NO. 16-_____In the Supreme Court of the United States

KOICHI MERA and GAHT-US CORPORATION,

Petitioners,–v–

CITY OF GLENDALE,

Respondent.

On Petition for Writ of Certiorari to theUnited States Court of Appeals for the Ninth Circuit
PETITION FOR WRIT OF CERTIORARIWILLIAM B. DECLERCQCOUNSEL FOR PETITIONERSDECLERCQ LAW GROUP, INC.

225 S. LAKE AVENUE, SUITE 300
PASADENA, CA 91101(626) 408-2150
WILLIAM@DECLERCQLAW.COM
JANUARY 11, 2017
SUPREME COURT PRESS♦ (888) 958-5705♦ BOSTON, MASSACHUSETTS

i

QUESTION PRESENTED
The city of Glendale, California has inserted
itself into a geopolitical dispute where it has no local
responsibility, and taking a position in conflict withthe policy of the United States. In 2013, Glendale
approved and installed, and continues to maintain, apermanent bronze monument in its public Central Parkwith a granite plaque condemning Japan and theJapanese people for their historical involvement with
“Comfort Women” and “urging the Japanese Government to accept historical responsibility for thesecrimes.” The United States federal government has
not condemned Japan on this issue, has not
identified any crimes by Japan in connection withthis issue, and has not expressed an official policy ofurging Japan to “accept historical responsibility.”
The monument is highly offensive to the Petitioners,
members of the local Japanese-American community,and has diminished their ability to enjoy Glendale’s
Central Park and public services and amenities offeredat the park’s Senior Center.
QUESTION PRESENTED
1. Does the Constitution preempt local government expressive conduct that intrudes on the federal
government’s exclusive foreign affairs power?

ii

PARTIES TO THE PROCEEDINGSThe Petitioners are KOICHI MERA and GAHT-US
CORPORATION, plaintiffs and appellants below. The
original lead plaintiff in this lawsuit, Michiko Shiota
Gingery, passed away in 2015, during the pendencyof her appeal, mooting her claims.
The Respondent is the CITY OF GLENDALE. Anotherdefendant, City Manager Scott Ochoa, was originallynamed in the complaint in his official capacity as citymanager of the City of Glendale, but was dismissedfrom the action on April 10, 2014.

iii

CORPORATE DISCLOSURE STATEMENT
GAHT-US Corporation has no parent company; is
not a public company; and no public company owns
10% or more of its stock.

iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED .......................................... i
PARTIES TO THE PROCEEDINGS ......................... ii
CORPORATE DISCLOSURE STATEMENT ........... iii
TABLE OF AUTHORITIES ..................................... vii
PETITION FOR A WRIT OF CERTIORARI ............. 1
OPINION BELOW...................................................... 1
JURISDICTION.......................................................... 2
CONSTITUTIONAL PROVISIONS INVOLVED...... 2
INTRODUCTION ....................................................... 3
A. Factual Background ......................................... 7
1. The Monument, the Sculpture, theVote, and the Unapproved Text ............... 10
2. The Monument Has Increased
International Tensions ............................. 14
B. Procedural History ......................................... 17
REASONS FOR GRANTING THE PETITION ....... 19
I.

THE NINTH CIRCUIT MISINTERPRETED THE
PREEMPTION STANDARDS IN GARAMENDI TOPERMIT STATES TO “EXPRESS” THEIR OWNFOREIGN POLICY .............................................. 24

II. THE FEDERAL GOVERNMENT HAS THE
EXCLUSIVE POWER TO SET POLICY REGARDING“COMFORT WOMEN” ......................................... 26v
TABLE OF CONTENTS – Continued
Page
A. The Monument Is Preempted Because
Its “Real Purpose” Is To Influence Foreign
Affairs ........................................................ 27
B. Even if Glendale’s Actions Were Part ofIts “Traditional Responsibility”, Conflict
Preemption Applies Because Glendale
Has Contradicted the Foreign Policy of
the United States Regarding “Comfort
Women.” .................................................... 34
CONCLUSION.......................................................... 37
APPENDIX TABLE OF CONTENTS
Opinion of the Ninth Circuit(August 4, 2016) ................................................. 1a
Concurring Opinion of Justice Korman(August 4, 2016) ............................................... 17a
Order of the District Court(August 4, 2014) ............................................... 23a
Judgment of the District Court(August 4, 2014) ............................................... 37a
Order of the Ninth Circuit Denying Petition for
Rehearing En Banc (October 13, 2016) ........... 39a
Complaint for Declaratory and Injunctive Relief(February 20, 2014) .......................................... 41a

vi
TABLE OF CONTENTS – Continued
Page
Plaintiffs-Appellants’ Opening Brief(March 13, 2015) ............................................... 63a
Second Amended Complaint to the Superior Courtof California for the County of Los Angeles,
Central Judicial District, for Declaratory and
Injunctive Relief for (1) Unconstitutional Interference with Foreign Affairs Power (in Violation of Movsesian v. Victoria Versicherung Ag(9th Cir. 2012) 670 F.3d 1067); (2) Violation of
the Glendale Municipal Code; (3) Violation of
the Equal Protection Clause of the California
Constitution; and (4) Violation of the Privileges
and Immunities Clause of the California Constitution (October 26, 2015) ............................... 119a
Petition for Rehearing En Banc
(September 16, 2016)...................................... 142a
Brief of Amicus Curiae The Nippon Today’s
Researchers Society (KINGEN) in Support of
Plaintiffs and Appellants Petition for Reconsideration En Banc (September 26, 2016) ..... 161a
Exhibit S to the Nippon Today Research Society
Amicus Brief (SEPTEMBER 26, 2016).......... 180a
The Society for Dissemination of Historical Fact
(SDHF) Amicus Curiae Brief in Support of
Plaintiffs and Appellants Petition for Reconsideration En Banc (September 26, 2016) ..... 202a

vii
TABLE OF AUTHORITIESTABLE OF AUTHORITIES

Page

CASES

Am. Ins. Ass’n v. Garamendi,

539 U.S. 396, 123 S.Ct. 2374,
156 L.Ed.2d 376 (2003); .............................. passim

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398, 84 S.Ct. 923,
11 L.Ed.2d 804 (1964) ........................................ 19

Boyle v. United Technologies Corp.,

487 U.S. 500, 108 S.Ct. 2510,
101 L.Ed.2d 442 (1988) ..................................... 26

Chamber of Commerce of U.S. v. Whiting,

563 U.S. 582, 131 S.Ct. 1968,
179 L.Ed.2d 1031 (2011) ................................... 20

Crosby v. National Foreign Trade Council,

530 U.S. 363, 120 S.Ct. 2288,
147 L.Ed.2d 352 (2000) ............................... 19, 20

Deutsch v. Turner Corp.,

324 F.3d 692 (9th Cir. 2003) ............... 5, 6, 21, 28

Dunbar v. Seger-Thomschitz,

615 F.3d 574 (5th Cir. 2010) ............................. 24

First Nat. City Bank v. Banco Nacional de Cuba,

406 U.S. 759, 92 S.Ct. 1808,
32 L.Ed.2d 466 (1972)......................................... 20

Gingery v. City of Glendale,

831 F.3d 1222 (9th Cir. 2016) .................... passim

Hines v. Davidowitz,

312 U.S. 52 (1941) ................................. 21, 27, 35

viii
TABLE OF AUTHORITIES—Continued
Page

Holmes v. Jennison,

39 U.S. (14 Pet.) 540 (1840) .............................. 20

In re Assicurazioni Generali, S.P.A.,

592 F.3d 113 (2nd Cir. 2010) ............................ 24

In re Nazi Era Cases Against German
Defendants Litigation, 196 Fed.Appx. 93(3rd Cir. 2006) .................................................... 24

Japan Line, Ltd. v. Los Angeles Cnty.,

441 U.S. 434 (1979) ..................................... 20, 28

Joo v. Japan,

413 F.3d 45 (D.C. Cir. 2005) ......................... 9, 35

Movsesian v. Victoria Versicherung AG,

670 F.3d 1067 (9th Cir. 2012) ...................... passim

Museum of Fine Arts, Boston v. SegerThomschitz, 623 F.3d 1 (1st Cir. 2010) ............ 24
Nat’l Foreign Trade Council v. Natsios,

181 F.3d 38 (1st Cir. 1999) .......................... 23, 36

Pleasant Grove v. Summum,

555 U.S. 460 (2009) ........................................... 34

Rice v. Santa Fe Elevator Corp., 331 U.S. 218,

67 S.Ct. 1146, 91 L.Ed. 1447 (1947) ................. 26

Saleh v. Titan Corp.,

580 F.3d 1 (D.C. Cir. 2009) ............................... 24

The Chinese Exclusion Case,

130 U.S. 581 (1889) ........................................... 21

United States v. Belmont,

301 U.S. 324 (1937) ........................................... 20

ix
TABLE OF AUTHORITIES—Continued
Page

United States v. Pink, 315 U.S. 203,

62 S.Ct. 552, 86 L.Ed. 796 (1942) ..................... 21

Von Saher v. Norton Simon Museum of Art,

592 F.3d 964 ( 9th Cir. 2010) ..................... passim

Wilson v. Hewlett-Packard Co.,

668 F.3d 1136 (9th Cir. 2012) ........................... 28

Zivotofsky ex rel. Zivotofsky v. Kerry,

135 S.Ct. 2076 (2015) .................................. 33, 36

Zschernig v. Miller, 389 U.S. 429, 88 S.Ct. 664,

19 L.Ed.2d 683 (1968) ................................ passim

CONSTITUTIONAL PROVISIONS
U.S. Const. amend. I ................................................. 23
U.S. Const. Art. I, § 8 ............................................ 2, 33
U.S. Const. Art. II, § 2 ................................................ 2
U.S. Const. Art. III, § 2 ......................................... 3, 17
U.S. Const. Art. VI, Cl. 2 ............................................ 3
STATUTES
28 U.S.C. § 1254(1) ..................................................... 2
Glendale Municipal Code Section 2.04.140 ................. 12
Japanese Imperial Government Disclosure
Act, Public Law 106-567 (2000) ........................ 12
Nazi War Crimes Disclosure Act,
Public Law 105-246 ........................................... 12x
TABLE OF AUTHORITIES—Continued
Page
OTHER AUTHORITIESJapan and South Korea Agree To WW2 ‘Comfort
Women’ Deal, BBC NEWS (Dec. 28, 2015),

www.bbc.com/news/world-asia-35188135 ........ 16

Ju-min Park,A Monument of a ‘Comfort Woman’ Is Testinga Landmark Agreement Between Japan andSouth Korea, REUTERS (Dec. 28, 2015), www.

businessinsider.com/comfort-womanmonument-testing-landmark-agreementbetween-japan-south-korea-2015-12 ................ 16

Merrit Kennedy,‘Comfort Woman’ Statue Sparks Diplomatic
Row Between Japan And South Korea,

NATIONAL PUBLIC RADIO, (January 6, 2017)
http://www.npr.org/sections/thetwo-way/
2017/01/06/508538196/comfort-womanstatue-sparks-diplomatic-row-betweenjapan-and-south-korea ...................................... 17

National Archives,
JAPANESE RELOCATION DURING WORLDWAR II, at: archives.gov/education/lessons/japanese-relocation............................................ 30
National Park Service,
A BRIEF HISTORY OF JAPANESE AMERICANRELOCATION DURING WORLD WAR IIat:
nps.gov/articles/historyinternment.htm ........... 30

xi
TABLE OF AUTHORITIES—Continued
Page

North Korea, China Want to Undo the JapanSouth Korea Alliance That the U.S. Helped
Broker, FOXNEWS (Aug. 8, 2016), http://

www.foxnews.com/opinion/2016/08/08/northkorea-china-want-to-undo-japan-southkorea-alliance-that-us-helped-broker.html ...... 33

Prakash Panneerselvam and Sandhya
Puthanveedu, 6 Months Later: The ‘Comfort
Women’ Agreement, THE DIPLOMAT (May 11,2016), http://thediplomat.com/2016/05/6months-later-the-comfort-women-agreement/ . 16
U.S. Army Corps of Engineers,
BURBANK PRISONER OF WAR PROCESSINGSTATION, at: militarymuseum.org/
GriffithParkPW%20Camp.html ....................... 31

1

PETITION FOR A WRIT OF CERTIORARI
Petitioners KOICHI MERA, and GAHT-US CORPORATION, respectfully petition this court for a writ ofcertiorari to review the judgment of the United States
Court of Appeals for the Ninth Circuit, to correct theNinth Circuit’s departure from long-standing precedent
concerning the separation of powers inherent in ourfederal system of government, and the Constitution’s
express allocation of foreign affairs to the sovereign
federal government. Petitioners respectfully request
the Court grant the writ to clarify the standards
governing preemption and to correct the Ninth
Circuit’s erroneous new rule narrowing the Constitution’s enumerated provisions that unambiguously andwithout exception grant all foreign affairs powers to
the federal government.

OPINION BELOW
The opinion of the district court for the Central
District of California, Judge Percy Anderson, isreported at Gingery v. City of Glendale, No. CV 141291 PA (AJWX), 2014 WL 10987395 (C.D. Cal. Aug. 4,2014). The opinion of the Ninth Circuit panel is reported
at Gingery v. City of Glendale, 831 F.3d 1222 (9thCir. 2016). A petition for reconsideration en banc wasdenied on October 13, 2016, and the writ of mandate
issued on October 24, 2016.

2

JURISDICTION
The judgment of the court of appeals wasentered on October 24, 2016. The jurisdiction of thisCourt is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED
U.S. Constitution, Article I, Section 8
The Congress shall have Power To . . . provide forthe common Defense . . . To establish an uniform
Rule of Naturalization . . . To . . . regulate the Value. . . of foreign Coin . . . To define and punish
Piracies and Felonies committed on the highSeas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque andReprisal, and make Rules concerning Captures
on Land and Water; To raise and support
Armies . . . and repel Invasions . . .

