Nishikawa v. Dulles – Oral Argument – May 01, 1957

Media for Nishikawa v. Dulles

Audio Transcription for Oral Reargument – October 28, 1957 in Nishikawa v. Dulles
Audio Transcription for Oral Argument – May 02, 1957 in Nishikawa v. Dulles

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Earl Warren:

Number 415, Mitsugi Nishikawa, Petitioner, versus John Foster Dulles, Secretary of State.

Mr. Okrand.

Fred Okrand:

Mr. Chief Justice, may it please the Court, Mr. Davis.

This case can and should, in my judgment, be decided without the Court having to reach the constitutional question.

In any way that the Court looks at the evidence in this case, petitioner is entitled a judgment either because the lower court failed to apply proper rules of interpretation of evidence as this Court has said it should in an expatriation case or because it imposed the burden of proof upon the petitioner when the burden of proof ought to be properly imposed upon the Government in an expatriation case.

The facts in this case are — in this case are simple and there is no conflict of evidence.

The Government introduced no evidence in the case.

Petitioner was born in California in 1916.

He went to school in California and lived there all his life, graduating from Stanford University.

On his graduation as is the case with many of our American boys, he had a chance too and did go to Japan for study and to visit.

His expenses were being paid by his father.

He went in 1939.

In California, his father and mother both lived in California and both his father and mother remained in California when he went to Japan to study and to visit.

As luck would have it while he was in Japan in 1939, his father died.

And he had no funds with which to return to this country and he went to work in an aircraft plant.

In 1940, for — I failed to mention and I think I — it’s important that I do.

Being born in California in 1916, that is before 1924, of Japanese born parents, he was, of course, under United States law an American citizen, born an American citizen.

And he was also under Japanese law, a Japanese citizen by virtue of that birth to Japanese born parents.

So that when he went to Japan as a matter of fact in 1939, he had both nationalities.

The record is not clear as to whether he knew that fact in 1939 but the fact is that he did have both nationalities.

Japan, at that time, had a compulsory universal military conscription law for its nationals which provided severe criminal penalties for evasion thereof.

In 1940, under that conscription law, petitioner was required to take a physical examination under the law.

Had he not taken it, he would be subject to those criminal penalties.

He took the examination.

And in — that was in June of 1940.

And in March of 1941, he was inducted under this conscription law into the Japanese Army.

Following the War —

Did he protest an induction of the Japanese or the American Consulate or —

Fred Okrand:

He did not and I will deal with that subject in a moment, because that, as I understand the Government’s position, is its main case.

That is on what they rely to show voluntary conduct and upon what they rely to show proof of voluntary conduct.

Audio Transcription for Oral Argument – May 02, 1957 in Nishikawa v. Dulles

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Or absence of duress.

Fred Okrand:

Absence of duress.

Of course in our view, the Government has to go forward and show that it was voluntary, but I will deal with that no protest in a moment.

After the war, he applied at the American Consulate in — in Japan to return to the United States and was told at that time that he was not any longer a citizen of the United States for reason of this military service under the regulations which were in effect then and are in effect now.

He was issued by the American Consulate a document entitled “Certificate of the Loss of the Nationality of the United States”.

This document was executed by the vice consul and approved by the State Department here in Washington.

After he received that document and the denial of his passport application, he filed suit in the District Court in Los Angeles for a declaration as to whether he had lost his United States citizenship and was permitted under the law then in effect to come to California for his trial.

The trial court ruled against him and the Court of Appeals affirmed.

Earl Warren:

Is there anything in the record to indicate what would have happened to him in Japan if he had not — if he had refused to go into the service?

Fred Okrand:

Yes, there is, Your Honor.

Earl Warren:

What — what —

Fred Okrand:

There is the — the Japanese Military Service Law is in the record.

Earl Warren:

Oh, is it?

Well, then don’t bother, you go head —

Fred Okrand:

Yes.

Earl Warren:

(Inaudible)

Fred Okrand:

Setting forth the criminal penalty that is provided in the — in the event of — of refusal to comply with the order.

In addition, we think there is also in the record, although there are some dispute between government counsel and ourselves.

The fact that this Court can take judicial notice of the situation in Japan in 1940 and 1941 which is the critical date, 1941, namely, that it is a totalitarian — was a totalitarian government which could not have been expected to brook any violation of its draft laws at that time.

William J. Brennan, Jr.:

Is there anything in the record to indicate that that situation or in the draft — anything in the draft law would have brought upon him some consequences if he gone in the American Consulate?

Fred Okrand:

Not in the record.

There is nothing in the record specifically except the petitioner’s testimony.

William O. Douglas:

Yes.

William J. Brennan, Jr.:

Which was what?

