The opinion of the court was delivered by: GREEN
JOYCE HENS GREEN, U.S.D.J.
Plaintiff Eugene M. Parness seeks a declaratory judgment from this Court establishing that he has retained his United States citizenship. The parties agree that the sole issue in this case is whether Parness voluntarily and intentionally relinquished his U.S. citizenship when he signed naturalization papers to become an Israeli citizen in 1973, as a result of which he acquired Israeli citizenship in 1974. For the reasons set forth below, plaintiff's prayer is granted.
United States citizenship is a precious right and its loss is often attended by dire consequences. Costello v. United States, 365 U.S. 265, 269, 5 L. Ed. 2d 551, 81 S. Ct. 534 (1961). The privilege of citizenship, when acquired by birth in the United States, is not easily lost. Under the fourteenth amendment, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States." U.S. Const. amend. XIV, § 1. Congress has no power to "restrict the effect of birth" protected under the citizenship clause of the fourteenth amendment. United States v. Wong Kim Ark, 169 U.S. (Wheat.) 649, 703 42 L. Ed. 2d 890, 18 S. Ct. 456 (1898). Natural born citizens have a constitutional right to retain their status unless they voluntarily relinquish citizenship. Afroyim v. Rusk, 387 U.S. 253, 268, 18 L. Ed. 2d 757, 87 S. Ct. 1660 (1967).
Parness claims that he did not read the naturalization application he signed to become an Israeli citizen, which states that he renounced his allegiance to the United States. See Defendant's Exhibit ("DX") O. The government claims that when he signed the document, plaintiff committed an act of expatriation and voluntarily and intentionally relinquished his right to U.S. citizenship. Both parties have agreed that this Court has jurisdiction to make a de novo judicial determination of the status of the plaintiff as a United States national and to grant corresponding declaratory relief if appropriate.
Parness was born in Milwaukee, Wisconsin in 1935, the son of Russian immigrants. He lived in Milwaukee with his parents for the first seventeen years of his life. In the fall of 1952, Parness' parents were murdered. With the help of family and friends, Parness finished high school and in the fall of 1953 left the United States for a year with a youth study group in Israel. He has continued to live in Israel for all of his adult life. To safeguard his citizenship in America, however, Parness periodically and repeatedly registered with the United States Embassy in Israel, from the time of his arrival in 1953 through 1968.
Parness, who from 1953 through the 1960s had consistently refused to serve in the Israleli military, joined the Israeli military forces for 55 days in 1970 and also served in the Yom Kippur War of 1973. He ceased his earlier practice of registering at the United States Embassy after 1968. Following the Yom Kippur War, he sought to vote in an Israeli election. He incorrectly assumed that service in the Israeli military had made him an Israeli citizen. He was barred from voting and thereafter advised to apply for Israeli naturalization. Parness testified that he decided to be naturalized as an Israeli citizen because of the impact the war had had on him, because he knew his three sons would eventually serve in the Israeli military, and because it was important for them and important to him that he be a citizen of Israel. He had a position managing several industries, felt social pressures, and wanted to take on the responsibilities of Israeli citizenship. In December 1973, Parness went to the Ministry of Defense office in Afula, Israel to file an application for Israeli citizenship. He was 38 years old, married to an Israeli citizen, the father of three sons born in Israel, and he had an American high school education. Parness testified that he did not even consider the possible impact of his application for Israeli citizenship on his United States citizenship.
Under the Nationality Law of Israel at that time, an adult who wished to become an Israeli citizen must have settled or intended to settle in Israel, must have spent three of the preceding five years living in Israel, and must have renounced any prior nationality, Plaintiff's Exhibit ("PX") 1, Nationality Law of Israel § 5(a) (1952). A person could, however, be exempted from section 5(a) requirements if that person had served in the Israeli Army or married an Israeli citizen, according to the unrefuted trial testimony of Ben Zion Eliash, an expert in Jewish law. Eliash testified that, under Section 7 of the 1952 Nationality Law, Parness was automatically eligible to become an Israeli citizen without renouncing U.S. citizenship because of his marriage to an Israeli woman. Eliash testified that under section 6(a)(1) of the same law, Parness was similarly eligible for an exemption from the section 5(a) requirements because of his Israeli military service. Despite his automatic eligibility, and for whatever reason, Parness neither sought nor was given an exemption in his 1973 application.
