author: Mr. Justice White Mr. Justice Marshall, Me. Justice Stevens, Me. Justice Brennan,

text:
    VANCE, SECRETARY OF STATE v. TERRAZAS
    No. 78-1143.
    Argued October 30, 1979
    Decided January 15, 1980

      White, J., delivered the opinion of the Court, in which Burger, C. J., and BlackmuN, Powell, and RehNquist, JJ., joined. Marshall, J., post, p. 270, and Stevens, J., post, p. 272, filed opinions concurring in part and dissenting in part. Brennan, J., filed a dissenting opinion, in Part II of which Stewart, J., joined, post, p. 274. Stewart, J., filed a dissenting statement, post, p. 270.

      Allan A. Ryan, Jr., argued the cause for appellant. With him on the briefs were Solicitor General McCree, Assistant

      Attorney General Heymann, Deputy Solicitor General Getter, William G. Otis, and William C. Brown.

      Kenneth K. Ditkowsky argued the cause and filed a brief for appellee.
   Mr. Justice White

delivered the opinion of the Court.

Section 349 (a) (2) of the Immigration and Nationality Act (Act), 66 Stat. 267, 8 U. S. C. § 1481 (a)(2), provides that “a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by . . . taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof.” The Act also provides that the party claiming that such loss of citizenship occurred must “establish such claim by a preponderance of the evidence” and that the voluntariness of the expatriating conduct is rebuttably presumed. § 349 (c), as added, 75 Stat. 656, 8 U. S. C. § 1481 (c). The issues in this case are whether, in establishing loss of citizenship under § 1481 (a)(2), a party must prove an intent to surrender United States citizenship and whether the United States Constitution permits Congress to legislate with respect to expatriation proceedings by providing the standard of proof and the statutory presumption contained in § 1481 (c).

I

Appellee, Laurence J. Terrazas, was born in this country, the son of a Mexican citizen. He thus acquired at birth both United States and Mexican citizenship. In the fall of 1970, while a student in Monterrey, Mexico, and at the age of 22, appellee executed an application for a certificate of Mexican nationality, swearing “adherence, obedience, and submission to the laws and authorities of the Mexican Republic” and “expressly renouncing] United States citizenship, as well as any submission, obedience, and loyalty to any foreign government, especially to that of the United States of America. . . .” App. to Brief for Appellant 5a. The certificate, which issued upon this application on April 3, 1971, recited that Terrazas had sworn adherence to the United Mexican States and that he “has expressly renounced all rights inherent to any other nationality, as well as all submission, obedience, and loyalty to any foreign government, especially to those which have recognized him as that national.” Id., at 8a. Terrazas read and understood the certificate upon receipt. App. to Juris. Statement 21a.

A few months later, following a discussion with an officer of the United States Consulate in Monterrey, proceedings were instituted to determine whether appellee had lost his United States citizenship by obtaining the certificate of Mexican nationality. Appellee denied that he had, but in December 1971 the Department of State issued a certificate of loss of nationality. App. to Brief for Appellant 31a. The Board of Appellate Review of the Department of State, after a full hearing, affirmed that appellee had voluntarily renounced his United States citizenship. App. to Juris. Statement 31a. As permitted by § 360 (a) of the Act, 66 Stat. 273, 8 U. S. C. § 1603 (a), appellee then brought this suit against the Secretary of State for a declaration of his United States nationality. Trial was de novo.

The District Court recognized that the first sentence of the Fourteenth Amendment, as construed in Afroyim v. Rusk, 387 U. S. 253, 268 (1967), 'protect[s] every citizen of this Nation against a congressional forcible destruction of his citizenship’ ” and that every citizen has “ ‘a constitutional right to remain a citizen . . . unless he voluntarily relinquishes that citizenship.’ ” App. to Juris. Statement 25a. A person of dual nationality, the District Court said, "will be held to have expatriated himself from the United States when it is shown that he voluntarily committed an act whereby he unequivocally renounced his allegiance to the United States.” Ibid. Specifically, the District Court found that appellee had taken an oath of allegiance to Mexico, that he had “knowingly and understandingly renounced allegiance to the United States in connection with his Application for a Certificate of Mexican Nationality,” id., at 28a, and that “[t]he taking of an oath of allegiance to Mexico and renunciation of a foreign country [sic] citizenship is a condition precedent under Mexican law to the issuance of a Certificate of Mexican Nationality.” Ibid. The District Court concluded that the United States had “proved by a preponderance of the evidence that Laurence J. Terrazas knowingly, understandingly and voluntarily took an oath of allegiance to Mexico, and concurrently renounced allegiance to the United States,” id., at 29a, and that he had therefore “voluntarily relinquished United States citizenship pursuant to § 349 (a) (2) of the . . . Act.” Ibid.

In its opinion accompanying its findings and conclusions, the District Court observed that appellee had acted “voluntarily in swearing allegiance to Mexico and renouncing allegiance to the United States,” id., at 25a, and that appellee “knew he was repudiating allegiance to the United States through his actions.” Ibid. The court also said, relying upon and quoting from United States v. Matheson, 400 F. Supp. 1241, 1245 (SDNY 1975), aff’d, 532 F. 2d 809 (CA2), cert. denied, 429 U. S. 823 (1976), that “the declaration of allegiance to a foreign state in conjunction with the renuncia-tory language of United States citizenship ‘would leave no room for ambiguity as to the intent of the applicant.’ ” App. to Juris. Statement 23a.

The Court of Appeals reversed. 577 F. 2d 7 (1978). As the Court of Appeals understood the law — and there appears to have been no dispute on these basic requirements in the Courts of Appeals — the United States had not only to prove the taking of an oath to a foreign state, but also to demonstrate an intent on appellee’s part to renounce his United States citizenship. The District Court had found these basic elements to have been proved by a preponderance of the evidence; and the Court of Appeals observed that, “[a]ssuming that the proper [evidentiary] standards were applied, we are convinced that the record fully supports the court’s findings.” Id., at 10. The Court of Appeals ruled, however, that under Ajroyim v. Busk, supra, Congress had no power to legislate the evidentiary standard contained in § 1481 (c) and that the Constitution required that proof be not merely by a preponderance of the evidence, but by “clear, convincing and unequivocal evidence.” 577 F. 2d, at 11. The case was remanded to the District Court for further proceedings.

The Secretary took this appeal under 28 U. S. C. § 1252. Because the invalidation of § 1481 (c) posed a substantial constitutional issue, we noted probable jurisdiction. 440 U. S. 970.