Fred Okrand:

Which was that he was afraid to go to the American Consul at that — at that time because of the conditions in Japan, he was under surveillance as a Nisei which is an American born Japanese person.

Because he feared that he would be harmed by the Kempeitai, which is the Japanese Military Police, had he done that.

The court below felt two things that the burden of proof was upon the petitioner to establish that he served involuntarily.

In this, we think as a matter of law, the court below was wrong and the trial court, well, I’m not specifically saying so in this case, did follow that legal theory that the Government has pointed out that the trial court has tried a number of these cases and in other opinions that he has written, he stated that that is his view of the burden of proof.

We think that expatriation being as this Court has said, the voluntary renunciation or abandonment of nationality or allegiance, that it is incumbent upon the Government to prove its entire case, to prove expatriation.

And we think the law — the rule is and ought to be that the Government must prove all the elements of expatriation including the element of voluntary conduct.

Audio Transcription for Oral Argument – May 02, 1957 in Nishikawa v. Dulles

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Fred Okrand:

The court below not having followed that rule on that ground alone, we believe we are entitled to a reversal of the judgment.

On another theory, we think that the petitioner is entitled to — to a reversal of judgment and that is the failure of the courts below to follow what this Court has said is the rule in expatriation cases.

Namely, that the facts and the law are to be interpreted so far as it’s reasonable in favor of the citizen and that in the event of any ambiguity or any doubt, that must be resolved in favor of the petitioner.

I might say to the Court that this case is quite in conflict, as the Government has recognized in its response, to at least the Second and Third Circuits and also to the Court of Appeals for the District of Columbia on both the burden of proof issue and on the feature of the case about resolving factual doubts in favor of the citizen.

With reference to your question, Mr. Justice Harlan, the petitioner did not protest, did not audibly protest.He did not go to the American Consulate nor did he audibly protest to any Japanese official.

That feature of the case, Your Honor, is the very feature which, it is clear from a reading of the record, prompted the trial court to hold that he affirmatively acted voluntarily.

Now, the Government has not disputed because it is the fact and has been for many years.

That the Government of a country in which a person is residing particularly if he happens to be under the law of that State, a citizen or a national of that State, has the right to require the military service of that individual whether the other government wants it or not.

And as we have pointed out in our brief, the Government has issued in its State Department a little — a little booklet which it gives to persons who obtain passports.

It has specifically stated that it will not and it does not make any effort to relieve an American citizen, who also happens to have the nationality of a foreign state, from military obligation if he is in that state and must respond to the laws of that state.

That is not disputed by the Government and it is the fact.

How did this man know that?

Fred Okrand:

He was told that is in the record.

He was told by a friend of his, a Nisei who happened to work at the consul — at the embassy, I believe, that there was nothing that could be done for him if he should go to the Consulate and make a request for excuse for military service.

Now, I must point out to the Court that I think this is one of the things that the trial court said he did not believe the petitioner.

I — I say I think it is because it isn’t clear but I — I think that’s one of the things.

The trial court apparently did believe the petitioner when the petitioner testified that he did not go to the Consulate but the trial court apparently didn’t believe him when he said that the reason that he didn’t go was because of fear that he might have reprisals taken against him by the Kempeitai or because he felt that — that the American Consulate could do nothing for him.

Earl Warren:

Would — was the petitioner’s word contradicted in anyway or is it — was that an inference from the judge?

Fred Okrand:

It’s an inference — well, it’s — there is no contradiction of the petitioner’s testimony.

All the evidence was given by the petitioner, including the documentary evidence.

As a matter of fact, upon the conclusion of the petitioner’s case, the trial court asked the petitioner — his counsel, “Do you rest?”

And he said, “Yes.”

Without anything further, the trial court said to the Government’s counsel, “Do you rest?”

And the Government’s counsel said, “Yes.”

So that the trial court felt obviously that the burden entirely was upon the petitioner to prove his case and the Government had no obligation whatsoever to prove that — its case under the circumstances.

William J. Brennan, Jr.:

Incidentally, did the petitioner admit knowledge that by going into the Japanese Army he was risking a loss of his American citizenship?

Fred Okrand:

Oh, no.

That is very clear.

That there is no admission of that, the evidence is to the contrary, he said he did not know and — and the trial court also made it very clear that it was not inferring that he did know.

That he would lose his American citizenship at the time he went into the army.

Audio Transcription for Oral Argument – May 02, 1957 in Nishikawa v. Dulles

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William J. Brennan, Jr.:

And in that circumstance, what reason would he have had to go to the American Consulate if he didn’t —

Fred Okrand:

Well, were it not for the fact that an — that he was told by this friend that he couldn’t get any relief.

