Federal Court Dismissed Thoroughly Evil Litigation Against "Comfort Women" Memorial

Back in February I wrote about a rather despicable lawsuit filed by Japanese-American plaintiffs seeking to remove a statue in Glendale, California commemorating the "comfort women" — women enslaved as prostitutes in World War II by Imperial Japan. The plaintiffs argued that Glendale's statute interfered with the United States' diplomatic relations with Japan, thus violating the Supremacy Clause. I'm pleased to report that United States Judge Percy Anderson — not a judge you want yelling at you, for what it is worth1 — has dismissed the case without leave to amend.

The plaintiffs, you might recall, were represented by megafirm Mayer Brown. This resulted in really awful publicity from Mayer Brown, not just from pipsqueaks like me, but from Above the Law and Marc Randazza. Mayer Brown soon substituted out of the case in favor of a rather smaller firm. Meanwhile, defendant the City of Glendale – ably represented by their City Attorney's Office and by competing megafirm Sidley Austin — filed a motion to dismiss the case, arguing that the plaintiffs were clearly incorrect in arguing that Glendale's comfort women statute interfered with the United States' international relations. The motion is top-notch work; I've uploaded a copy here.

In his ruling, Judge Anderson found that the plaintiffs had not alleged any specific facts — as opposed to conclusions — supporting the notion that a city's monument could interfere with national diplomacy. Absent such facts, the complaint failed. Judge Anderson echoed the argument made by many critics that the plaintiffs' theory would make a wide swath of public monuments vulnerable to litigation:

Any contrary conclusion would invite unwarranted judicial involvement in the myriad symbolic
displays and public policy issues that have some tangential relationship to foreign affairs. For instance,
those who might harbor some factual objection to the historical treatment of a state or municipal
monument to the victims of the Holocaust could make similar claims to those advanced by Plaintiffs in
this action. Neither the Supremacy Clause nor the Constitution’s delegation of foreign affairs powers to
the federal government prevent a municipality from acting as Glendale has done in this instance . . . .

Judge Anderson therefore dismissed the federal claim and declined to exercise jurisdiction over the remaining state law claim. He also found that the City's anti-SLAPP motion was without merit because it was directed to a federal claim: generally speaking state anti-SLAPP statutes can only be used against state claims. That ruling spared Judge Anderson the more difficult question of whether a municipality has speech rights covered by the anti-SLAPP statute.

This is the right result. Plaintiff's claim on behalf of reactionary Japanese political interests were only the appetizer; the main course would have been suits against many Armenian Holocaust memorials, brought on behalf of the Holocaust-deniers of Turkey. Citizens, through their local governments, ought to commemorate history as they see fit.

  1. "Judge Anderson: MR. WHITE WHAT MAKES YOU THINK YOU HAD A RIGHT TO FILE A SUR-REPLY? Me: Well, Your Honor, I don't have an absolute right; it is in your discretion whether or not to consider it. JUDGE ANDERSON: DON'T YOU THINK YOU SHOULD HAVE SAID THAT IN YOUR SUR-REPLY? Me: No, Your Honor, I rather thought it was self-evident." Hilarity did not ensue. Then there was the time he pounded the bench saying "NO. YOU. MAY. NOT!" during a trial. In Judge Anderson's defense I deserved being yelled at both times. If you're a lawyer and you don't deserve a judge yelling at you occasionally, you're not trying hard enough.  

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Comments

  1. mcalex says

    Great result. Well done Judge A.

    Also, good job on the new layout. Except I still have to open the comments page to see footnotes.

  2. Resolute says

    Sign I might be reading too much Popehat: It didn't seem odd to me that you used statute in place of statue the first time. It was the second such use that I suddenly became confused.

  3. jimmythefly says

    @ David Byron

    Interestingly, In the email alert I get with the post in it, the footnote is inserted in whole right smack inline with the rest of the text.This happens whether viewed on a mobile device or desktop.