United States Constitution, Article II, Section 2.
The President shall be Commander in Chief of
the Army and Navy of the United States, and of
the Militia of the several States, when called
into the actual Service of the United States.
The President “shall have Power, by and with
the Advice and Consent of the Senate, to makeTreaties, provided two thirds of the Senatorspresent concur; and he shall nominate, and by

3
and with the Advice and Consent of the Senate,shall appoint Ambassadors . . .


U.S. Constitution, Article III, Section 2
The judicial Power of the United States shallextend to all cases . . . arising under this Constitution . . . and Treaties made or which shall be
made, under their authority;—to all Cases
affecting Ambassadors, other public Ministers
and Consuls; . . . and between a State, or the
Citizens thereof, and foreign States, Citizens or
Subjects.



U.S. Constitution, Article VI, Clause 2
This Constitution, and the Laws of the UnitedStates which shall be made in Pursuance thereof;
and all Treaties made, or which shall be made,under the Authority of the United States, shallbe the supreme Law of the Land; and the Judges
in every State shall be bound thereby, any Thingin the Constitution or Laws of any State to theContrary notwithstanding.

INTRODUCTION
The Ninth Circuit has abandoned a long judicial
tradition of holding that local and state action which
involves the foreign affairs of the United Statesfederal government is preempted.
Reasoning that expressive conduct which explicitly
accuses Japan, an ally, of war crimes and violationsof international human rights falls into the category

4of a “traditional responsibility” of a small city, andignoring the conflict between the federal government’s policy choice, and a local government’s policy
demands to a foreign power, the Ninth Circuit hasannounced a new rule limiting federal preemption inforeign affairs, stating that the Supremacy Clausedoes not preempt “a local government’s expression,
through a public monument, of a particular viewpoint on a matter related to foreign affairs,” even if
the local government’s viewpoint is markedly different from the stated policy of the United States inthat matter. Gingery v. City of Glendale, 831 F.3d
1222, 1229 (9th Cir. 2016) (emphasis added). The Ninth
Circuit correctly concluded that Petitioners, who areof Japanese heritage, have standing to assert theirclaims below, because the city’s action interferes with
their ability to use and enjoy the city’s Central Parkand Senior Center on the same terms as nonJapanese persons due to the presence of themonument, which has become a flashpoint for antiJapanese demonstrations.
The Ninth Circuit’s holding purports to limit thepower of the federal government to demand a single,
unitary policy and single, unitary point of view onbehalf of the entire United States. Under the rule inGingery, any city or state may “express” its own
foreign policy if it decides to “put itself on theinternational map.” The rule in this case also allows
state and local governments take positions that areinconsistent with the foreign policy of the UnitedStates government and its treaties with foreign powers.
State and local governments may ignore U.S. foreign
policy, label our allies as guilty of war crimes,
demand reparative action by a sovereign nation, so5long as that city states its foreign policy demands ina granite plaque affixed to a permanent bronze
sculpture in a public park.
The opinion departs from a well-established bodyof Supreme Court precedent supporting the foreign
affairs preemption doctrine, and distinguishes theNinth Circuit’s en banc opinion in which declined torule on the topic of state government expressive speech
regarding foreign policy. Movsesian v. Victoria Versicherung AG, 670 F.3d 1067, 1077 & n.5 (9th Cir. 2012)(“We need not and do not offer any opinion about
California’s ability to express a particular viewpoint
on a matter of foreign affairs by, for example, declaring
a commemorative day.”)
The Supreme Court has never held that local
governments are free to set their own foreign policy
through “expressive speech”; instead this Court has
consistently held state action in the area of foreign
affairs is preempted unless the action is a traditional
state government function, and even then it may bepreempted if the state action is not consistent withfederal foreign policy as matter of conflict preemption.
See, e.g., American Insurance Association v. Garamendi, 539 U.S. 396 (2003), 389 U.S.429 (1968);

Deutsch v. Turner Corp.

Here, the Ninth Circuit has strayed from longestablished Supreme Court precedent, and modified
the holding in Movsesian to hold that the Supremacy
Clause does not preempt “a local government’s expression, through a public monument, of a particular viewpoint on a matter related to foreign affairs,” evenwhen that municipality inserts itself into a contested
matter of international diplomacy by insisting that a6foreign sovereign must “accept historical responsibility” for alleged war crimes and alleged international
human rights violations that are not asserted by thefederal government, and indeed are the subject ofcautious diplomacy. Gingery v. City of Glendale, 831
F.3d 1222 (9th Cir. 2016).
This suit challenges the unconstitutionality of
the installation and maintenance of an 1,100-poundbronze sculpture and granite plaque by the city of
Glendale, California, that castigates Japan for alleged
kidnapping and enslavement of 200,000 women,
condemns Japan as guilty of alleged war crimes andinternational human rights violations, and “urg[es]the Japanese Government to accept historical responsibility for [its alleged] crimes.” (App.3a)
The Ninth Circuit upheld Glendale’s action byignoring longstanding Supreme Court precedent in
Garamendi and Zschernig and impermissibly
narrowing its prior decisions in Movsesian, Von
Saher, and Deutsch, which hold the United Statesfederal government has exclusive foreign affairs
power under the United States Constitution. The
federal government’s power is preemptive of Glendale’s attempt to pressure and coerce Japan into
actions inconsistent with international treaties andU.S. foreign policy.
The Ninth Circuit’s holding is incorrect as amatter of law and fact. It constitutes a danger to U.S.
interests, by incorrectly conflating a small city’s
attempt to “put itself on the international map” inlegislating its own foreign policy with mere symbolic,expressive speech. The Ninth Circuit’s validation ofGlendale’s anti-Japan action is inconsistent with the7constitutional structure. It cannot be reconciled withdecisions of the Supreme Court which establish that
the Unites States federal government has the
exclusive power to regulate foreign affairs.
Worse, the actions by the City of Glendale harmand interfere with the typically warm and friendly
relations between the United States and its ally, thenation of Japan.
A.

Factual Background

The City of Glendale, a mid-sized municipality
in the north central area of Los Angeles County,
California, decided to “put itself on the international
map” by thrusting itself into a delicate area of
foreign diplomacy and international policy. In 2013,
Glendale approved and installed a public monument
in its Central Park, which Glendale has described as“a Korean Sister City ‘Comfort Woman’ Peace
Monument” and which was commissioned andpurchased by a pro-Korea interest group (“Monument”).1 The Monument includes two parts: (1) a 1,100pound, symbolically expressive bronze sculpture of awoman with a bird on her shoulder, seated next to an
empty chair; and (2) a granite narrative plaquewhich explains the sculpture’s symbolism, and whichthen goes on to demand that Japan apologize and “takehistorical responsibility” and for its alleged role in
1 The Monument was sponsored by a private group in the
Republic of Korea and by the “Korean American Forum of
California (KAFC),” who lobbied Glendale to approve and adopt
the Monument, and who filed one of four different amicus briefs
stating its view—one of four—of the historical debate over the“Comfort Women.”

8state-sponsored abduction and sexual enslavement of“more than 200,000 Korean and Dutch women” before
during the Second World War. (Appendix, [“App.”] App.
46a-47a ¶11)
Glendale’s accusations and demands do not reflect
the foreign policy positions of the United States government, and Japan strongly disagrees with Glendale’s
excoriation on historical, factual, policy, and politicalgrounds. But Glendale has continued to maintain anddefend the sculpture and the plaque since 2013 overrepeated strenuous objections from Japanese officials
at the highest levels of the government of Japan.
Japan asserts that Glendale’s accusations are factually incorrect, distort the historical record, and departfrom international law. (App.48a-49a ¶16) Indeed, thehistorical record concerning “Comfort Women” during
the period of World War II continues to be hotly
debated by Asian nations, and has been the subject ofseveral high-level resolutions, official public statements, diplomatic negotiations, and international discussions among these nations over the past several
decades. (App.48a-51a) It is fair to say that theresurgence of the historical “Comfort Women” issue isa clever proxy war by Korea to humiliate Japan andgain regional dominance.
Considering these tensions, the United States
government has adopted a measured and carefulposition on this sensitive topic, attempting to broker
agreements and understanding between and amongits various strategic partners and military allies.
(App.55a-57a) For example, in 2001, in a lawsuit
seeking damages for the alleged harms to the“Comfort Women” the “the Executive [] determined

9that choosing between the interests of two foreignstates would adversely affect the foreign relations of
the United States. . . . .” and that adjudication of the
dispute in the United States “not only ‘would undo’ asettled foreign policy of state-to-state negotiation
with Japan, but also could disrupt Japan’s ‘delicate’
relations with China and Korea, thereby creating‘serious implications for stability in the region.’” Joo
v. Japan, 413 F. 3d. 45, 52 (D.C. Cir. 2005) cert denied
546 U.S. 1208. (quoting 2001 Statement of Interest
at 34-35).
Glendale’s policy statements, castigations, anddemands to Japan are not consistent with the foreign
policy of the United States. The United States ofAmerica has not accused Japan of “war crimes” orother international human rights violations regarding the “Comfort Women.” The United States has notdemanded that the nation of Japan “take historicalresponsibility” for “crimes.” The United States has
not adopted an official historical narrative as to thenature, extent, and numbers of “Comfort Women.”
The United States has not demanded that Japan
should “accept historical responsibility” for alleged
war crimes or alleged violations of international humanrights.
Petitioner Koichi Mera is a Japanese-American
resident from the City of Los Angeles. GAHT-US is a
California nonprofit public benefit corporation withnearly 500 members, including Mr. Mera. GAHT-US
provides educational resources to the public concerning the history of World War II with an emphasis on
Japan’s role. (App.44a) Petitioners are deeply offended
by the Monument, especially Glendale’s historical

10accusations and disagree with Glendale’s demands toJapan, a sovereign, and an important ally of theUnited States. (App.44a-45a, 122a-124a)
1. The Monument, the Sculpture, the Vote, andthe Unapproved Text
On March 26, 2013, the Glendale City Council
approved a motion to dedicate a plot of land in its
Central Park, adjacent to its Senior Center, for sistercity related monuments and memorials. (Glendale hassister cities in Japan, and more recently developed
sister city relationships within the Republic of Korea,
but no Japanese sister cities have a monument inCentral Park.) (App.44a ¶7)
During a special meeting on July 9, 2013, theCity Council of Glendale approved the installation of
the Monument. (App.51a ¶27)2 The report submitted
to the city council included a diagram of the proposed
statute and its location in Central Park. (Id. ¶29) The
materials presented did not include any of the textthat would be on the carved granite plaque that
accompanied the Monument. (Id. ¶51-52) The fulltext of the plaque reads as follows (emphasis added):“I was a sex slave of Japanese militaryTorn hair symbolizes the girl being
snatched from her home by the Imperial
Japanese Army.

2 There was no discussion regarding any potential “sister citymonument” in honor of any of Glendale’s sister cities in Japan,(or its sister cities in Armenia and Mexico, for that matter).
(App.44a)11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 andunsympathetic world.

Bird on the girl’s shoulder symbolizes abond between us and the deceased
victims.



Empty chair symbolizes survivors who
are dying of old age without having yetwitnessed justice.



Shadow of the girl is that of an old
grandma, symbolizing passage of timespent in silence.



Butterfly in shadow represents hopethat victims may resurrect one day toreceive their apology.
PEACE MONUMENT

In memory of more than 200,000 Asian andDutch women who were removed from theirhomes in Korea, China, Taiwan, Japan, thePhilippines, Thailand, Vietnam, Malaysia,
East Timor and Indonesia, to be coerced into
sexual slavery by the Imperial Armed Forcesof Japan between 1932 and 1945.
And in celebration of proclamation of“Comfort Women Day” by the City of Glendale

12
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 forthese crimes.
It is our sincere hope that these unconscionable violations of human rights shall neverrecur.
July 30, 2013.”
This text was neither proposed to the City Council
nor made the subject of a motion to the City Council,
was never open to any public debate or discourse, andwas never approved as required by local law.
(App.52a ¶30)
These factual assertions, as well as the demand foraction, are vigorously debated by scholars (including
four different amici in the Ninth Circuit) as well as
the governments of Korea and Japan. (App.52a ¶30)3
In response to the 1998 Nazi War Crimes Disclosure
Act, Public Law 105-246, amicus GAPH, a ChineseAmerican organization, persuaded Congress to also
authorize and investigation into war crimes by theJapanese resulting in the Japanese Imperial Government Disclosure Act, Public Law 106-567 (2000). The
Interagency Working Group (IWG)—consisting of top
U.S. government officials—began researching alleged
3 There are scholars who contend that many of these women
were not “slaves” but were participants in the system of theirown free will; others contend that the “Comfort Women” systemshould take into consideration other cultural and historicalperspective of the people involved. (App.52a ¶30, 161a-179a,
202a-211a)

13
war crimes by the Japanese. After reviewing over 8.5
million pages, little evidence was reported, to thedisappointment of pro-Korean interest groups who
had hoped to unearth documentary evidence of Japanese war crimes. (App.169a-171a) Moreover, amici
explain that the U.S. has previously declined toconsider involvement of “Comfort Women” as a war
crime because it was a then-acceptable, culturally
traditional and locally legal practice. Id.
Numerous individuals, including Mr. Mera,
members of GAHT-US, and other Japanese-Americans,strongly and repeatedly objected to the proposed
installation of the Monument. The group argued thatthe issue of “Comfort Women” was the subject of
diplomatic discussions between South Korea andJapan and an element of the United States’ foreign
relations with these countries. (App.52 ¶31) Nonetheless, the Monument was approved and unveiled on July30, 2013, during a ceremony in Glendale’s Central
Park. (App.53 ¶33)
Glendale proceeded anyway with the intention
that the Monument would influence foreign policy
and gain attention from the international community. For example, City Council Member Laura Friedman commented: “We really put the city of Glendaleon the international map today by doing this.”(App.53 ¶34) In 2013, then-Mayor of Glendale, Dave
Weaver, admitted the “issue did not have any bearing
on the city itself, and was an international issue
mainly between Japan and the Republic of Korea.”(App.53a).
The monument sits alongside the City’s Adult
Recreation Center Plaza in Central Park, a heavily

