Certificate to the Supreme Court of the United States of questions of law upon which the Circuit Court of appeals for the Ninth Circuit desires instruction for the proper decision of a cause
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CERTIFICATE TO THE SUPREME COURT OF THE UNITED STATES OF QUESTIONS OF LAW UPON WHICH
THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT DESIRES INSTRUCTION FOR THE PROPER
DECISION OF A CAUSE.
TO THE HONORABLE THE CHIEF JUSTICE AND THE JUSTICES OF THE SUPREME COURT OF THE UNITED
STATES ;
Mitsuey Endo, an American woman citizen of Japanese descent, of twenty-two years
of age, has appealed from an order of the district court denying her petition for a
writ of habeas corpus and for a hearing upon her claimed right to release from further
restraint by the War Relocation Authority. Because of the importance of the case, the
requirement for its summary disposition which may lead to a certification of the entire
case, and the brevity of the record of the proceedings in the court below, that record
is hereunto annexed and hereby made a part hereof,
This court recognizes that the facts upon which this certificate submits questions
of law are these existing during the pendency of the cause in this appellate court,
though differing from those at the time of the decision below, and that we are required
to ascertain those facts and dispose of appellant's claim of freedom from the custod
of the War Relocation Authority in the same summary manner as in the district court.
The case is before us over twenty months after the regulations and administrative
orders establishing the War Relocation Centers and the confining therein of American
citizens of Japanese descent evacuated from the Military Areas of the Pacific Coast,
The regulations of January 1, 1944, (9 F.R. 154) controlling the continjance of sys
confinement of such American citizens are not of a temporary character,
These regulations may be summarized as providing for such citizens no release from
the control of the War Relocation Authority. They provide only for a revocable ""in-
definite leave" from the confinement in the Relocation Center, conditioned upon the
agreement of the citizen to make report to the Director of any change of residence or
employment. `Such revocable leave is obtainable and is revocable by an administrative
procedure in which none of the elements of due process is present.
Such conditional and revocable leave may be had only after the citizen has procured
the approval of her application for a "leave clearance" by the Director, who instructs
the Project Director, who is restraining the citizen at the Center, of the approval or
disapproval of the citizen's application for such clearance. In the administrative
proceeding for the procuring of the approval for leave clearance from the distant Di-
rector, the Director holds no hearing, The citizen remains imprisoned at the center
while the Director considers the secret reports of the Federal Bureau of Investigation
and determines the granting or denial of the citizengs petition for leave clearance
on such and other reports of which the citizen has knowledge, much less the right to
cross-examine persons stating facts likely to lead to the denial of the clearance,
The granted leave clearance states that its granting does not give the right to
leave the Center. The restrained citizen must then apply for one of three types of
leave, of which the most favorable is the revocable "indefinite leave" from the con-
finement of the Center. This will be granted only after the Director has determined
1. Under the decision of Mensevich v. Tod, 264 U.S, 134, 136, "the validity of a deten-
tion questioned by petition for writ of habeas corpus is to be determined by the condi-
tion existing at the time of the final decision thereon" in the appellate as well as the
district court. The procedure in such determination of the conditions prevailing at the
time of the hearing by the appellate tribunal is of the same summary character as is re-
quired of the trial court. In the appellate court "all the freedom of equity procedure
is thus prescribed and substantial justice, promptly administered, is ever the rule in ha
beas corpus." Storti v. Massachusetts, 183 U.S. 138, 143.
@e Part 5, Chap. 1, Title 32 Code of Federal Regulations, as amended Jamuary 1, 1944,
that the citizen has the means for his self-support or employment for such support
and that the community in which he intends to reside will accept him. Here, as with
the application for "leave clearance", the citizen has provided for him no hearing nor
any of the essential elements of due process.
The parties are agreed that on February 19, 1943, appellant applied to the War Re-
location Authority for a leave clearnace and that over six months later, on August 23,
1943, her application was granted. The Authority's brief here admihs that the leave
clearance so granted was a "determination that her release would not impede the war ef-
fort or be contrary to public peace and safety, which means in effect that she is found
to be not disloyal." It is also agreed that appellant has not availed herself of any
other of the provisions of the regulations.
On behlaf of the War Relocation Authority is the contention that the rights con+
ferred by Part 5, Chaps. 1, Title 32 Code of Federal Regulations, as amended January 1,
1944, upon such citizens confined in such centers, constitute a sufficient provision for
the freedom of such citizens and that such citizens have no right to seek freedom through
habeas corpus proceedings until they have complied with the requirements of the regula=
tions.
On behalf of appellant are the contentions that she is entitled to an unconditional
release from such confinement in the present habeas corpus proceeding (2) because in the
absence of any of the rights of due process in such regulations they afford her no such
remedy as due an American citizen and that she may ignore their requirements, and that
any proceeding commenced thereunder has no relation to the right to release on habeas
corpus; (b) because, if the finding of loyalty to the United States in procesdings under
such regulations be relevant, she may ignore all the further requirements regarding
means of self-support or supporting employment and community acceptance, since they can-
not be imposed upon a loyal American citizen whether or not of Japanese ancestry; (c)
because, assuming such latter requirements may be imposed upon such a loyal American
citizen, no hearing or any of the rights of due process are accorded her for the estabe
lishment of such requirements, and (d) because in no event can she be kept in such con-
finement until she accept such a revocable indefinite leave from such confinement with
the agreement to report to the Authority.
Because of the summary nature of appellant's claim for relief from her alleged
wrongful restraint and of the great public need for the decision of the question of the
right to restrain many thousands of such citizens in Relocation Centers, now almost two
years since their evacuation from the Pacific Coast areas, this court certifies to the
Supreme Court of the United States the following questions of law concerning which in-
struction is desired for the proper decision of the cause pending before us:
(1) Has the War Relocation Authority the power to hold in its custody in a War Re-
location Center an American citizen, now more than twenty months after such citizen has
been evacuated from her residence in California, without any right in such citizen to
seek a release from such custody in a hearing by the Authority with the substantial ele-
ments of due process for the determination of facts warranting her further detention,
because such citizen is of Japanese ancestry?
(2) If under the regulations as amended Jamary 1, 1944, the War Relocation Authori-
ty has determined that an United States citizen of Japanese descent is loyal to the Uni-
ted States, and such determination be relevant, may the Authority continue to confine
such citizen in a Relocation Center untib such citizen establishes to the satisfaction of
the Director that there is no reasonable cause to believe that she will not have employ=
ment or other means of support or that she cannot otherwise successfully maintain resi-
dence at the propesed destination of the citizen when she is released from such confine-
ment?
($) If under the regulations as amended January 1, 1944, the War Relocation Authori-
ty has determined the loyalty to the United States of a citizen confined in a War Reloca-
tion Center and such a determination be relevant, may such Authority continue such con
finement until the Authority determine whether or not there is no reasonable cause to
believe that she will not have employment or other means of support or that she cannot
_ otherwise successfully maintain residence at the proposed destination, without any hear-
ing in which such issues may be tendered by the citizen or at which the citizen may be
present in person, or by counsel, to offer evidence thereon or at which mst be presen-
ted the evidence adverse to her contention or at which she is confronted with the wit-
nesses adverse to her contentions?
(4) If such requirements of self-support and commnity acceptance may be imposed
upon a loyal American citizen, may such a citizen be confined in such a @enter until she
satisfy the Authority, when despite such satisfaction she mst further agree that she
Will report to the Authority as required by such regulations?
United States Circuit Judge