Michiko Gingery v. City of Glendale

Concurrence by Judge KORMAN

OPINION

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-Ameriean resident of Los Ange-les 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.…

concurring:

While I agree that Koiehi Mera, one of the plaintiffs, meets the “irreducible constitutional minimum” requirements to allege Article III standing, Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992), and do not take issue with the manner in which the majority resolves the merits of the appeal, I write separately to suggest that the plaintiffs have not alleged a valid cause of action that anchors their claim of foreign affairs preemption. Simply mouthing the words foreign affairs preemption does not do it. The plaintiffs assert only in the vaguest manner that their complaint is brought under 42 U.S.C. § 1988 . Nevertheless, Section 1983 cannot support then-cause of action. Nor is an equitable cause of action to restrain regulatory action in violation of the Constitution available here.

I. Section 1983.

The availability of a cause of action under Section 1983 depends upon whether a plaintiff has alleged “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983 ; see also Golden State Transit Corp. v. City of Los Angeles (Golden State II), 493 U.S. 103, 105 , 110 S.Ct. 444 , 107…

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

GINGERY V. CITY OF GLENDALE

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…