Dulles v. Katamoto, 15202.

• Citation: 256 F.2d 545
• Decision Date: 06 June 1958
• Docket Number: No. 15202.,15202.
• Parties: John Foster DULLES, as Secretary of State of the United States, Appellant, v. Sukejiro KATAMOTO, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

256 F.2d 545 (1958)

John Foster DULLES, as Secretary of State of the United States, Appellant, v. Sukejiro KATAMOTO, Appellee.

No. 15202.

United States Court of Appeals Ninth Circuit.

June 6, 1958.

Louis B. Blissard, U. S. Atty., Charles B. Dwight, III, Asst. U. S. Atty., Honolulu, Hawaii, Lloyd H. Burke, U. S. Atty., San Francisco, Cal., for appellant.

Shigeto Kanemoto, Honolulu, Hawaii, for appellee.

Before DENMAN, FEE and HAMLEY, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal from a judgment of the District Court for the District of Hawaii, sitting without a jury, in a 8 U.S.C. § 903¹ case. The questions presented are: (A) Does the law of Japan require one to be solely a Japanese national to teach English in a Japanese school and hence require of Katamoto, a dual citizen of the United States and Japan, born in Hawaii of Japanese parents, that he surrender his United States citizenship to teach English there? (B) Should § 401(d) of the Nationality Act of 1940^* be construed to deprive of his American citizenship a dual American-Japanese citizen who accepts employment as a school teacher in Japan? (C) Did Katamoto's six years of residence in Japan deprive him of his American citizenship?

The heavy burden of proof on the Government seeking to deprive Katamoto of his citizenship under § 401(d) of the Nationality Act of 1940.

That act provides:

"§ 401. General means of losing United States nationality. A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:

* * * * * *

"(d) Accepting, or performing the duties of, any office, post, or employment under the government of a foreign state or political subdivision thereof for which only nationals of such state are eligible. * * *"

The heavy burden of proof in such a denaturalization case has been recently restated by the Supreme Court in Mitsugi Nishikawa v. Dulles, 356 U.S. 129, 133, 78 S.Ct. 612, 615, 2 L.Ed.2d 659, as follows:

"Likewise, the parties are agreed that when a citizenship claimant proves his birth in this country or acquisition of American citizenship in some other way, the burden is upon the Government to prove an act that shows expatriation by clear, convincing and unequivocal evidence. In Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed. 806, we held that the rule as to burden of proof in denaturalization cases applied to expatriation cases under Section 401 (j) of the Nationality Act of 1940. We now conclude that the same rule should govern cases under all the subsections of Section 401." Emphasis added.

A. The Government has not maintained its heavy burden of proof of the fact that under the Japanese law a dual citizen of Japan and the United States could not teach the English language in a Japanese village school without surrendering his United States citizenship.

We judicially recognize that Japan is a civilized state having a constitution, a legislative body, with its statutes, courts administering laws with lawyers and judicial decisions and that the law of Japan is that one born in a foreign country of Japanese parents is a Japanese citizen. The Government offers no proof of any existing constitutional provision, statute, regulation, or decisions of a court requiring the abandonment by such a dual national of all but his Japanese citizenship before he can teach the language of his other nationality. Moreover, the Government did not avail itself of the usual method of proof of a foreign law, i. e., by the testimony of an experienced Japanese practitioner.

Its failure to produce any such statements of the law or lawyer witnesses, of the condition of the law makes its contention open to the inference that if produced they would have shown that such a Japanese-American citizen could teach a language foreign to Japan without ceasing to be an American citizen. 2 Wigmore on Evidence §§ 285-291 (3d Ed. 1940).

The copy of the School Education Law which the Government relies upon provides in Article 8:

"Matters regarding certificates and other qualifications of principals and teachers shall be decided by the competent authorities."

And in Article 106, that, "The competent authorities under the following Articles and paragraphs shall * * * be the Minister of Education * * * Article 8 * * *." The Government did not prove that only by his abandonment of his American citizenship could Katamoto teach in the public schools. It did not seek the deposition of the Minister of Education as to his regulations or orders regarding "qualifications of principals and teachers."

Katamoto taught English without a teacher's license. The Government produced the Japanese Teacher License Ordinance which expressly makes provision for "any person", and hence a dual Japanese American citizen, to teach a non-Japanese language in Article 2, providing, "However, any person, even if he does not possess the license, may be appointed a teacher in accordance with the provisions as stipulated by the Education Minister."

That such a provision for foreign language teachers should not exist seems most unlikely. Japan, by the 1940s, was one of the world's largest manufacturers and exporters of manufactured goods to countries of many languages which were its customers. World War II increased its power to manufacture. It would be against its obvious interest that it would forbid the teaching of all their customers' languages to its nationals by such a Japanese-American dual citizen.

The Government produced a copy of an exhibit of a writing from one Japanese government official to another speaking of a former constitution, "the old constitution", under which "possession of Japanese nationality was required to become government officials of Japan." (Emphasis added. Though this is hearsay the obvious inference is that the existing constitution does not make such a requirement, particularly so since the Government offered no part of the new constitution. Further, it admits in its brief that the Katamoto teaching was an "employment" and does not claim it is an office which would have been covered by the old constitution. Also the contention has no relevance to the issue whether under the Japanese law "only nationals" and not dual nationals are permitted to teach.

The Government offered the statement of the principal of the junior high school concerning Katamoto's employment there as follows:

"It is further added that according to the Educational Law and the Teacher\'s License Law, only those who have Japanese nationality can hold the position of local instructors and that the foregoing applicant was appointed local instructor temporarily in accordance with the regulations relative to the enforcement of the Educational Law."

Here we have a hearsay opinion of the law not from a lawyer but from a school principal which, upon examination, shows that he did not know what was contained in the Education Law and the Teacher's License Law, both as we have seen being in evidence. There is nothing in either set of laws from which...