He probably wouldn’t except that a person, normally, I should think, in ordinary circumstances would rather not go into the military service if he can avoid it.

Perhaps in some compulsion of some kind of war or something like that.

So that the — but the evidence is very clear that he did not know that he would lose his American citizenship by going into the Japanese Army.

Earl Warren:

That — and that was before we were at war with Japan?

Fred Okrand:

It was before we were at war with Japan.

I may point out to Your Honors that there have been a number of cases involving Italian military service in which the courts have taken into consideration the fact that this was in a totalitarian type of country and in peace time and this was likewise before we were at war and I may say that the trial court viewed it in just the other way.

The trial court viewed it in the sense that he ought to have known we were going to get into war.

I will not make reference to Pearl Harbor as to my views as to whether I think the trial court was correct in imposing that burden upon the petitioner to have known that we were going to get into a —

Harold Burton:

From your point of view, does it make a difference what his subject of attitude was whether he knew he — he refuses citizenship or not?

Fred Okrand:

I think this, Your Honor, I think I can conceive of a situation — well, perhaps not controlling where he would be relevant.

In other words, if an individual knew that he was going to lose his citizenship by this, there could be a situation where that would have relevance as to the voluntariness of his conduct.

Harold Burton:

But if he didn’t know that wouldn’t —

Fred Okrand:

If he — if he didn’t know and then there can be none of this implied waiver that — that seems to run from the Government’s briefs except that they always had.

I want to save a little bit of time.

There is one other argument that I’d like to — one of the point that I’d like to bring to the Court’s attention.

Oh, before I do that, one other — one other matter.

The Court of Appeals for the Second Circuit and the Third Circuit very clearly and in my judgment that the Court of Appeals for this District, for the District of Columbia has stated as a rule of evidentiary law that conscription into the army of a foreign country under compulsion of law raises a presumption of involuntary conduct, irrespective of where the burden of proof may lie to prove voluntariness or involuntariness.

And those circuits have held that absent proof by the Government overcoming that presumption, a petitioner in the — a position of — of this petitioner here is entitled to a reversal of a trial court’s judgment withheld — which held that he served voluntarily.

The Circuit below, the Ninth Circuit of course held to the contrary and held that there is no presumption of — of involuntary conduct by reason of conscription.

That will be it under compulsion of law carrying a criminal penalty.

We have suggested in our brief also one other reason why this Court need not and ought not read the — reach the constitutional issue.

We suggest that this statute ought not to be applied to this factual situation, namely, conscription under law carrying military — carrying criminal penalties of a national resident at that time in that country.

In answer to the Government’s suggestion that then the statute would not apply to anyone, we reply that it would in fact apply to the very individuals which Congress had in mind when it passed this particular bit of legislation.

The legislative history of this statute is set forth at some length in the opinion of the First Circuit in the Dos Reis case which is cited in our brief.

It sets forth a great deal of the legislative history, namely, to take away citizenship from those individuals who have shown by their conduct that they want to throw off citizenship of the United States and adhere to nationality of another state.

Now, we say that — if that is the purpose of the statute then it ought not be applied to this case because all that there is in this case is a person responding to the law of the country in which he happens to be.

One other point and I shall sit down.

In Kawakita case which is cited in our brief and which was a treason case in which the arguments were just the other way around.

Audio Transcription for Oral Argument – May 02, 1957 in Nishikawa v. Dulles

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Fred Okrand:

Petitioner was claiming loss of citizenship and the governor was saying — the Government was saying not.

The Government made the point that conduct requires by the law of a foreign state, in which a person was living, could not be used against him.

He was excused.

It was the word of the Government.

Now, if that be true, that is another reason why the statute ought not to be applied for this factual situation.

Earl Warren:

Do you — Mr. Okrand, do you ask anymore than that this case should go back for hearing by the court below to determine whether he did in — in fact voluntarily — voluntarily join the army and leaving the burden to the Government as you —

Fred Okrand:

Well, as a matter of fact, we are asking more but we are entitled to that at the least.

Earl Warren:

Yes.

Fred Okrand:

Because as I view the — all the other circuits, except this one, in the Third and the Second in the District of Columbia precisely on this type of a record, those circuits did not remand but the one exception on the Bruni case, the latest one, did not remand but simply held that — that on the record, the Government had not repelled the presumption of — of involuntariness and therefore petitioner was entitled a judgment.

But at the minimum, we’re entitled to a reassessment in the — on the — in the light of correct burden of proof.

Earl Warren:

Let’s assume for the sake of argument that he voluntarily went into the Japanese Army and voluntarily fought throughout the — the war.

