Challenge to Glendale’s ‘Comfort Women’ Statue Was a SLAPP

Friday, November 25, 2016

Page 1

Court of Appeal Declares

Challenge to Glendale’s ‘Comfort Women’ Statue Was a SLAPP

By a MetNews Staff Writer

—AP

The top portion of the plaque, next to the statue in Glendale’s Central Park. says: “ ‘I was a sex slave of Japanese military.’ [¶] Torn hair symbolizes the girl being snatched from her home by the Imperial Japanese Army. [¶] Tight fists represent the girl’s firm resolve for a deliverance of justice. [¶] Bare and unsettled feet represent having been abandoned by the cold and unsympathetic world. [¶] Bird on the girl’s shoulder symbolizes a bond between us and the deceased victims. [¶] Empty chair symbolizes survivors who are dying of old age without having yet witnessed justice. [¶] Shadow of the girl is that of an old grandma, symbolizing passage of time spent in silence. [¶] Butterfly in shadow represents hope that victims may resurrect one day to receive their apology.”

The Court of Appeal for this district Wednesday affirmed the dismissal of an action challenging the placement of a statue in Glendale’s Central Park in tribute to “comfort women,” primarily Korean girls and women, who served as sex slaves to Japanese soldiers during World War II.

The unpublished opinion, by Presiding Justice Paul Arthur Turner of Div. Five, upholds Los Angeles Superior Court Judge Michael P. Linfield’s May 4, 2015 judgment of dismissal, predicated on his March 13, 2015 order granting the city’s anti-SLAPP motion.

Turner’s opinion rejects the plaintiffs’ various contentions, including their assertion that the erection of 1,100-pound bronze statue, and the accompanying plaque reciting the Japanese soldiers’ misdeeds, violate the foreign affairs doctrine.

The identical contention was rebuffed in a decision filed last Aug. 4 by the Ninth U.S. Circuit Court of Appeals. It affirmed the dismissal by U.S. District Court Judge Percy Anderson of the Central District of California, on Aug. 4 of 2014, of a challenge to the statue.

Anderson opted not to retain jurisdiction over state claims, enabling the plaintiffs to file their action in Los Angeles Court on Sept. 3, 2014.

Plaintiffs’ Concerns

The lead plaintiff is Michiko Shiota Gingery, a Japanese American resident of Glendale, who has contended in a declaration that she no longer feels “comfortable or welcome” in the park “because of the presence of the Public Monument therein, including the Plaque in particular.”

The top portion of the plaque explains the symbolism of the statue of a Korean girl. The bottom portion reads:

“Peace Monument

“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.”

Gingery and two other individual plaintiffs allege that they are effectively deprived of services at the adult recreation center, adjacent to the park. Joining them as a plaintiff is GAHT-US Corporation, (Global Alliance for Historical Truth), a California non-profit public benefit corporation.

Statute Is Applicable

The plaintiffs argued that the anti-SLAPP statute, Code of Civil Procedure §425.16, could not be applied in light of a restriction contained in §425.17(b), which provides:

“Section 425.16 does not apply to any action brought solely in the public interest or on behalf of the general public if all of the following conditions exist: [¶] (1) The plaintiff does not seek any relief greater than or different from the relief sought for the general public or a class of which the plaintiff is a member. A claim for attorney’s fees, costs, or penalties does not constitute greater or different relief for purposes of this subdivision. [¶] (2) The action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons. [¶] (3) Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff’s stake in the matter.”

Turner observed:

“Section 425.17, subdivision (b) is a statutory exception that is narrowly construed, lest it swallow the rule in section 425.16.”

He pointed out that §425.17(d)(2) renders the exemption inapplicable in “[a]ny action against any...entity based upon the creation,...exhibition,...or other similar promotion of any...political or artistic work.”

That wording “expressly applies to both the creation and exhibition of political work,” Turner wrote, noting that the plaintiffs had themselves described the statue as “political” in nature.

Both Prongs Satisfied

The plaintiffs insisted that the first prong of the anti-SLAPP statue—that the conduct in issue arises from protected activity—was not satisfied. Turner disagreed, declaring:

“Here, the gravamen of the complaint is plaintiffs’ objections to the language inscribed on the Comfort Women monument and the monument’s placement in a city park. In effect, plaintiffs are challenging the government message conveyed by the monument.”

The jurist went on to find that the second prong—a likelihood that the plaintiffs would not prevail at trial—was also met.

