United States v. Jape Holley Taylor

GOLDBERG, Circuit Judge,

with whom SIMPSON, Circuit Judge, joins, dissenting.

Conscious of the travail, dedication, and scholarship that went into the writing of the panel’s opinion in this case, it was with great reluctance that I requested en banc consideration. Nevertheless, because of the importance of the issues decided and because of my fundamental disagreement with the conclusions reached therein, I felt that en banc ventilation was essential. Now that my request has been rejected, I feel compelled to record my dissent.

Though there is very little that can be said in view of the lucid dissent of my Brother Simpson, an opinion in which I fully concur, my proclivity for verbosity, perhaps, impels me to add the following thoughts. In the first place, I fully subscribe to Judge Simpson’s analysis of the front page of Selective Service Form 150, and his conclusion that at best it is “a half truth,” and at worst it is “clearly wrong.” That Form, devised for an earlier time, cannot be accepted uncritically in this post -Welsh and Seeger era of Selective Service law. The panel itself admits that the Form may be ambiguous or misleading. While it is true that it is couched in terms of the statute’s particular phraseology, it seems unlikely to me that a layman would construe the language to encompass more than conventional religious beliefs. Certainly, the Form does nothing to dispel this rather obvious interpretation. I would think that in this light a registrant would be acting reasonably in relying, without more, on the only explanatory material provided by the Selective Service System. The printed word, after all, has its own talismanic fetishism. Where it has been issued and distributed by the Government and thus bears a governmental imprimatur, it becomes in the hands of the registrant ipse dixit. It would seem to me, then, that the burden should be on the Government to provide sufficient information to rebut and to clarify the otherwise obvious meaning derivable from the words in this Form.

Even if it be assumed that the Form was merely ambiguous and not affirmatively misleading, so that a registrant might have some obligation to investigate, an assumption to which I do not subscribe, I would still disagree with the panel. In the first place, characterizing Taylor’s misapprehension as “secretive,” “subjective,” and “individual,” as the panel does in its opinion, is at best *355irrelevant. Certainly Taylor’s conclusion that he could not in good faith fill out the form could be characterized as subjective, but this determination was derived from the ambiguity of the form— an objective source. The real issue then is not the subjectivity of Taylor’s mistaken conclusion, but whether such a conclusion was reasonable. The nub of this issue, as the panel notes, is whether or not Taylor acted reasonably and diligently in investigating his entitlement to conscientious objector status. It is at this point that I strongly disagree with the panel, for it seems to me that Taylor clearly acted reasonably. He went to his Board to apply for conscientious objector status and met with and asked questions of its only visible representative, the Clerk. Receiving only evasive and ambiguous answers, Taylor conferred with his father, and both determined, quite reasonably it seems to me, that Taylor did not qualify for the exemption. Therefore, thinking that he had no right to a conscientious objector classification under the Selective Service System’s rules and regulations, Taylor did not submit Form 150. In Taylor’s view to have claimed conscientious objector status when he felt he did not qualify would not only have been an act of bad faith but also an act of futility. The panel, however, exprobrates Taylor for failing to do more. I regret that a felony conviction should turn on a registrant’s failure to pursue a series of additional, though obviously, at least to him, futile acts.