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Gingery v. City of Glendale

United States Court of Appeals, Ninth Circuit

August 4, 2016

Michiko Shiota Gingery, an individual; Koichi Mera, an individual; GAHT-US Corporation, a California non-profit corporation, Plaintiffs-Appellants,
v.
City of Glendale, a municipal corporation, Defendant-Appellee.

          Argued and Submitted June 7, 2016 Pasadena, California

         Appeal from the United States District Court No. 2:14-cv-01291-PA-AJW for the Central District of California Percy Anderson, District Judge, Presiding

          Ronald S. Barak (argued), Law Offices of Ronald S. Barak, Pacific Palisades, California; Maxwell M. Blecher, Donald R. Pepperman, and Taylor C. Wagniere, Blecher Collins Pepperman & Joye, Los Angeles, California; for Plaintiffs- Appellants.

          Christopher S. Munsey (argued) and Bradley H. Ellis, Sidley Austin LLP, Los Angeles, California; Michael J. Garcia, Ann M. Maurer, and Andrew Rawcliffe, Glendale City Attorney’s Office, Glendale, California; for Defendant-Appellee.

          Barry A. Fisher, Fleishman & Fisher, Los Angeles, California, for Amicus Curiae the Global Alliance for Preserving the History of WW II in Asia.

          Paul L. Hoffman and Catherine Sweetser, Schonbrun DeSimone Seplow Harris & Hoffman LLP, Venice, California, for Amicus Curiae the Korean Forum of California.

          Before: Stephen Reinhardt, and Kim McLane Wardlaw, Circuit Judges, and Edward R. Korman, [*] Senior District Judge.

         SUMMARY[**]

         Civil Rights

         The panel affirmed the district court's dismissal of an action brought by a Japanese-American resident of Los Angeles and a non-profit organization challenging the City of Glendale's installation of a public monument commemorating the "Comfort Women, " an unknown number of women that South Korea asserts, but Japan disputes, were forced to serve as sexual partners to members of the Japanese Imperial Army during World War II and the decade preceding it.

         The panel first held that plaintiffs had standing because the "inability to unreservedly use" Glendale's Central Park, where the monument was installed, constituted an injury in fact for purposes of Article III standing.

         Viewing the complaint's factual allegations in the light most favorable to plaintiffs, the panel concluded that Glendale's installation of the monument concerned an area of traditional state responsibility and did not intrude on the federal government's foreign affairs power. The panel therefore agreed with the district court that plaintiffs had not plausibly claimed that Glendale's actions were preempted under the foreign affairs doctrine. The panel held that the Supremacy Clause does not preempt a local government's expression, through a public monument, of a particular viewpoint on a matter related to foreign affairs.

         Concurring, Judge Korman wrote separately to suggest that the plaintiffs had not alleged a valid cause of action that anchored their claim of foreign affairs preemption.

          OPINION

          WARDLAW, Circuit Judge

         In 2013, the City of Glendale installed a public monument commemorating the "Comfort Women, " an unknown number of women that South Korea asserts, but Japan disputes, were forced to serve as sexual partners to members of the Japanese Imperial Army during World War II and the decade preceding it. Plaintiffs, a Japanese-American resident of Los Angeles and a non-profit organization, claim that Glendale's installation of the "Korean Sister City 'Comfort Woman' Peace Monument" intrudes on the federal government's exclusive foreign affairs power and is thereby preempted under the foreign affairs doctrine. We conclude that Plaintiffs have standing to challenge Glendale's installation of the monument but have failed to state a claim that Glendale's actions are preempted. Accordingly, we affirm the district court's judgment dismissing Plaintiffs' preemption claim with prejudice.

         I. Factual and Procedural History

         For several decades, Japan and South Korea have engaged in a heated and politically sensitive debate concerning historical responsibility for the Comfort Women. South Korea has urged Japan to redress grievances relating to the Comfort Women. Japan denies responsibility for the recruitment of the Comfort Women and asserts that, in any event, all World War II-related claims, including those related to the Comfort Women, were resolved pursuant to postwar treaties between Japan and the allied nations. According to Plaintiffs' complaint, the United States has generally "avoid[ed] taking sides" and encouraged Japan and South Korea to resolve the dispute through "further government-to-government negotiations."

         On July 9, 2013, the Glendale City Council approved the installation of the "'Comfort Woman' Peace Monument" in Glendale Central Park, a public park in Glendale, California. Unveiled three weeks later, the monument is a 1, 100-pound bronze statue of a young girl in Korean dress sitting next to an empty chair with a bird perched on her shoulder. Alongside the statue is a bronze plaque, which reads in part:

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 ...

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