United States v. Lawrence Wayne Johnson

459 F.2d 591 UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Wayne JOHNSON, Defendant-Appellant. No. 71-1475. United States Court of Appeals, Ninth Circuit. March 30, 1972. 1 Michael R. Rayton (argued) of Ryan, Carlson, Bush & Swanson & Hendel, Seattle, Wash., for appellant. 2 Ernest Scott, Jr., Asst. U. S. Atty. (argued) Susan L. Barnes, Asst. U. S. Atty., Stan Pitkin, U. S. Atty., Seattle, Wash., for appellee. 3 Before DUNIWAY and TRASK, Circuit Judges, and LUCAS, * District Judge. 4 LUCAS, District Judge. 5 Appellant was convicted of violating 50 U.S.C. App., Sec. 462(a), and 32 C.F.R. 1632.14 for his refusal to submit to induction into the armed forces as ordered by his local draft board. On appeal, he alleges that the trial court erred in finding that the local board properly refused to reopen his classification upon his submission of a "Special Form for Conscientious Objectors," Selective Service System Form 150. We affirm that finding. 6 Appellant registered with Local Board No. 6 of the Selective Service System at Seattle, Washington, on June 18, 1965. After receiving several deferments, on February 23, 1968, he was reclassified from II-S to I-A and…

Appellant was convicted of violating 50 U.S.C. App., § 462(a), and 32 C.F.R. 1632.14 for his refusal to submit to induction into the armed forces as ordered by his local draft board. On appeal, he alleges that the trial court erred in finding that the local board properly refused to reopen his classification upon his submission of a “Special Form for Conscientious Objectors,” Selective Service System Form 150. We affirm that finding.

Appellant registered with Local Board No. 6 of the Selective Service System at Seattle, Washington, on June 18, 1965. After receiving several deferments, on February 23, 1968, he was reclassified from II-S to I-A and advised of his right to ask for an appeal or personal appearance. On February 27, 1968, Local Board No. 6 received appellant’s request for an appeal and a personal appearance before the Board. The Board advised appellant of a personal appearance to be held before it on April 15, 1968. On that date, the appellant appeared before the Board and advised it in writing that he would like to be classified as a conscientious objector. Apparently, it was during that appearance that the appellant received SSS Form 150 “Special Form for…

(dissenting) :

I dissent because I am convinced that Johnson did present a prima facie case for classification as a conscientious objector. I assume, although I do not necessarily agree, that his answers to the questions in the SSS Form 150 were insufficient. But there is more. At the September 16 “courtesy interview”, Johnson enlarged upon his beliefs. The draft board’s summary of the interview states:

In my opinion, Johnson’s statements, considered together with his answers to the questions in the SSS Form 150 do state a prima facie case, and the board should have reopened his classification.

1. The test for determining whether a registrant’s classification should be re-opened.

In Mulloy v. United States, 1970, 398 U.S. 410, 416-417 , 90 S.Ct. 1766, 1771 , 26 L.Ed.2d 362 , the Supreme Court established the following test for determining whether a registrant’s classification should be re-opened.

It obscures analysis to dispose of the present case, as the majority does, by comparing its facts to those in Mulloy . The Supreme Court indicated in Mulloy that the case before it was well within the test applied by the Court, but it did not state that facts less overwhelming than…