Article 8

Petitioner Sumitomo Shoji America, Inc., is a New York corporation and a wholly owned subsidiary of Sumitomo Shoji Kabushiki Kaisha, a Japanese general trading company or sogo shosha. Respondents are past and present female secretarial employees of Sumitomo. All but one of the respondents are United States citizens; that one exception is a Japanese citizen living in the United States. Respondents brought this suit as a class action claiming that Sumitomo's alleged practice of hiring only male Japanese citizens to fill executive, managerial, and sales positions violated both 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. Prior to bringing this suit, respondents each filed timely complaints with the Equal Employment Opportunity Commission. The EEOC issued right to sue letters to the respondents on October 27, 1977. This suit was filed on November 21, 1977. Without admitting the alleged discriminatory practice, Sumitomo moved under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint. Sumitomo's motion rested on two grounds: discrimination on the basis of Japanese citizenship does not violate Title VII or § 1981, and Sumitomo's practices are protected under Article VIII(1) of the Friendship, Commerce and Navigation Treaty between the United States and Japan. The District Court dismissed the § 1981 claim, holding that neither sex discrimination nor national origin discrimination are cognizable under that section. The court refused to dismiss the Title VII claims, however; it held that because Sumitomo is incorporated in the United States it is not covered by Article VIII(1) of the Treaty. The District Court then certified for interlocutory appeal to the Court of Appeals under 28 U.S.C. § 1292(b) the question of whether the terms of the Treaty exempted Sumitomo from the provisions of Title VII. The Court of Appeals reversed in part. The court first examined the Treaty's language and its history and concluded that the Treaty parties intended Article VIII(1) to cover locally incorporated subsidiaries of foreign companies such as Sumitomo. The court then held that the Treaty language does not insulate Sumitomo's executive employment practices from Title VII scrutiny. The court concluded that under conditions in which Japanese citizenship is a bona fide occupational qualification for high-level employment with a Japanese-owned domestic corporation, Sumitomo's practices might thus fit within a statutory exception to Title VII. The court remanded for further proceedings. The Supreme Court granted certiorari to decide whether Article VIII(1) of the Friendship, Commerce and Navigation Treaty between the United States and Japan provides a defense to a Title VII employment discrimination suit against an American subsidiary of a Japanese company.

Joseph Hurtado was charged by an information filed in the Superior Court of Sacramento County with the murder of Jose Antonio Estuardo. The information was in the usual form and charged the crime with technical precision and in due legal language. It was filed after the defendant had been examined and committed by a magistrate, as required by the statute. The Constitution of California, adopted in 1879, provides that offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment. The Penal Code of the State, adopted in 1872 and in force at the time, contained provisions authorizing every person to be proceeded against criminally by indictment or by information, and specifying that an information is an accusation in writing presented by the district attorney after preliminary examination or waiver. Hurtado moved to set aside the information on the ground that it was not found or presented by a grand jury. The motion was overruled. He was arraigned, pleaded not guilty, and was put upon his trial. The jury returned a verdict of guilty of murder in the first degree, and judgment was pronounced sentencing him to be hanged. From this judgment Hurtado appealed to the Supreme Court of the State of California, which affirmed it. He then sued out a writ of error to the Supreme Court of the United States.

An Oregon resident died intestate in 1962, leaving an estate that included both real and personal property. The decedent's sole heirs, who resided in East Germany, sought to inherit under Oregon probate proceedings. Members of the Oregon State Land Board petitioned the probate court for escheat of the net proceeds of the estate under Oregon Revised Statutes § 111.070. The statute conditioned a nonresident alien's right to inherit on proof of three requirements. One requirement was the existence of a reciprocal right of United States citizens to take property on the same terms as citizens or inhabitants of the foreign country. Another was the right of United States citizens to receive payment within the United States of funds originating from estates in the foreign country. A third was the right of the foreign heirs to receive the proceeds without confiscation in whole or in part by the foreign government. The burden rested on the nonresident alien to establish these facts. The provision concerning confiscation had been added to the statute in 1951, expanding upon earlier general reciprocity language. The Oregon Supreme Court held that Article IV of the 1923 Treaty of Friendship, Commerce and Consular Rights with Germany permitted the East German heirs to take the real property but, following Clark v. Allen, did not permit them to take the personal property. The United States Supreme Court noted probable jurisdiction. In applying the statute in this and related cases, Oregon courts examined the credibility of diplomatic statements from communist-controlled countries, the discretion exercised by foreign banking authorities in issuing licenses for fund transfers, and the political structures under which foreign inheritance laws operated. The Department of Justice appeared as amicus curiae and stated that it did not contend the application of the statute in this case unduly interfered with the United States' conduct of foreign relations.