Do you — would you concede then that the Government had the right to denaturalize him?

Fred Okrand:

Well, then we come to the constitutional question.

Earl Warren:

Yes, I know.

Fred Okrand:

Yes, sir.

No.

Earl Warren:

You don’t concede it?

Fred Okrand:

No, I do not.

Earl Warren:

You — you would raise a constitutional —

Fred Okrand:

Well, we have —

Earl Warren:

— the question and Mr. Horsky

Fred Okrand:

Yes, we have raised a constitutional question in the brief.

Earl Warren:

Yes.

Fred Okrand:

But it would be duplicating to it.

Earl Warren:

Yes.

This — your situation is different from Mr. Horsky’s and that you got to do on a nationality situation and —

Fred Okrand:

Very clearly, there is no question about that.

And of course that’s one of the basis for our argument for the — why the statute should not be applied here.

Earl Warren:

Mr. Davis.

Oscar H. Davis:

Mr. Chief Justice, may it please the Court.

Audio Transcription for Oral Argument – May 02, 1957 in Nishikawa v. Dulles

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Oscar H. Davis:

The particular facts of this case are very important because we have here of the findings of a trial judge after a trial adverse to the petitioner, affirmed by the Court of Appeals as amply supported by the evidence.

And so there is to a certain extent the invocation of the two-court rule relating to findings of fact upheld by two courts below.

The undisputed facts are these.

Petitioner was born in the United States in the State of California.

He was educated here.

He went to the University of California and secured an engineering degree.

In August 1939, when he was 23 years of age, he went to Japan on an American passport.

His claim was that he went there to visit and study.

He knew Japanese apparently as an oral tongue but he did not — he could not write Japanese or read Japanese because when he got to Japan, he hired a tutor to teach him Japanese characters so that he could read and write Japanese.

His father died shortly after he got to Japan in November 1939.

He did not then return to the United States.

His claim at the trial was that he did not have funds to come back to the United States though his father had given him the funds to go to Japan and he did testify that his father was going to support him during his studies in Japan.

It — he knew when he went to Japan in 1939 — in August 1939 that he was national of Japan as well as the United States.

He was a dual national and he also knew that Japan was fighting in Manchuria, that there were hostilities going on at that time.

When his father died and he felt he couldn’t continue with his studies as he said, he then went to work in an airplane plant in Japan and this was apparently shortly after his father died in November 1939.

In June 1940, he was notified that he would be inducted into the Japanese Army and he came and took a physical examination in June 1940.

He was not actually inducted until nine months later, March 1941.

Now, during that period of nine months between June 1940 and March 1941, he himself testified that he did not make any protest or any inquiries, letter on protest, any protest or any inquiries of either to the Japanese authorities or of the American authorities.

That is the American Consulate or the American Embassy.

He did nothing.

He did not attempt to renounce his Japanese nationality as some other persons and I think I can say this because it — it came up in the record of the Kawakita case to which Mr. Okrand mentioned.

There were a Japanese dual national to renounce their Japanese nationality abroad in order not to serve in the Japanese Army, nor did he seek to come back to this country in anyway.

Tom C. Clark:

You mean it renounced in a vague service it spent?

Oscar H. Davis:

Apparently so.

Apparently that this was — this was rather early.

This was June 1940 to March 1941.

And apparently at that time there was a possibility of — of abating service or avoiding service by renunciation.

At least he didn’t make any effort to do that or to find out about that nor did he make any effort to find out whether he could come back to the United States.

Is there a —

Earl Warren:

You say apparently, is there — is the law so state over there or —

Audio Transcription for Oral Argument – May 02, 1957 in Nishikawa v. Dulles

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Oscar H. Davis:

I do not know, Mr. Chief Justice.

That is my understanding of — of the — of the Japanese law.

I have gone into —

Earl Warren:

In 1941, he was — the Japanese Empire was in alliance with Hitler, was it not?

Oscar H. Davis:

Yes.

But his — in June 1940, he was — he went abroad in August 1939.

He was notified of perhaps induction in June 1940.

All I’m suggesting is that there is no showing on this record of any attempt to find out about these things.

This is all important because the judge — Judge Byrne who, as Mr. Okrand has indicated, has heard a very large number of these Japanese expatriation cases in the Southern District of California and has not always many, many times held in favor of the — of the citizenship claimant against the Government.

Judge Byrne found on the basis of the record before him and the testimony of this petitioner, who appeared orally, that this man went to Japan in order to serve in the Japanese Army.

He made that specific finding as one of the basis of his holding.

Was he the only witness at the hearing?

Oscar H. Davis:

He was the only witness at — at the hearing.

Well, how — where did he base that finding now?

