United States v. Russell Freeman
388 F.2d 246
7th Cir.
1968
Check Treatment

*1 assumpsit, rather than in a contract ac-

tion. alleged plain

Here the action complaint only tiffs’ meets the test (b) 17(1) “arising it one § alleged from” an act Zotos tortious (Gray

within Illinois American Radia v. Sanitary Corporation, tor & 22 Ill.2d 761)

176 N.E.2d but it meets the further

requirement Miller, set forth Nelson v.

supra, predicated action is

allegations sounding tort. This con

clusion reinforced the rationale of Co., Suvada v. White Motor 621, 32 Ill.2d 182, 187,

210 N.E.2d an action for

indemnity against a manufacturer and a supplier component part of a based on

product liability in it held governed liability that such liability law of strict in tort and is im posed by operation of as a law matter of public policy. judgment appealed order from is

reversed, and the is remanded to cause proceed- Court District for further

ings.

Reversed and remanded. America,

UNITED STATES of Plaintiff-Appellee, FREEMAN, Defendant-Appellant.

Russell

No. 16125. Appeals

United States Court of

Seventh Circuit.

Dec.

Rehearing 19, 1968, Denied Jan.

en banc. *2 Hayes Peck, Peck, Harry Jr., & F. defendant-appellant,

Milwaukee, Wis., for Russell Freeman. Atty., Brennan, Thomas B. U. S. James Milwaukee, Atty., Jones, U.

