Kennedy v. Mendoza-Martinez

PETITIONER: Robert Kennedy, Attorney General
RESPONDENT: Francisco Mendoza-Martinez
LOCATION: Congress

DECIDED BY: Warren Court (1962-1965)
LOWER COURT: Federal district court

CITATION: 372 US 144 (1963)
ARGUED: Oct 10, 1961 / Oct 11, 1961
REARGUED: Dec 04, 1962 / Dec 05, 1962
DECIDED: Feb 18, 1963

Bruce J. Terris - reargued for the appellant in No. 2
J. William Doolittle, Jr. - reargued for the appellant in No. 3
Leonard B. Boudin - argued and reargued for the appellee in No. 3
Oscar H. Davis - for the appellant in No. 2 and No. 3
Thomas R. Davis - argued and reargued for the appellee in No. 2

Facts of the case

Francisco Mendoza-Martinez (Martinez) was an American by birth with dual Mexican citizenship. Martinez admitted that to avoid the draft, in 1942, he left the United States for Mexico and did not return until November, 1946. As a result of his deliberate absence, Martinez entered a guilty plea in 1947 to violating Section 11 of the Selective Training and Service Act of 1940 (the "Act") and served 366 days in prison. Five years after his release, Martinez was issued an arrest and deportation warrant premised on a violation of Section 401(j) of the Act which divested draft dodgers of their U.S. citizenship. Following a dismissal of his appeal from the Attorney General's special inquiry decision stripping him of his U.S. citizenship, Martinez challenged the constitutionality of Section 401(j) in District Court but was defeated. On appeal from the Ninth Circuit's opinion upholding the district court decision, the Supreme Court granted certiorari. This case was decided together with Rusk v. Cort.


Did Section 401(j) of the Selective Training and Service Act of 1940, divesting U.S. citizens of their citizenship for remaining outside the United States during a time of war or national emergency in order to avoid the draft, violate the procedural safeguard of the Fifth and Sixth Amendments?

Media for Kennedy v. Mendoza-Martinez

Audio Transcription for Oral Reargument - December 05, 1962 in Kennedy v. Mendoza-Martinez
Audio Transcription for Oral Reargument - December 04, 1962 in Kennedy v. Mendoza-Martinez
Audio Transcription for Oral Argument - October 10, 1961 in Kennedy v. Mendoza-Martinez

Audio Transcription for Oral Argument - October 11, 1961 in Kennedy v. Mendoza-Martinez

Earl Warren:

-- Kennedy, Attorney General of the United States, versus Francisco Mendoza-Martinez.

Mr. Davis, you may continue with your argument.

Thomas R. Davis:

Thank you Your Honor.

William J. Brennan, Jr.:

Mr. Davis, before you begin, I think you told us yesterday that you submitted to Judge Jertberg, a court order which included the provisions for injunctive relief and that he refused to enter it, but under the order he did.

Did the Government make any objection to your order?

Thomas R. Davis:


Judge Jertberg did that because the Government objected.

William J. Brennan, Jr.:

And what was the Government's objection?

Thomas R. Davis:

The Government objected it was beyond the scope of the action and if the Court please, there is additional reason for the Government's having objected which I wanted to bring out exactly at this time.

Under the general prodding I must say of Mr. Justice Whittaker, I should point out that we went through a pretrial procedure in this case pursuant to Rule 16 of the Federal Rules of Civil Procedure and as I think Mr. Justice Brennan is well aware, that Rule explicitly provides for amending the pleadings to correct earlier errors and as does Rule 15 of course also provides for amendment.

But what is important about Rule 15 which relates specifically to amendment is that it provides that any amendment which is accomplished relates back to the original pleading.

In other words, the Rule says in just about so many words, the pleading as it is amended shall be deemed a pleading which was originally before the court so that the excessive zeal which I exhibited in drawing this prayer was cured by virtue of the explicit terms of Rule 15.

And on that ground, in addition to the inherent ground that it was beyond the scope of the action per se, but on the ground of the pretrial stipulation as well, the Government rightly objected to any additional ancillary relief being granted in Judge Jertberg's order, and Judge Jertberg correctly refused me the additional ancillary relief which I sought.

Therefore Your Honor, I submit that under Rules 15 and 16, the Court correctly proceeded and what is more important, the correction that it made and in -- contained in its final judgment was a correction which by virtue of Rule 15 related back to the original pleading.

I have returned again today to take up the additional time of the Court because we did not reach at all the -- neither Mr. Davis nor myself reached at all the ultimate question, the constitutional question and in any time I take up, I realize that it has been many times argued here and argued by men of far greater experience and wisdom than I have.

Nonetheless, perhaps the Mendoza case is destined to be the bellwether case and it would be improper for me not at least to make some brief contentions on the basic question of constitutionality.

Without rehearsing the briefs, I would like to invite the Court's attention to one specific question.

It is possible on one theory or another with a very sharp knife to divide Trop versus Dulles from Mendoza.

But there is one basis on which it cannot be divided and that is the question of whether it would be possible to say that in Mendoza, there is no punishment involved whereas in Trop, 401 (g), there is punishment involved.

That I submit is an indefensible distinction.

Every bit of the legislative history of this statute originating as it did with the Attorney General and proceeding through legislative argument in the citations that we have given to the Court shows that it is plainly coercive statute.

And this I submit is a pivotal question because if it is punitive, if Section 401 (j) is a punitive statute, I submit that it plainly violates procedural due process of law.

And this is of crucial importance because of the often repeated inclination or in the determination of this Court not to limit or affect the power of Congress if it can conceivably be avoided.

Felix Frankfurter:

Let me ask you this.

Thomas R. Davis:

Yes sir.

Felix Frankfurter:

Could Congress make it an offense punishable heavily, say, five years, a sentence of five years, a mandatory sentence for five years for leaving the country to escape the draft?

Thomas R. Davis:

It could've hung him Your Honor.

Felix Frankfurter:

It could've hung him?

Thomas R. Davis:


Felix Frankfurter:

Wouldn't that -- that wouldn't be coercive?