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437 F.2d 417

Docket No. 25709.

United States v. Thaxter

Ninth Circuit Court of Appeals

Decided Jan. 8, 1971.

Ninth Circuit Court of Appeals · decided 1971-01-08

Cited by 3 later decisions — most recently January 1971

3 federal appellate ·

2 counsel of record

Applies 50 U.S.C. § 3811

Relies on Welsh II v. United States · White v. United States · Gutknecht v. United States

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1971-01-08

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¶1Michael E. Somers (argued), of So-mers, Fox & Kallen, Santa Monica, Cal., for appellant.

¶2George G. Rayborn (argued), Asst. U. S. Atty., Robert L. Meyer, U. S. Atty., David R. Nissen, Chief, Crim. Div., for appellee.

¶3Before KOELSCH and ELY, Circuit Judges, and TAYLOR, District Judge.*

¶5PER CURIAM:

¶6Thaxter appeals his conviction for having refused to be inducted into the armed forces. 50 U.S.C.App. § 462. Of the numerous grounds for reversal urged by Thaxter, two are meritorious.1*418Consequently, under the authority of Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), and Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970), we reverse.

¶7At age eighteen Thaxter informed his local Selective Service Board that he was a conscientious objector, but he was not then ready fully to articulate his claim for a conscientious objector (I-O) exemption. A year and a half later, upon termination of his student deferment, Thaxter requested of his Board a Claim for Conscientious Objector (SSS Form 150). Rather than completing and returning this form, Thaxter sent his Local Board an article which he had authored and which expressed his pacifist philosophy. The Board then classified him I-A, ordered him to take his pre-in-duction physical examination, and declared him delinquent for his failure to appear for that examination. The delinquency regulations were later held, in Gutknecht, supra, to be without statutory authority.

¶8Thaxter’s rights were substantially affected by the delinquency classification and the subsequent order for induction. After having been declared a delinquent, Thaxter was granted an appeal and a Department of Justice Hearing. The Hearing Officer noted that Thaxter had been an active participant in the First Baptist Church and that at age seventeen he had withdrawn from the church because he could not accept the concept of Heaven and Hell. The Hearing Officer found “that the registrant is an idealistic pacifist,” but concluded that the “registrant’s claim is based upon essentially political, sociological, and philosophical views, which, in sum total, amount to a personal moral code.” Although Thaxter stated that he opposed the Selective Service System because it imposed involuntary servitude and that he would not serve the System in any way, he also stated that his beliefs were based upon the Sermon on the Mount and the “Nuremburg” principle. He wrote that he believed in a hierarchy of divine beings and that “every man is born with the right to life and freedom, and no man possesses the right to rule or destroy another.”

¶9The Supreme Court, in defining and expanding the standard for conscientious objection, has recently declared that those not entitled to a conscientious objector’s exemption are “those whose beliefs are not deeply held and those whose objection to war does not rest at all upon moral, ethical, or religious principle but instead rests solely upon considerations of policy, pragmatism, or expediency.” Welsh, supra, 398 U.S. at 342-343, 90 S.Ct. at 1798 (emphasis added). The Court also wrote that “[w]e certainly do not think that § 6(j)’s exclusion of those persons with ‘essentially political, sociological, or philosophical views or a merely personal moral code’ should be read to exclude those who hold strong beliefs about our domestic and foreign affairs or even those whose conscientious objection to participation in all wars is founded to a substantial extent upon considerations of public policy.” Id. at 342, 90 S.Ct. at 1798. Since Thaxter’s sincerity has not been ques*419tioned and since he falls within the Welsh expansion of the conscientious objection standard, we cannot see that there was a basis in fact for the denial of his claim for the conscientious objector (I-O) classification.

¶10Upon remand, the indictment will be dismissed.

¶11Reversed.

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