II

The Secretary first urges that the Court of Appeals erred in holding that a “specific intent to renounce U. S. citizenship” must be proved “before the mere taking of an oath of allegiance could result in an individual’s expatriation.” 577 F. 2d, at 11. His position is that he need prove only the voluntary commission of an act, such as swearing allegiance to a foreign nation, that “is so inherently inconsistent with the continued retention of American citizenship that Congress may accord to it its natural consequences, i. e., loss of nationality.” Brief for Appellant 24. We disagree.

In Afroyim v. Rusk, 387 U. S. 253 (1967), the Court held that § 401 (e) of the Nationality Act of 1940, 54 Stat. 1168—1169, which provided that an American citizen “shall lose his nationality by . . . [vjoting in a political election in a foreign state,” contravened the Citizenship Clause of the Fourteenth Amendment. Afroyim was a naturalized American citizen who lived in Israel for 10 years. While in that nation, Afroyim voted in a political election. He in consequence was stripped of his United States citizenship. Consistently with Perez v. Brownell, 356 U. S. 44 (1958), which had sustained § 401 (e), the District Court affirmed the power of Congress to expatriate for such conduct regardless of the citizen’s intent to renounce his citizenship. This Court, however, in overruling Perez, “reject[ed] the idea . . . that, aside from the Fourteenth Amendment, Congress has any general power, express or implied, to take away an American citizen’s citizenship without his assent.” Afroyim v. Rusk, supra, at 257. The Afroyim opinion continued: § 1 of the Fourteenth Amendment is “most reasonably . . . read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it.” 387 U. S., at 262.

The Secretary argues that Afroyim does not stand for the proposition that a specific intent to renounce must be shown before citizenship is relinquished. It is enough, he urges, to establish one of the expatriating acts specified in § 1481 (a) because Congress has declared each of those acts to be inherently inconsistent with the retention of citizenship. But Afroyim emphasized that loss of citizenship requires the individual’s “assent,” 387 u. S., at 257, in addition to his voluntary commission of the expatriating act. It is difficult to understand that “assent” to loss of citizenship would mean anything less than an intent to relinquish citizenship, whether the intent is expressed in words or is found as a fair inference from proved conduct. Perez had sustained congressional power to expatriate without regard to the intent of the citizen to surrender his citizenship. Afroyim overturned this proposition. It may be, as the Secretary maintains, that a requirement of intent to relinquish citizenship poses substantial difficulties for the Government in performance of its essential task of determining who is a citizen. Nevertheless, the intent of the Fourteenth Amendment, among other things, was to define citizenship; and as interpreted in Afroyim, that definition cannot coexist with a congressional power to specify acts that work a renunciation of citizenship even absent an intent to renounce. In the last analysis, expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct.

The Secretary argues that the dissent in Perez, which it is said the Court’s opinion in Afroyim adopted, spoke of conduct so contrary to undivided allegiance to this country that it could result in loss of citizenship without regard to the intent of the actor and that “assent” should not therefore be read as a code word for intent to renounce. But Afroyim is a majority opinion, and its reach is neither expressly nor implicitly limited to that of the dissent in Perez. Furthermore, in his Perez dissent, Mr. Chief Justice Warren, in speaking of those acts that were expatriating because so fundamentally inconsistent with citizenship, concluded by saying that in such instances the “Government is simply giving formal recognition to the inevitable consequence of the citizen’s own voluntary surrender of his citizenship.” Perez v. Brownell, supra, at 69. This suggests that the Chief Justice’s conception of “actions in derogation of undivided allegiance to this country,” 356 U. S., at 68, in fact would entail an element of assent.

In any event, we are confident that it would be inconsistent with Afroyim to treat the expatriating acts specified in § 1481 (a) as the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen. “Of course,” any of the specified acts “may be highly persuasive evidence in the particular case of a purpose to abandon citizenship.” Nishikawa v. Dulles, 356 U. S. 129, 139 (1958) (Black, J., concurring). But the trier of fact must in the end conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship.

This understanding of Afroyim is little different from that expressed by the Attorney General in his 1969 opinion explaining the impact of that case. 42 Op. Atty. Gen. 397. An “act which does not reasonably manifest an individual’s transfer or abandonment of allegiance to the United States,” the Attorney General said, “cannot be made a basis for expatriation.” Id., at 400. Voluntary relinquishment is “not confined to a written renunciation,” but “can also be manifested by other actions declared, expatriative under the [A]ct, if such actions are in derogation of allegiance to this country.” Ibid. Even in these cases, however, the issue of intent was deemed by the Attorney General to be open; and, once raised, the burden of proof on the issue was on the party asserting that expatriation had occurred. Ibid. “In- each case,” the Attorney General stated, “the administrative authorities must make a judgment, based on all the evidence, whether the individual comes within the terms of an expatriation provision and has in fact voluntarily relinquished his citizenship.” Id., at 401. It was under this advice, as the Secretary concedes, that the relevant departments of the Government have applied the statute and the Constitution to require an ultimate finding of an intent to expatriate. Brief for Appellant 56-57, n. 28.

Accordingly, in the case now before us, the Board of Appellate Review of the State Department found that appellee not only swore allegiance to Mexico, but also intended to abandon his United States citizenship: “In consideration of the complete record, we view appellant’s declaration of allegiance to Mexico and his concurrent repudiation of any and all submission, obedience, and loyalty to the United States as compelling evidence of a specific intent to relinquish his United States citizenship.” App. to Juris. Statement 50a. This same view — that expatriation depends on the will of a citizen as ascertained from his words and conduct — was also reflected in the United States’ response to the petition for certiorari in United States v. Matheson, 532 F. 2d 809, cert. denied, 429 U. S. 823 (1976). Insofar as we are advised, this view remained the official position of the United States until the appeal in this case.

As we have said, Afroyim requires that the record support a finding that the expatriating act was accompanied by an intent to terminate United States citizenship. The submission of the United States is inconsistent with this holding, and we are unprepared to reconsider it.

Ill

With respect to the principal issues before it, the Court of Appeals held that Congress was without constitutional authority to prescribe the standard of proof in expatriation proceedings and that the proof in such cases must be by clear and convincing evidence rather than by the preponderance standard prescribed in § 1481 (c). We are in fundamental disagreement with these conclusions.