Oscar H. Davis:

He based it on the fact that this was a — a man of a superior education who testified at the trial that he did know — knew nothing at all about the cold war between Japan and the United States.

He didn’t know that that war clouds were gathering.

He didn’t — he didn’t read any newspapers abroad.He didn’t know what — he didn’t know that a draft was occurring in the United States.

He said he couldn’t read Japanese characters or he couldn’t read Japanese newspapers and the one English language newspaper that was published there, he said was too far out — didn’t reached him where he was in the country (Voice Overlap) —

William J. Brennan, Jr.:

But how does — how does disbelief of all of that add up to the affirmative finding that he went there purposely to join the Japanese Army.

Oscar H. Davis:

You — you have a man who went in August 1939, who did not return when his father died and even though his father apparently was going to support him abroad who — and who gave him the money to go abroad, who took a job in an airplane factory, who made no protestations, no inquiry whatsoever in relation to entering the Japanese service.

He didn’t — he testified that he didn’t make any inquiry or protestation either as to the — to Japanese officials or to the American officials.

He didn’t seek to come back to this country in anyway.

He was asked at the trial whether he hadn’t heard that Americans were being asked at that time to come back to the United States by the Consul there, he said no, he hadn’t heard that.

I feel somewhat justified in — in contradicting that because in the material which petitioner has filed, filed not in the trial court but in the Court of Appeals in which it asked this — this Court to take judicial notice of, petitioner has himself included two depositions of Japanese-Americans in Italy taken by petitioner not — not in this case, in other cases entirely, in other cases in the Southern District of California, but in — but depositions taken by the same counsel or on behalf of the same counsel and those are the cases.

And there is a specific question in — in one of those depositions, “Did you not know that the American Consulate was asking all Nisei, all American person, citizens of Japanese dissent to come back to this country in 1940 and 1941?”

“Yes, I did.”

William J. Brennan, Jr.:

And it’s this petition?

Oscar H. Davis:

No, this is — this is — these are depositions taken with relation to other people which are included by this petitioner in matters which he wants the Court to take judicial notice of and we don’t think he can — you can take judicial notice of them.

But I — I mentioned that because petitioner himself has — has presented them to the Court for consideration.

Well, it was on the basis of all these facts and the fact that he did serve in the Japanese Army, that Judge Byrne held that —

Audio Transcription for Oral Argument – May 02, 1957 in Nishikawa v. Dulles

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Harold Burton:

Where did he serve (Voice Overlap) —

Oscar H. Davis:

He served in — in Manchuria and in the Philippines and in Indonesia.

And he testified that he knew that there were American troops in the Philippines though he said he did not himself see them.

He was in the air force.

He — he claimed he was a mechanic in the — the Japanese Airforce.

This is a man with an engineering degree.

Harold Burton:

Where did he serve before he went in the war?

Oscar H. Davis:

I believe he served in Manchuria before he went to war and then in Indonesia.

Now, he did claim and — and judge — I think Judge Byrne disbelieved him.

He did claim that there was certain element of fear but his statements as to fear are very weak.

He said that he had heard rumors that the Kempeitai, their political police were surveilling Nisei and that they would beat them up.

And he said this might be true.

He didn’t even say that he — that they were true.

He says this might be true and all he said is that there were rumors.

He didn’t — he said he had personal contact with the police at all when he testified, that these were rumors that he had heard.

He was asked if he checked these rumors with any American official in Japan.

He said he did not.

“Did you check those rumors with any Japanese official in Japan?”

“No, sir.”

Hugo L. Black:

Mr. Davis, may I ask you, I should take it this is one of the cases maybe where burden of proof would be rather important.

Would you think if the burden of proof was on him, in connection with defending his citizenship show that when he is ordered into the army in Japan he had to go?

Oscar H. Davis:

May I answer your question in two parts —

Hugo L. Black:

Yes.

Oscar H. Davis:

— Mr. Justice Black?

Hugo L. Black:

I just thought —

Oscar H. Davis:

We think that Judge Byrne in this case held against petitioner regardless of the burden of proof.

He does not say —

Hugo L. Black:

Well, I don’t see from what you’ve just said how he could possibly done it.

Oscar H. Davis:

Well —

Hugo L. Black:

On — on — if that’s your evidence, if that’s the —

Audio Transcription for Oral Argument – May 02, 1957 in Nishikawa v. Dulles

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Oscar H. Davis:

He did not believe petitioner’s statements —

Hugo L. Black:

But suppose he didn’t, suppose — suppose he’d said, “I don’t believe a word you’ve said.”

Could you then deprive him of his citizenship on the ground that he didn’t have to go when he was ordered?

Oscar H. Davis:

Yes, if he doesn’t make any efforts to get out of there.