J. Asst. S. appellee. Wis., for ENOCH, KILEY and SWY- Before Judges. GERT, Circuit Judge. KILEY, Circuit convicted was Defendant Freeman jury court, of will- district without a the fully refusing into to induction submit forces, App. Sec. the armed U.S.C. imprison- years to two sentenced appealed. We reverse. ment. He has 1-A Febru- classified Freeman was ary, 1961, Notice Classi- and received a (SSS 110) which includes No. fication right personal appear- notice of to a was based the court’s view ance and to He did not the refusal to denied a being physi- report After ordered his “concepts and violated the cal examination filed a basic fairness which under- (SSS legislation.” lie all our Simmons v. Unit- *3 150) requesting States, 397, 397, of 405, classification con- ed the 348 U.S. 75 S.Ct. objector. 402, The Board refused 99 L.Ed. 453. reopen informed to classification and We think the Olvera decision is correct by in- him of this decision a letter which procedural because framework of the the any right cluded no of to notice process draft classification nar- born, Subsequently, after his child was rowly judicial limited review available In Freeman was classified 3-A. Febru- registrants to draft adherence to make 1-A, ary, again 1965, he was classified procedural safeguards crucial to the Classification, a was sent Notice of of maintenance basic fairness. Thereafter, again did not he was process The draft classification acceptable military found for service judicial power must be exhausted before report He was ordered to for induction. interposed. can be of The exhaustion refusing then submitted a to serve letter process registrant the ends with a sub religious reported because of beliefs. He mitting, refusing submit, induc to to His for induction and to submit. refused States, tion. Falbo United 320 U.S. indictment and conviction followed. 549, 346, (1944). 64 S.Ct. 88 L.Ed. 305 8, February may, 1962, In its letter of In the induc event, first he after fusing reopen tion, proceed challenge legality to classification Freeman’s the of request by corpus, Estep to consider his for conscientious his classification habeas objector status, States, the Board stated that it v. United 66 S.Ct. 327 U.S. (1946). had “reviewed” Freeman’s classification 90 L.Ed. 567 In the second event, may challenge legality with his formal claim to conscientious of he the objector status, that the Board did not his classification a a crim as defense to “feel” file war- prosecution information the the inal for refusal to submit reopening classification, and judicial ranted the induction. In either case the that would remain classification reviewing function in the classification 1-A. Freeman contends he was closely is circumscribed to the narrow due Local Board’s questions registrant denied the of whether the reopen refusal to his file because process, been denied due or of whether consequent denial of the Board’s a classification is without by inform him failure the Board to States, basis in fact. Blalock 4 v. United right. of that a Cir., This contention was 247 F.2d 615.1 urged acquittal basis at the close danger scope The this narrow government the criminal trial case particularly of review is acute when a before us. claim for is conscientious status Fifth The Circuit in Wierzchucki, Olvera v. United made. United States v. D. States, 223 C., F.2d F.Supp. held a Local 788. A sincere claimant may arbitrarily open refuse for conscientious status cannot registrant’s a pre- classification corpus remedy where he turn to the habeas because true, sents which, new information prevents his accepting belief him require would any reclassification. hold- The induction under circum- 1. The narrowest has no very ing into the “In induction, to the defendant’s a limited. The ‘clearly prosecution place here, administrative known to the law. erroneous’ scope nor range refusing even the proceedings of review classification rule judicial to submit * ‘substan- * * * inquiry [*] lead [*] is a denial of basic gave tial evidence’ we or if the conclusion of the board is with- out review the courts no over basis authority F.2d draft rule Blalock v. United fact.” at board general authority * * reverse procedural proceedings, *. only Congress fairness if there may reopen and anew local board consider to seek- As a result he is limited stances. registrant (a) upon of a for refusal trial in a criminal review * * * registrant request proceeding, written In this criminal to submit. accompanied reviewing written any proceeding draft such inas presenting facts not con- classification, information of invalid class- his defense classi- sidered when in fact” the “basis ification is tested fied, justify which, if true, would circumstances formula. Under these classification; change registrant’s inevitable, almost since viction is ” grant 32 C.F.R. 1625.2. the conscientious Board’s refusal to on an in- classification is based key re difference between regis- sincerity of as to the ference fusal of a Board to a classifica always and there almost trant’s belief will tion, granting reopening fol somthing support an in the record to requested class lowed ification, a denial of the *4 sincerity. of lack of inference requirement if in that is the Finally, of class- the critical nature the granted request reopen the the to regard process- process ification ing with to registrant classify “in Board must the objector claim for conscientious if be the same manner as he had never our have status is indicated because great laws 1625.11; fore been classified” 32 C.F.R. protection concern for the of free- Notice and must “mail notice thereof on conscience, religion dom of * * * (SSS 110) of Classification an classification is conscientious (SSS No. and on Classification Advice attempt carefully to need balance the * * 111) registrant] 32 the [to mobilizing manpower for defense formal notification C.F.R. 1625.12. This protections by the First afforded the registrant’s right to a is a basis for the Amendment. personal appearance appeal his and to to When a Board refuses classification. reopen considerations, Despite these the classification, formal notice expressly Chief withheld Executive merely required must not the right the process of in classification counsel the unqualified reopening that “advise” the right is no there No the is not warranted. classification registrant. to advisers for the Under any right appeal given. to notice Accordingly, these circumstances the courts must care fully Freeman was ef- we think operation scrutinize of the class the right ap- fectually denied, in his to process ification in order to the further request peal for con- of his the denial maintaining Congressional purpose of objector status. scientious proceedings basic fairness in all under our law.2 opinion Local Board was In our the compelled reopen Freeman’s classifi- validity to question