In Nishikawa v. Dulles, 356 U. S. 129 (1958), an American-born citizen, temporarily in Japan, was drafted into the Japanese Army. The Government later claimed that, under § 401 (c) of the Nationality Act of 1940, 54 Stat. 1169, he had expatriated himself by serving in the armed forces of a foreign nation. The Government agreed that expatriation had not occurred if Nishikawa’s army service had been involuntary. Nishikawa contended that the Government had to prove that his service was voluntary, while the Government urged that duress was an affirmative defense that Nishikawa had the burden to prove by overcoming the usual presumption of voluntariness. This Court held the presumption unavailable to the Government and required proof of a voluntary expatriating act by clear and convincing evidence.

Section 1481 (c) soon followed; its evident aim was to supplant the evidentiary standards prescribed by Nishikawa. The provision “sets up rules of evidence under which the burden of proof to establish loss of citizenship by preponderance of the evidence would rest upon the Government. The presumption of voluntariness under the proposed rules of evidence, would be rebuttable — similarly—by preponderance of the evidence. . . H. R. Rep. No. 1086, 87th Cong., 1st Sess., 41 (1961).

We see no basis for invalidating the evidentiary prescriptions contained in § 1481 (c). Nishikawa was not rooted in the Constitution. The Court noted, moreover, that it was acting in the absence of legislative guidance. Nishikawa v. Dulles, supra, at 135. Nor do we agree with the Court of Appeals that, because under Afroyim Congress is constitutionally devoid of power to impose expatriation on a citizen, it is also without power to prescribe the evidentiary standards to govern expatriation proceedings. 577 F. 2d, at 10. Although § 1481 (c) had been law since 1961, Afroyim did not address or advert to that section; surely the Court would have said so had it intended to construe the Constitution to exclude expatriation proceedings from the traditional powers of Congress to prescribe rules of evidence and standards of proof in the federal courts. This power, rooted in the authority of Congress conferred by Art. 1, § 8, cl. 9, of the Constitution to create inferior federal courts, is undoubted and has been frequently noted and sustained. See, e. g., Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 31 (1976); Hawkins v. United States, 358 U. S. 74, 78 (1958); Tot v. United States, 319 U. S. 463, 467 (1943).

We note also that the Court’s opinion in Ajroyim was written by Mr. Justice Black who, in concurring in Nishikawa, said that the question whether citizenship has been voluntarily relinquished is to be determined on the facts of each case and that Congress could provide rules of evidence for such proceedings. Nishikawa v. Dulles, supra, at 139. In this respect, we agree with Mr. Justice Black; and since Congress has the express power to enforce the Fourteenth Amendment, it is untenable to hold that it has no power whatsoever to address itself to the manner or means by which Fourteenth Amendment citizenship may be relinquished.

We are unable to conclude that the specific evidentiary standard provided by Congress in § 1481 (c) is invalid under either the Citizenship Clause or the Due Process Clause of the Fifth Amendment. It is true that in criminal and involuntary commitment contexts we have held that the Due Process Clause imposes requirements of proof beyond a preponderance of the evidence. Mullaney v. Wilbur, 421 U. S. 684 (1975); Addington v. Texas, 441 U. S. 418 (1979). This Court has also stressed the importance of citizenship and evinced a decided preference for requiring clear and convincing evidence to prove expatriation. Nishikawa v. United States, supra. But expatriation proceedings are civil in nature and do not threaten a loss of liberty. Moreover, as we have noted, Nishikawa did not purport to be a constitutional ruling, and the same is true of similar rulings in related areas. Woodby v. INS, 385 U. S. 276, 285 (1966) (deportation); Schneiderman v. United States, 320 U. S. 118, 125 (1943) (denaturalization). None of these cases involved a congressional judgment, such as that present here, that the preponderance standard of proof provides sufficient protection for the interest of the individual in retaining his citizenship. Contrary to the Secretary's position, we have held that expatriation requires the ultimate finding that the citizen has committed the expatriating act with the intent to renounce his citizenship. This in itself is a heavy burden, and we cannot hold that Congress has exceeded its powers by requiring proof of an intentional expatriating act by a preponderance of evidence.

IV

The Court of Appeals did not discuss separately the validity of the statutory presumption provided in § 1481 (c). By holding that the section was beyond the power of Congress, however, and by requiring that the expatriating act be proved voluntary by clear and convincing evidence, the Court of Appeals effectively foreclosed use of the § 1481 (c) presumption of voluntariness, not only in the remand proceedings in the District Court, but also in other expatriation proceedings in that Circuit. As we have indicated, neither the Citizenship Clause nor Afroyim places suits such as this wholly beyond the accepted power of Congress to prescribe rules of evidence in federal courts. We also conclude that the presumption of voluntariness provided in § 1481 (c) is not otherwise constitutionally infirm.

Section 1481 (c) provides in relevant part that “any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.” In enacting § 1481 (c), Congress did not dispute the holding of Nishikawa that the alleged expatriating act — there, service in a foreign army — must be performed voluntarily, but it did insist that the Government have the benefit of the usual presumption of voluntariness and that one claiming that his act was involuntary make out his claim of duress by a preponderance of the evidence.

It is important at this juncture to note the scope of the statutory presumption. Section 1481 (c) provides that any of the statutory expatriating acts, if proved, are presumed to have been committed voluntarily. It does not also direct a presumption that the act has been performed with the intent to relinquish United States citizenship. That matter remains the burden of the party claiming expatriation to prove by a preponderance of the evidence. As so understood, we cannot invalidate the provision.

The majority opinion in Nishikawa referred to the “ordinary rule that duress is a matter of affirmative defense” to be proved by the party claiming the duress. Nishikawa v. Dulles, 356 U. S., at 134. Justices Frankfurter and Burton, concurring in the result, also referred to the “ordinarily controlling principles of evidence [that] would suggest that the individual, who is peculiarly equipped to clarify an ambiguity in the meaning of outward events, should have the burden of proving what his state of mind was.” Id., at 141. And Mr. Justice Harlan, in dissent with Mr. Justice Clark, pointed to the “general rule that consciously performed acts are presumed voluntary” and referred to Federal Rule of Civil Procedure 8 (c), which treats duress as a matter of affirmative defense. 356 U. S., at 144. Yet the Court in Nishikawa, because it decided that “the consequences of denationalization are so drastic” and because it found nothing indicating a contrary result in the legislative history of the Nationality Act of 1940, held that the Government must carry the burden of proving that the expatriating act was performed voluntarily. Id., at 133-138.