  4. Mercury says

    "This is the right result. Plaintiff's claim on behalf of reactionary Japanese political interests were only the appetizer; the main course would have been suits against many Armenian Holocaust memorials, brought on behalf of the Holocaust-deniers of Turkey. Citizens, through their local governments, ought to commemorate history as they see fit. "
    ————————————————————
    Really? The Supremacy Clause excuse is BS of course but why isn't an even better idea to avoid using federal, state or local American public spaces and funds to commemorate world events that have nothing to do with federal, state or local American history?

    Are we now a global Disneyworld for the mawkish grievences of whichever ill-fated identity groups manage to curry favor with the right politician? Perhaps there are some events in world history that you'd rather not have your kid stand in front of a memorial to while he's waiting for the school bus.

  5. Yarrgh says

    @Mercury

    A little more background on the reason for the existence of the statue may help. See this NBC News article

    Basically, Glendale has a relatively large Korean-American population and the statue was intended to draw attention to the issue of WWII comfort women after Japan's PM issued a half-assed apology.

    I don't think this is an example of an 'ill-fated identity group' who managed to 'curry favor with the right politician', but rather a (very successful) attempt to draw attention to a group of victims whose existence was, for decades, denied by the Japanese government. Given how diverse America is and the global impact of our actions can be, this statue seems very righteous and American to me. The argument about not using federal, state or city public space for this, in lieu of something more pertinent to American history has no teeth, for me. We were involved in WWII and the comfort women for whom this statue stands were unfortunate victims, and this statue adds a context that most people hadn't even heard of to the historical narrative. Hence, part of American history.

    I'd be happy to have my kid stand next to this statue while waiting for the school bus, as it would grant me the opportunity to explain the horrors of war in an even greater context. But I'm fairly certain that even if I lived in Glendale, that the school bus doesn't run through Central Park.

    I suppose my questions are, why should any government owned public space have monuments only to Americans? And given our country's ethnic diversity (especially California, in particular Glendale), where should we draw the line?

  6. KronWeld says

    @Mercury let me get this straight, your kid waits for the school bus in a park standing next to a statue of a seated women with an empty chair next to her? I'd be more worried about the school choosing a bus route that had kids waiting for the bus, no where near a road. Yeah, the middle of a park is a great place for a bus stop.

  7. Lagaya1 says

    Mercury-
    And perhaps our kids should know more about the world outside our borders. Most adults don't…
    An acknowledgment of past wrongs in the world is a good thing for kids to see. You can explain what it means at their level of understanding if the subject-matter is uncomfortable for you.

  8. Mercury says

    @Lagaya1
    People should learn more about the world outside their borders. I just don't think that permanent structures erected in American public spaces (as in parks, town squares etc. – not libraries, schools and the like) are the best places to learn/advocate for things like Japanese war crimes.

  9. CJK Fossman says

    @Mercury

    I'm glad you understand that the cure for objectionable speech is more speech. Mine follows.

    "Mawkish?" If you knowingly used that adjective, you have indulged in iridescent, putrescent asshattery.

    By the way, are you a citizen of Glendale? If so, perhaps you should take your opinion to your elected representatives. If you are not, why don't you spend your time ensuring that such a statue, or similar, is not built in your community?

    The citizens of Glendale, through their elected representatives, have chosen to make a speech about the comfort women.

  10. Mercury says

    @Yarrgh:

    "I suppose my questions are, why should any government owned public space have monuments only to Americans? And given our country's ethnic diversity (especially California, in particular Glendale), where should we draw the line?"
    ——————————————————————————————————————-
    Well, because this is the USA and the governments we're talking about are the US federal, or various state and local governments in the USA which are in the service (don't laugh) of US citizens. That's why.

    Typically Roman monuments honor, commemorate or celebrate people or things Roman, in China, Chinese, in France, French and Britain, British. This isn't a very novel concept.

    Where should we draw the line? Just about there, most of the time anyway. Otherwise, as I alluded to originally, poor taste, eye-poking politics and general absurdity will inevitably supersede any artistic, uplifting or unifying powers such memorials may otherwise provide.

    Is e pluribus unum just a big joke now?
    I suppose it is.

  11. Mercury says

    @CJK
    I get it, "they voted on it", so it's cool. And I don't live there. Hopefully the grandchildren of Glendale will agree one day too about this and whatever other memorials they have put up in the meantime.

