Baker v. Rusk

• Citation: 296 F. Supp. 1244
• Decision Date: 17 March 1969
• Docket Number: Civ. A. No. 67-1641.
• Court: U.S. District Court — Central District of California
• Parties: Morris Louis BAKER, Plaintiff, v. Dean RUSK, Secretary of State, Defendant.

296 F. Supp. 1244

Morris Louis BAKER, Plaintiff, v. Dean RUSK, Secretary of State, Defendant.

Civ. A. No. 67-1641.

United States District Court C. D. California.

March 17, 1969.

Kwan, Cohen & Kwan by Arthur D. Cohen, Los Angeles, Cal., for plaintiff.

Wm. Matthew Byrne, Jr., Frederick M. Brosio, Jr., by James R. Dooley, Asst. U. S. Atty., Los Angeles, Cal., for defendant.

MEMORANDUM OF DECISION

WILLIAM P. GRAY, District Judge.

The plaintiff in this action, pursuant to the provisions of 8 U.S.C. § 1503 and 28 U.S.C. § 2201, seeks a judgment declaring him to be a national of the United States. The defendant, as Secretary of State of the United States, contends that the plaintiff has voluntarily relinquished his citizenship and therefore is no longer a national of this Country. On the basis of a trial of the issue thus presented, and for reasons set forth in this opinion, this court now concludes that the plaintiff is entitled to, and will be accorded, the declaratory judgment that he seeks.

None of the facts recited in this memorandum are in dispute. The plaintiff was born in 1905 at Fargo, North Dakota. Within the following year, his mother took him to Canada and there placed him in the care of an uncle, with whom he lived throughout childhood and adolescence. In due course, the plaintiff was graduated from the University of Alberta with a degree in law, and he was admitted to practice this profession in Alberta on June 17, 1926. The ceremony of admission consisted, in part, of the clerk of the court causing the successful applicants to raise their hands and repeat, phrase by phrase, the oath required of all candidates. At about the same time, the plaintiff also executed in writing the prescribed Barristers' and Solicitors' Oath, which presumably was the same oath that he took orally.

The first paragraph of such oath contained a provision that "* * * I will be faithful and bear true allegiance to His Majesty King George the Fifth * * and * * *. will defend him to the utmost of my power against all traitorous conspiracies * * * against his person, Crown and dignity. * * *" In the remaining paragraph, the candidate promised to handle all professional matters to the best of his ability and to uphold and maintain "* * * the King's interest and my fellow citizens * * * according to the law in force in this Province."

The plaintiff thereafter practiced law in Canada for several years, and in 1944 he returned to the United States, intending to reside here permanently. The officials of the Immigration and Naturalization Service of the Department of State immediately took, and ever since have maintained, the position that the plaintiff had lost his citizenship in 1926 by taking the hereinabove mentioned oath.

Such challenge of the plaintiff's citizenship is based upon section 2 of the Act of March 2, 1907, 34 Stat. 1228, which was in effect in 1926 and provides as follows:

"Any American citizen shall be deemed to have expatriated himself * * * when he has taken an oath of allegiance to any foreign state."

The Fourteenth Amendment states that "All persons born or naturalized in the United States * * * are citizens of the United States * * *." This constitutional provision serves to "* * * protect every citizen of this Nation against a congressional forcible destruction of his citizenship * * *." It follows that the plaintiff, like any other citizen, has "* * * a constitutional right to remain a citizen * * * unless he voluntarily relinquishes that citizenship." Afroyim v. Rusk, 387 U.S. 253, 268, 87 S.Ct. 1660, 1668, 18 L.Ed.2d 757, 767 (1967).

In light of this constitutional right of a citizen and the corresponding limitation upon the power of Congress, the provision in section 2 of the Act of March 2, 1907, 34 Stat. 1228, under which the plaintiff "* * * shall be deemed to have...