Ruling Supports Glendale in Dispute Over Monument

Rafu Staff Report

A judge has issued a tentative ruling in support of the City of Glendale, which has been sued for placing a “comfort women” monument in Central Park.

In a decision handed down Feb. 23, Los Angeles County Superior Court Judge Michael Linfield granted the defendant’s motion to strike and said that the plaintiffs — Michiko Shiota Gingery, Koichi Mera, GAHT-US Corporation (Global Alliance for Historical Truth), and Masatoshi Naoki — “have failed to show that they have probability of succeeding on any of their causes of action.”

The judge ruled that the monument was not only constitutional but was also a protected exercise of the city’s freedom of speech.

Erected in July 2013, the statue of a young Korean woman is similar to one near the Japanese Embassy in Seoul. The inscription reads, “In memory of more than 200,000 Asian and Dutch women who were removed from their homes in Korea, China, Taiwan, Japan, the Philippines, Thailand, Vietnam, Malaysia, East Timor and Indonesia, to be coerced into sexual slavery by the Imperial Armed Forces of Japan between 1932 and 1945.

“And in celebration of proclamation of ‘Comfort Women Day’ by the City of Glendale on July 30, 2012, and of passing of House Resolution 121 by the United States Congress on July 30, 2007, urging the Japanese government to accept historical responsibility for these crimes.

“It is our sincere hope that these unconscionable violations of human rights shall never recur.”

The monument was supported by the Korea-Glendale Sister City Association and the Korean American Forum of California.

A federal judge last year rejected a similar lawsuit filed against the city in U.S. District Court. That decision is being appealed.

In the Superior Court case, the plaintiffs asked the court to order the city to remove the monument, arguing that it interferes with the federal government’s right to conduct foreign policy and is therefore unconstitutional under the Supremacy Clause.

“There can be no legitimate dispute that the Japanese government engaged in horrendous crimes against the comfort women prior to and during World War II,” Linfield wrote. “The United States House of Representatives — and even the Japanese government itself — has recognized these abuses. Even plaintiffs themselves do not dispute this historical truth …

“Cities and states have routinely — and historically — passed resolutions in support or, or in opposition to, various foreign policy issues. In the 1960s and 1970s, hundreds if not thousands of local governmental bodies passed resolutions supporting or opposing America’s involvement in the Vietnam War. In the 1980s and 1990s, states and localities passed resolutions in opposition to the Contra War in Nicaragua, apartheid in South Africa and genocide in Rwanda. More recently, we have seen resolutions and proclamations recognizing the Armenian genocide of 1915.

“If plaintiffs’ argument were correct, then such historically routine activities undertaken by state and local governments throughout the country would all be unconstitutional. There is no constitutional difference between the monument and plaque at issue in this lawsuit and a proclamation by the city with the same wording.”

The judge further stated, “Here, it is not alleged that defendant attempted to regulate or conduct foreign affairs; instead, defendant at most expressed an opinion on the issue of comfort women.

“Plaintiffs provide no authority which has held that purely expressive conduct, such as the placement of a monument and plaque, intrudes upon the federal government’s exclusive power to conduct and regulator foreign affairs. The cases cited by the plaintiffs … concerned actions that went beyond mere expressive conduct.”

The cases cited include legislation calling for concrete action, such allowing former prisoners to sue Japanese companies for forced labor during World War II, restricting the state from purchasing goods from firms doing business with Myanmar, and extending the statute of limitations for victims of the Armenian genocide.

Another allegation was that the Glendale City Council violated the Municipal Code by approving the monument without discussing or knowing of the contents of the plaque.

“But the council later voted to defend the instant lawsuit,” Linfield wrote. “There is no showing that the council members were unaware of the contents of the contents of the plaque at that time, and their decision to defend the monument and plaque can only be viewed as approval of its contents.”