14
trafficked area. (App.51a ¶27). Petitioners Mera andmembers of GAHT are local citizens of Japanese
ancestry who would like to enjoy Glendale’s Central
Park as well as the amenities and services offered at
the Senior Center, but are alienated by the Monument
because it expresses anti-Japanese sentiment andadopts a view of Japan which they find highly offensive
and objectionable. (App.45a ¶8, 57a ¶51). Moreover,
Petitioners are alienated by Glendale’s recognition of
its Korean sister cities in an anti-Japanese manner,
while none of Glendale’s Japanese sister cities arerecognized in any manner.
2. The Monument Has Increased International
Tensions
The debate concerning “Comfort Women” continues
to this day and has been a source of substantial tension
between Japan and South Korea in recent decades.
(App.49a ¶18.) Japan denies responsibility for the
recruitment of the Comfort Women and asserts that
all World War II-related claims, including thoserelated to Comfort Women, were resolved pursuant topostwar treaties. (App.2a ¶¶21-23,106a,147a) South
Korea, however, has historically contended that the
Comfort Women issue remains unresolved and unredressed. (App.2a ¶20). Specifically, the Republic ofKorea has critiqued the Japanese Government forevading its legal and moral responsibilities to these
women, officially demanding a formal apology by
Japan and restitution payments on several occasions
over the past decade. Yet, the government of Japan
has denied “coercive recruitment of women andenslavement of women” in Korea during WWII. Japanand certain historians dispute the alleged enslave-15
ment of 200,000 women, stating the statistical analysis must be inflated. (App.2a ¶¶5-6,106a,147a).
Tensions between Japan and South Korea haveincreased in response to the erection of theMonument in Glendale, including anti-Japaneseprotests around and incorporating the Monument.
(App.123a,125a, 181a-191a) Indeed, there was significant international outcry from the highest levels of
the Japanese government following Glendale’s installation of the Monument. In reaction to Glendale’s
Monument, Kuni Sato, the press secretary of theJapanese Ministry of Foreign Affairs, expressed
Japan’s official displeasure, remarking that installation of the Public Monument “does not coincide with
our understanding” of the Comfort Women dispute.
(App.49a ¶¶20, 24)
On July 31, 2013, Kenichiro Sasae, Japanese
Ambassador to the United States, declared that
Glendale’s action is “irreconcilable” with the positionof the Government of Japan and is “highly regrettable.” (App.53a ¶37) On August 13, 2013, JapanesePrime Minister Shinzo Abe stated that he was“extremely dissatisfied” with the installation of the
Public Monument. (App.54a ¶41)
The United States has a specific foreign policy
stance on the “Comfort Women” issue, seeking tobroker compromise and resolution between South
Korea and its ally Japan on this issue. (App.55a ¶¶4348) For example, on April 25, 2014, during the pendency of this action, President Obama expressed a portion of the United States’ foreign policy view while
visiting Seoul, South Korea, and declared that the“Comfort Women” issue will require the “coordinated16
effort of our three countries.” The President did not
demand that Japan “accept historical responsibility,”nor did he suggest that the Japanese were guilty ofunresolved war crimes. (App.71a)
During this appeal, and with the assistance andsupport of the United States, Japan and South Korea
entered into a binding international agreement on
December 28, 2015 that sought to “final[ly] and irreversib[ly]” resolve the issue after 70 years of intractabledebate.4 As a precondition, Japan has insisted that
South Korea remove a monument in Seoul almost
identical to the Monument in Glendale’s Central
Park.5, 6
On January 6, 2017, as counsel was completing
this writ petition, the landmark deal between Japanand South Korea was falling apart: responding to
Korea’s refusal to remove an identical golden “Comfort
Woman” sculpture from a position facing the Japanese
embassy in Busan, Korea, Japan removed top diplomats

4 Japan and South Korea Agree To WW2 ‘Comfort Women’Deal, BBC NEWS (Dec. 28, 2015), www.bbc.com/news/worldasia-35188135.
5 Ju-min Park, a Monument of a ‘Comfort Woman’ Is Testing a
Landmark Agreement Between Japan and South Korea,
REUTERS (Dec. 28, 2015), www.businessinsider.com/comfortwoman-monument-testing-landmark-agreement-between-japansouth-korea-2015-12.
6 Prakash Panneerselvam and Sandhya Puthanveedu, 6 Months
Later: The ‘Comfort Women’ Agreement, THE DIPLOMAT (May 11,2016), http://thediplomat.com/2016/05/6-months-later-the-comfort-women-agreement/

17from South Korea.7 (By the time the Court reads thispetition, the situation will have substantially changed,
to be sure.) (App.119a)
B.

Procedural History

The district court granted an initial motion by
the City of Glendale to dismiss the Petitioners’
complaint, without granting leave to amend evenonce. Gingery, 2014 WL 10987395 (C.D. Cal. Aug. 4,2014). Because the district court declined to exercise
supplemental jurisdiction, Petitioners’ second causeof action under state law for violation of the Glendale
municipal code was dismissed without prejudice (andis asserted in a separate lawsuit in the California
courts.) Id.
The Ninth Circuit Court of Appeals held that
Petitioners had Article III standing to assert theirclaims, because the Petitioners had sufficiently
alleged injury-in-fact, but affirmed the lower court’s
dismissal, finding Glendale’s conduct not preempted
because “Glendale’s installation of the monument
concerns an area of traditional state responsibility
and does not intrude on the federal government’s
foreign affairs power.” Gingery v. City of Glendale,
831 F.3d 1222 (9th Cir. 2016). The Ninth Circuit
affirmed, again, without granting leave to amend.
The Ninth Circuit admitted that it was limiting
the power of the federal government in its exercise of
7 Merrit Kennedy, ‘Comfort Woman’ Statue Sparks Diplomatic
Row Between Japan And South Korea, National Public Radio,(January 6, 2017) http://www.npr.org/sections/thetwo-way/2017/01/06/508538196/comfort-woman-statue-sparks-diplomatic-rowbetween-japan-and-south-korea

18
the foreign affairs power, admitted that its holding
had created new law in the Ninth Circuit:we have not considered [] the extent towhich a state or local government may
address foreign affairs through expressive
displays or events, rather than throughremedies or regulations. In Movsesian, forexample, we emphasized that the law atissue was not ‘merely expressive’ anddeclined to ‘offer any opinion about California’s ability to express support forArmenians by, for example, declaring acommemorative day . . . . Here, we confront
a variant of the issue we left open inMovsesian: whether the Supremacy Clausepreempts a local government’s expression,
through a public monument, of a particular
viewpoint on a matter related to foreign
affairs. Under the circumstances of thiscase, we conclude that it does not.

Gingery v. City of Glendale, 831 F.3d 1222, 1229 (9thCir. 2016) (emphasis added) distinguishing Movsesian
670 F.3d at 1076-77. & n. 5.

In a concurring opinion, District Judge Korman
observed that the “Supreme Court’s cases dealing withpreemption specifically in the foreign affairs domain
do not suggest the availability of an equitable causeof action outside of the regulatory context,” andreasoned that Petitioners had failed to state a validcause of action, despite their standing to sue. Id. at1234. The concurring opinion emphasized the constitutional importance of the case but omitted any
statement as to whether the Ninth Circuit ought to19have granted Petitioners leave to amend. Id. Petitioners’ motion for reconsideration en banc, whichraised these concerns, was summarily denied.
(App.39a, 142a-160a)
Petitioners respectfully submit the ruling of theNinth Circuit runs afoul of Supreme Court’s foreign
affairs powers decisions, dictating reversal. Accordingly, Petitioners submit this timely petition for awrit of certiorari to resolve the City’s improper intrusion upon the foreign affairs powers reserved to thefederal government by the express terms of theUnited States Constitution.

REASONS FOR GRANTING THE PETITION“There is, of course, no question that at somepoint an exercise of state power that touches on
foreign relations must yield to the National Government’s policy, given the ‘concern for uniformity inthis country’s dealings with foreign nations’ thatanimated the Constitution’s allocation of the foreign
relations power to the National Government in thefirst place.” Am. Ins. Ass’n v. Garamendi, 539 U.S.
396, 123 S.Ct. 2374, 2386, 156 L.Ed.2d 376 (2003)8;
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,
427, n. 25, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964);
Crosby v. National Foreign Trade Council, 530 U.S.
363, 381-382, n. 16, 120 S.Ct. 2288, 147 L.Ed.2d 352(2000) (“‘[T]he peace of the WHOLE ought not to beleft at the disposal of a PART’” (quoting The
8 Unless otherwise indicated, all emphasis is added.

20
Federalist No. 80, pp. 535-536 (J. Cooke ed.1961) (A.
Hamilton); Id., No. 44, at 299 (J. Madison) (emphasis
original, adding “the advantage of uniformity in all
points which relate to foreign powers”); Id., No. 42, at
279 (J. Madison) (“If we are to be one nation in any
respect, it clearly ought to be in respect to othernations”); see also First Nat. City Bank v. Banco
Nacional de Cuba, 406 U.S. 759, 769, 92 S.Ct. 1808, 32
L.Ed.2d 466 (1972) (plurality opinion) (act of state
doctrine was “fashioned because of fear that adjudication would interfere with the conduct of foreign
relations”); Japan Line, Ltd. v. County of Los
Angeles, 441 U.S. 434, 449, 99 S.Ct. 1813, 60 L.Ed.2d336 (1979) (negative Foreign Commerce Clauseprotects the National Government’s ability to speakwith “one voice” in regulating commerce with foreigncountries (internal quotation marks omitted)).
The conduct of foreign policy is one of the few“uniquely federal areas of regulation.” Chamber ofCommerce of U.S. v. Whiting, 563 U.S. 582, 604, 131
S.Ct. 1968, 1983, 179 L.Ed.2d 1031 (2011) The avoidance of multiple foreign policies was a central tenetof our federal system of government, espoused by theframers of the Constitution. Indeed, as early as 1840,
this Court explained: “it was one of the main objectsof the constitution to make us, so far as regarded ourforeign relations, one people, and one nation; and to
cut off all communications between foreign governments, and the several state authorities.” Holmes v.
Jennison, 39 U.S. (14 Pet.) 540, 575-76 (1840). See
also United States v. Belmont, 301 U.S. 324, 331(1937) (“The external powers of the United States areto be exercised without regard to state laws orpolicies . . . [I]n respect of our foreign relations gener-

21
ally, state lines disappear”.); The Chinese Exclusion
Case, 130 U.S. 581, 606 (1889) (“For local interests
the several States of the Union exist; but for national
purposes, embracing our relations with foreign
nations, we are but one people, one nation, one
power”.); Hines v. Davidowitz, 312 U.S. 52, 63 (1941)(“Our system of government . . . requires that federal
power in the field affecting foreign relations be leftentirely free from local interference”).
To accomplish this “main purpose” of the Constitution, to make the U.S. “one people” with “one voice”
that is “free from local interference,” this Court has
consistently held that state laws intruding on the
exclusively federal power over the nation’s foreign
affairs are preempted.
In United States v. Pink, 315 U.S. 203, 233, 62
S.Ct. 552, 86 L.Ed. 796 (1942) and Hines v. Davidowitz, 312 U.S. 52, 63, 61 S.Ct. 399, 85 L.Ed. 581 (1941)
the Supreme Court recognized that the Constitution
implicitly grants to the federal government a broad
foreign affairs power. See also Deutsch, 324 F.3d at
709 (“the Supreme Court has long viewed the foreign
affairs powers specified in the text of the Constitution as reflections of a generally applicable constitutional principle that power over foreign affairs isreserved to the federal government”).
The existence of this foreign affairs power
implies that, even if the federal government has
taken no action on a particular foreign policy matter,
the state is not free to express its own foreign policy
viewpoint on that issue. Even in the absence of any
treaty, federal statute, or executive order, a state law
may be unconstitutional if it “disturb[s] foreign rela-22
tions” or if the state “establish[es] its own foreign
policy.” Zschernig v. Miller, 389 U.S. 429, 440-41, 88
S.Ct. 664, 19 L.Ed.2d 683 (1968).
In Zschernig, an Oregon statute that did notconflict with any express federal policy was preempted
because it invited courts to conduct detailed inquiries
into the political systems and conduct of foreign
nations. Id. at 433-44. The Court observed, “it seems
that foreign policy attitudes, the freezing or thawingof the ‘cold war,’ and the like are the real desiderata.
Yet, they are of course matters for the Federal Government, not for local probate courts.” Id. at 437-38.
Because the statute involved “criticism of nations
established on a more authoritarian basis than ourown . . . [it] affect[ed] international relations in apersistent and subtle way,” and therefore waspreempted. Id. at 440, 88 S.Ct. 664.
Circuit courts have typically applied the ruleand reasoning in Garamendi, to find that field
preemption simply prohibits the states and theirsubdivisions simply to take a position or express aviewpoint on a matter of foreign policy with noserious claim to be addressing a traditional state
responsibility; whereas the companion doctrine ofconflict preemption applies when a state’s action in
an area of “traditional state responsibility” is carriedout in a way that affects foreign relations.
In the seminal Ninth Circuit case of Movsesian,
the Cirucit, en banc, applied Garamendi to hold that
the Supremacy Clause preempts any state action“when a state law (1) has no serious claim to beaddressing a traditional state responsibility and (2)intrudes on the federal government’s foreign affairs

23
power.” Movsesian, 670 F.3d at 1076 (extending insurance claim statute of limitations for victims of the
Armenian Genocide did not concern an area of
traditional state responsibility); See Von Saher, 592
F.3d at 965 (providing a forum for Holocaust restitution claims, while “a laudable goal, it is not an areaof ‘traditional state responsibility,’ and the statute istherefore subject to a field preemption analysis.”);Garamendi, 539 U.S. at 425 (no state interest in“regulating disclosure of European Holocaust-era
insurance policies”). Zschernig, 389 U.S. at 435-36(finding preempted an Oregon statute because it
invited courts to engage in an analysis of foreign governments and their conduct).
Indeed, prior to the ruling below, there was no
authority holding “that a state [or municipal] government’s First Amendment interests, if any, should
weigh into a consideration of whether a state has
impermissibly interfered with the federal government’s foreign affairs power,” Nat’l Foreign Trade
Council v. Natsios, 181 F.3d 38, 62 (1st Cir. 1999),
aff’d on other grounds, 530 U.S. 263 (2000).
Prior to the Gingery decision, Garamendi has
been uniformly applied at the Circuit Court level topreempt state laws that regulate foreign affairs,
most notably in situations where states intend to
express a foreign policy viewpoint through regulationof commercial transactions—specifically dealing withstate governments that wish to express their viewpoints
through legislative enactments that are intended torespond to perceived war crimes and human rights
abuses. See id., at 61 n. 18 (state law concerning humanrights abuses in Burma/Myanmar preempted):Von24

Saher, 592 F.3d 964 (state law concerning Nazi-looted
artwork); Museum of Fine Arts, Boston v. SegerThomschitz, 623 F.3d 1, 11, 1st Cir.(Mass.); Dunbar
v. Seger-Thomschitz, 615 F.3d 574, 578, 5th Cir.(La.)(same); In re Assicurazioni Generali, S.P.A., 592 F.3d
113, 115, 2nd Cir.(N.Y.) (same); cf. In re Nazi Era
Cases Against German Defendants Litigation, 196

Fed.Appx. 93, 98, 3rd Cir.(N.J.) (Holocaust survivor’s
action); Saleh v. Titan Corp., 580 F.3d 1, 11, D.C.Cir.
(tort claims against civilian contractors, based on
abuses in Abu Ghraib prison in Iraq).Thus if thedecision below stands, a circuit split will likely
develop as other jurisdictions either expand or resist
the exception to foreign affairs preemption announced
by the Ninth Circuit that “expression” of state andlocal government foreign policy “viewpoints” throughpermanent monuments or otherwise.

