's Witnesses, engaged in preaching and teaching the principles of this Society and administering the rites and ceremonies thereof in public worship.

"He presently officiates as an assistant presiding minister of the Watertown, Wisconsin, Congregation of Jehovah's Witnesses. He has been serving since March 9, 1966 as the Book Study Conductor for this congregation and as such he presides over Bible studies at certain designated meeting places throughout the congregation's assigned territory and generally supervises the ministerial activity of Jehovah's Witnesses from such meeting places.

"He also regularly and customarily engages in preaching and teaching the tenets and principles of Jehovah's Witnesses as a missionary evangelist. He is authorized to perform the ordinary rites and ceremonies recognized and employed by Jehovah's Witnesses. And he performs such other ministerial duties as are required of him as an assistant presiding minister."

On November 29, the clerk of the board noticed this certificate in the file and wrote appellant asking "that you have your headquarters submit an original copy of your status in your church. If you are a 'Pioneer Minister', have that fact stated on your certification." On December 24, appellant replied that he had sent for the requested "letter", but it had not been received; that he would send it as soon as received. Unfortunately the clerk did not specifically ask for, and appellant did not volunteer, his own explanation whether or not his appointment as pioneer minister had been revoked or whether or not his status as assistant presiding minister and book study conductor was inconsistent with his continuing to be, by regular and customary vocation, a pioneer minister.*fn2 Appellant had, however, on November 9, returned a current information questionnaire in which he ...

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