To fully appreciate plaintiff's testimony, it is essential to envision the setting in which he applied for Israeli citizenship. This is the critical time when the government contends Parness specifically intended to renounce his citizenship. After standing in a long line at the Ministry of Defense in Afula, Parness stood at a clerk's counter to give oral answers to the clerk's questions as the clerk filled in his application form. Parness testified that he responded to what he was asked and did no more, that he was never told he would have to renounce his U.S. citizenship, that he did not knowingly or intentionally renounce his citizenship, and that he did not read the naturalization application, which stated in preprinted text that he renounced his citizenship. Parness further testified that he did not cross out a section of the application in which he could have exercised his right to an exemption from the section 5(a) requirements, nor does he know who did. Parness acknowledges that he should have read the document but contends that his obvious carelessness did not result from indifference to the possibility, or knowledge, that he might lose his U.S. citizenship. His "normal or average reaction to a standard document" was to not take the time to read what the document said. He treated his naturalization application in a manner consistent with his normal practice.
The unusually casual way in which Parness applied for Israeli citizenship closely parallels the manner in which the form was completed by the Israeli ministry clerk. See DX-0. The application is clearly incomplete, inaccurate, and has not been signed by any Israeli official or representative. Portions of the application designed to establish eligibility for Israeli citizenship were left unanswered. The clerk never indicated how long Parness had lived in Israel over the course of the past five years. The clerk never designated whether Parness planned to settle or had settled in Israel. Throughout the document, as translated, Parness is spelled with one "s," as "Parnes." Neither Parness nor the Israeli ministry clerk dignified the document with an attitude more than casual. In March 1984, Parness' application for Israeli citizenship was accepted, and he signed an oath of allegiance to Israel. See DX-P. The oath made no mention of renunciation of other citizenship. Thereafter, Parness voted in Israeli elections and traveled with an Israeli passport. Confident that he was a dual citizen of both the United States and Israel, in February 1979, Parness decided to renew his U.S. passport. Since he traveled frequently in his capacity as senior sales manager for a kibbutz, he could travel more easily and to more countries on that passport. Parness testified that it was at this time that he first learned his Israeli citizenship might have voided his U.S. citizenship. Parness' application for U.S. passport renewal was denied after he told U.S. Embassy officials that he had become an Israeli citizen. He was advised that he would have to provide further documentation before his application would be reconsidered.
Parness immediately set out to protect his rights and the rights of his three sons. Two of these sons were granted U.S. citizenship status in 1980. A third son was barred from becoming a U.S. citizen for technical reasons unrelated to this case. Parness complied with requests for documentation in a continuing effort to have his U.S. citizenship assured. In February 1980, the U.S. Embassy prepared a document which Parness signed and in which he acknowledged that he had acquired Israeli citizenship in 1974. He crossed out a phrase in this document which stated that he intended to renounce his U.S. citizenship. See DX-V. After reviewing all documentation, including a questionnaire which Parness completed, the State Department concluded that Parness ceased to be a U.S. citizen in 1974, at the time he acquired Israeli citizenship. The State Department then issued Parness a Certificate of Loss of Nationality on May 29, 1981. Once again, in 1984, when he returned to Milwaukee, Wisconsin for his birth certificate, he made another, but equally unsuccessful attempt to obtain a U.S. passport.
Although Parness is now the managing director of sales for his kibbutz, he has operated and continues to operate his personal life with a remarkable degree of trust and naivete. While he has told this Court that he does not believe affirmation of his United States citizenship will affect his Israeli citizenship, he admits that he has not investigated the matter, despite the troubles he has encountered in this case. The file in this case indicates that at least one Israeli consular official has determined that Parness is not exempt from the foreign citizenship renunciation requirement of Israel's Nationality Law. See DX-R. However, Parness has consistently maintained that he never intended to renounce his U.S. citizenship, and a State Department official, in a memorandum for the file dated July 10, 1984, see DX-FF, acknowledged that Parness' actions do not clearly show an intent to renounce citizenship, and suggested that while "the decision reached at that time was correct" the passage of time ...