The Ninth Circuit incorrectly found that neither
doctrine applied under the facts of the case as pled by
Plaintiffs. That finding is at least in part attributable
to an over-simplification of this Court’s nuanced
analysis in Garamendi. Certiorari should be granted
to clarify the rules of field and conflict preemption
last explained in Garamendi.
I.

THE NINTH CIRCUIT MISINTERPRETED THE
PREEMPTION STANDARDS IN GARAMENDI TOPERMIT STATES TO “EXPRESS” THEIR OWNFOREIGN POLICYThe Supreme Court last considered but did not
draw a clear line rule on the question of when andwhether field preemption or conflict preemption
would apply thirteen years ago, in Am. Ins. Ass’n v.
Garamendi, 539 U.S. 396, 419-21, 123 S.Ct. 2374,

25
156 L.Ed.2d 376 (2003). The absence of a clear
standard opened the opportunity for the Ninth
Circuit to announce the rule in this case.
In Garamendi, the Court revisited Zschernig v.
Miller, 389 U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683(1968), noting:“It is a fair question whether respect for the
executive foreign relations power requires acategorical choice between the contrasting
theories of field and conflict preemption
evident in the Zschernig opinions, but thequestion requires no answer here . . . .thelikelihood that state legislation will produce
something more than incidental effect in
conflict with express foreign policy of the
National Government would require preemption of the state law. [But] it is legislation
within “areas of . . . traditional competence”
that gives a State any claim to prevail,[citation], it would be reasonable to consider
the strength of the state interest, judged bystandards of traditional practice, when
deciding how serious a conflict must be
shown before declaring the state law
preempted.”

Id. The Court added, in a footnote:“Where, however, a State has acted within
what Justice Harlan called its “traditional
competence,” 389 U.S., at 459, 88 S.Ct. 664,
but in a way that affects foreign relations, it
might make good sense to require a conflict,of a clarity or substantiality that would varywith the strength or the traditional

26
importance of the state concern asserted.
Whether the strength of the federal foreign
policy interest should itself be weighed is, ofcourse, a further question. Cf. Rice v. Santa
Fe Elevator Corp., 331 U.S. 218, 230, 67
S.Ct. 1146, 91 L.Ed. 1447 (1947) (congressional occupation of the field is not to bepresumed “in a field which the States havetraditionally occupied”); Boyle v. United Technologies Corp., 487 U.S. 500, 507-508, 108
S.Ct. 2510, 101 L.Ed.2d 442 (1988) (“In an
area of uniquely federal interest,” “[t]heconflict with federal policy need not be as
sharp as that which must exist for ordinary
preemption”).

Garamendi, 539 U.S at 420 n.11. The analysis of theNinth Circuit has oversimplified the nuanced analysis
suggested by the Court in Garamendi, leading to anerroneous result.
II.

THE FEDERAL GOVERNMENT HAS THE EXCLUSIVE
POWER TO SET POLICY REGARDING “COMFORTWOMEN”The Ninth Circuit has typically held, even in theabsence of any express federal policy, that a state action may be preempted as a matter of field preemption where (1) its “real purpose” does not concern an
area of traditional state responsibility, and (2) it
intrudes on the federal government’s foreign affairs
power. Movsesian, 670 F.3d at 1074-75. When the action does ‘concern an area of traditional state responsibility” it applies doctrine of conflict preemption, astate action must yield to federal authority where27“there is evidence of clear conflict between thepolicies adopted by the two.” Id.
A. The Monument Is Preempted Because Its“Real Purpose” Is to Influence Foreign Affairs
Here, Glendale’s actions are preempted because
they overstep state and local authority by “intru[ding] . . . the State into the field of foreign affairs.”
Garamendi, 539 U.S. at 417 (quoting Zschernig, 389
U.S. at 432).6F9
1. Glendale Cannot Seriously Claim That
Its Plaque Castigating Japan and
Demanding Action Addresses Any
Traditional Responsibility of a Municipal
Government
The phrase “traditional state responsibility”(Movsesian, 670 F.3d at 1074) has never before been
extended, as it is here, to include a state or local government’s castigation of a U.S. ally for decades-old
alleged crimes and violations of international humanrights.
Municipalities traditionally address the health,safety and welfare of its own citizens, at the local
level, by providing fire and police protection, roadrepairs, parks, playgrounds, social services, and transportation. Municipalities regulate land use and businesses, and private conduct within its borders.
Glendale might be responsible for beautification of
its city park; building economic ties with “sister
9 Municipalities and states are subject to the same rules ofpreemption. Hines v. Davidowitz, 312 U.S. 52, 63 (1941).

28
cities”; or recognizing its own citizens’ participationin World War II; or commemorating undisputed local
events in California, unfortunate mistreatment ofJapanese-American citizens in Glendale during that
period; or city beautification through artistic expression;
or expressing by proclamation certain local ideals.
But there is no nexus between the pointed
allegations, accusations and specific policy demands
to Japan, a foreign nation, stated in the plaque andany “traditional area of responsibility” for a city government. To the contrary, Glendale “may not tell the
Nation or Japan how to run their foreign policies.”
Japan Line, Ltd. v. Los Angeles County., 441 U.S.
434, 455 (1979).
The Ninth Circuit rejected field preemption,
reasoning, “Glendale’s establishment of a publicmonument to advocate against ‘violations of humanrights’ was well within the traditional responsibilities of state and local governments.” 831 F.3d at
1229-30.However, the Ninth Circuit misunderstood
the facts, and failed to apply the test of Garamendi,
Zschernig, Movsesian, Von Saher, and Deutsch that
required it to consider the “real purpose” of Glendale’s action. See, e.g., Movsesian, 670 F.3d at 1076.
Nor did it consider the allegations in the light mostfavorable to the Plaintiffs as is required. Wilson v.
Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir.
2012).
The real purpose of the monument is not merely
to commemorate “Comfort Women.” Its purpose is tohold Japan accountable for alleged war crimes andhuman rights violations, and demand action by
Japan. As a salient example, Councilmember and29
attorney Zareh Sinanyan, made clear that Glendale
intended to insert itself into foreign affairs, explaining that Movsesian likely invalidated the action:
Another argument [is that] Glendale has no
authority to do anything about this issue,
it’s a federal issue. Just last year, theTurkish government pushed a lawsuit
which they succeeded on in the Ninth
Circuit making the exact same argument,saying that the recognition of the Armenian
genocide by state authorities was notproper . . . (App.101a)
Councilmember Friedman revealed Glendale’strue purpose, commenting: “We really put the city of
Glendale on the international map today by doing this.”(App.54a) The Ninth Circuit avoided the “real purpose”
of Glendale’s act by incorrectly limiting theexpressive meaning of the monument to its merely
symbolically expressive aspects (as reflected in thebronze sculpture) as simply “commemorating the‘Comfort Women,’” and “advocate[ing] against “violations of human rights,’” in a general sense, effectively
modifying the facts alleged to suit the panel’s desired
outcome. 831 F.3d 1230. By paraphrasing the plaque,as simply “memorializing victims and expressing hopethat others do not suffer a similar fate” and selectively
avoiding the inflammatory aspects of the plaque’s language and omitting virtually every plaque provision
critical of the Japanese, the Ninth Circuit redefined
the controversy and made its incorrect decisionappear more constitutionally acceptable. (App.13a)
The omission of Glendale’s real purpose: casting blameon Japan, and pressuring Japan to “accept historical

30
responsibility for these crimes” admits the true factsof the actual inflammatory and anti-Japan language ofthe plaque demands a reversal. (App.97a, App.202a,101a) Indeed, current events indicate that Glendale’s
Monument is playing a role in the complex andrapidly deteriorating relationship between Japan andSouth Korea over this issue and other issues.
(App.185a, noting there are 34 monuments in Korea
nearly identical to Glendale's Monument) That is not
the role of a municipality.
Moreover, the “real purpose” of Glendale’s Monument is to express an anti-Japan viewpoint. The textof the plaque permanently affixed to the Public
Monument presents an explicitly pro-Korean and antiJapanese view of historical events during World War
II. By demanding reparations from the Japanese government for events decades ago, Glendale’s “realpurpose” is undoubtedly to help Korea attain thoseconcessions from Japan.
The anti-Japan tenor of the Monument is also a
painful reminder of the anti-Japanese sentiment in
Los Angeles, California, and this nation, that led to ashameful series of human rights abuses in thisnation: none of those “crimes” or “violations of rights”
are commemorated in Glendale’s Central Park,
although some of them occurred a few miles away at
Griffith Park and Santa Anita Racetrack.10

10 See National Archives, JAPANESE RELOCATION DURING
WORLD WAR II, at: archives.gov/education/lessons/japaneserelocation; National Park Service, A BRIEF HISTORY OF
JAPANESE AMERICAN RELOCATION DURING WORLD WAR IIat:
nps.gov/articles/historyinternment.htm; U.S. Army Corps of

31
It is very strange that a small city in California
with a small Japanese population would choose thenation of Japan as the target for its outrage in lightof its own local history. The attenuated connection
between Glendale’s local interest and local commemoration and the subject matter of the Monument
belies Glendale’s argument that “real purpose” of themonument is a traditional local government responsibility. Nowhere in the record does Glendale point toany local interest of commemorative aspect of the“Comfort Women” issue. Glendale has sister cities in
Korea, and in Japan, so the “strength of the [local]
interest, judged by standards of traditional practice”
is exceedingly weak and attenuated. See Zschernig v.
Miller, 389 U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683(1968). The obvious “real purpose” of the Monument—
taking sides in a matter of international import—haslittle if anything to do with Glendale’s traditional
responsibilities as a municipality.
2. Glendale’s “Expressive” Anti-Japan Policy
Conflicts with and Intrudes on U.S.
Federal Diplomacy
Even if the Ninth Circuit is correct that a local
government may as part of its traditional responsibilities engage in expressive conduct related toforeign affairs that merely memorializes and commemorates, conflict preemption dictates that the state andlocal governments may not urge and advocate that aforeign nation take a course on a contested matter ofEngineers, BURBANK PRISONER OF WAR PROCESSING STATION,
at: militarymuseum.org/GriffithParkPW%20Camp.html

32
foreign affairs, particularly when the U.S. has madecareful policy choices in a fraught diplomatic puzzle.
Here, Glendale seeks to use a bronze sculpture
and a granite plaque, “where the President has consistently chosen kid gloves. The efficacy of the one
approach versus the other is beside the point, sincepreemption turns not on the wisdom of the National
Government’s policy but on the evidence of conflict.”
See Garamendi, 539 U.S. at 399. Indeed, foreign affairs
preemption is most appropriate “when state action
reflects a state policy critical of foreign governments
and involves “sitting in judgment” on them.” Id. at439. (Ginsburg, J., joined by Stevens, Scalia, andThomas, JJ., dissenting) (citation and quotation marks
omitted and emphasis added). Yet that is just what
Glendale did in installing the Monument. Glendale
expressed in a permanent monument its viewpointthat Japan should rectify its past crimes and humanrights violations. (App.34a ¶11.)
Glendale’s conduct is preempted because it ismore than “merely expressive” or “commemorative,”
Movsesian, 670 F.3d at 1077 & n.5; it advocates(through coercion and interference) that Japan takeactions that the federal government has never urged.
running roughshod over deliberately cautious diplomacy on this sensitive issue.
Glendale’s conduct has “more than someincidental or indirect effect in foreign countries.”
Zschernig, 389 U.S. at 434 (internal citations omitted);
Movsesian, 670 F.3d at 1072. Reactions from thehighest ranks of the Japanese government—
including the Prime Minister, the Chief Cabinet
Secretary, and Japan’s Ambassador to the United

33
States—are detailed in Plaintiffs’ complaint.
(App.51a ¶¶36-42.) And the record reflects that, since2013, there has been an international outcry over the“Comfort Women” historical controversy which ispart of the U.S.’ engagement with South Korea andJapan, culminating in an international treaty overthe issue in 2015. (App.71a, 113a) But, as of thiswriting, that treaty appears to be in serious jeopardy
over an identical statue to the Glendale Monument.
Just as Glendale cannot install a monument
urging Israel to accept Jerusalem as the Capital ofPalestine, cf. Zivotofsky ex rel. Zivotofsky v. Kerry,
135 S.Ct. 2076, 2094 (2015), it cannot urge Japan toaccept historical responsibility for contested WorldWar II acts. Calling one of the United States’ closest
allies to account for war crimes is not a traditional
local or state responsibility and cannot “be fairly
categorized as a garden variety” commemorative
memorial, Von Saher, 592 F.3d at 964. Indeed, theUnited States Constitution assigns Congress the power
to define “Offences against the Law of Nations” (UnitedStates Constitution, Article I, Section 8, clause 10).
Nor is it a traditional local interest for Glendale
to involve itself in a debate that implicates U.S.
relations and interests in Japan, South Korea, China
and North Korea.11

11 North Korea, China Want to Undo the Japan-South Korea
Alliance That the U.S. Helped Broker, FOXNEWS (Aug. 8, 2016),

http://www.foxnews.com/opinion/2016/08/08/north-korea-chinawant-to-undo-japan-south-korea-alliance-that-us-helped-broker.
html.

