9th Cir. Lets ‘Comfort Women’ Statue Stand

PASADENA, Calif. (CN) - The Ninth Circuit on Thursday affirmed dismissal of a lawsuit demanding that Glendale dismantle a public monument to South Korean "comfort women" forced into sexual slavery during World War II.

The Global Alliance for Historical Truth and its president Koichi Mera appealed a ruling that they lack standing to challenge the presence of a bronze statue in Glendale Central Park. But Judge Kim McLane Wardlaw wrote for the three-judge panel that though the plaintiffs do have standing, Glendale has the constitutional right to express its views on foreign policy by installing public memorials.

"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," McLane Wardlaw wrote.

Japan denies that it kidnapped thousands of women during World War II and forced them to have sex with Japanese soldiers, though like Turkey's denial of committing the Armenian genocide during World War I, the world considers the denials pro forma appeals to national pride.

Japan insists the postwar treaties it signed with the Allies resolved all claims related to the sexual slaves.

Lead plaintiff Michiko Shiota Gingery, a Glendale resident who died last year, sued Glendale in 2014, claiming the statue violated Article III of the Constitution by infringing on the federal government's foreign affairs by harming U.S.-Japanese relations.

The Ninth Circuit ruled that, contrary to the lower court's finding, the plaintiffs satisfy Article III's injury-in-fact requirement, citing Mera's assertion that he avoids Glendale Central Park due to the statue but would visit again if it were removed.

McLane Wardlaw also found that Mera's contention that he would no longer feel "alienated" if the statue were removed satisfies the article's redressability requirement.

But the panel affirmed the ruling that the plaintiffs failed to state a preemption claim, as Article III does not preempt a local government from expressing its views on foreign policy through public displays.

Nor did statue harm relations between the United States and Japan, Wardlaw said, noting that the plaintiffs made the allegation based solely on the disapproval of the statue by certain Japanese officials.

"Glendale's establishment of a public monument to advocate against 'violations of human rights' is well within the traditional responsibilities of state and local governments," Wardlaw wrote, adding that memorials to Holocaust survivors and victims of genocide are common throughout the United States.

"Glendale has joined a long list of other American cities that have likewise used public monuments to express their views on events that occurred beyond our borders."

Senior District Judge Edward Korman wrote in concurrence that the plaintiffs failed to allege a cause of action in their preemption claim even though Mera had standing under Article III.

Korman called the plaintiffs' claim "vague," saying that "simply mouthing the words 'foreign affairs preemption' does not do it."

"This case involves a purely expressive, non-regulatory action by the City of Glendale that is not alleged to, and does not, implicate any right conferred by the Constitution or laws of the United States," Korman wrote.

Circuit Judge Stephen Reinhardt joined the opinion.

The plaintiffs were represented by Ronald Barak of Pacific Palisades. Glendale was represented by Christopher Munsey of Sidley Austin in Los Angeles.

Both attorneys declined comment Thursday.

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