Foreign Affairs Doctrine

The First Cause of Action, he recited, calls for invalidation of the Glendale City Council’s approval of the monument based on the supposed conflict with the foreign affairs doctrine, founded on the U.S. Constitution’s Supremacy Clause.

Turner wrote:

“A state law that intrudes on the foreign affairs is preempted under either conflict preemption or field preemption….Under conflict preemption, a state law must yield if it conflicts with an express federal foreign policy….Under field preemption, a state law is preempted if it intrudes on a matter of foreign affairs without addressing a traditional state responsibility….But field preemption only applies if the state law has more than “some incidental or indirect effect in foreign countries.”

He found neither preemption applicable. The jurist explained:

“By placing the Comfort Women monument in a city park, defendant conveys its position on the Comfort Women issue. The Comfort Women monument is not an exercise of governmental power but a declaration of principle….And as the second amended complaint admits, defendant’s position is consistent with House Resolution 121 passed by the United States Congress on July 30, 2007. Thus, there is no conflict preemption because the language on the Comfort Women monument does not conflict with any federal foreign policy….

“Furthermore, there is no field preemption because the monument’s language is expressive conduct that has, at most, an incidental or indirect effect on foreign affairs….In addition, field preemption is inapplicable because defendant does not seek to regulate or conduct foreign affairs.”

(In its Aug. 4 decision, the Ninth Circuit said, in an opinion by Judge Kim Wardlow: “Glendale’s installation of the Comfort Women monument concerns an area of traditional state responsibility, and does not intrude on the federal government’s foreign affairs power.”)

Equal Protection

Turner said the plaintiffs could not show a likelihood of prevailing on their claim of a violation of the state constitutional equal protection provision. The plaintiff’ contention is that equal protection is denied to Japanese Americans by virtue of the wording on the plaque, causing differentiation between persons of Japanese ancestry and others in the population. The presiding justice said:

“The Comfort Women monument recognizes all comfort women, including Japanese women, who were removed from their homes and coerced into sexual slavery. The plaque identifies the Imperial Armed Forces of Japan as the perpetrators of crimes against comfort women between 1932 and 1945. The statement does not single out people of Japan or Japanese Americans….Urging the Japanese Government to accept historical responsibility on the comfort women issue is not a statement that discriminates against Japanese people. The Comfort Women plaque does not create a racial classification that discriminates against people of Japanese heritage.”

Noting that declarations by Gingery and the other individual plaintiffs said that they were humiliated by the statue and plaque, and are thus forced to shun services at the adult recreation center, Turner responded:

“[T]he fact that plaintiffs find the monument offensive is insufficient by itself to support an equal protection claim.”

He similarly found the plaintiffs could not show a likelihood of success of their cause of action under the state privileges and immunities provision, declaring:

“Comfort Women monument does not create a racial classification that singles out people of Japanese heritage.”

Viewing of Monument

Linfield made mention of having viewed the viewed the monument. On appeal, the plaintiffs asserted that this act on his p[art violated their due process rights.

“Assuming the trial court viewed the monument during litigation, plaintiffs did not object to the investigation at the hearing and thus forfeits this issue,” Turner wrote.

He went on to say:

“Even if the issue is not forfeited, plaintiffs do not explain what additional information the trial judge obtained when he visited the Comfort Woman monument. Plaintiffs included the text of the plaque in their second amended complaint and a photograph of the Comfort Women monument was admitted into evidence as part of the record. Plaintiffs fail to show how the trial court’s viewing of the Comfort Women monument affected the ruling on the section 425.16 motion.”

Allegations of bias on the part of Linfield were also rejected.

Parliamentary Breach

Turner found no merit in the contention that the City Council’s action was invalid based on a failure to abide by Robert’s Rules of Order.

“[A] failure to observe a parliamentary rule is not jurisdictional,” he wrote, “and will not invalidate a city council’s action which is otherwise in conformity with charter requirements.

The case is Gingery v. City of Glendale, B264209.

Michael J. Garcia, Ann M. Maurer, and Andrew Rawcliffe of the Glendale City Attorney’s Office were joined by Bradley H. Ellis, Christopher S. Munsey, and Adam P. Micale of Sidley Austin LLP in arguing for affirmance. Maxwell M. Blecher, Donald R. Pepperman, and Taylor C. Wagniere of Blecher Collins Pepperman and Joye, teamed with Ronald S. Barak in seeking reversal.