34
B. Even if Glendale’s Actions Were Part of Its“Traditional Responsibility”, Conflict Preemption Applies Because Glendale Has Contradicted the Foreign Policy of the United States
Regarding “Comfort Women.”
The Ninth Circuit did not apply conflict preemption, reasoning “Plaintiffs do not argue that
Glendale’s installation of the monument conflicts
with the federal government’s policy on the “Comfort
Women” dispute; indeed, the complaint alleges that
the United States has ‘consistently sought to avoid’
taking a position on the issue.”831 F.3d 1229. This iswrong. The viewpoint expressed by Glendale’s Monument, taking Korea’s “side” in the dispute conflicts withthe demonstrated U.S. policy choice to “avoid taking
sides,” which is itself a trigger for conflict preemption
under Garamendi.
Even assuming erecting public monuments
which explicitly castigate the allies of the UnitedStates and demanding action by those allies was anarea of “traditional competence” where the foreign
policy implications were only incidental to that
responsibility, state and local government speech
must still comport with other legal and constitutional
provisions, especially permanent monuments because
they “endure[,] monopolize the use of the land on
which they stand and interfere permanently withother uses of public space.”). See Pleasant Grove v.
Summum, 555 U.S. 460, 469, 478-79 (2009)
Petitioners alleged sufficient facts to demonstrate that Glendale’s viewpoint on foreign policy,
embodied in the permanent granite plaque, is deeply
divergent from the express foreign policy of the35
United States as expressed in treaties, court filings,
executive statements, and diplomatic engagementwith the other nations involved, in an effort to avoid
upsetting a delicate situation. (App.55a-60a)
The U.S. Government has a policy of notinterfering or castigating Japan over the “Comfort
Women,” while also engaging with Japan and Korea
over the issue: “the Executive ha[d] determined thatchoosing between the interests of two foreign states
would adversely affect the foreign relations of theUnited States. . . . .” taking an active role “not only
‘would undo’ a settled foreign policy of state-to-statenegotiation with Japan, but also could disrupt
Japan’s ‘delicate’ relations with China and Korea,
thereby creating ‘serious implications for stability inthe region.’”Joo v. Japan, 413 F. 3d. 45, 52 (D.C. Cir.
2005) cert denied 546 U.S. 1208. (quoting 2001 Statement of Interest at 34-35).
Glendale apparently had little regard for how its
expression of its foreign policy viewpoints might
impact stability in Asia when it approved, installed
and maintained of the “Comfort Women” monument,
calling Japan to account for alleged “war crimes” anddemanding the Japanese Government, admit to humanrights violations.
The foreign affairs doctrine is intended to allow
the federal government a free hand—even when it
has not chosen to take specific steps. See Hines v.
Davidowitz, 312 U.S. at 63. Here, Glendale’s international activism on behalf of Korea directly conflicts
with the federal government, even if the federal government’s policy choice is to not engage in adjudica-36tion of the dispute but rather to facilitate rapprochement between other nations.
With a new presidential administration about totake office, the Court can easily see how state andlocal governments could take foreign policy positions
that are “expressive” or established through “publicmonuments” that are markedly different from thepolicies of the federal government, sowing confusion
around the world and unraveling the very fabric of
the union the Constitution was designed to create.
Can Toledo, Ohio, decide to establish its own
foreign policy by erecting a “public monument” that“expresses” a policy urging Burma to accept responsibility for incursions into the territory of the People’s
Republic of China, or for China to offer more favorable
trade relations to Burma? See Nat’l Foreign Trade
Council v. Natsios, 181 F.3d 38, 61 n. 18 (1st Cir. 1999).
Can Lubbock, Texas establish its own foreign policyby erecting a “public monument” that “expresses” itsview urging Israel to recognize Jerusalem as thecapital of Palestine? cf. Zivotofsky, 135 S.Ct. at 2094.
Under the Ninth Circuit’s flawed reasoning, such
local pronouncements might be ruled constitutional
because they are merely “expressive” of the “viewpoints”
of the states and localities that would like to “putthemselves on the international map.”
The Constitution could not be clearer on this issue.
We are one nation, that speaks to the international
community with one voice.
Glendale is not empowered by the United States
Constitution to set its own foreign policy or makedemands of Japan. The Constitution assigns thatrole to the federal government. Glendale’s action is37
preempted by the Supremacy Clause. The Constitution dictates that the United States government is
the only authority permitted to set the foreign policyof this nation on the issue of “Comfort Women” andany other matter of international concern without
local interference by municipalities.
It has never been more important for this nation
to speak to the world with one voice whenever it ispossible, and thus even well-intentioned state andlocal “expressive” action must be preempted.

CONCLUSION
The petition for writ of certiorari should be granted.
Respectfully submitted,
WILLIAM B. DECLERCQCOUNSEL FOR PETITIONERSDECLERCQ LAW GROUP, INC.

225 S. LAKE AVENUE, SUITE 300
PASADENA, CA 91101(626) 408-2150
WILLIAM@DECLERCQLAW.COM
JANUARY 11, 2017

Appendix-i
APPENDIX TABLE OF CONTENTS
Opinion of the Ninth Circuit(August 4, 2016) ................................................. 1a
Concurring Opinion of Justice Korman(August 4, 2016) ............................................... 17a
Order of the District Court(August 4, 2014) ............................................... 23a
Judgment of the District Court(August 4, 2014) ............................................... 37a
Order of the Ninth Circuit Denying Petition for
Rehearing En Banc (October 13, 2016) ........... 39a
Complaint for Declaratory and Injunctive Relief(February 20, 2014) .......................................... 41a
Plaintiffs-Appellants’ Opening Brief(March 13, 2015) ............................................... 63a
Second Amended Complaint to the Superior Courtof California for the County of Los Angeles,
Central Judicial District, for Declaratory and
Injunctive Relief for (1) Unconstitutional
Interference with Foreign Affairs Power (inViolation of Movsesian v. Victoria Versicherung Ag (9th Cir. 2012) 670 F.3d 1067); (2)Violation of the Glendale Municipal Code; (3)Violation of the Equal Protection Clause of the
California Constitution; and (4) Violation of
the Privileges and Immunities Clause of the
California Constitution (October 26, 2015) ... 119a

Appendix-ii
Petition for Rehearing En Banc
(September 16, 2016)...................................... 142a
Brief of Amicus Curiae The Nippon Today’s
Researchers Society (KINGEN) in Support of
Plaintiffs and Appellants Petition for Reconsideration En Banc (September 26, 2016) ..... 161a
Exhibit S to the Nippon Today Research Society
Amicus Brief (September 26, 2016) ............... 180a
The Society for Dissemination of Historical Fact
(SDHF) Amicus Curiae Brief in Support of
Plaintiffs and Appellants Petition for Reconsideration En Banc (September 26, 2016) ..... 202a

App.1a
OPINION OF THE NINTH CIRCUIT(AUGUST 4, 2016)
UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT________________________MICHIKO SHIOTA GINGERY, an individual;
KOICHI MERA, an individual; GAHT-US CORPORATION, a California non-profit corporation,

Plaintiffs-Appellants,
v.
CITY OF GLENDALE, a municipal corporation,

Defendant-Appellee.

________________________
No. 14-56440

D.C. No. 2:14-cv-01291-PA-AJW
Appeal from the United States District Court for theCentral District of California Percy Anderson,
District Judge, Presiding
Before: Stephen REINHARDT, and Kim McLane
WARDLAW, Circuit Judges, and Edward R.
KORMAN, Senior District Judge.
WARDLAW, Circuit Judge:
 The Honorable Edward R. Korman, Senior District Judge for
the U.S. District Court for the Eastern District of New York,sitting by designation.

App.2aIn 2013, the City of Glendale installed a publicmonument commemorating the “Comfort Women,” anunknown number of women that South Korea asserts,
but Japan disputes, were forced to serve as sexual
partners to members of the Japanese Imperial Army
during World War II and the decade preceding it.
Plaintiffs, a Japanese-American resident of Los
Angeles and a non-profit organization, claim that
Glendale’s installation of the “Korean Sister City
‘Comfort Woman’ Peace Monument” intrudes on thefederal government’s exclusive foreign affairs power
and is thereby preempted under the foreign affairs
doctrine. We conclude that Plaintiffs have standing tochallenge Glendale’s installation of the monument but
have failed to state a claim that Glendale’s actions are
preempted. Accordingly, we affirm the district court’s
judgment dismissing Plaintiffs’ preemption claim
with prejudice.
I.

Factual and Procedural History

For several decades, Japan and South Korea haveengaged in a heated and politically sensitive debate
concerning historical responsibility for the Comfort
Women. South Korea has urged Japan to redress
grievances relating to the Comfort Women. Japandenies responsibility for the recruitment of the
Comfort Women and asserts that, in any event, allWorld War II-related claims, including those related
to the Comfort Women, were resolved pursuant topostwar treaties between Japan and the allied
nations. According to Plaintiffs’ complaint, the UnitedStates has generally “avoid[ed] taking sides” andencouraged Japan and South Korea to resolve thedispute through “further government-to-government
negotiations.”

App.3aOn July 9, 2013, the Glendale City Council
approved the installation of the “‘Comfort Woman’
Peace Monument” in Glendale Central Park, a publicpark in Glendale, California. Unveiled three weeks
later, the monument is a 1,100-pound bronze statue ofa young girl in Korean dress sitting next to an empty
chair with a bird perched on her shoulder. Alongside
the statue is a bronze plaque, which reads in part:In memory of more than 200,000 Asian andDutch women who were removed from theirhomes in Korea, China, Taiwan, Japan, thePhilippines, Thailand, Vietnam, Malaysia,
East Timor and Indonesia, to be coerced into
sexual slavery by the Imperial Armed Forcesof 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 theJapanese Government to accept historicalresponsibility for these crimes.
It is our sincere hope that these unconscionable violations of human rights shallnever recur.
Plaintiffs Michiko Shiota Gingery, GAHT-US Corporation (“GAHT-US”), and Koichi Mera claim thatthe monument interferes with the federal government’s foreign affairs power and violates theSupremacy Clause. Plaintiffs’ complaint further allegesthat by installing the monument, Glendale “has taken
a position in the contentious and politically-sensitive
international debate concerning the proper historicalApp.4atreatment of the former comfort women.” In Plaintiffs’view, Glendale’s monument disrupts the federal government’s foreign policy of nonintervention andencouragement of peaceful resolution of the Comfort
Women dispute. The complaint seeks an orderdeclaring Glendale’s installation of the monument
unconstitutional and compelling Glendale to remove
the monument from public property.1
The district court dismissed Plaintiffs’ constitutional claim with prejudice. The district court first
determined that Plaintiffs lacked standing.
Alternatively, the district court found that “[e]ven if
Plaintiffs possessed Article III standing, dismissal isstill appropriate because Plaintiffs have failed toallege facts that state a cognizable legal theory.” The
district court reasoned that the complaint failed toallege facts that could plausibly support theconclusion that the monument conflicted with theexecutive branch’s foreign policy. Plaintiffs timely
appeal.
II.

Standard of Review“The district court’s determination whether aparty has standing, and whether there is subject
matter jurisdiction, is reviewed de novo.” Hajro v. U.S.
Citizenship & Immigration Servs., 811 F.3d 1086,
1098 (9th Cir. 2016). “We review denovo a district
court’s dismissal for failure to state a claim under Rule12(b)(6).” Harkonen v. U.S. Dep’t of Justice, 800 F.3d
1 Plaintiffs also claim that the installation of the monument
violates the Glendale Municipal Code. The district court declined
to exercise supplemental jurisdiction over this claim and dismissed it without prejudice.

App.5a1143, 1148 (9th Cir. 2015). “We may affirm the district
court’s dismissal on any ground that is supported by
the record, whether or not the district court relied on
the same ground or reasoning ultimately adopted bythis court.” Hartmann v. Cal. Dep’t of Corr. & Rehab.,
707 F.3d 1114, 1121 (9th Cir. 2013).
III. Discussion
A. Standing
We must first determine whether Plaintiffs havestanding to pursue their preemption claim. To establish
Article III standing, Plaintiffs must demonstrate “(1)the existence of an injury-in-fact that is concrete andparticularized, and actual or imminent; (2) the injury
is fairly traceable to the challenged conduct; and (3)the injury is likely to be redressed by a favorable court
decision.” Ctr. for Biological Diversity v. U.S. Fish &Wildlife Serv., 807 F.3d 1031, 1043 (9th Cir. 2015). “Inmany cases the standing question can be answered
chiefly by comparing the allegations of the particularcomplaint to those made in prior standing cases.”
Allen v. Wright, 468 U.S. 737, 751-52 (1984).2
Mera is a Japanese-American resident of Los
Angeles. Mera “disagrees with and is offended by the
position espoused by Glendale” through the monument.
Mera “would like to use Glendale’s Central Park andits Adult Recreation Center” but now “avoids doing

2 While this appeal was pending, Plaintiffs notified us that
Gingery had died. As the parties agree, Gingery’s claim for
injunctive and declaratory relief is therefore moot. See Kennerly
v. United States, 721 F.2d 1252, 1260 (9th Cir. 1983).