Section 1481 (c), which was enacted subsequently, and its legislative history, H. R. Rep. No. 1086, 87th Cong., 1st Sess., 40-41 (1961), make clear that Congress preferred the ordinary rule that voluntariness is presumed and that duress is an affirmative defense to be proved by the party asserting it. See Hartsville Oil Mill v. United States, 271 U. S. 43, 49-50 (1926); Towson v. Moore, 173 U. S. 17, 23-24 (1899); Savage v. United States, 92 U. S. 382, 387-388 (1876). “Duress, if proved, may be a defence to an action . . . but the burden of proof to establish the charge ... is upon the party making it. . . Mason v. United States, 17 Wall. 67, 74 (1873) , The rationality of the procedural rule with respect to claims of involuntariness in ordinary civil cases cannot be doubted. To invalidate the rule here would be to disagree flatly with Congress on the balance to be struck between the interest in citizenship and the burden the Government must assume in demonstrating expatriating conduct. It would also consti-tutionalize that disagreement and give the Citizenship Clause of the Fourteenth Amendment far more scope in this context than the relevant circumstances that brought the Amendment into being would suggest appropriate. Thus we conclude that the presumption of voluntariness included in § 1481 (e) has continuing vitality.

V

In sum, we hold that in proving expatriation, an expatriating act and an intent to relinquish citizenship must be proved by a preponderance of the evidence. We also hold that when one of the statutory expatriating acts is proved, it is constitutional to presume it to have been a voluntary act until and unless proved otherwise by the actor. If he succeeds, there can be no expatriation. If he fails, the question remains whether on all the evidence the Government has satisfied its burden of proof that the expatriating act was performed with the necessary intent to relinquish citizenship.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

Mr. Justice Stewart dissents for the reasons stated in Part II of Mr. Justice Brennan’s dissenting opinion, which he joins.

Mr. Justice Marshall,

concurring in part and dissenting in part.

I agree with the Court’s holding that a citizen of the United States may not lose his citizenship in the absence of a finding that he specifically intended to renounce it. I also concur in the adoption of a saving construction of 8 U. S. C. § 1481 (a) (2) to require that the statutorily designated expatriating acts be done with a specific intent to relinquish citizenship.

I cannot, however, accept the majority's conclusion that a person may be found to have relinquished his American citizenship upon a preponderance of the evidence that he intended to do so. The Court’s discussion of congressional power to “prescribe rules of evidence and standards of proof in the federal courts,” ante, at 265, is the beginning, not the end, of the inquiry. It remains the task of this Court to determine when those rules and standards impinge on constitutional rights. As my Brother Stevens indicates, the Court’s casual dismissal of the importance of American citizenship cannot withstand scrutiny. And the mere fact that one who has been expatriated is not locked up in a prison does not dispose of the constitutional inquiry. As Mr. Chief Justice Warren stated over 20 years ago:

“[T]he expatriate has lost the right to have rights.
“This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious.” Trop v. Dulles, 356 U. S. 86, 102 (1958) (plurality opinion) (footnotes omitted).

For these reasons I cannot understand, much less accept, the Court’s suggestion that “expatriation proceedings ... do not threaten a loss of liberty.” Ante, at 266. Recognizing that a standard of proof ultimately 'reflects the value society places’ ” on the interest at stake, Addington v. Texas, 441 U. S. 418, 425 (1979), I would hold that a citizen may not lose his citizenship in the absence of clear and convincing evidence that he intended to do so.

Me. Justice Stevens,

concurring in part and dissenting in part.

The Court today unanimously reiterates the principle set forth in Afroyim v. Rusk, 387 U. S. 253, that Congress may not deprive an American of his citizenship against his will, but may only effectuate the citizen’s own intention to renounce his citizenship. I agree with the Court that Congress may establish certain standards for determining whether such a renunciation has occurred. It may; for example, provide that expatriation can be proved by evidence that a person has performed an act that is normally inconsistent with continued citizenship and that the person thereby specifically intended to relinquish his American citizenship.

I do not agree, however, with the conclusion that Congress has established a permissible standard in 8 U. S. C. § 1481 (a)(2). Since we accept dual citizenship, taking an oath of allegiance to a foreign government is not necessarily inconsistent with an intent to remain an American citizen. Moreover, as now written, the statute cannot fairly be read to require a finding of specific intent to relinquish citizenship. The statute unambiguously states that

“a national of the United States . . . shall lose his nationality by—
"(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof.”

There is no room in this provision to imply a requirement of a specific intent to relinquish citizenship. The Court does not attempt to do so, nor does it explain how any other part of the statute supports its conclusion that Congress required proof of specific intent.

I also disagree with the holding that a person may be deprived of his citizenship upon a showing by a mere preponderance of the evidence that he intended to relinquish it. The Court reasons that because the proceedings in question are civil in nature and do not result in any loss of physical liberty, no greater burden of proof is required than in the ordinary civil case. Such reasoning construes the constitutional concept of “liberty” too narrowly.

The House Report accompanying the 1961 amendment to the Immigration and Naturalization Act of 1952 refers to “the dignity and the priceless value of U. S. citizenship.” H. R. Rep. No. 1086, 87th Cong., 1st Sess., 41 (1961). That characterization is consistent with this Court’s repeated appraisal of the quality of the interest at stake in this proceeding. In my judgment a person’s interest in retaining his American citizenship is surely an aspect of “liberty” of which he cannot be deprived without due process of law. Because the interest at stake is comparable to that involved in Addington v. Texas, 441 U. S. 418, essentially for the reasons stated in The Chief Justice’s opinion for a unanimous Court in that case, see id., at 425-427, 431-433, I believe that due process requires that a clear and convincing standard of proof be met in this case as well before the deprivation may occur.

Me. Justice Brennan,

with whom Mr. Justice Stewart joins as to Part II, dissenting.

The Court holds that one may lose United States citizenship if the Government can proves by a preponderance of the evidence that certain acts, specified by statute, were done with the specific intent of giving ups citizenship. Accordingly, the Court, in reversing the judgment of the Court of Appeals, holds that the District Court applied the correct evidentiary standards in determining that appellee was properly stripped of his citizenship. Because I would hold that one who acquires United States citizenship by virtue of being born in the United States, U. S. Const., Arndt. 14, § 1, can lose that citizenship only by formally renouncing it, and because I would hold that the act of which appellee is accused in this case cannot be an expatriating act, I dissent.