The vital here is the in him all the Board’s denial of Freeman’s re- cation 1962 and extend to quest reopen rights regulations provided to and reconsider in since his classi- the pursuant presented fication in 1962 claim of he information in his 1962 to his new which, true, entitled conscientious status in the Form 150 SSS SSS light Form No. that him Board de- 150 in fact to reclassification.3 The right it, thereby effectually prived the Board denied him of when instead right appeal. reopening classification, perti- Freeman’s decided regulation governing nent claim and notified the Board’s the “merits” reopen, provides: him action this “The letter of the to refusal Military Training Form “The 3. Freeman stated bis Universal Act” Congressional policy that believed itself sets out “obligations supreme being, mem- that he was a that of serv- in a * * * religion, and that in the ber of the Islam armed forces op- generally, beliefs he was shared with a reason of his accordance system just. participation in form. of selection fair and war which is * * *” App.U.S.C. 451(c). 50 Sec. thereby denying appropriate ing, beyond doubt, him the that reasonable procedural safeguards. prejudiced by Freeman not denial was appeal.4 of his Steele v. United of due in 1961 The denial Cir., 240 F.2d 142. in 1965 obviated the fact Harry Peck, Jr., Messr. F. of Milwau- duly Freeman was notified of reclassifi kee, Wisconsin, appointed acted as court ap and did not cation from 3-A to 1-A counsel for Freeman on this expected peal. to infer He could not be The court him for his extends thanks to in 1965 notice classification to his fine service to this court and opportunity to then had an that he client. rejection request for con of his 1961 given, For the reasons reverse. we had been status which affording previously him denied without Judge ENOCH, (dissenting). any right Circuit re The awesome sponsibility Local Boards carried disagree- myself Regretfully, I find “balancing demands of an between the Local ment conclusion that with the mobilizing system na effective compelled Board was the de- manpower in tion’s times of crisis and on the fendant’s the individ demands of fairness toward ground presented infor- new he had justify registrant,” denial ual 150, which, mation in his 1961 SSS of basic v. United fairness. Simmons true, him would entitled *5 397, 403, 397, 348 U.S. 75 S.Ct. classification. 99 L.Ed. 453. Judge Eiley informa- summarizes that gov There no in the tion merit as follows: in errors contention that ernment’s in Freeman stated cured the classification were for Conscientious that he be- the de novo consideration of Freeman’s supreme being, in lieved a that he was during made criminal religion, a member of the Islam and trial. issue of whether Freeman The reason of his beliefs objector to conscientious entitled opposed participation he was in war Congress place had no in trial. status any in form. given power to has to Local Boards the Most of from this data comes statements classify registrants a scheme of stat and appearing printed in the form which were utory regulatory procedures and has been adopted mark the defendant check classify established. courts have no The signature. When the whole form ing They preclud in scheme. are role including considered, his own added com- acting “superboards” from in mak ed as ments, no such clear-cut statement ing presented. de v. novo classifications. Witmer 392, States, 348 United U.S. S.Ct. Question example, For No. 2 in Series Moreover, L.Ed. 428. were Religious Belief, even we Training II and presented to consider the evidence at asks: gov hearing,

de novo is clear it your the nature Describe belief prov- your has not met its burden of ernment which is made the basis claim “ * * * impossible appears 4. This be burden refer board shall any Department a meet in a case such as this where such claim to the inquiry hearing. claimant to conscientious status and Justice Department Justice, appro- denied his been after priate inquiry, hearing to conscientious status Claimants shall hold a rights upon appeal special respect good with to the character provided objections person trial. in criminal a faith of the 456(j), concerned, person App.U.S.C. where no- Under 50 and such shall be § place Local denies a tified such time and ” reg- hearing. status appeals, istrant above, I and state whether Series Being NATIONAL LABOR RELATIONS your Supreme or not belief BOARD, Petitioner, you are su- involves duties which to perior arising any from human to those relation. MIDWESTERN MANUFACTURING COMPANY, Inc., Engine Midwestern signed printed had state- The defendant Equipment Company, Inc., and Mid- I

ment in which read: Series Pipeline Company, western Products Re- my religious am, by train- I reason of spondents. belief, conscientiously opposed No. 9405. participation form in war in Appeals op- United States Court of conscientiously and I am further Tenth Circuit. participation in noncombatant training Jan. Armed and service I, exemption therefore,

Forces. claim and noncombat- both combatant training Armed

ant service

Forces. When asked to describe of this nature Question

belief the defendant merely: said

“Islam I am not a citizen of United

States.”

Question No. 5 asked “Under what cir- cumstances, any, you do believe

the use of force ?” Defendant answered:

“If me, fight attack someone I will back.”

When asked to describe the actions and

behavior in his opinion life which in his conspicuously most sistency demonstrated the con- depth religious of his convictions, Question 6No. defendant put only: in one word “Peace.” an- In Question swer to No. whether given public had expression, ever written oral, expressed to the views as the claim, basis for his he said “no.” Then IV, Question you Series “Are organiza-

member of a sect or

tion?” defendant said “no.” agree

I meager that on this obliged information the Board was particularly its case in view

the fact that the defendant did quest form Ob- jector days until 10 after an order issued directing November, him re-

port physical having examination, ignored notice of his 1-A,

initial classification of notice of February, was sent to him in

I would affirm the decision of the Dis-

trict Court.