App.6aso.” Furthermore, “the presence of the Public Monument diminishes Mera’s enjoyment of the Central
Park and its Adult Recreation Center.”Mera’s allegations parallel those of other plaintiffs, particularly in Establishment Clause andenvironmental cases, who have satisfied the injury-infact requirement by alleging that their use andenjoyment of public land has been impaired. In thecontext of challenges to government-sponsoreddisplays of religion on public property, we “haverepeatedly held that inability to unreservedly use
public land suffices as injury-in-fact.” Buono v.
Norton, 371 F.3d 543, 547 (9th Cir. 2004); see also
Ellis v. City of La Mesa, 990 F.2d 1518, 1523 (9th Cir.
1993) (holding that a plaintiff satisfied the injury-infact requirement by alleging that he was “offended” by
the presence of a cross on public property, which he“otherwise would visit” but instead “avoids”).
Similarly, in environmental cases, plaintiffs generally
satisfy the injury-in-fact requirement by alleging thatthey are less able to use land affected by a defendant’s
conduct. See, e.g., Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs., Inc., 528 U.S. 167, 182-83 (2000)(holding that plaintiffs who “would use” allegedly
polluted areas located several miles from their homes,
but “refrained” from doing so, had established injury
in fact); Nat. Res. Def. Council v. EPA, 542 F.3d 1235,
1245 (9th Cir. 2008) (injury in fact established whereplaintiffs alleged that their “use and enjoyment” ofcertain waterways “has been diminished” due topollution). Although Mera asserts neither an
Establishment Clause nor environmental claim, cases
from these contexts may properly guide our evaluationof his alleged injury. See Valley Forge Christian Coll.

App.7av. Ams. United for Separation of Church & State, Inc.,

454 U.S. 464, 488 (1982) (rejecting the argument that
Establishment Clause cases create any “special
exceptions” to the requirements of Article III
standing).

Consistent with these precedents, we conclude
that Mera’s “inability to unreservedly use” Glendale’s
Central Park constitutes an injury in fact for purposesof Article III standing. Buono, 371 F.3d at 547. Like
the Establishment Clause plaintiffs in Ellis andBuono, Mera allegedly “avoids” using certain public land,
which he has previously visited and “would like to use”
again, because he is “offended” by the governmentsponsored display it contains. See id. at 546-47; Ellis,
990 F.2d at 1523. And like the plaintiffs inenvironmental cases, Mera has alleged both that heavoids public land that he would like to use again, andthat his enjoyment of the park and the park’s facilities
has been “diminshe[d].” See Laidlaw, 528 U.S. at 18283; Nat. Res. Def. Council, 542 F.3d at 1245. These
allegations satisfy the injury-in-fact requirement.
Mera’s injury is also “fairly traceable to thechallenged action” of Glendale. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992) (citation andalterations omitted). The complaint alleges that
Glendale “approved the installation” of the monument,
which was unveiled to the public three weeks later.
Mera avoids using Glendale’s Central Park and its
Adult Recreation Center “as a result of his alienation
due to the Public Monument.” These allegations“establish a line of causation” between Glendale’s
actions in approving the installation of the monument
and Mera’s alleged harm from the presence of theApp.8amonument in the park. Maya v. Centex Corp., 658 F.3d
1060, 1070 (9th Cir. 2011) (citation omitted).
Finally, Mera has demonstrated “that a favorable
decision is likely to redress” his injury. BarnesWallace v. City of San Diego, 530 F.3d 776, 784 (9thCir. 2008). If Glendale is ordered to remove the monument from the park, Mera likely would not feel “alienat[ed] due to the Public Monument” or need to avoid
using the park. Therefore, Mera has satisfied theredressability requirement of Article III standing.
In sum, we conclude that Mera has Article III
standing, and the district court erred in concluding
otherwise.3 If Plaintiffs truly lacked standing, thedistrict court would not have had jurisdiction to reachthe merits of their complaint. See Fleck & Assocs., Inc. v.
City of Phoenix, 471 F.3d 1100, 1106 (9th Cir. 2006).
However, because we conclude that Mera does havestanding, we may proceed to consider the district
court’s determination that Plaintiffs failed to state aclaim upon which relief may be granted. See, e.g., Cal.

ex rel. Imperial Cty. Air Pollution Control Dist. v. U.S.
Dep’t of the Interior, 767 F.3d 781, 787 (9th Cir. 2014)(disagreeing with the district court’s finding thatplaintiffs lacked standing, but nonetheless affirming
the judgment); Info. Handling Servs., Inc. v. Def.
Automated Printing Servs., 338 F.3d 1024, 1031 (D.C.
Cir. 2003) (disagreeing with the district court’s finding

3 Because Mera has standing and “the presence in a suit of evenone party with standing suffices to make a claim justiciable,” weneed not address whether GAHT-US satisfies the requirementsfor organizational standing. Mont. Shooting Sports Ass’n v.
Holder, 727 F.3d 975, 981 (9th Cir. 2013) (citation omitted).

App.9athat plaintiff lacked standing but proceeding to themerits of the dispute).
B. Failure to State a Claim
The district court concluded that Plaintiffs had
failed to state a claim that Glendale’s installation of
the Comfort Women monument is preempted under
the foreign affairs doctrine. See U.S. Const. art. VI, cl.
2 (Supremacy Clause). Viewing the complaint’s
factual allegations in the light most favorable to Plaintiffs, we conclude that Glendale’s installation of themonument concerns an area of traditional state
responsibility and does not intrude on the federal government’s foreign affairs power. We therefore agreewith the district court that Plaintiffs have notplausibly claimed that Glendale’s actions are
preempted.
It is well established that the federal government
holds the exclusive authority to administer foreign
affairs. Movsesian v. Victoria Versicherung AG, 670
F.3d 1067, 1071 (9th Cir. 2012) (en banc); see also
United States v. Pink, 315 U.S. 203, 233 (1942) (“Powerover external affairs is not shared by the States; it isvested in the national government exclusively.”).
Under the foreign affairs doctrine, state laws that
intrude on this exclusively federal power are preempted,
under either the doctrine of conflict preemption or thedoctrine of field preemption. Movsesian, 670 F.3d at
1071.4 Under the doctrine of conflict preemption, a
4 Municipalities are subject to the same rules of preemption as
the states. See Hines v. Davidowitz, 312 U.S. 52, 63 (1941) (“Oursystem of government is such that the interest of the cities,
counties and states, no less than the interest of the people of thewhole nation, imperatively requires that federal power in the

App.10astate action must yield to federal executive authority
where “there is evidence of clear conflict between thepolicies adopted by the two.” Am. Ins. Ass’n v.
Garamendi, 539 U.S. 396, 421 (2003). Under thedoctrine of field preemption, even in the absence of any
express federal policy, a state action may bepreempted where (1) its “real purpose” does notconcern an area of traditional state responsibility, and(2) it intrudes on the federal government’s foreign
affairs power. Movsesian, 670 F.3d at 1074-75. Here,
Plaintiffs do not argue that Glendale’s installation of themonument conflicts with the federal government’s
policy on the Comfort Women dispute; indeed, thecomplaint alleges that the United States has “consistently sought to avoid” taking a position on the issue.
Instead, Plaintiffs invoke the doctrine of field preemption.
Applying the doctrine of field preemption, we
have found that a state or local government is more
likely to exceed the limits of its power when it creates
remedial schemes or regulations to address matters of
foreign affairs. In Von Saher v. Norton Simon
Museum of Art, 592 F.3d 954 (9th Cir. 2010), forexample, we held that a California statute, which
extended the statute of limitations for civil actions torecover looted Holocaust-era artwork, was preempted
because the statute would often require courts toreview the reparation decisions of foreign nations, andthus intruded on the federal government’s power “tomake and resolve war.” Id. at 965-68. More recently, inMovsesian, our Court, sitting en banc, concluded thata California statute, which vested California courts
field affecting foreign relations be left entirely free from local
interference.”).

App.11awith jurisdiction over certain insurance claims
brought by “Armenian genocide victim[s]” and extended
the statute of limitations for those claims, intruded on
the field of foreign affairs. 670 F.3d at 1076-77. We
explained that the California statute not only
“expresses a distinct political point of view on a specific matter of foreign policy,” but also “subject[s] foreign
insurance companies to lawsuits in California” andwould require courts applying the statute to engage in “ahighly politicized inquiry into the conduct of a foreign
nation.” Id. at 1076.
What we have not considered, however, is theextent to which a state or local government may
address foreign affairs through expressive displays or
events, rather than through remedies or regulations.
In Movsesian, for example, we emphasized that thelaw at issue was not “merely expressive” and declined
to “offer any opinion about California’s ability to
express support for Armenians by, for example,
declaring a commemorative day.” Id. at 1077 & n.5;
see also Nat’l Foreign Trade Council v. Natsios, 181
F.3d 38, 61 n.18 (1st Cir. 1999) (holding that theMassachusetts Burma law, which restricted the abilityof Massachusetts and its agencies to purchase goods
or services from companies that do business with
Burma, was preempted but noting that “[w]e do notconsider here whether Massachusetts would be authorized to pass a resolution condemning Burma’s humanrights record but taking no other action with regard to
Burma”), aff’d sub nom. Crosby v. Nat’l Foreign Trade
Council, 530 U.S. 363 (2000). Here, we confront avariant of the issue we left open in Movsesian:whether the Supremacy Clause preempts a local government’s expression, through a public monument, of

App.12aa particular viewpoint on a matter related to foreign
affairs. Under the circumstances of this case, we
conclude that it does not.
First, Glendale’s establishment of a public monument to advocate against “violations of human rights”
is well within the traditional responsibilities of stateand local governments. “Governments have long usedmonuments to speak to the public.” Pleasant Grove
City v. Summum, 555 U.S. 460, 470 (2009). In addition, “[c]ities, counties, and states have a long tradition of issuing pronouncements, proclamations, andstatements of principle on a wide range of matters of
public interest, including other matters subject topreemption, such as foreign policy and immigration.”
Alameda Newspapers, Inc. v. City of Oakland, 95 F.3d
1406, 1414 (9th Cir. 1996). For example, local governments have established memorials for victims of the
Holocaust5 and the Armenian genocide,6 and leadersof local governments have publicly taken positions on
matters of foreign affairs, from South African
apartheid in the 1980s7 to the recent actions of BokoHaram.8 Here, by dedicating a local monument to the
5 See Holocaust Memorials, Ctr. for Holocaust & Genocide Stud.,
Univ. of Minn., http://ittybittyurl.com/2EI6 (last visited July 27,2016).
6 See Monument at Bicknell Park in Montebello, California,
Armenian Nat’l Inst., http://ittybittyurl.com/2EI3 (last visited
July 27, 2016).
7 See Bill Boyarsky, Mayor’s Blast at Apartheid Affirms Appeal
to Blacks, L.A. Times, Jan. 20, 1985, http://ittybittyurl.com/2EI4.
8 See Press Release, City of Atlanta, Statement of Mayor Kasim
Reed on the Kidnapped Nigerian Girls (May 7, 2014), available
at http://ittybittyurl.com/2EI5.

App.13aplight of the Comfort Women in World War II, Glendale
has joined a long list of other American cities that have
likewise used public monuments to express theirviews on events that occurred beyond our borders.
In Plaintiffs’ view, however, Glendale’s “realpurpose” is to insert itself into foreign affairs. We
disagree. According to the monument’s plaque,Glendale’s self-stated purposes are: (i) to preserve the“memory” of the Comfort Women, (ii) to “celebrate”
Glendale’s proclamation of a “Comfort Women Day”
and the House of Representatives’ decision to pass a
resolution addressing historical responsibility for the
Comfort Women, and (iii) to express “sincere hope”
that “these unconscionable violations of human rights
shall never recur.” These purposes—memorializing
victims and expressing hope that others do not suffera similar fate—are entirely consistent with a local
government’s traditional function of communicating
its views and values to its citizenry. Moreover, even if
Glendale’s purpose was, as one City Council member
stated, to “put the city of Glendale on the international
map,” this purpose does not conflict with the role local
governments have traditionally played in public
discourse related to foreign affairs. Cf. Farley v.
Healey, 431 P.2d 650, 653 (Cal. 1967) (“Even in mattersof foreign policy it is not uncommon for local legislative
bodies to make their positions known.”). Therefore,
Glendale’s “real purpose” in installing the Comfort
Women monument concerns “an area of traditional
state responsibility.” Movsesian, 670 F.3d at 1075.
Second, even if Glendale were acting outside anarea of traditional state responsibility, Plaintiffs havenot plausibly alleged that Glendale’s actions“intrude[] on the federal government’s foreign affairs

App.14a
power.” Id. at 1074. “To intrude on the federal government’s foreign affairs power, a [state’s action] musthave more than some incidental or indirect effect onforeign affairs.” Cassirer v. Thyssen-Bornemisza
Collection Found., 737 F.3d 613, 617 (9th Cir. 2013)(citation omitted). While Plaintiffs broadly assert thatthe monument “threatens to negatively affect U.S.
foreign relations with Japan,” Plaintiffs do not support this assertion with specific allegations that
Glendale’s actions have had, or are likely to have, any
appreciable effect on foreign affairs. See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007). At most,Plaintiffs allege that various Japanese officials haveexpressed disapproval of the monument. However,Plaintiffs have not further alleged that thisdisapproval has in any way affected relations between
the United States and Japan. In addition, Plaintiffs do
not allege that the federal government has expressed
any view on the monument—much less complained ofinterference with its diplomatic agenda. Thus, Plaintiffs have failed to plausibly allege that Glendale’s
installation of the monument has had “more thansome incidental or indirect effect on foreign affairs.”
Cassirer, 737 F.3d at 617 (citation omitted).
Moreover, in contrast to state actions we havefound preempted, Glendale has taken no action thatwould affect the legal rights and responsibilities of
any individuals or foreign governments. For example,
Glendale has not, as in Von Saher or Movsesian,created a cause of action for victims affected by the
Comfort Women program, or extended the statute oflimitations for any existing cause of action that mightprovide relief to these individuals. See Movsesian, 670
F.3d at 1076-77; Von Saher, 592 F.3d at 965-68. Nor

App.15a
has Glendale imposed any regulatory restrictions on
the exchange of goods manufactured by parties who
may have played a role in the Comfort Women program.
See Crosby, 530 U.S. at 373-74. Rather, by erecting asymbolic display commemorating what it views as ahistorical tragedy, Glendale has appropriately exercised
the expressive powers of a local government andstopped short of interfering with the federal government’s foreign affairs power.
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. As a result, Plaintiffs
have failed to state a claim that Glendale’s actions are
preempted. See Movsesian, 670 F.3d at 1074.9
C. Leave to Amend
Finally, Plaintiffs argue that the district court
abused its discretion by dismissing their complaint
9 As an alternative basis for affirming the district court, Judge
Korman concludes that Plaintiffs lack a cause of action under 42
U.S.C. § 1983. In Judge Korman’s view, the foreign affairs
provisions of the Constitution do not create an individual rightenforceable under Section 1983. He may very well be correct.
However, we decline to address this issue of first impression for
our Court. See Gerling Glob. Reinsurance Corp. of Am. v.
Garamendi, 400 F.3d 803, 810-11 (9th Cir.), as amended on denial of reh’g, 410 F.3d 531 (9th Cir. 2005). It was not raised byeither party to the district court or before us, and the district
court did not rule on this basis. “[W]e are hesitant to address anissue without the benefit of any briefing from the parties.”
Bledsoe v. Bledsoe (In re Bledsoe), 569 F.3d 1106, 1113 (9th Cir.
2009). In any event, we need not reach the issue in this appeal,for “[w]e may affirm the district court’s dismissal on any groundthat is supported by the record.” Hartmann, 707 F.3d at 1121.