I

This case is governed by Afroyim v. Rusk, 387 U. S. 253 (1967). Afroyim, emphasizing the crucial importance of the right of citizenship, held unequivocally that a citizen has “a constitutional right to remain a citizen . . . unless he voluntarily relinquishes that citizenship.” Id., at 268. “[T]he only way the citizenship . . . could be lost was by the voluntary renunciation or abandonment by the citizen himself.” Id., at 266. The Court held that because Congress could not “abridge,” “affect,” “restrict the effect of,” or “take . . . away” citizenship, Congress was “without power to rob a citizen of his citizenship” because he voted in a foreign election. Id., at 267.

The same clearly must be true of the Government’s attempt to strip appellee of citizenship because he swore an oath of allegiance to Mexico. Congress has provided for a procedure by which one may formally renounce citizenship. In this case the appellant concedes that appellee has not renounced his citizenship under that procedure. Brief for Appellant 56. Because one can lose citizenship only by voluntarily renouncing it and because appellee has not formally renounced his, I would hold that he remains a citizen. Accordingly, I would remand the case with orders that ap-pellee be given a declaration of United States nationality.

II

I reach the same result by another, independent line of reasoning. Appellee was bom a dual national. He is a citizen of the United States because he was bom here and a citizen of Mexico because his father was Mexican. The only expatriating act of which appellee stands accused is having sworn an oath of allegiance to Mexico. If dual citizenship, per se, can be consistent with United States citizenship, Perkins v. Elg 307 U. S. 325, 329 (1939), then I cannot see why an oath of allegiance to the other country of which one is already a citizen should create inconsistency. One owes allegiance to any country of which one is a citizen, especially when one is living in that country. Kawakita v. United States, 343 U. S. 717, 733-735 (1952). The formal oath adds nothing to the existing foreign citizenship and, therefore, cannot affect his United States citizenship.

       The relevant statutory provisions are §§ 349 (a) (2), (c) of the Act, 66 Stat. 267, as amended, 75 Stat. 656, as set forth in 8 U. S. C. § 1481:
      “(a) From and after the effective date of this chapter a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by—
      “(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof;
      “(c) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Except as otherwise provided in subsection (b) of this section, any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.”

       The application contained the following statement:
      “I therefore hereby expressly renounce. citizenship, as well as any submission, obedience, and loyalty to any foreign government, especially to that of ., of which I might have been subject, all protection foreign to the laws and authorities of Mexico, all rights which treaties or international law grant to foreigners; and furthermore I swear adherence, obedience, and submission to the laws and authorities of the Mexican Republic.”
      The blank spaces in the statement were filled in with the words “Estados Unidos” (United States) and “Norteamérica” (North America), respectively. Brief for Appellant 4.

       The Fourteenth Amendment, § 1, reads: “All persons bom or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

       In remanding the case to the District Court, the Court of Appeals did not “necessarily requir[e] that court to conduct a new trial.” 577 F. 2d, at 12. The Court of Appeals recognized that, even granting the higher standard of proof it had imposed on the District Court, the factual determinations already on the record might be adequate to permit consideration of the case on remand without the holding of another trial or evidentiary hearing. Ibid.

         The Court of Appeals’ discussion of specific intent is submerged in its analysis of proper evidentiary standards. Id., at 11. The absence of independent analysis undoubtedly resulted from the Secretary’s failure to contend in either the District Court or the Court of Appeals that it was unnecessary to prove an intent to relinquish citizenship. Indeed, the jurisdictional statement filed by the Secretary in this Court presented the single question whether 8 U. S. C. § 1481 (c) is unconstitutional under the Citizenship Clause of the Fourteenth Amendment; it did not present separately the question whether proof of a specific intent to relinquish is essential to expatriation.
      Our Rule 15 (1) (c) states that “[o]nly the questions set forth in the jurisdictional statement or fairly comprised therein will be considered by the court.” The Secretary now argues that resolution of the intent issue is an essential, or at least an advisable, predicate to an intelligent resolution of the constitutionality of §1481 (c). There is some merit in this position: arguably the intent issue is fairly comprised in the question set forth in the jurisdictional statement. In any event, consideration of issues not present in the jurisdictional statement or petition for certiorari and not presented in the Court of Appeals is not beyond our power, and in appropriate circumstances we have addressed them. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313, 320, n. 6 (1971); Erie R. Co. v. Tompkins, 304 U. S. 64, 66, 68-69 (1938) (parties agreed that Swift v. Tyson, 16 Pet. 1 (1842), was still good law). Cf. Vachon v. New Hampshire, 414 U. S. 478 (1974); Moragne v. States Marine Lines, 398 U. S. 375 (1970); Silber v. United States, 370 U. S. 717 (1962). See generally R. Stern & E. Gressman, Supreme Court Practice §§ 6.27 and 7.14 (5th ed. 1978).
      As will be more apparent below, the Secretary, represented in this Court by the Solicitor General, has changed his position on the intent issue since the decision of the Court of Appeals; and his present position is at odds with a 1969 opinion of the Attorney General, 42 Op. Atty. Gen. 397, which interpreted Afroyim v. Rusk and guided the administrative actions of the State Department and the Immigration and Naturalization Service. The issue of intent is important, the parties have briefed it, and we shall address it.

       As the Secretary states in his brief, Brief for Appellant 57, n. 28, “both the State Department and the Immigration and Naturalization Service have adopted administrative guidelines that attempt to ascertain the individual’s intent by taking into consideration the nature of the expatriating act and the individual’s statements and actions made in connection with that act.”
      The State Department’s guideline evidences a position on intent quite similar to that adopted here:
      “In the light of the Afroyim, decision and the Attorney General’s Statement of Interpretation of that decision, the Department now holds that the taking of a meaningful oath of allegiance to a foreign state is highly persuasive evidence of an intent to transfer or abandon allegiance. The taking of an oath that is not meaningful does not result in expatriation. The meaningfulness of the oath must be decided by the Department on the individual merits of each case.” Department of State, 8 Foreign Affairs Manual § 224.2, p. 2 (1970) (emphasis in original).
      Cf. Immigration and Naturalization Service, Interpretations § 349.1 (d) (2), p. 6976.4 (1970) (characterizing Afroyim as overruling Perez’s holding “that expatriation could flow from a voluntary act even though the citizen did not intend thereby to relinquish his United States citizenship”).
      Contemporaneous academic commentary agreed that Afroyim imposed the requirement of intent to relinquish citizenship on a party seeking to establish expatriation. See Comment, An Expatriation Enigma: Afroyim v. Rusk, 48 B. U. L. Rev. 295, 298 (1968); Note, Acquisition of Foreign Citizenship: The Limits of Afroyim v. Rush, 54 Cornell L. Rev. 624, 624-625 (1969); The Supreme Court: 1966 Term, 81 Harv. L. Rev. 69, 126 (1967); Note, 29 Ohio St. L. J. 797, 801 (1968).

