Metropolitan News-Enterprise


Thursday, January 16, 2003


Page 1


Compensation Statute for World War II-Era Slave Labor Upheld


By KENNETH OFGANG, Staff Writer/Appellate Courts


Korean nationals forced to labor for Japanese firms during World War II may sue for compensation under California law, the Court of Appeal for this district ruled yesterday.

Such suits do not infringe upon the power of the federal government to make foreign policy, nor are they preempted by treaties or by federal statutes, Justice Paul Boland wrote for Div. Eight.

The panel lifted a stay that had temporarily prevented Jae Won Jeong, now a U.S. citizen living in California, from proceeding with his putative class action against Taiheiyo Cement Corporation and three California subsidiaries of the huge Japanese firm. Taiheiyo obtained the stay pending a ruling on its petition for write of mandate after Los Angeles Superior Court Judge Peter Lichtman denied two motions for judgment on the pleadings.

Jeong claims that after he refused to join the Japanese military, he was seized and taken to a labor camp in Korea run by Onoda Cement Co., Ltd., which was later merged into Taiheiyo. He and other Koreans, he alleges, were tortured there and forced to work for the Japanese war effort.

He is suing under Civil Code Sec. 354.6, as well as on common-law tort and contract theories and the state statutes dealing with unfair business practices.

Sec. 354.6, enacted in 1999, provides:

“Any Second World War slave labor victim, or heir of a Second World War slave labor victim, Second World War forced labor victim, or heir of a Second World War forced labor victim, may bring an action to recover compensation for labor performed as a Second World War slave labor victim or Second World War forced labor victim from any entity or successor in interest thereof, for whom that labor was performed, either directly or through a subsidiary or affiliate.”

The statute applies to conduct occurring between 1929 and 1945, revives and extends applicable statutes of limitations through 2010, and allows suit to be brought against any defendant subject to California’s jurisdiction.

Peace Treaties

Taiheyo contended in its first motion that the suit was barred by the 1951 Treaty of Peace with Japan, and a 1965 agreement between Japan and Korea. But Lichtman ruled that then-Korean nationals are not bound by the 1951 agreement, which Korea never signed, and that the 1965 agreement was not intended to bar suits like Jeong’s.

The second motion was brought after U.S. District Judge Vaughn Walker of the Northern District of California, on assignment from the Judicial Panel on Multidistrict Litigation, threw out several federal suits similar to the one before Lichtman. Walker agreed with the federal government, which has supported the defendants in all of these cases, that Sec. 354.6 interferes with the foreign-affairs power.

Lichtman, however, disagreed with Walker—whose rulings are currently before the Ninth U.S. Circuit Court of Appeals—and said the statute has no direct bearing on the federal government’s power to implement a foreign policy.

‘Special Arrangements’

Boland agreed with Lichtman—and Walker—that because Korea did not sign the 1951 Treaty of Peace, sometimes referred to as the San Francisco treaty, Korean nationals need not rely on the “special arrangements” that the treaty calls for in order to resolve post-war claims by Korean nationals and entities against Japan.

The appellate jurist pointed out that the treaty language is vague as to what “arrangements” were contemplated, suggesting that Korea was under no obligation to negotiate any specific type of protocol with Japan and that the rights of Korean plaintiffs to seek redress through other means were not waived.

Boland elaborated:

“As a United States citizen, Jeong has a constitutional right of access to the courts of this state in an attempt to redress his individual grievances—.That fundamental right of citizenship may not be foreclosed upon a claim of implied preemption unless the language of the 1951 Treaty indicates a clear intent to exclusively occupy the field of Korean claims arising out of WWII. Such clarity is lacking in this case.”

In concluding that no conflict exists between the foreign-affairs power and Sec. 354.6, Boland said the law is :essentially a procedural statute designed to allow venue in California courts.” The law was not enacted for a foreign policy purpose, is not aimed at any specific country, “does not require a state court to inquire into current policy of a foreign nation or the structure of its government,” and lacks anything more than “an incidental or indirect effect” on U.S. relations with other countries, the justice said.

Boland distinguished several cases in which federal courts have struck down state enactments on the ground the state had intruded into the foreign policy realm.

Those cases involved a Miami-Dade County, Fla. ordinance barring county vendors from doing business with Cuba, a Massachusetts law restricting dealings between the state and companies doing business in Burma, and an attempt by New Mexico State University authorities to bar Iranians from enrolling there during the 1979-1981 hostage crisis.

Each of those laws, Boland noted, was a response to the then-current actions of a foreign government, rather than an effort to remedy past wrongs.

The case was argued in the Court of Appeal by Matthew E. Digby of Bingham McCutcheon for Taiyeho, Justice Department attorney Douglas Hallward-Dreimeier for the federal government as amicus supporting Taiyeho, Bill Lann Lee of Lieff, Cabraser, Heimann & Bernstein for Jeong, and Supervising Deputy Attorney General Catherine Z. Ysrael for Attorney General Bill Lockyer as amicus supporting Jeong.

The case is Taiyeho Cement Corporation v. Superior Court, B155736.


Copyright 2003, Metropolitan News Company