    And generally, I think it's a good thing that smaller-scale legal authorities are granted more leeway in terms of what they can do to and for their subjects. You let parents do what you wouldn't let city/town governments to do, you let cities/towns do what you wouldn't let states do, you let states do what you wouldn't let the federal government do (although Obama is working hard on the reverse). This way you never know what crazy idea might actually work and provide a good model for others. Brandeis's Laboratories Of Democracy and all that.

    I guess I'm speaking more generally about the trend, across the country, of memorializing people/things that have little or no common, unifying or positive theme. I just find it weird, unhealthy and selfish. And the 911 Memorial in NYC (which I do have personal connections to thank you very much) is mawkish as all get out. On the other hand, water going down the drain isn't a totally inappropriate metaphor.

  12. Yarrgh says

    @Mercury

    There are numerous counterexamples of statues of non-Americans in America, and Americans in foreign countries.

    Take the statues of King Kamehameha in Hawaii, the Crazy Horse memorial, statue of Ghandi in DC. What about memorials to Native Americans whose tribes exist on sovereign land?

    Also, what about this?

    I understand you when you say that typically a country has monuments honoring itself, but that's not a restriction. As to your point about the various levels of government being in service to their citizens, you've just successfully argued against your own point. As CJK Fossman said above, the citizens of Glendale, through their elected representative, have spoken. Service rendered.

    As to your point about poor taste, eye-poking politics and general absurdity superseding the positive effects of memorials such as this, shouldn't that include attempting to bend the Supremacy Clause in order to get rid of said monument? Also, I think you misunderstand what E Pluribus Unum actually means. You could take it literally to mean from many colonies/states we are one nation, which is of course true. Otherwise, you could interpret it figuratively to mean that we are a single nation and people made up of various races, religions, etc. In which case, definitely true and is perfectly exemplified by the existence of this statue.

  13. CJK Fossman says

    @Mercury

    Seems like your rhetoric is a little more moderate. I hope you don't find that offensive.

    However, since you doubled down on the mawkish thing …

    mawkish:

    adjective
    sentimental in a feeble or sickly way.
    "a mawkish poem"
    synonyms: sentimental, oversentimental, maudlin, cloying, sickly, saccharine, sugary, oversweet, syrupy, nauseating;

    Either you mean the 9/11 memorial is sentimental in a feeble or sickly way, or you get to wear the Captain Malaprop hat for the next twenty-four hours.

    Definition courtesy of Google.

  14. Mercury says

    @Yarrgh

    All of those U.S.-President-statues-abroad examples memorialize US presidents who directly benefited the country in question in some specific way. So, those presidents are part of their history in a major and direct way.

    American Indians (King Kamehameha is a native American in this context) are Americans in (at least) the sense that they are a huge part of US history and they were here before everybody else was.

    I already said the Supremacy Clause argument was BS.

    The Gandhi statue in Washington is part of the trend I'm complaining about but at least it was a paid for by Indians and is placed close to if not on foreign soil outside the Indian embassy (plus, it's hard to get too worked up about any public depiction of tax protest in Washington DC).

    You can quibble about the "E Pluribus" part but the "Unum" part is pretty straight-forward. You're implying that the motto means/could mean "E Pluribus Pluribum" which it doesn't and can't.

  15. Mercury says

    @CJK Fossman

    I try to be precise.
    Yes, I mean that the 9/11 memorial is sentimental in a feeble and sickly way.

    A minor thing but the cherry on top was the 911 cheese platter they recently had on sale in the gift shop.

  16. barry says

    @Mercury, And the statue of Ms Liberty in New York Harbor is a Roman goddess, and kind of French.

  17. Mercury says

    @barry

    That was a gift from France and it celebrates the USA, its common values and unity.

    There are also, scattered about the northeast, various statues of French generals and other Europeans who helped us out during the American Revolution but again, that's part of our country's history and often the history of the area where the memorial/statue is located.

  18. CJK Fossman says

    @Mercury

    You are resilient. If you wish to characterize symbols important to you as mawkish, more power to you. However, to characterize symbols important to others in that way is dismissive and, I still claim, an asshat's way of dealing with things he doesn't like. It puts you in the company of, for example, Al Franken.

