OPINION AND DISSENTING OPINION

IN 

REPOUILLE V. UNITED STATES

BY

JUDGE LEARNED HAND & JUDGE JEROME FRANK

The current topic “Opinion and Dissenting Opinion in Repouille V. United States” is the description of the opinions expressed by two Circuit Judges namely Judge Learned Hand & Judge Jerome Frank in the Circuit Court of Appeals, Second Circuit on 05^th December, 1947.

THE OPINION

The opinion expressed by the judge Learned Hand given below as the first. The District Attorney, on behalf of the Immigration and Naturalization Service, appealed from an order, naturalizing the appellee, Louis Loftus Repouille who was a refuge. The ground of the objection in the District Court and the Circuit Court of Appeals was that he (Repouille) did not show himself to have been a person of “good moral character” for five years which preceded the filing of his petition.

The facts of the case were that the petition was filed on September 22, 1944 and on 12^th October 1939, he had deliberately put to death his son, a boy of thirteen by means of Chloroform. The said reason for this was that the child had suffered from birth from a brain injury which destined him to be an idiot and a physical monstrosity malformed in all four limbs. The child was blind, mute, and deformed. Repouille had other four children at that time and having responsibility of caring the burden of fifth. Initially, he was charged for manslaughter in the first degree and because of clemency, the judge brought in a verdict of manslaughter in the second degree. The judge sentenced him to not less than five years nor more than ten. He conducted himself as a person of “good moral character” during the five years before he filed his petition.

The Judge said that “good moral character” in the Nationality Act was like a test which was very similar to a Gallup Poll. The killing of child was not deliberate but the moral standards should properly be applied and followed in the society. He compared this case with of a similar offender in Massachusetts who was not executed but imprisoned for life. Thus, the judge Learned Hand dismissed the petition of Repouille for the citizenship.

THE DISSENTING OPINION

            The Judge Frank opined that by filing a new petition, the petitioner might get the citizenship promptly. But he felt that, filing a petition might cause a long and injurious delay. He added that the District Judge found enough reasons to grant him the citizenship but not by the Circuit Judge. He thought that the constitutional test showed the ethics of the leaders who designed them. But, the judgment of another Judge was made upon the public opinion. Here, he recalled the remark of Gibbon that “the opinion of the world at large”. He said that in such cases ‘Judicial notice’ (the knowledge which is attributed by law to judicial persons, and which does not require to be given them particular case by evidence) could be applied. But, this ‘judicial notice’ was not considered by judges in this case. It might be because of the shortage of staff in the courts according to his opinion. He further said that because of the lacking of Judge’s knowledge, the man’s legitimacy should not be put into danger.

            Therefore, the Judge Frank pronounced that a few directions could be given to the district judge to reconsider the petition of Repouille. The said conditions were to collect all the data for both the petitioner’s side and Government side and to put them in record. Based on those records, the judge should reconsider his decision and arrive at a conclusion. He finally said that public opinion in this regard (for such cases) was not necessary. By giving such verdict, Judge Frank recommended for a reconsideration of Repouille’s petition.

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