No. 16-917
IN THE

Supreme Court of the United States_________

KOICHI MERA AND GAHT-US CORPORATION,Petitioners,v.
CITY OF GLENDALE,_________

Respondent.

On Petition for a Writ of Certiorari to theUnited States Court of Appeals
for the Ninth Circuit_________
BRIEF FOR THE GOVERNMENT OF JAPAN AS

AMICUS CURIAE SUPPORTING
PETITIONERS_________JESSICA L. ELLSWORTH

Counsel of Record

NATHANIEL G. FOELL*
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004(202) 637-5886
jessica.ellsworth@hoganlovells.com*Admitted only in New York,supervised by a member of thefirm.

Counsel for Amicus CuriaeTABLE OF CONTENTS
PageTABLE OF AUTHORITIES ........................................ ii
INTEREST OF AMICUS CURIAE............................. 1
SUMMARY OF ARGUMENT ..................................... 4
ARGUMENT ............................................................... 5
THE FEDERAL GOVERNMENT’SAUTHORITY TO CONDUCT FOREIGN
AFFAIRS IS EXCLUSIVE..................................... 5
A. Foreign Affairs Preemption.............................. 5B. The Ninth Circuit’s Invention Of An“Expressive” Exception To Foreign Affairs Preemption Warrants Review ................. 7C. Japanese-Korean Relations Are Delicate And Could Be Disrupted By Conflicting United States Pronouncements
On The Comfort Women Issue ....................... 10
CONCLUSION…………………………………………..12(i)ii
TABLE OF AUTHORITIESPageCases:Aldrich v. Knab,

858 F. Supp. 1480 (W.D. Wash. 1994)................... 9

American Ins. Ass’n v. Garamendi,

539 U.S. 396 (2003) .................................... 6, 7, 8, 9

Crosby v. National Foreign Trade Council,

530 U.S. 363 (2000) ............................................ 6, 8

Hines v. Davidowitz,

312 U.S. 52 (1941) .................................................. 7

Hwang Geum Joo v. Japan,

413 F.3d 45 (D.C. Cir. 2005) .................................. 5

Muir v. Alabama Educ. Television Comm’n,
688 F.2d 1033 (5th Cir. 1982) (en banc) ................ 9
National Foreign Trade Council v. Natsios,
181 F.3d 38 (1st Cir. 1999), aff’d subnom. Crosby v. National Foreign TradeCouncil, 530 U.S. 363 (2000) ................................. 4
Zschernig v. Miller,

389 U.S. 429 (1968) ........................................ 5, 6, 8

Other Authorities:

Announcement by Foreign Ministers ofJapan and the Republic of Korea at theJoint Press Occasion (Dec. 28, 2015) ................. 2, 3
Brief of the Government of Japan as Amicus
Curiae in Support of Petitioners, F.
Hoffmann-La Roche Ltd. v. Empagran
S.A., No. 03-724, 2004 WL 226390 ........................ 4
Harvey Starr, Henry Kissinger: Perceptionsof International Politics (1984) .............................. 9iii
TABLE OF AUTHORITIES—Continued
Page
Press Statement, John Kerry, Secretary ofState, Resolution of the Comfort WomenIssue (Dec. 28, 2015) .............................................. 3
Prime Minister Shinzo Abe, “Toward anAlliance of Hope,” Address to a Joint
Meeting of the U.S. Congress (Apr. 29,2015) ....................................................................... 4
Statement of Interest of the Government ofthe United States in Support of theGovernment of Japan, Rosen v. Japan,
No. 01 C 6864 (N.D. Ill. Mar. 11, 2003)............. 7, 9
Summary of Remarks by Mr. Shinsuke
Sugiyama, Deputy Minister for Foreign
Affairs, Question and Answer Session,

Convention on the Elimination of All
Forms of Discrimination Against Women(Feb. 16, 2016) ...................................................... 10

IN THE

Supreme Court of the United States_________

No. 16-917_________
KOICHI MERA AND GAHT-US CORPORATION,Petitioners,v.
CITY OF GLENDALE,_________

Respondent.

On Petition for a Writ of Certiorari to theUnited States Court of Appeals
for the Ninth Circuit_________
BRIEF FOR THE GOVERNMENT OF JAPAN AS

AMICUS CURIAE SUPPORTING
PETITIONERS_________

INTEREST OF AMICUS CURIAE1
This case involves the question whether it is constitutionally permissible for respondent City of Glendale (Glendale) to disrupt the United States’ foreign
1 No party or counsel for a party authored this brief in whole

or in part. No party, counsel for a party, or person other thanamicus curiae and its counsel made any monetary contribution

intended to fund the preparation or submission of this brief. Allparties were notified of amicus’ intent to file this brief at least
10 days before it was due, and have consented to its filing inletters that have been lodged with the Clerk.