    Meanwhile, on the "try to be precise" front, you stepped in it with "E Pluribus Pluribum." Look here for the correct usage. Find "Plus" about half way down the page. You want the plural accusative masculine case.

    By the way, the translation of the correct phrase would be "Out of many, many," which is clearly possible, contrary to your claim.

  19. Czernobog says

    @Mercury:
    I'm sorry, are you saying that a memorial for the victims of a war the U.S took part in, and is therefore part of it's history, is selfish?

    What a weird, unhealthy stance.

  20. Stephen H says

    @Mercury:

    Are you suggesting that the French should not have memorials to those foreigners who came to their country and died fighting Germans? Or is that an exception to your rule? If the latter, can you please spell out all the exceptions so we can all understand how it works.

  21. Mercury says

    @CJK
    'E Pluribus Plures' then. Thanks. My English vocabulary is better than my Latin grammar. You got me.

    If you could restrain your more pedantic (let's let everyone else Google that one) impulses for a minute and stick to the subject at hand: your point was that the meaning/intent of the USA's motto was open to some interpertation. I conceded that with qualifications demonstrating (despite the poor Latin) that although it's possible to interpret the "many" part in several different ways, the "one" part doesn't actually allow for much leeway. It very strongly implies national unity, cohesiveness, common values and the like because the plural noun implied by “many” has to agree with the singular noun implied by “one” so that rules out meanings such as 'one', specific set of GPS coordinates or geographical boundaries.

    It doesn't matter if "Out of many, many," is possible or not, that is not what the text says, even allowing for interpretive lenience.

  22. Mercury says

    @Stephen H

    No, I'm not and what the French do is their business anyway.

    But I would guess that the French erected memorials to foreigners who died fighting Germans (in many cases on French soil) because those dead represent a sacrifice which thay are very thankful for because it directly benefited the French people. The Comfort Women episode, even if it is equally or or more tragic and worthy of attention, is not analogous.

  23. Mercury says

    @Lagaya1
    “Weird” because it seems out of context, “unhealthy” for collective unity and cohesiveness and “selfish” because it uses public resources to raise the profile of specific issues which arguably do not serve the best interests of the larger community. And also “selfish” because it invites other such statements of grievance awareness that might be even more wayward in this regard or even purposely antagonistic. Imagine the Koch brothers funding a memorial to European galley slaves of Muslim pirates in Illinois.

    I actually don’t feel as strongly as it might seem about a memorial in Glendale. It’s a local issue and the people there should be able to do things that other locales in other parts of the country should also be free to ban or prevent if they see fit. I just don’t think it’s a great idea and I do feel more strongly about such things on a national or even state level – where they are also a temptation for many people.

    And yes, I could be wrong. Perhaps the proliferation of such things will result in a net enhancement of mutual empathy and understanding among all Americans. But I doubt it.

    I think that’s about all I have to say on this. Thanks for everyone’s more or less civil discourse and Ken’s podium.

  24. Yarrgh says

    @Mercury

    On the topic of 'E Pluribus Unum', I never implied that it could be interpreted as 'Out of many, many'. I agree that if you interpret 'Unum' semi-literally as 'one people', that 'Unum' implies national unity and cohesiveness, to an extent. However, it is important to note that we are still 'many people', from which emerges this national identity. If this were not important, we wouldn't need the 'E Pluribus' part at all.

    As for the appropriateness of monuments like this in government owned public spaces, I can see where you're coming from, but I'd say that there is nothing more American than bucking tradition and representing the unrepresented.

    Also, to respond to this:

    "Perhaps the proliferation of such things will result in a net enhancement of mutual empathy and understanding among all Americans. But I doubt it."

    I think it already has, and this discussion here is a perfect example of it.

  25. Cary says

    @CJK
    You want to slice and dice 'mawkish' and then step in with 'asshat'? Okaaaay then.

  26. says

    As if Marc Randazza should speak!! He is known as the porn attorney!! What a hypocrite! Maybe he should take his own self reflection into account.

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