       In his response to the petition for certiorari in Matheson, the Solicitor General argued that “Afroyim broadly held that Congress has no power to prescribe any objective conduct that will automatically result in expatriation, absent the individual’s voluntary relinquishment of citizenship. . . .” Brief in Opposition in Matheson v. United States, O. T. 1976, No. 75-1651, p. 8. In Matheson, it was maintained, “there is nothing in the record that would support a finding that decedent’s application for a certificate of Mexican nationality was prompted by a specific intent to relinquish her American citizenship.” Id., at 7. Thus, the Solicitor General concluded no expatriation could be said to have taken place.

       The House Report accompanying §1481 (c), H. R. Rep. No. 1086, 87th Cong., 1st Sess., 40 (1961), took direct aim at Nishikawa’s holding that “the Government must in each case prove voluntary conduct by clear, convincing and unequivocal evidence.” Nishikawa v. Dulles, 356 U. S., at 138. The Report quoted with approval from Mr. Justice Harlan’s dissenting opinion in Nishikawa:

        “ 'Although the Court recognizes the general rule that consciously performed acts are presumed voluntary [citations omitted], it in fact alters this rule in all denationalization cases by placing the burden of proving voluntariness on the Government, thus relieving citizen-claimants in such cases from the duty of proving that their presumably voluntary acts were actually involuntary.

        “ ‘One of the prime reasons for imposing the burden of proof on the party claiming involuntariness is that the evidence normally lies in his possession.
      “ T . . . find myself compelled to dissent because in my opinion the majority’s position can be squared neither with congressional intent nor with proper and well-established rules governing the burden of proof on the issue of duress.’” H. R. Rep. No. 1086, supra, at 41 (quoting Nishikawa v. Dulles, supra, at 144-145).
      The Report continued:
      “In order to forestall further erosion of the statute designed to preserve and uphold the dignity and the priceless, value of U. S. citizenship, with attendant obligations, [§ 1481 (c)] sets up rules of evidence under which the burden of proof to establish loss of citizenship by preponderance of the evidence would rest upon the Government.” H. R. Rep. No. 1086, supra, at 41. The Report concluded by describing the rebuttable presumption of voluntariness in § 1481 (c).

       Tbe Secretary asserts that the § 1481 (e) presumption cannot survive constitutional scrutiny if we hold that intent to relinquish citizenship is a necessary element in proving expatriation. Brief for Appellant 26. The predicate for this assertion seems to be that § 1481 (c) presumes intent to relinquish as well as voluntariness. We do not so read it. Even if we did, and even if we agreed that presuming the necessary intent is inconsistent with Afroyim, it would be unnecessary to invalidate the section iilsofar as it presumes that the expatriating act itself was performed voluntarily.

       The Court’s departure from the normal rule that duress is an affirmative defense to be proved by the party seeking to rely on it was noted when Nishikawa was handed down. See The Supreme Court: 1957 Term, 72 Harv. L. Rev. 77, 166, 171 (1958) (Nishikawa “not only extended the Government’s burden in expatriation proceedings to include the absence of duress if this issue is raised, but also determined the standard by which it must be shown. The position of the majority runs counter to the usual rule that duress is an affirmative defense”).

       The rule that duress is an affirmative defense to be pleaded and proved by the party attempting to rely on it is well established. Even where a plaintiff’s complaint improperly contains allegations that seek to avoid or defeat a potential affirmative defense, “it is inappropriate for the court to shift the burden of proof on the anticipated defense to plaintiff as a ‘sanction’ for failing to follow the burden of pleading structure established by Rule 8 or by adopting the fiction that plaintiff’s anticipation of the issue evidences his intention to ‘assume’ the burden of proving it.” 5 C. Wright & A. Miller, Federal Practice and Procedure § 1276, p. 327 (1969). On affirmative defenses generally, see id., §1270, at 289 et seq.

       It could perhaps be argued that a specific intent requirement can be derived from 8 U. S. C. § 1481 (c). That subsection creates a rebuttable presumption that any expatriating act set forth in subsection (a) was performed “voluntarily.” The term “voluntary” could conceivably be stretched to include the concept of a specific intent to renounce one’s citizenship. While the person seeking to retain his citizenship would thus have the burden of showing a lack of specific intent, such a construction would at least provide a statutory basis for bringing the issue of intent into the proceeding. The majority apparently would not be willing to accept such a construction in order to salvage the statute, however, inasmuch as it rejects the appellant Secretary’s argument that, if there is a requirement of specific intent, it is also subject to the presumption applicable to voluntariness. Ante, at 268.
      The majority’s assumption that the statute can be read to require specific intent to relinquish citizenship as an element of proof is also contradicted by the Court’s treatment in Afroyim of a different subsection of the same statute. Like the subsection at issue here, subsection (a) (5) provided that an American automatically lost his nationality by performing a specific act: in that case, voting in a foreign election. If the majority’s analysis in this ease were correct, the Court in Afroyim should not have invalidated that provision of the statute; rather, it should merely have remanded for a finding as to whether Afroyim had voted in a foreign election with specific intent to relinquish his American citizenship. That the Court did not do so is strong evidence of its belief that the statute could not be reformed as it is today.

       See Kennedy v. Mendoza-Martinez, 372 U. S. 144, 160, where the Court quoted another report describing American citizenship as “ 'one of the most valuable rights in the world today.’ ” See also Afroyim v. Rusk, 387 U. S. 253, 267-268; Troy v. Dulles, 356 U. S. 86, 92.

      He was a Mexican citizen by virtue of bis father’s citizenship.

       Title 8 U. S. C. § 1481 (a) (6) provides that “a national of the United States whether by birth or naturalization, shall lose his nationality by . . . making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State.” The Secretary of State has prescribed such procedures in 22 CFR §50.50 (1979). See Department of State, 8 Foreign Affairs Manual §225.6 (1972). Congress also provided for renunciation by citizens while in the United States in 8 U. S. C. § 1481 (a) (7). This last provision is not relevant to our case.

       Therefore, the appellant does not argue that appellee can be expatriated under 8 U. S. C. § 1481 (a) (6). See n. 2, supra.

       I would not reach the issues concerning 8 U. S. C. § 1481 (c).