(1)

2
policy of impartially encouraging an amicable resolution of the issue between Japan and the Republic ofKorea concerning comfort women during World War
II. The federal government has long sought to support the two countries as their ally in their efforts
toward a diplomatic solution to this issue. To thatend, the United States has carefully and consistently
avoided making inflammatory statements about theissue.
The issue of comfort women is contentious andpolitically sensitive. In 2013, when the City of
Glendale installed a public monument in its central
park that commemorates comfort women and accuses Japan of international human rights violations,Japan and the Republic of Korea were engaged in bilateral discussions seeking to resolve the issue andfind a path forward. The United States was encouraging the two countries to reach a resolution throughthese diplomatic channels. Installation of the monument provoked a concerned response from highranking Japanese officials. See Pet. App. 53a–54a(citing concerned comments made soon after themonument was installed by the Japanese Ambassador to the United States and the Japanese PrimeMinister).
In December 2015, while this case was pending, theGovernment of Japan and the Government of theRepublic of Korea reached an agreement that lays
the foundation for future cooperation between thetwo countries. See Announcement by Foreign Minis-ters of Japan and the Republic of Korea at the Joint

3Press Occasion (Dec. 28, 2015). 2 That agreement
was achieved with the support of, and welcomed by,
the United States. Secretary of State John Kerryemphasized the United States’ “belie[f that] thisagreement will promote healing and help to improve
relations between two of the United States’ mostimportant allies.” Press Statement, John Kerry,
Secretary of State, Resolution of the Comfort Women
Issue (Dec. 28, 2015). 3The United States “applaud[ed] the leaders of Japan and the Republic ofKorea for having the courage and vision to reach thisagreement,” “call[ed] on the international community
to support it,” and “look[ed] forward to continuing towork with both countries on regional and global
issues, including advancing our economic ties andsecurity cooperation.” Id.
The 2015 agreement “finally and irreversibly” resolves the comfort women issue between Japan andthe Republic of Korea, id., and the agreement includes a pledge by both countries to “refrain fromaccusing or criticizing each other regarding this issue
in the international community,” Announcement byForeign Ministers of Japan and the Republic ofKorea at the Joint Press Occasion, supra. Themonument in Glendale Central Park presents asignificant impediment to Japan’s diplomatic effortson this issue. Because the monument is not in linewith the spirit of the 2015 Agreement between Japanand the Republic of Korea, it has also been an imped2

Available at http://www.mofa.go.jp/a_o/na/kr/page4e_0003

64.html.

3 Available at https://2009-2017.state.gov/secretary/remarks/
2015/12/250874.htm.

4
iment to smooth implementation of the Agreement.
In the view of the Government of Japan, that fact
has diplomatic significance not only for the Government of Japan, but also the Government of theRepublic of Korea and the Government of the UnitedStates.
Japan is an important ally of the UnitedStates. See Prime Minister Shinzo Abe, “Toward an
Alliance of Hope,” Address to a Joint Meeting of theU.S. Congress (April 29, 2015) (describing the relationship between Japan and the United States as “analliance that is sturdy, bound in trust and friendship,
deep between us”).4 Practically speaking, Japan hasa significant interest in the United States’ foreign
policy being made by the federal government rather
than by States or localities with whom Japan “cannotnegotiate” about foreign policy. See National Foreign
Trade Council v. Natsios, 181 F.3d 38, 54 (1st Cir.
1999), aff’d sub nom. Crosby v. National Foreign
Trade Council, 530 U.S. 363 (2000).
Japan has only filed amicus briefs with this Courtin a small number of matters, limiting its involvement to cases involving its core national interests.
See, e.g., Brief of the Government of Japan as Amicus Curiae in Support of Petitioners, F. Hoffmann-LaRoche Ltd. v. Empagran S.A., No. 03-724, 2004 WL
226390. The Government of Japan urges that thepetition be granted and wishes to convey the importance of this Court’s review of the Ninth Circuit’sdecision.

