William Ward Ehlert v. United States

422 F.2d 332 William Ward EHLERT, Appellant, v. UNITED STATES of America, Appellee. No. 21930. United States Court of Appeals, Ninth Circuit. February 2, 1970. Certiorari Granted May 4, 1970. See 90 S.Ct. 1525 . Arthur Wells, Jr. (argued), Berkeley, Cal., for appellant. Paul G. Sloan (argued), Asst. U. S. Atty., Cecil F. Poole, U. S. Atty., San Francisco, Cal., for appellee. Before CHAMBERS, BARNES, HAMLEY, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, CARTER, HUFSTEDLER, WRIGHT, KILKENNY and TRASK, Circuit Judges. KILKENNY, Circuit Judge: 1 Appellant, on June 14, 1964, was ordered to report for induction and thereafter sought to reopen his classification in order to establish his status as a conscientious objector. Subsequently, he was convicted of failing to submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462. 2 Selective Service Regulations, 32 C.F. R. § 1625.2, in pertinent part, provide: 3 "The classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds that there has been a change in the registrant's status…

Appellant, on June 14, 1964, was ordered to report for induction and thereafter sought to reopen his classification in order to establish his status as a conscientious objector. Subsequently, he was convicted of failing to submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462.

Selective Service Regulations, 32 C.F. R. § 1625.2, in pertinent part, provide:

In refusing to reopen his classification, the local board advised appellant that its action was based upon its determination that “the information submitted on SSS form 150 was not a change in your status which was beyond your control.”

The district court, in denying motion for acquittal, ruled as a matter of law that changes in status involving conscientious objection were not beyond the control of the registrant. That ruling is here asserted as error.

Whether the crystallization of a conscientious objection to war can constitute a circumstance over which the registrant has no control is a question upon which the circuits have disagreed. Upon the affirmative side, among others, are United States v. Sandbank, 403 F.2d 38 (2d Cir. 1968), cert. denied 394 U.S. 961 , 89 S.Ct. 1301 , 22 L.Ed.2d 562…

(concurring):

I concur in the majority opinion, and I also endorse the logical analysis expressed by my Brother Duniway. At the same time, I believe that additional factors should be recorded.

We took this case en banc for the purpose of considering and resolving the one important problem which the principal opinion attacks, and I am glad that our court has now supplied desired guidance on that issue. My examination of the record convinces me, however, that insofar as this particular appeal is concerned, we may have indulged ourselves in a great deal of unnecessary intellectual exercise. The contents of Ehlert’s Selective Service file lead me to believe that there was no alternative to the affirmance of Ehlert’s conviction even had the majority adopted the position taken by my Brother Merrill.

The sole question before the District Court was whether Ehlert’s local board erred in refusing to reopen Ehlert’s classification. Under the applicable Regulation ( 32 C.F.R. § 1625.2 ), all recognize that the board was disempowered to reopen the classification without expressly finding that there was a change in Ehlert’s status resulting from circumstances over which he had no control. In…

(concurring) :

In my view, the case should be disposed of as Judge Ely would. However, a clear majority of the judges, including the dissenters, thinks the case should be resolved “on the Road to Damascus.” On that road, I agree with Judge Kilkenny. Therefore, I concur in Judge Kilkenny’s opinion.

The majority opinion, affirming the District Court, holds as matter of law that crystallization of a registrant’s conscientious objection to war is not, under 32 C.F.R. § 1625.2 , “a change in [his] status resulting from circumstances over which [he] had no control.” 1 In this posture of the case we must assume that appellant in fact enjoys the status of a conscientious objector but is precluded from recognition of that status by virtue of the provisions of the regulation. Two distinct contentions were advanced by appellee in support of the District Court. The majority opinion appears to rely on both.

1. First it was contended that crystallization of conscientious objection is not a “circumstance” under the regulation; that by “circumstances” the regulation was intended to include only such objectively ascertainable conditions as a change in dependency status or physical condition;…

(concurring).

I concur. I do not think that the claimed “crystallization” of conscientious objection can be said to be “a change in * * * status resulting from circumstances over which the registrant has no control.” (Emphasis added.) The word “circumstances” indicates to me some fact, act or event external to the mind or consciousness of the registrant, rather than the mysterious and unfathomable internal mental and spiritual processes of the registrant himself. Whether those processes are beyond the registrant’s control I leave to the philosophers among us. I think that, whatever the answer to that question may be, they are not circumstances beyond his control.

Dictionary definitions tend to confirm this view. Funk & Wagnall’s New Standard Dictionary defines “circumstances” as “1. Something existing or occurring incidental to some other act or event-, a related or concomitant act or thing.” (Emphasis added.) Webster’s New International Dictionary, 2d ed., defines the word as “1. One of the conditions under which an act or event takes place or with respect to which a fact is determined; a condition, fact or event accompanying, or determining the occurrence of another fact or…