James F. McFadden v. Selective Service System, Local Board 40

It is the court’s view that McFadden, a registrant, is not entitled to a three-judge district court trial run on his constitutional views as ,to his draft classification. This is based on our reading of Estep v. United States, 327 U.S. 114 , 66 S.Ct. 423 , 90 L.Ed. 567 ; Oestereich v. Selective Service Board, 393 U.S. 233 , 89 S.Ct. 414 , 21 L.Ed.2d 402 ; and Clark v. Gabriel, 393 U.S. 256 , 89 S.Ct. 424 , 21 L.Ed.2d 418 (1968).

As to the 11 priests and one seminarian who appeal, we conclude that they are probably entitled to a three-judge district court to determine the issue they tender, if they show after a hearing that there is an imminent threat of their being prosecuted for their counselling. It may well be that Department of Justice policy now does not favor prosecution of counsellors, either professors or clergymen, at least until and unless the issues are resolved favorably to the Department on criminal appeals of convicted registrants which are almost certain to settle the constitutional questions.

The recent decision in United States v. Bowen, N.D.Cal., (No. 42,499, decided December 24, 1969) gives plausibility to the contention that the question the priests and…