Equal Protection

The plaintiffs also argued that the placement of the monument denies them equal protection under the law because: it expressly shows disapproval of people of Japanese origin; there is no monument in the park honoring Glendale’s other sister cities (including Higashiosaka in Japan, whose mayor strongly opposed the monument); the monument interferes with the plaintiffs’ use and enjoyment of the park and the nearby Adult Recreation Center; and the monument discourages the plaintiffs from equal and unfettered access to these areas.

Gingery declared that she no longer feels comfortable or welcome at the park; Mera stated that he feels compelled to avoid the area; and Naoki said that he and his wife no longer feel comfortable in the park and avoid the area.

Linfield wrote, “The monument and plaque do not create a classification that singles out Japanese persons. Though the plaque refers to the Japanese military, the Imperial Japanese Army, and the government of Japan, it also states that it is dedicated to the memory of all comfort women, including women from Japan.

“Plaintiffs are not alleged to be members of the Japanese armed forces. Further, being a member of the Imperial Japanese Army during World War II is not a suspect classification to which the Equal Protection Clause would apply.

“Plaintiffs also allege that the monument impliedly condemns all people of Japanese origin … To support this claim, plaintiffs must provide specific factual evidence which demonstrates that the monument imposes on persons of Japanese origin a measurable burden or denies them an identifiable benefit …

“At most, this merely suggests intangible harm to the plaintiffs based on their decisions to avoid the park; there is no evidence that other persons of Japanese descent similarly avoided the park, or that they were prohibited from going to the park because of the monument’s existence …

“The fact that the plaintiffs and others find the message of the monument offensive is not sufficient, by itself, to support an equal protection claim …

“Moreover, plaintiffs do not point to sufficient evidence that discrimination was a substantial motivating factor in defendant’s decision. At most, plaintiffs show that defendant was aware that people of Japanese descent would be upset by the monument and that the monument would be controversial.”

Responses to Ruling

The city was represented, pro bono, by a team of litigators at Sidley Austin.

“The city is extremely pleased with the result and the thorough and thoughtful ruling by Judge Linfield … The city is also very appreciative of Sidley Austin’s tireless effort and exceptional representation in this matter,” said Glendale City Attorney Michael Garcia.

“This is a clear indication that the U.S. courts DO NOT wish to hear these frivolous and ill-intended cases,” said Phyllis Kim, spokesperson for Korean American Forum of California. “They are saying this loud and clear — don’t bring these cases to this court anymore!”

In a post titled “Is There Any Justice in America?” on the GAHT website, Mera questioned the judge’s assertion that the city’s actions were consistent with U.S. foreign policy. “The House resolution hasn’t been passed by the Senate, so it is premature to say that this is the U.S. government’s policy. Moreover, intervening in an area that should be exclusively decided by the federal government is itself problematic.”

Regarding the ruling that local governments have the freedom to express their views on political issues, Mera said that taken to extremes, this means that it would be acceptable for a city to declare its support for the Islamic State terrorist group.

The judge alluded to the 1993 Kono Declaration, in which Chief Cabinet Secretary Yohei Kono said that the Japanese military was involved in the establishment of “comfort stations” and that many of the women were recruited against their will and lived under coercive conditions.

“In order for this litigation to succeed, bold steps by the Japanese government are needed,” Mera said. “First, annulment of the Kono Declaration. Second, active support for those who are working to defend Japan’s honor. Third, an official statement to the world that ‘comfort women were not sex slaves.’”

As long as the Japanese government does not take action, he said, “Japan’s honor will be steadily lost.”

Mera suggested that the two court decisions were based more on political pressure than legal theory. “While it is unclear what kind of pressure the judges received from which countries, it is clear that the Japanese government had nothing to do with it. This means that the judiciary, which is supposedly independent of the executive and legislative branches, is subject to quite a bit of worldly influences.”

Regarding future strategies, Mera said that his group will file an appeal with the U.S. Court of Appeals for the 9^th Circuit as well as in California courts. He added that the effort has been strengthened by a lawyer from a noted firm and a university professor specializing in constitutional law.