        Rogers v. Bellei, 401 U. S. 815 (1971), is not to the contrary. Bellei’s citizenship was not based on the Fourteenth Amendment, id., at 833, 835, and the issue before the Court was whether Bellei could lose his statutory citizenship for failure to satisfy a condition subsequent contained in the same statute that accorded him citizenship.

       Indeed, the opinion of the State Department once was “that a person with a dual citizenship who lives abroad in the other country claiming him as a national owes an allegiance to it which is paramount to the allegiance he owes the United States.” Kawakita v. United States, 343 U. S., at 734-735.


source: Caselaw Access Project

author: Mr. Justice Stevens

license: Public Domain

text:
    MARTINEZ et al. v. CALIFORNIA et al.
    No. 78-1268.
    Argued November 5, 1979
    Decided January 15, 1980

      SteveNS, J., delivered the opinion for a unanimous Court.

      Donald McGrath II argued the cause for appellants. With him on the brief was Walter P. Christensen.

      Jeffrey T. Miller, Deputy Attorney General of California, argued the cause for appellees. With him on the brief were George Deukmejian, Attorney General, and Robert L. Bergman, Assistant Attorney General.

      Briefs of amici curiae urging reversal were filed by Frank Carrington for Americans for Effective Law Enforcement, Inc.; and by Ronald A. Zumbrun and John H. Findley for the Pacific Legal Foundation.
      Briefs of amici curiae urging affirmance were filed by Solicitor General McCree, Acting Assistant Attorney General Daniel, Robert E. Kopp, and Barbara L. Herwig for the United States; by John J. Degnan, Attorney General, and Erminie L. Conley, Assistant Attorney General, for the State of New Jersey; and by William J. Brown, Attorney General, and Simon B. Karas, George Strieker, Jr., and Dennis L. Sipe, Assistant Attorneys General, for the State of Ohio.

   Mr. Justice Stevens

delivered the opinion of the Court.

The two federal questions that appellants ask us to decide are (1) whether the Fourteenth Amendment invalidates a California statute granting absolute immunity to public employees who make parole-release determinations, and (2) whether such officials are absolutely immune from liability in an action brought under the federal Civil Rights Act of 1871, 42 U. S. C. § 1983. We agree with the California Court of Appeal that the state statute is valid when applied to claims arising under state law, and we conclude that appellants have not alleged a claim for relief under federal law.

The case arises out of the murder of a 15-year-old girl by a parolee. Her survivors brought this action in a California court claiming that the state officials responsible for the parole-release decision are liable in damages for the harm caused by the parolee.

The complaint alleged that the parolee, one Thomas, was convicted of attempted rape in December 1969. He was first committed to a state mental hospital as a “Mentally Disordered Sex Offender not amenable to treatment” and thereafter sentenced to a term of imprisonment of 1 to 20 years, with a recommendation that he not be paroled. Nevertheless, five years later, appellees decided to parole Thomas to the care of his mother. They were fully informed about his history, his propensities, and the likelihood that he would commit another violent crime. Moreover, in making their release determination they failed to observe certain “requisite formalities.” Five months after his release Thomas tortured and killed appellants’ decedent. We assume, as the complaint alleges, that appellees knew, or should have known, that the release of Thomas created a clear and present danger that such an incident would occur. Their action is characterized not only as negligent, but also as reckless, willful, wanton and malicious. Appellants prayed for actual and punitive damages of $2 million.

The trial judge sustained a demurrer to the complaint and his order was upheld on appeal. 85 Cal. App. 3d 430, 149 Cal. Rptr. 519 (1978). After the California Supreme Court denied appellants’ petition for a hearing, we noted probable jurisdiction. 441 U. S. 960.

I

Section 845.8 (a) of the Cal. Gov’t Code Ann. (West Supp. 1979) provides:

“Neither a public entity nor a public employee is liable for:
(a) Any injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release.”

The California courts held that this statute provided appel-lees with a complete defense to appellants’ state-law claims. They considered and rejected the contention that the immunity statute as so construed violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution.

Like the California courts, we cannot accept the contention that this statute deprived Thomas’ victim of her life without due process of law because it condoned a parole decision that led indirectly to her death. The statute neither authorized nor immunized the deliberate killing of any human being. It is not the equivalent of a death penalty statute which expressly authorizes state agents to take a person’s life after prescribed procedures have been observed. This statute merely provides a defense to potential state tort-law liability. At most, the availability of such a defense may have encouraged members of the parole board to take somewhat greater risks of recidivism in exercising their authority to release prisoners than they otherwise might. But the basic risk that repeat offenses may occur is always present in any parole system. A legislative decision that has an incremental impact on the probability that death will result in any given situation — such as setting the speed limit at 55-miles-per-hour instead of 45 — cannot be characterized as state action depriving a person of life just because it may set in motion a chain of events that ultimately leads to the random death of an innocent bystander.

Nor can the statute be characterized as an invalid deprivation of property. Arguably, the cause of action for wrongful death that the State has created is a species of “property” protected by the Due Process Clause. On that hypothesis, the immunity statute could be viewed as depriving the plaintiffs of that property interest insofar as they seek to assert a claim against parole officials. But even if one characterizes the immunity defense as a statutory deprivation, it would remain true that the State’s interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational.

We have no difficulty in accepting California’s conclusion that there “is a rational relationship between the state’s purposes and the statute.” In fashioning state policy in a “practical and troublesome area” like this, see McGinnis v. Royster, 410 U. S. 263, 270, the California Legislature could reasonably conclude that judicial review of a parole officer’s decisions “would inevitably inhibit the exercise of discretion,” United States ex rel. Miller v. Twomey, 479 F. 2d 701, 721 (CA7 1973), cert. denied, 414 U. S. 1146. That inhibiting effect could impair the State’s ability to implement a parole program designed to promote rehabilitation of inmates as well as security within prison walls by holding out a promise of potential rewards. Whether one agrees or disagrees with California’s decision to provide absolute immunity for parole officials in a case of this kind, one cannot deny that it rationally furthers a policy that reasonable lawmakers may favor. As federal judges, we have no authority to pass judgment on the wisdom of the underlying policy determination. We therefore find no merit in the contention that the State’s immunity statute is unconstitutional when applied to defeat a tort claim arising under state law.

II

We turn then to appellants’ § 1983 claim that appellees, by their action in releasing Thomas, subjected appellants’ decedent to a deprivation of her life without due process of law. It is clear that the California immunity statute does not control this claim even though the federal cause of action is being asserted in the state courts. We also conclude that it is not necessary for us to decide any question concerning the immunity of state parole officials as a matter of federal law because, as we recently held in Baker v. McCollan, 443 U. S. 137, “[t]he first inquiry in any § 1983 suit ... is whether the plaintiff has been deprived of a right 'secured by the Constitution and laws’ ” of the United States. The answer to that inquiry disposes of this case.