If he doesn’t make efforts to come back to this country to protest, of course —

Hugo L. Black:

The burden — the burden would be on him to show that.

You —

Oscar H. Davis:

The burden would be on him to do those things and he showed that he did not do them.

Hugo L. Black:

I’m talking about the trial where you (Voice Overlap) —

Oscar H. Davis:

Well —

Hugo L. Black:

— your citizenship.

Oscar H. Davis:

— I think there’s a difference, Mr. Justice Black, between the burden of what he must do in order — in relation to voluntariness.

As to those things, there was no question of burden of proof because he testified he did not do those things.

He himself testified on direct and cross-examination that he did not do any of these things.

Hugo L. Black:

Well, without more you think that was enough for a judge to make a finding, that he went over there for the deliberate purpose of getting in the army?

Oscar H. Davis:

I do, Mr. Justice, and I particularly think it was enough to make — to make a finding when he went over there, that he did not go into the Japanese Army under duress.

But I said I would answer your question on — in two parts —

Hugo L. Black:

Yes.

Oscar H. Davis:

— and my first answer is that Judge Byrne, regardless of the burden of proof, held against the petitioner and we believe the Court of Appeals, regardless of the burden of proof, affirmed.

Though the Court of Appeals did say explicitly that the burden of proof was on petitioner.

We think if you read their opinion you will see that —

Hugo L. Black:

Do you think that’s right?

Oscar H. Davis:

No.

Then I’m going to go on to that — to the second thing.

As far as burden of proof is concerned, if I can make a distinction between the ultimate burden of proof, that is if the judge finds that the facts of the evidence is equally balanced, for whom shall he decide?

That’s the ultimate burden of proof.

And the burden of going forward with the evidence, which party has the — the duty and obligation of initiating consideration of a certain matter and presenting some prima facie evidence in relation to it?

Because we think that there are differences in relation to that.

And as I go through the steps of the — of the trial, it may seem like a tennis match in which the balls are shifting backward and forward but we think that’s the correct approach.

William O. Douglas:

Of course in the Kawakita case, we went pretty far in — I just — to refresh my recollection a little, in holding in a case of a dual citizenship, the person who does an act is consistent with one of those citizenship status — status of one those rights.

Audio Transcription for Oral Argument – May 02, 1957 in Nishikawa v. Dulles

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William O. Douglas:

It doesn’t necessarily repudiate the other.

That was a — that was a bobtail court and there were — and there was a 4-to-3 decision that we did (Voice Overlap) —

Oscar H. Davis:

We think the Kawakita case is quite different, Mr. Justice.

William O. Douglas:

Well, it wasn’t.

It was a criminal prosecution.

Oscar H. Davis:

More than that, there were specific questions asked.

There was a special — special verdicts in — in that case.

And the jury was asked, did Kawakita ever think that he had given up his American nationality and on the basis of evidence which this Court held was sufficient that the jury returned a verdict?

No, he never thought that he’d given up his American nationality.

And the jury was also asked — was also told that if Kawakita did anything — that Kawakita had to be found to have done something in order to commit treason against the United States, which was the issue in that case, he had to — he found to have done something which was not required of him more than was required of him of — of — by Japanese law and the jury made that specific finding.

William O. Douglas:

But expatriation was the threshold question.

Oscar H. Davis:

Well, expatriation was the threshold question, what you had before us — before you, findings of fact that he had never intended to expatriate himself and — and that he — findings of fact that no duress was exercised upon him.

Still the petitioner in that case raised the issue of expatriation and it was very important question which was mooted here.

I — I mean to lay the case aside because there were findings of fact in that case made by a jury, a special verdict which were far different from the cases — from the case which is before you now.

On the question of burden of proof, the petitioner is the plaintiff, as an ordinary plaintiff, he has the — what you might say the long range burden of proof of showing that he’s a citizen of the United States.

Well, he proved that he was born in California and if nothing more appeared, that’s all there was, he would certainly be entitled to a judgment.

The — the burden would then shift to the United States and we think that the burden is clearly on the United States of showing that he committed an objective act of expatriation.

That is that he went into the Japanese Armed Forces while a dual national, while a Japanese of Japan.

But that was proved.

It was proved because petitioner himself, anticipating what the Government could easily prove himself admitted that he went into the Japanese Armed Forces and that he was a national of Japan.

So you have a case where — on the one hand he’s proved he’s — he was born in California, on the other hand he’s proved that he served in Japan while a national of Japan.

If nothing more appeared, we would think that the — our view is that nothing more appeared that the Government should have — should have the judgment because we think that the burden, at least the burden of going forward with — with showing issues of — with showing matters of duress goes to the petitioner.

