Kennedy v. Mendoza-Martinez

Me. Justice Harlan,

whom Mr. Justice Clark joins, dissenting.

I agree with and join in Parts I, II, III, and IV of my Brother Stewart’s opinion, leading to the conclusion that §401 (j) of the Nationality Act of 1940, applicable in No. 2 {Mendoza), is constitutional. I also agree with his conclusion that, for the same reasons, the substantive *198 provisions of § 349 (a) (10) of the 1952 Act, applicable in No. 3 {Cort), are constitutional. I disagree, however, with his view that the evidentiary presumption contained in § 349 (a) (10) is unconstitutional. I am content to state my reasons in summary form.

1. As I read the opinion below in the Cort case I do not think the District Court relied on the § 349 (a) (10) presumption. 1 This view is fortified by several considerations: (i) the constitutionality of the presumption was attacked in Cort’s complaint and was briefed by both sides in the District Court; (ii) the text of the presumption itself was set forth in the opinion of the District Court (187 F. Supp., at 684) at only a page or two before the extract quoted in the margin (note 1); and (iii) in these *199 circumstances it is difficult to believe that the lower court, composed of three experienced judges, either inadvertently ignored the presumption or upheld its validity sub silentio. The more likely conclusion is that finding the evidence sufficient without the aid of the presumption, the lower court saw no need for reaching a second constitutional issue.

So viewing the District Court’s opinion, I think the evidence was quite sufficient under the “clear, unequivocal, and convincing” standard of Schneiderman v. United States, 320 U. S. 118, 135 , to support the finding below that Cort had remained abroad for the purpose of evading military service. 2

*200 2. In addition, I see nothing constitutionally wrong with this presumption either on its face or as related to this case. Similar presumptions have been consistently sustained in criminal statutes, where the standard of proof is certainly no less stringent than in denationalization cases. See, e. g., Yee Hem v. United States, 268 U. S. 178 ; Casey v. United States, 276 U. &. 413; Hawes v. Georgia, 258 U. S. 1 ; cf. Fong Yue Ting v. United States, 149 U. S. 698 . As regards the requirement that .there must be a “rational connection between the fact proved and the ultimate fact presumed,” Tot v. United States, 319 U. S. 463, 467 , this presumption is surely a far cry *201 from that held constitutionally invalid in the Tot case. 3 And since we are concerned here only with the presumption as applied in this instance (if indeed it was in fact applied below or must now be resorted to in this Court), it is no answer to suggest that in other instances application of the presumption might be unconstitutional.

Thus whether or not the § 349 (a) (10) presumption is involved in the Cort case, I believe that the order of denationalization there, as well as in the Mendoza case, should be upheld. 4

The District Court said: “When, as here, a citizenship claimant establishes his birth in the United States the burden is upon the Government to prove by clear, convincing and unequivocal evidence the act it relies upon to show expatriation. Nishikawa v. Dulles, 356 U. S. 129, 133 .... We think the Government has met this burden. In 1951 when the plaintiff went abroad it was for a limited period. On December 29,1952, he accepted a position at the Harvard Medical School to begin the latter part of 1953, and indicated that he had made arrangements for prior transportation to the United States. His intention to return to this country was steadfast until he learned shortly after January 31, 1953, that the school authorities felt that they could not declare him 'essential’ for teaching, and that he probably would be drafted. He wrote them on February 10, 1953, that until he heard ‘something definite’ from the draft board he was ‘reluctant to take a decision that may prove to be foolish or premature.’ On February 9, June 4, and July 3 in 1953 the draft board sent him notices to report for physical examination, and thereafter ordered him to report for induction on September 14, 1953. The plaintiff made no response or compliance but remained abroad. We are convinced that his purpose was to avoid service in the armed forces.

“The only question left in this case is the constitutionality of the law under which the Government maintains that the plaintiff was divested of his citizenship.” 187 F. Supp., at 686.

Cort was not charged with going abroad in order to avoid mili-tar y service, but solely with remaining abroad to avoid induction. The evidence shows convincingly that Cort’s purpose in remaining abroad, first in England and then in Czechoslovakia, was to avoid the draft.

On May 29, 1951, Cort left the United States to accept a research fellowship at the University of Cambridge, England. A few days before his departure he registered as a “special registrant” under the Doctors Draft Act. On September 11, 1952, he was classified I-A (medical), available for military service. Meanwhile, in late 1951 the Government had requested Cort to surrender his passport for invalidation, except for return to the United States. He did not do this.

On December 29, 1952, Cort accepted, by a letter sent from England, a teaching position at the Harvard Medical School, indicating his intention to return to the United States in late June 1953 in order to start work on August 1, 1953. On the same day he also wrote to the Massachusetts Medical Advisory Committee, stating that he would begin teaching at Harvard in July 1953, and requesting a draft deferment on the ground that this “civilian function . . . shall be far more essential to my country than military service.”

On January 29, 1953, Harvard authorities advised the Medical Advisory Committee that they did not regard Cort’s teaching position as essential to medical teaching, and on February 4, 1953, the Committee recommended to the local draft board that Cort be considered *200 “available for active military service.” Between January 31, 1953, and May 29, 1953, the Dean of the Harvard Medical School and Cort exchanged several letters — the Dean suggesting that Cort apply for a commission, Cort expressing surprise that the teaching position was not considered essential, and that until he had heard from his draft board he was “reluctant to take a decision that may prove to be foolish or premature.”

On February 9, 1953, Cort was informed by his local draft board' that his deferment request had been denied, and he was ordered to report for a physical examination within 30 days of the receipt of the letter. On June 4, 1953, and on July 3, 1953, he was again sent notices directing him to report for a physical examination. On August 13, 1953, Cort was ordered to report for induction on September 14, 1953. Cort did not report notwithstanding that in the interval, as he concedes, he had received these notices from his draft board.

On August 8, 1954, after his residence permit in England was not renewed by the British Home Office, Cort took up residence in Prague, Czechoslovakia, where not until April 7, 1959, did he make any application for a United States passport.

Against this background the District Court was certainly entitled to discredit Cort’s belated efforts, long after his indictment for draft evasion, to come to terms with the military authorities, as well as his self-serving statements that he remained abroad to avoid investigation as to his alleged Communist affiliations or possible prosecution under the Smith Act.

A presumption that one is remaining abroad with a purpose of avoiding military service, arising from continued sojourn abroad in the face of an uncontroverted call to military duty, certainly bears no resemblance whatever to the presumption found wanting in Tot . That presumption was that firearms or ammunition possessed by one previously convicted of a crime of violence, or who was a fugitive from justice, were received not only in interstate commerce, but also subsequent to the enactment of the relevant statute, the presumption arising solely from a showing that such person had already once been convicted of a crime of violence and was presently in possession of firearms or ammunition.

Even on the premises of my Brother Stewart, the proper course would be to remand the Cort case to the District Court for a new trial, not, as he proposes, to set aside the basic denationalization proceeding. This is not a case of the District Court being called on simply to review for error an administrative record, but one in which it was required to try the denationalization issue de novo. In these circumstances there would be no need to have the administrative proceeding start all over again.