4 Available at http://japan.kantei.go.jp/97_abe/statement/201
504/uscongress.html.

5SUMMARY OF ARGUMENT
The historic practice of the United States has been
to address the comfort women issue, like otherresidual issues from World War II, “through a settled
foreign policy of state-to-state negotiation withJapan.” Hwang Geum Joo v. Japan, 413 F.3d 45, 52(D.C. Cir. 2005). One reason for this settled foreign
policy is that it respects rather than disrupts “Japan’s ‘delicate’ relations with *** Korea.” Id. (quoting Statement of Interest of the United States at 34–35). The Glendale monument represents an interference with, and a departure from, that settled foreign
policy.
The Ninth Circuit affirmed the legality of theGlendale monument, in a decision that finds nosupport in precedent or principle. Precedent showsthat courts, including this Court, have been consistently wary of actors other than the federal government playing a role in foreign affairs. And firstprinciples show that courts are right to be wary:
foreign policy is a sensitive domain. The Government of Japan seeks this Court’s review of the Ninth
Circuit’s decision. That decision gives States andlocalities an “expressive” exemption in the domain of
foreign policy—a domain in which the United States’role is constitutionally established as exclusive—and
thereby risks harm to the United States and its close
allies, such as Japan.
ARGUMENT
THE FEDERAL GOVERNMENT’S AUTHORITY TO
CONDUCT FOREIGN AFFAIRS IS EXCLUSIVE
A. Foreign Affairs Preemption
Several cases decided by this Court have defended
the exclusive foreign affairs authority of the federal

6government against state encroachment.
InZschernig v. Miller, 389 U.S. 429, 430 (1968), forexample, the Court struck down an Oregon probate
statute restricting when a nonresident alien could
receive property from the estate of an Oregon
resident who died intestate. Id. at 430. It held thatthe statute was “an intrusion by the State into thefield of foreign affairs which the Constitution
entrusts to the President and the Congress.” Id. at432. Although States have “traditionally regulated
the descent and distribution of estates,” this was notenough to save the statute from invalidity because of
the “dangers which are involved if each State,
speaking through its probate courts, is permitted toestablish its own foreign policy.” Id. at 441.
A few decades later, in Crosby v. National Foreign
Trade Council, 530 U.S. 363, 366 (2000), the Court
struck down the Massachusetts Burma Law, a law“restricting the authority” of Massachusetts agencies
to “purchase goods or services from companies doing
business with Burma.” Crosby held that law “invalid
under the Supremacy Clause of the National Constitution.” Id. And it noted that the Massachusetts law
compromised the “very capacity of the President tospeak for the Nation with one voice in dealing withother governments” by drawing complaints from“allies and trading partners” of the United States.
Id. at 381–82.
When California enacted the Holocaust Victim
Insurance Relief Act of 1999 (HVIRA), requiring “anyinsurer doing business in that State to disclose
information about all policies sold in Europe between
1920 and 1945 by the company itself or any one‘related’ to it,” the Court acted again to strike it
down. American Ins. Ass’n v. Garamendi, 539 U.S.

7396, 401 (2003). The Court held that the statute
impermissibly interfered with the “National Government’s conduct of foreign relations.” Id. And it
took note of “the weakness of the State’s interest,against the backdrop of traditional state legislative
subject matter, in regulating disclosure of European
Holocaust-era insurance policies in the manner ofHVIRA.” Id. at 425.
These foreign affairs preemption cases confirm thevenerable proposition that exclusive foreign affairs
authority is vested in the United States government.
See Hines v. Davidowitz, 312 U.S. 52, 63 (1941) (‘Oursystem of government is such that the interest of thecities, counties and states, no less than the interestof the people of the whole nation, imperatively
requires that federal power in the field affecting
foreign relations be left entirely free from localinterference.’’). The decision below departs from thisCourt’s consistent position and merits review andreversal on that basis.
B. The Ninth Circuit’s Invention Of An“Expressive” Exception To Foreign AffairsPreemption Warrants Review
The cases cited above confirm the position
supported by the Government of the United Statesthat “under the Constitution, the conduct ofAmerican diplomatic and foreign affairs is entrusted
to the *** federal government.” See Statement ofInterest of the Government of the United States in
Support of the Government of Japan, Rosen v.
Japan, No. 01 C 6864 (N.D. Ill. Mar. 11, 2003) (U.S.
Rosen Statement of Interest).
The Ninth Circuit’s decision does not square withthe above-mentioned position of the United States,