Appellants contend that the decedent’s right to life is protected by the Fourteenth Amendment to the Constitution. But the Fourteenth Amendment protected her only from deprivation by the “State ... of life . . . without due process of law.” Although the decision to release Thomas from prison was action by the State, the action of Thomas five months later cannot be fairly characterized as state action. Regardless of whether, as a matter of state tort law, the parole board could be said either to have had a “duty” to avoid harm to his victim or to have proximately caused her death, see Grimm v. Arizona Bd. of Pardons and Paroles, 115 Ariz. 260, 564 P. 2d 1227 (1977); Palsgraf v. Long Island R. Co., 248 N. Y. 339, 162 N. E. 99 (1928), we hold that, taking these particular allegations as true, appellees did not “deprive” appellants’ decedent of life within the meaning of the Fourteenth Amendment.

Her life was taken by the parolee five months after his release. He was in no sense an agent of the parole board. Cf. Scheuer v. Rhodes, 416 U. S. 232. Further, the parole board was not aware that appellants’ decedent, as distinguished from the public at large, faced any special danger. We need not and do not decide that a parole officer could never be deemed to “deprive” someone of life by action taken in connection with the release of a prisoner on parole. But we do hold that at least under the particular circumstances of this parole decision, appellants’ decedent’s death is too remote a consequence of the parole officers’ action to hold them responsible under the federal civil rights law. Although a § 1983 claim has been described as “a species of tort liability,” Imbler v. Pachtman, 424 U. S. 409, 417, it is perfectly clear that not every injury in which a state official has played some part is actionable under that statute.

The judgment is affirmed.

So ordered.

       “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

       Although the complaint refers to the failure to supervise Thomas after his release, a failure to warn females in the area of potential danger, and a failure to revoke the original parole decision, the litigation has focused entirely on the original decision. The individual appellees are not alleged to have responsibility for postrelease supervision of Thomas.

       The dismissal of appellants’ cause of action charging negligent failure to warn females in the area of danger was predicated on appellants’ concession that there was no “continuing relationship between the state and the victim,” 85 Cal. App. 3d 430, 435, 149 Cal. Rptr. 519, 523 (1978), a requirement of state law.

       “. . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U. S. Const., Arndt. 14, § 1.
      Although the question presented in the jurisdictional statement posits an Equal Protection Clause challenge to the statute, that point was not actually briefed in this Court. It was also neither raised in nor treated by the courts below. We therefore make no further reference to that challenge.

       It is arguable, however, that the immunity defense, like an element of the tort claim itself, is merely one aspect of the State’s definition of that property interest. Recently, in considering a lawyer’s claim of immunity in a state malpractice action, we noted that
      “when state law creates a cause of action, the State is free to define the defenses to that claim, including the defense of immunity, unless, of course, the state rule is in conflict with federal law.” Ferri v. Ackerman, ante, at 198.

       “Martinez says the statute, Government Code section 845.8, subdivision (a), is unconstitutional because it permits the deprivation of life, a fundamental right, without due process. He suggests the statute, if it confers absolute immunity, encouraged the actions resulting in Mary Ellen’s death and, thus, requires a compelling state interest. However, the Legislature has broad powers to control governmental tort liability limited only by the rule it not act arbitrarily (Reed v. City & County of San Francisco, 237 Cal. App. 2d 23, 24 . . .). The California Tort Claims Act as a whole (Gov. Code § 810 et seq.) has been found constitutional (Datil v. City of Los Angeles, 263 Cal. App. 2d 655, 660-661 . . .). The stated purpose of section 845.8, subdivision (a), is to allow correctional personnel to make determinations of release or parole unfettered by any fear of tort liability (Law Revision Com. com.). To impose tort liability would have a chilling effect on the decision-making process, impede implementation of trial release programs and prolong incarceration unjustifiably for many prisoners. There is a rational relationship between the state’s purposes and the statute.” 85 Cal. App. 3d, at 437, 149 Cal. Rptr., at 524.
      The opinion of the California Court of Appeal does not expressly mention the Federal Constitution. But it is clear from appellants’ response to the demurrer that they were relying on “a federally protected right to life under the Constitution of the United States.” Record 59.

       We note that the California courts accepted jurisdiction of this federal claim. That exercise of jurisdiction appears to be consistent with the general rule that where
      “ 'an act of Congress gives a penalty to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a State court.’ ” Testa v. Katt, 330 U. S. 386, 391, quoting Claflin v. Houseman, 93 U. S. 130, 137.
      See also Aldinger v. Howard, 427 U. S. 1, 36, n. 17 (Brennan, J., dissenting) ; Grubb v. Public Utilities Comm’n, 281 U. S. 470, 476. We have never considered, however, the question whether a State must entertain a claim under § 1983. We note that where the same type of claim, if arising under state law, would be enforced in the state courts, the state courts are generally not free to refuse enforcement of the federal claim. Testa v. Katt, supra, at 394. But see Chamberlain v. Brown, 223 Tenn. 25, 442 S. W. 2d 248 (1969).

       “Conduct by persons acting under color of state law which is wrongful under 42 U. S. C. § 1983 or § 1985 (3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced. See McLaughlin v. Tilendis, 398 F. 2d 287, 290 (7th Cir. 1968). The immunity claim raises a question of federal law.” Hampton v. Chicago, 484 F. 2d 602, 607 (CA7 1973), cert. denied, 415 U. S. 917.

        Baker v. McCollan, 443 U. S., at 140. Although there was a dissent in that case, the issue that divided the Court was, assuming the plaintiff had been deprived of constitutionally protected liberty, what process was due. There was no disagreement with the majority’s methodology of isolating the particular constitutional infringement complained of. Since we decide here that the State did not “deprive” appellants’ decedent of a constitutionally protected right, we need not reach the question whether a lack of “due process” was adequately alleged by the reference to a failure to observe “requisite formalities.” It must be remembered that even if a state decision does deprive an individual of life or property, and even if that decision is erroneous, it does not necessarily follow that the decision violated that individual’s right to due process.

       Compare the facts in Screws v. United States, 325 U. S. 91, where local law enforcement officials themselves beat a citizen to death.

       We reserve the question of what immunity, if any, a state parole officer has in a § 1983 action where a constitutional violation is made out by the allegations.