App.16a
without granting leave to amend. “Dismissal without
leave to amend is proper if it is clear that thecomplaint could not be saved by amendment.” Kendall
v. Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir.
2008). Before the district court, Plaintiffs did not
request leave to amend, and the district court foundthat no amendment could cure the complaint’s
deficiencies. On appeal, Plaintiffs have not identified
any additional allegations that could save theircomplaint from dismissal. Accordingly, we conclude
that the district court was within its discretion todismiss Plaintiffs’ complaint without leave to amend.
IV. Conclusion
The Constitution places important limits on amunicipality’s ability to engage in matters related toforeign affairs. We conclude that Glendale has notexceeded those limits by installing a monument tocommemorate the Comfort Women. Therefore, thedistrict court properly dismissed Plaintiffs’ preemption claim.
AFFIRMED.

App.17a
CONCURRING OPINION OF JUSTICE KORMAN(AUGUST 4, 2016)
While I agree that Koichi Mera, one of the plaintiffs, meets the “irreducible constitutional minimum”
requirements to allege Article III standing, Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992), and do nottake issue with the manner in which the majority
resolves the merits of the appeal, I write separately tosuggest that the plaintiffs have not alleged a validcause of action that anchors their claim of foreign
affairs preemption. Simply mouthing the words foreign
affairs preemption does not do it. The plaintiffs assert
only in the vaguest manner that their complaint isbrought under 42 U.S.C. § 1983. Nevertheless, Section
1983 cannot support their cause of action. Nor is anequitable cause of action to restrain regulatory action
in violation of the Constitution available here.
I.

Section 1983

The availability of a cause of action under Section
1983 depends upon whether a plaintiff has alleged “thedeprivation of any rights, privileges, or immunities
secured by the Constitution and laws.” 42 U.S.C.
§ 1983; see also Golden State Transit Corp. v. City of
Los Angeles (Golden State II), 493 U.S. 103, 105 (1989).
The right being deprived here cannot be found in theSupremacy Clause, which “is not the ‘source of any
federal rights.’” Armstrong v. Exceptional Child Ctr.,
Inc., 135 S. Ct. 1378, 1383 (2015) (quoting GoldenState II, 493 U.S. at 107); see also Associated Gen.

Contractors, San Diego Chapter, Inc., Apprenticeship& Training Tr. Fund v. Smith, 74 F.3d 926, 931 (9thCir. 1996) (“[P]reemption of state law under theApp.18a
Supremacy Clause—being grounded not on individual
rights but instead on considerations of power—will
not [itself] support an action under section 1983 . . . .”(quoting Segundo v. City of Rancho Mirage, 813 F.2d
1387, 1394 (9th Cir. 1987)); White Mountain Apache
Tribe v. Williams, 810 F.2d 844, 848 (9th Cir. 1985)(“We believe that § 1983 was not intended toencompass those constitutional provisions which allocate power between the state and federal government.”).
Moreover, neither the Supreme Court nor theNinth Circuit has ever recognized that the foreign
affairs provisions of the Constitution, which certainly
do not confer any rights on their face, see, e.g., U.S.
Const. art. II, § 2, cls. 1-2; id. art. I, § 8, cls. 1, 3, 4, 1014, contain an implicit individual right. Indeed, in

Gerling Global Reinsurance Corporation of America v.
Garamendi, 400 F.3d 803 (9th Cir. 2005), we observedthat the district court “may have been correct” in the“abstract” when it concluded that the foreign affairs
power did not “implicate a right, privilege or
immunity secured by the Constitution or laws of theUnited States,” id. at 810. Nevertheless, because we
concluded they were prevailing parties for reasonsthat need not be discussed, the plaintiffs were entitledto an award of counsel fees pursuant to 42 U.S.C.
§ 1988. While we did not definitively resolve the issue,
we “assum[ed] that the foreign affairs power does notconfer rights within the meaning of § 1983.” Gerling,
400 F.3d at 807. Judge Graber, who concurred in the
result, directly addressed the issue. She observed
without qualification that “the foreign affairs power,
like the Supremacy Clause, creates no individual
rights enforceable under 28 U.S.C. § 1983.” Id. at 811.

App.19a
Because I agree that the foreign affairs provisions
create no individual rights, the plaintiffs lack a causeof action pursuant to 42 U.S.C. § 1983.
II.

Equitable Cause of Action

Unlike Section 1983, the availability of an equitable cause of action to enjoin purportedly unconstitutional conduct does not necessarily rely upon the factthat a particular constitutional provision confers anindividual right on the plaintiff Free Enter. Fund v.
Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 491
n.2 (2010). Instead, in a preemption case, the availability of such a cause of action hinges on the plaintiff’s being subject to an enforcement or otherregulatory action. The Supreme Court has longrecognized that a plaintiff may bring a suit to enjoin
unconstitutional regulatory conduct. Courts often cite
as the forebear of that type of equitable action the caseof Ex parte Young, 209 U.S. 123 (1908). See, e.g.,
Verizon Md. Inc. v. Pub. Serv. Comm’n, 535 U.S. 635,
645 (2002). Young was not a preemption case; it
involved a claim by shareholders of a railroad that astate law regulating railroad rates violated, inter alia,
the Fourteenth Amendment’s Due Process Clause.
Nevertheless, the Young Court held that “individuals
who, as officers of the state, . . . threaten and areabout to commence proceedings . . . to enforce against
parties affected an unconstitutional act, violating theFederal Constitution, may be enjoined by a Federal
court of equity from such action.” 209 U.S. at 155-56.
The Supreme Court has applied that holding inpreemption cases, making it clear that, in such cases,
the equitable cause of action is available only to enjoin
acts of regulation. See Armstrong, 135 S. Ct. at 1384

App.20a(“[W]e have long recognized [that] if an individual
claims federal law immunizes him from state regulation, the court may issue an injunction upon finding
the state regulatory actions preempted.”); see also,e.g., Ray v. Atl. Richfield Co., 435 U.S. 151, 155 (1978);Va. Office for Prot. & Advocacy v. Stewart, 563 U.S.
247, 255-56 (2011). In Shaw v. Delta Air Lines, Inc.,
463 U.S. 85 (1983), the Supreme Court reiterated thebasis for these types of suits: “A plaintiff who seeks
injunctive relief from state regulation, on the groundthat such regulation is pre-empted by a federal
statute . . . presents a federal question which thefederal courts have jurisdiction under 28 U.S.C.
§ 1331 to resolve,” id. at 96 n.14; see also Golden StateII, 493 U.S. at 113 (Kennedy, J., dissenting) (“[A]private party can assert an immunity from state or
local regulation on the ground that the Constitution. . . allocate[s] the power to enact the regulation to the
National Government, to the exclusion of the States.”);cf. Alameda Newspapers, Inc. v. City of Oakland, 95
F.3d 1406, 1413 (9th Cir. 1996) (“If a municipality’s
action [in a case asserting preemption by the National
Labor Relations Act] does not rise to the level ofregulation, it is not preempted.”). Although the Shaw
Court dressed the inquiry in the language of “jurisdiction,” rather than of “cause of action,” the two
inquiries are functionally the same in asking why aplaintiff should be allowed to bring the suit in federal
court. Nevertheless, while the questions areintertwined, the Supreme Court recently suggested
that the cause-of-action inquiry is not jurisdictional.

See Lexmark Int’l, Inc. v. Static Control Components,
Inc., 134 S. Ct. 1377, 1387 n.4 (2014).

App.21aMoreover, the Supreme Court’s cases dealing withpreemption specifically in the foreign affairs domain do
not suggest the availability of an equitable cause ofaction outside of the regulatory context. See, e.g., Am.
Ins. Ass’n v. Garamendi, 539 U.S. 396, 409-12 (2003)(insurance companies brought action alleging preemption of California law requiring disclosure of policies
issued to persons in Europe in effect between 1920 and1945); Crosby v. Nat’l Foreign Trade Council, 530 U.S.
363, 367, 370-71 (2000) (companies who did businesswith Burma brought action alleging preemption of a
Massachusetts statute, the purpose of which was toprevent or discourage them from transacting businesswith Burma); Zschernig v. Miller, 389 U.S. 429, 432-33(1968) (striking down state law regulating theinheritance rights of foreign beneficiaries of Oregon
residents because it did so in a way that constituted“an intrusion by the State into the field of foreign
affairs which the Constitution entrusts to the
President and the Congress”). Nor do our cases in thisarea suggest a broader cause of action. See, e.g.,Movsesian v. Victoria Versicherung AG, 670 F.3d 1067,
1070-71, 1077 (9th Cir. 2012) (en banc) (foreign
insurance companies could raise defensively a challenge
to a California law that subjected them to suits in
California “by overriding forum-selection provisions
and greatly extending the statute of limitations for anarrowly defined class of claims” in a way that
constituted an intrusion on the conduct of foreign
policy); Von Saher v. Norton Simon Museum of Art at
Pasadena, 592 F.3d 954, 957-59 (9th Cir. 2009)(similar); Deutsch v. Turner Corp., 324 F.3d 692, 703,
716 (9th Cir. 2003) (similar).

App.22a
In sum, this case involves a purely expressive,
non-regulatory action by the City of Glendale that is
not alleged to, and does not, implicate any rightconferred by the Constitution or laws of the UnitedStates, the predicate for a Section 1983 cause of action. Moreover, because the conduct of the City of
Glendale does not subject plaintiffs to an enforcement
or other regulatory action, it does not come within the
category of cases in which an equitable cause of action
would be available to restrain conduct that touches on
the power of the President or Congress in the area of
foreign affairs.

App.23a
ORDER OF THE DISTRICT COURT(AUGUST 4, 2014)
UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIACIVIL MINUTES-GENERAL________________________MICHIKO SHIOTA GINGERY, ET AL.
v.
CITY OF GLENDALE, ET AL.
________________________
Case No. CV 14-1291 PA (AJWx)
Before: The Honorable Percy ANDERSON, UnitedStates District Judge
Before the Court are a Special Motion to Strike
Pursuant to California Code of Civil Procedure section
425.16 (“Anti-SLAPP Motion”) (Docket No. 19) and a
Motion to Dismiss Pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), or to Strike Pursuant
to Rule 12(f) (“Motion to Dismiss”) (Docket No. 20) filed
by defendant City of Glendale (“Glendale” or “Defendant”). Defendant challenges the sufficiency of theComplaint filed by plaintiffs Michiko Shiota Gingery,
Koichi Mera, and GAHT-US Corporation (collectively“Plaintiffs”). Pursuant to Rule 78 of the Federal Rulesof Civil Procedure and Local Rule 7-15, the Court finds
these matters are appropriate for decision without
oral argument.

App.24aI.