8
as demonstrated by a comparison to this Court’sdecisions. The Court has held that state laws
pertaining to insurance regulation and estate law did
not serve traditional state responsibilities whenthose rules were tailored toward addressing foreign
policy. See Zschernig, 389 U.S. at 441; Garamendi,
539 U.S. at 425. Yet, the Ninth Circuit found that
“Glendale’s establishment of a public monument toadvocate against ‘violations of human rights’ is wellwithin the traditional responsibilities of state andlocal governments,” because “memorializing victimsand expressing hope that others do not suffer asimilar fate” are “consistent with a local
government’s traditional function of communicating
its views and values to its citizenry.” Pet. App. 12a–13a. Considered at this level of abstraction, theGlendale monument may be “consistent with” a
traditional function of local government.
But
Zschernig and Garamendi make clear that this is not
the proper state-interest analysis. See Zschernig,
389 U.S. at 441; Garamendi, 539 U.S. at 425. And
here Glendale officials openly declared that themonument “really put the city of Glendale on theinternational map” and that the comfort womenissue “did not have any bearing on the city itself, andwas an international issue mainly between Japanand the Republic of Korea.” Pet. App. 53a.
Furthermore, the Ninth Circuit gave no weight tothe fact that “various Japanese officials haveexpressed disapproval of the monument,” Pet. App.
14a, despite the weight given to that consideration inCrosby. See Crosby, 530 U.S. at 382. Similarly, theNinth Circuit seemed to give significant weight tothe fact that petitioners did not allege that the“federal government has expressed any view on the9monument,” Pet. App. 14a, without even attempting
to distinguish Zschernig, where this Court held astate statute invalid under the foreign affairs
preemption doctrine despite reassurances from theState Department that the law would not unduly
interfere with United States foreign policy, see
Garamendi, 539 U.S. at 417.
The Ninth Circuit further contorted foreign affairs
preemption by creating an exception to thepreemption for “expressive” acts. Pet. App. 11a.
This newly-minted exception finds no support in thecases relied on by the Ninth Circuit. None of themsuggest that expressive actions should receive
relaxed scrutiny under established foreign affairs
preemption doctrine. Indeed, this would be a strange
proviso to embed in foreign affairs preemption, since“the great bulk of foreign policy is words,” Harvey
Starr, Henry Kissinger: Perceptions of International
Politics 84 (1984).
Moreover, such a limitation on foreign affairs
preemption would make little sense because thespeech of a city like Glendale is not constitutionallyprotected. See Muir v. Alabama Educ. TelevisionComm’n, 688 F.2d 1033, 1038 n. 12 (5th Cir. 1982)
banc)(“Governmentexpression,being(enunprotected by the First Amendment, may be subject
tolegislativelimitation
whichwould
beimpermissible if sought to be applied to private
expression ***.”); Aldrich v. Knab, 858 F. Supp. 1480,1491 (W.D. Wash. 1994) (holding that “unlike private
broadcasters, the state itself does not enjoy First
Amendment rights”).
As the United States has emphasized before insupport of Japan, “on matters of international
relations, the United States needs to speak with one

10voice.” See U.S. Rosen Statement of Interest 50.
The appearance of the word “speak” in that lastsentence is not accidental: foreign policy is as muchabout words as it is about actions. Glendale
installed its statue to send a message to the world, totake a stand on foreign policy. Certiorari is
warranted to reaffirm that a municipality cannot
undermine the unified message that the UnitedStates must send—and has consistently sent on thisissue—in its foreign policy making.
C. Japanese-Korean Relations Are Delicate And
Could Be Disrupted By Conflicting UnitedStates Pronouncements On The Comfort
Women Issue
Japan strongly disagrees that the inscription on theGlendale monument accurately describes the historical record, which Japan has studied at length. Last
year at the Committee for the Convention on theElimination of All Forms of Discrimination Against
Women, in Geneva, Japan’s Deputy Minister for
Foreign Affairs testified about the results of Japan’s
full-scale fact-finding study in the 1990s. See Summary of Remarks by Mr. Shinsuke Sugiyama, Deputy
Minister for Foreign Affairs, Question and Answer

Session, Convention on the Elimination of All Formsof Discrimination Against Women (Feb. 16, 2016)(discussing the results of Japan’s investigation,including a lack of evidence to support a claim that
200,000 women were coerced into sexual slavery).5
The claims of individuals, including comfort women, are addressed by a 1965 Agreement Between
5

Available at http://www.mofa.go.jp/a_o/rp/page24e_000163.

html.

11
Japan and the Republic of Korea Concerning theSettlement of Problems in Regard to Property andClaims and Economic Cooperation.
This 1965
Agreement underscores that the comfort womenissue should be handled as a matter of governmentto-government diplomacy. Indeed, Japan and Korea’s ongoing diplomacy on the issue, supported by
the United States, led to an aforementioned agreement in 2015 as well. The Government of Japan
honors the 2015 Agreement and continues to implement it in a very faithful manner.
It is of the utmost importance to Japan that States
or localities like Glendale may not insert themselves
into foreign relations, especially on sensitive subjects
like this one, so that they can not undermine theunified message that the United States of America
must send in its foreign policy making.

12CONCLUSION
For the foregoing reasons and those in the petition,
the petition should be granted.
Respectfully submitted,
JESSICA L. ELLSWORTH

Counsel of Record

NATHANIEL G. FOELL*
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004(202) 637-5886

jessica.ellsworth@hoganlovells.com*Admitted only in New York,supervised by a member of thefirm.

Counsel for Amicus Curiae
FEBRUARY 2017