He’s the one who knows that if he entered the Japanese Army, he did it under duress.

And so we say —

Hugo L. Black:

Suppose it was not under duress, I’m — I’m interested in the viewpoint, but he had a dual citizenship and he was under that — he didn’t respond to either offenses that’s all in.

Oscar H. Davis:

Congress — well, the statute says that — that you are expatriated, you lose your nationality if you — as a dual citizen entered the armed forces of the other country.

Now —

Hugo L. Black:

You (Voice Overlap) —

Oscar H. Davis:

— the issue of constitutionality may be there but the statute is clear on — on that.

Coming back —

Audio Transcription for Oral Argument – May 02, 1957 in Nishikawa v. Dulles

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William J. Brennan, Jr.:

And — and there includes, I take it, drafted?

Oscar H. Davis:

In our view, yes.

That Congress is going to pass the statute must have known —

William J. Brennan, Jr.:

Is that an issue in the case?

Oscar H. Davis:

The issue in the case is whether it should be construed that way.

If I could say this on that point, Mr. Justice Brennan, Congress passed the statute in 1940.

It was well known that throughout the world, there was conscription.

In fact, most of the people who would be caught by the net of the statute would be drafted or — or conscriptees.

It was true of all the countries, almost all the countries which had dual nationality.

William J. Brennan, Jr.:

The other side argued the other way?

Oscar H. Davis:

The other — yes.

The other side argues that you should nevertheless construe the statute as not relating to a dual national who is conscripted.

Now, we admit that if it’s found that the man though conscripted was — that the man involuntarily entered the forces, the — the statute does not apply then because it has been construed and we think correctly as applying only to a man who voluntarily entered.

Our difference is that we think that mere proof of conscription alone does not show involuntariness.

And that — that’s the issue which is at — really at the heart of this case.

Hugo L. Black:

Would that be true in this country?

Oscar H. Davis:

Well —

Hugo L. Black:

(Voice Overlap) —

Oscar H. Davis:

— it would depend of what —

Hugo L. Black:

There’s a quite difference between the voluntary and the constituted.

Oscar H. Davis:

We — Mr. Justice Black, we’re not saying that if the man did what he think — we think he should have done, gone to the Consulate, make protest, try to come back to the country, he couldn’t do it.

There are many cases which the Government has not appealed and brought to this Court where the man shows that he went to the Consulate.

He said, “I want — I don’t want to serve in the army of the foreign country.”

And they said, “There’s nothing we can do about it.”

He said, “I want to come back to the United States.”

They say, “We don’t have any funds to give to you,” and so forth.

He then goes into the army and we would not be here urging that he was — that he was — a voluntary entrance into the Japanese Army.

We are here urging this position because this man did none of those things which in all the other cases those people did.

I don’t mean they did everyone, but I think it’s fair to say that there is no appellate decision with relation to duress and conscription which has as bare a record as this one.

In all the other cases in which the Court has held that a man who was conscripted into the army acting under duress, there was always some showing of an attempt to protest or — or an attempt to inquire or an attempt to come back to the United States or something rather like that.

Audio Transcription for Oral Argument – May 02, 1957 in Nishikawa v. Dulles

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Oscar H. Davis:

In this case, there is nothing except his protestations of fear, weak as they were even stated and which were disbelieved by the trial court.

William J. Brennan, Jr.:

Well, in that — in that connection then do you accept your adversary’s view of the record that there’s absolutely nothing to indicate that he had any knowledge whatever that by serving in the Japanese Army he risked forfeiting his American citizenship?

Oscar H. Davis:

Yes, Mr. Justice Brennan.

William J. Brennan, Jr.:

You do agree?

Oscar H. Davis:

Yes.

There — there’s nothing in the record to show that.

But I would also like to point out that this Court held in the Savorgnan case in 1950 in — in 338 U.S., that it is not a concomitant of an act of expatriation that the person who commits it knows that he’s — has the subjective intent that he expatriate himself or that he knows —

William J. Brennan, Jr.:

No, but might that not bear on the question whether in fact conscription, even in the sense you suggested, was voluntary?

Oscar H. Davis:

It might have some bearing on it but we think it is overborne in this case by the — by — by the history — his own history, the type of person he is and what he did not do.

The judge so found —

William J. Brennan, Jr.:

I’m just wondering whether what he did not do is very meaningful in a situation in which it doesn’t appear they have any knowledge of the consequences of what was failure to do might mean.

Oscar H. Davis:

It’s meaningful, Mr. Justice Brennan, because if the natural thing for a person who’s abroad, who’s only going to study and — and visit as he says, not to want to serve in — in the armed forces particularly at a period of time in which this man, who was a graduate of the University of California, must have known there was world tension whether he knew there was going to be a war between Japan and United States or not.

And it’s meaningful that in that situation, in those circumstances, he did not do anything which all the other persons involved in this type of case did do or he didn’t make proof of — of more direct terror and fears as a result surveillance in Japan.

He said he had no contact and all of that.

In other words, our view is that this record is about the barest record that we have seen in a long time with relation to a claim of — of duress by a man who was —

Hugo L. Black:

But why didn’t he prove duress when he proved he’s conscripted?

I could get to where the arguments.

But after he’s conscripted to somewhere, accused it or ordered by statute.

He tried to get out but he’s already in, he’s in by being conscripted.

Oscar H. Davis:

Oh, he wasn’t conscripted.

He — between June —

Hugo L. Black:

I thought you said he was.

Oscar H. Davis:

Yes, but he — there was a period of time, June 1940 is when he knew he would be drafted, that’s when he had his physical examination.He was not actually inducted into the army until nine months later in March 1941.

What I’m talking about is what he did not do during this nine-month period.

Hugo L. Black:

Well, you say after he was notified, he was going to be conscripted?

Oscar H. Davis:

That — that’s — that —

Hugo L. Black:

He should have immediately moved.

Oscar H. Davis:

He should have done something.

He did nothing and that’s on his own testimony.

Earl Warren:

Could he have refused to be examined?

Audio Transcription for Oral Argument – May 02, 1957 in Nishikawa v. Dulles

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Oscar H. Davis:

I — I doubt that, but I think that he — after the examination —

Earl Warren:

He hadn’t — if he hadn’t, would they put him in jail?

Oscar H. Davis:

I don’t know.

They might have proceeded against him.

We’re not saying he should have refused to — to be examined.

I’m not saying he should have been refused to be inducted, Mr. Chief Justice.

I am saying that he should have done some utterly other things which in all the other cases have been indicia indicative of a — of a non-voluntary — of non-voluntary entrance into a foreign army.

Earl Warren:

But might not the country that a man is in have a lot to do with whether he would — he would go now and seeking information?

If he was in Nazi, Germany, it might be a lot different from whether he was in — in the South American Republic or some other country.

Being in Japan might make a lot of difference too in view of the — the attitude of the Government and the Japanese people at that particular time.

Oscar H. Davis:

He testified he was not in direct contact with the police.

He testified that he made no effort to find out anything, not only from the Japanese but from Americans except from some Nisei friend of his who gave him hearsay opinion.

He did not go to the Consul.

He was an American citizen travelling on an — on American passport.

There would be nothing to prevent his going up to the American Consulate, the American Embassy and entering in there for whatever business that — that he might have.

Earl Warren:

No, except that he — he might lose his head by it but (Voice Overlap) —

Oscar H. Davis:

They wouldn’t — the Japanese wouldn’t even know why he went to the American Embassy.

He was travelling on an American passport.

He could go there to renew the passport.

They wouldn’t even know why he went there.

Hugo L. Black:

I’ve heard sometimes they do.

Earl Warren:

[Laughs] Yes, indeed.

Tom C. Clark:

You say other people (Voice Overlap) —

Oscar H. Davis:

We hope not.

Tom C. Clark:

You said other people went there?

Oscar H. Davis:

In other cases —

Tom C. Clark:

Other Niseis?

Oscar H. Davis:

There are other cases of Niseis.

This — I’m referring to reported cases.

These are — it’s not in the record in this case.

Audio Transcription for Oral Argument – May 02, 1957 in Nishikawa v. Dulles

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Oscar H. Davis:

They were reported opinions which indicate that other people did go and did make inquiry.

Earl Warren:

At what — in what years, do you know?

Is it in 1941?

Oscar H. Davis:

Even later than that, even later.

This is a relatively early period in — in relation to these matters.

Inquiry was made even at a later time.

After all, Pearl Harbor wasn’t until — almost a year after he was inducted in the army.

He was inducted in March 1941 and Pearl Harbor didn’t take place until —

Hugo L. Black:

Do you mean it was a year before Pearl Harbor that you say he should have known we were going to get in a war?

Oscar H. Davis:

No, I don’t say that — that he should have known we would get — get into the war.

I don’t even think that Judge Byrne said that.

I — all I say is that he should have known that there was tension in the world that the Japanese were fighting, that there was a world situation which could go up like (Inaudible).

Our position, if I can state it in a minute that I have today, is that he has the burden of going forward of showing duress and that by proving conscription alone which is all that he proved here because the judge did not believe his other statement, by proving conscription alone, he does not carry the burden of — of making a prima facie case of duress.