Background

This action concerns the installation of amonument in Glendale’s Central Park. According to
the Complaint, the monument was unveiled on July30, 2013, and includes a 1,100 pound bronze statue ofa young girl in Korean dress sitting next to an empty
chair with a bird perched on her shoulder. Next to thestatue is a plaque that reads, in part:In memory of more than 200,000 Asian andDutch women who were removed from theirhomes in Korea, China, Taiwan, Japan, thePhilippines, Thailand, Vietnam, Malaysia,
East Timor and Indonesia, to be coerced into
sexual slavery by the Imperial Armed Forcesof 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
House Resolution 121 by the United States
Congress on July 30, 2007, urging theJapanese Government to accept historicalresponsibility for these crimes.
It is our sincere hope that these unconscionable violations of human rights never recur.
(Compl. ¶ 11.)
Plaintiffs filed this action for declaratory andinjunctive relief on February 20, 2014. The Complaint
alleges two causes of action. In their first claim, which
Plaintiffs label a claim for “Unconstitutional
Interference with Foreign Affairs Power,” Plaintiffs
allege that Glendale’s erection of the monument

App.25a“interferes with the Executive Branch’s primary authority to conduct foreign relations by disrupting foreign
policy as to the resolution of the historical debate
concerning comfort women. The Public Monument also
violates the Supremacy Clause.” (Compl. ¶ 59.)
According to the Complaint, by installing the Comfort
Women monument, Glendale “has taken a position in
the contentious and politically-sensitive international
debate concerning the proper historical treatment of
the former comfort women. More specifically, given
the inflammatory language used in the plaque that isprominently featured alongside the statue, Glendale
has taken a position at odds with the expressed position of the Japanese Government.” (Compl. ¶ 61.) In
support of their assertion that this Court possesses
subject matter jurisdiction, the Complaint alleges that
this action arises under “42 U.S.C. § 1983; the foreign
affairs powers of the United States, U.S. Const. art. II,
sec. 1, cl. 1, sec. 2, cl. 1; sec. 2, cl. 2; and sec. 3; and theSupremacy Clause, U.S. Constitution, art. VI, cl. 2.”(Compl. ¶ 1.) Plaintiffs’ second cause of action asserts
a supplemental state law claim under the Glendale
Municipal Code alleging that Glendale’s city council
failed to comply with Robert’s Rules of Order when it
approved the placement of the monument.
According to the Complaint, plaintiff Michiko
Shiota Gingery is a resident of Glendale who was bornin Japan and is now a naturalized citizen of the UnitedStates. Plaintiff GAHT-US Corporation (“GAHT-US”)
is a non-profit corporation organized under the laws ofCalifornia. The purpose of GAHT-US is to “provide
accurate and fact-based educational resources to the
public in the U.S., including within California andGlendale, concerning the history of World War II andApp.26a
related events, with an emphasis on Japan’s role.”(Compl. ¶ 7.) Koichi Mera is a Japanese-American
who resides in the City of Los Angeles and is the
President of GAHT-US. The Complaint alleges that
Gingery, Mera, and the members of GAHT-US avoid
using Glendale’s Central Park where the monument
is located because they are “offended by the Public
Monument’s pointed expression of disapproval ofJapan and the Japanese people.” (Compl. ¶ 6.)
Both parties filed Requests for Judicial Notice inwhich they seek to have the Court take judicial noticeof various historical facts and governmental
statements concerning the controversies surrounding
the acknowledgment of responsibility for thetreatment of the Comfort Women and reaction bysome within the Japanese government to the monument. Although neither party has objected to the otherparty’s Request for Judicial Notice, the materials of
which the parties have requested the Court to takejudicial notice are not necessary or relevant to the
Court’s resolution of the pending motions. The Court
therefore denies the parties’ Requests for Judicial
Notice.
The Court has also received two Ex Parte
Applications for Leave to Appear as Amicus Curiae.
The first of the Amicus Applications was filed by The
Global Alliance for Preserving the History of WW II in
Asia (the “Global Alliance”) (Docket No. 39). The
Global Alliance seeks leave to file a proposed Amicus
Brief containing historical information concerning the
Comfort Women. The second Amicus Application was
filed by the Korean-American Forum of California(Docket No. 45) and includes declarations from two
individuals detailing their experiences during WorldApp.27a
War II as Comfort Women. Although the Court hasreviewed the materials submitted by the Amicus
applicants, the Court has concluded that none of theinformation provided by the proposed Amicus applicants is necessary for the Court’s disposition of thepresent motions. The Court therefore has not relied on
any of the information contained in the Amicus
applications in reaching its decision concerning thepending motions. The Ex Parte Applications for Leave
to Appear as Amicus Curiae are therefore denied
without prejudice.
II.

Analysis

In its Anti-SLAPP Motion, Defendant contends
that the Complaint’s first claim alleging violations of
the United States Constitution does not allege a viablefederal claim and is therefore susceptibly to a Motion
to Strike pursuant to California Code of Civil
Procedure section 425.16. Although the Complaint’s
first claim could have been crafted to more clearly
indicate that it is brought pursuant to 42 U.S.C.
§ 1983, the Court concludes that, at a minimum, Plaintiffs’ first claim is intended to be a federal claim,
originally filed in federal court, and that California
Code of Civil Procedure section 425.16 does not apply
to that claim. See Hilton v. Hallmark Cards, 599 F.3d
894, 901 (9th Cir. 2009) (“[T]he anti-SLAPP statutedoes not apply to federal causes of action.”). Because
this Court’s subject matter jurisdiction is based on the
Complaint’s first claim, and that claim is not
susceptible to an anti-SLAPP Motion, the Court will
first address Glendale’s Motion to Dismiss.
In its Motion to Dismiss, Glendale asserts,
pursuant to Federal Rule of Civil Procedure 12(b)(1),

App.28athat Plaintiffs lack standing to pursue their claim
alleging violations of the United States Constitution’s
foreign affairs powers and Supremacy Clause.
Glendale additionally argues, pursuant to Federal
Rule of Civil Procedure 12(b)(6), that Plaintiffs’ constitutional claim fails to state a claim upon which relief
can be granted, presents a political question overwhich the Court should not interfere, andimpermissibly infringes on Glendale’s First
Amendment rights.
A. Lack of Standing
Article III of the United States Constitution
requires that a litigant have standing to invoke thepower of a federal court. Because Article III’s standing
requirements limit subject matter jurisdiction, alawsuit is properly challenged by a rule 12(b)(1) motion to dismiss. See Chandler v. State Farm Mut.
Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). For
the purpose of ruling on a motion to dismiss for lack ofstanding, the Court must accept as true all material
allegations of the complaint and must construe thecomplaint in favor of the complaining party. Maya v.
Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011).
To satisfy Article III standing, a plaintiff mustshow that she has suffered an “‘injury in fact,’” that
there is a “causal connection between the injury,” andthe defendant’s complained-of conduct, and that it islikely “that the injury will be redressed by a favorable
decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61, 112 S. Ct. 2130, 2136-37, 119 L. Ed. 2d 351(1992); see also Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).
To demonstrate an “injury in fact,” a plaintiff mustApp.29aestablish an “invasion of a legally protected interest
which is (a) concrete and particularized [citations] and(b) ‘actual or imminent, not “conjectural” or‘hypothetical.’” Lujan, 504 U.S. at 560. To meet thistest, the “line of causation” between the alleged
conduct and injury must not be “too attenuated,” and“the prospect of obtaining relief from the injury” mustnot be “too speculative.” Allen v. Wright, 468 U.S. 737,
752 (1984); Maya v. Centex Corp., 658 F.3d 1060, 1070
(9th Cir. 2011).
Plaintiffs assert that their avoidance of Glendale’s
Central Park resulting from their disagreement anddistress over the content of the Comfort Women
monument is a sufficient injury in fact to confer
standing upon them to assert their federal claim. Butthat injury in fact has no causal connection to the constitutional claims alleged in the Complaint. The factthat local residents feel disinclined to visit a local parkis simply not the type of injury that can be considered
to be in the “line of causation” for alleged violations of
the foreign affairs power and Supremacy Clause. Thatis, even if Glendale’s placement of the monument didviolate the Constitution’s delegation of foreign affairs
powers to the Executive Branch, and in some way
upset the Supremacy Clause’s constitutional balance
between state and federal authority, the relationshipbetween that legal harm and the offense Plaintiffs
have taken to the existence of the monument is simply
too attenuated to confer standing on Plaintiffs topursue the federal claim they have asserted in this action. See Caldwell v. Caldwell, 545 F.3d 1126, 1133
(9th Cir. 2008) (“Caldwell’s offense is no more than an‘abstract objection’ to how the University’s website
presents the subject. . . . Accordingly, we believe there

App.30a
is too slight a connection between Caldwell’s
generalized grievance, and the government conduct
about which she complains, to sustain her standing toproceed.”).

Barnes-Wallace v. City of San Diego, 530 F.3d

776 (9th Cir. 2008), the case on which Plaintiffs
principally rely to support their purported standing topursue their claims, is readily distinguishable.
Barnes-Wallace involved Establishment Clause andEqual Protection challenges brought on behalf ofagnostic and lesbian parents to the City of San Diego’s
leasing of public land to an organization that excludes
persons because of their religious and sexual
orientations. The causal relationship between thepresence of such an organization on public land as adeterrent to those plaintiffs’ use and enjoyment of thatpublic land, and the Establishment Clause and Equal
Protection claims asserted in that action was far more
direct than is the relationship between the alleged
harms and Supremacy Clause and foreign affairs
power claims pursued by the Plaintiffs in this action.
Id. at 785-86 (“[T]he plaintiffs here are lesbians andagnostics, members of the classes of individuals
excluded and publicly disapproved of by the Boy
Scouts. They are not bystanders expressing ideological disapproval of the government’s conduct.”); seealso Valley Forge Christian College v. Americans
United for Separation of Church and State, Inc., 454

U.S. 464, 485, 102 S. Ct. 752, 765, 70 L. Ed. 2d 700(1982) (“Although respondents claim that the Constitution has been violated, they claim nothing else. They
fail to identify any personal injury suffered by them asa consequence of the alleged constitutional error,
other than the psychological consequence presumablyApp.31a
produced by observation of conduct with which one
disagrees.”).
Finally, Gingery’s concern that the placement of
the monument “presents the potential to disrupt theUnited States’ strategic alliances with its closest East
Asian allies, Japan and South Korea” (Compl. ¶ 6,) is
not a sufficient injury in fact to confer standing. See
Lujan, 504 U.S. at 575, 112 S. Ct. at 2143, 119 L. Ed.
2d 351 (“‘It is an established principle . . . that toentitle a private individual to invoke the judicial
power to determine the validity of executive or
legislative action he must show that he has sustained
or is immediately in danger of sustaining a direct injury
as the result of that action and it is not sufficient that
he has merely a general interest common to allmembers of the public.’”) (quoting Ex parte Lévitt, 302
U.S. 633, 634, 58 S. Ct. 1, 82 L. Ed. 493 (1937)). For
all of the foregoing reasons, the Court concludes that
Plaintiffs lack standing to pursue their federal claim.
B. Failure to State a Claim
Generally, plaintiffs in federal court are required
to give only “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a). While the Federal Rules allow a court todismiss a cause of action for “failure to state a claim
upon which relief can be granted,” they also require
all pleadings to be “construed so as to do justice.” Fed.
R. Civ. P. 12(b)(6), 8(e). The purpose of Rule 8(a)(2) isto “‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.’” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955,
1964, 167 L. Ed. 2d 929 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103, 2 L. Ed. 2dApp.32a80 (1957)). The Ninth Circuit is particularly hostile tomotions to dismiss under Rule 12(b)(6). See, e.g.,
Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 248–49(9th Cir. 1997) (“The Rule 8 standard contains a
powerful presumption against rejecting pleadings for
failure to state a claim.”) (internal quotation omitted).
However, in Twombly, the Supreme Court
rejected the notion that “a wholly conclusory
statement of a claim would survive a motion todismiss whenever the pleadings left open thepossibility that a plaintiff might later establish someset of undisclosed facts to support recovery.” Twombly,
550 U.S. at 561, 127 S. Ct. at 1968 (internal quotation
omitted). Instead, the Court adopted a “plausibility
standard,” in which the complaint must “raise areasonable expectation that discovery will reveal
evidence of [the alleged infraction].” Id. at 556, 127 S.
Ct. at 1965. For a complaint to meet this standard, the“[f]actual allegations must be enough to raise a rightto relief above the speculative level.” Id. at 555, 127 S.
Ct. at 1965 (citing 5 C. Wright & A. Miller, Federal
Practice and Procedure § 1216, pp. 235–36 (3d ed.
2004) (“[T]he pleading must contain something
more . . . than . . . a statement of facts that merely
creates a suspicion [of] a legally cognizable right ofaction”) (alteration in original)); Daniel v. County of
Santa Barbara, 288 F.3d 375, 380 (9th Cir. 2002) (“‘All
allegations of material fact are taken as true andconstrued in the light most favorable to the nonmoving party.’”) (quoting Burgert v. Lokelani Bernice
Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir.
2000)). “[A] plaintiff’s obligation to provide the groundsof his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of theApp.33aelements of a cause of action will not do.” Twombly,
550 U.S. at 555, 127 S. Ct. at 1964–65 (internal
quotations omitted). In construing the Twombly
standard, the Supreme Court has advised that “a court
considering a motion to dismiss can choose to begin byidentifying pleadings that, because they are no morethan conclusions, are not entitled to the assumption oftruth. While legal conclusions can provide theframework of a complaint, they must be supported byfactual allegations. When there are well-pleaded
factual allegations, a court should assume theirveracity and then determine whether they plausibly
give rise to an entitlement to relief.” Ashcroft v. Iqbal,
556 U.S. 662, 679, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d868 (2009).
Even if Plaintiffs possessed Article III standing,dismissal is still appropriate because Plaintiffs havefailed to allege facts that state a cognizable legal
theory. Plaintiffs have alleged no well-pleaded factual
allegations that could plausibly support a conclusionthat the Comfort Women monument in Glendale’s
Central Park, with a plaque expressing “sincere hopethat these unconscionable violations of human rights
never recur,” violates the Supremacy Clause or foreign
affairs powers. See Am. Ins. Ass’n v. Garamendi, 539
U.S. 396, 421, 123 S. Ct. 2374, 2390, 156 L. Ed. 2d 376(2003) (“The exercise of federal executive authority[over the conduct of foreign relations] means that state
law must give way where, as here, there is evidence ofclear conflict between the policies adopted by the two.”).
Plaintiffs’ Complaint provides no well-pleaded
allegations of the required “clear conflict” between thefederal government’s foreign relations policies
concerning recognition of the plight of the Comfort

App.34a
Women and Glendale’s placement of the monument in
its Central Park. Id. Indeed, as alleged in the
Complaint, the plaque accompanying the statue cites
to House Resolution 121, passed by Congress on July30, 2007, “urging the Japanese Government to accept
historical responsibility for these crimes.” (Compl.
¶ 11.)
Any
contrary
conclusion
would
inviteunwarranted judicial involvement in the myriad
symbolic displays and public policy issues that havesome 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 makesimilar claims to those advanced by Plaintiffs in thisaction. Neither the Supremacy Clause nor the Constitution’s delegation of foreign affairs powers to thefederal government prevent a municipality fromacting as Glendale has done in this instance:
Holding that cities are preempted under. . . federal law . . . from making pronouncements on matters of public interest . . .
would mark an unprecedented and extraordinary intrusion on the rights of state andlocal governments. An inherent power of any
sovereign government and one that isfundamental to any form of democracy is theability to communicate with the citizenry.
. . . Absent explicit direction from Congress,
we are not willing to conclude that ourfederal government has chosen to adopt arule that is so antithetical to fundamental
principles of federalism and democracy.

App.35a

Alameda Newspapers, Inc. v. City of Oakland, 95 F.3d
1406, 1415 (9th Cir. 1996).

Glendale’s placement of the Comfort Women
monument in its Central Park does not pose the typeof interference with the federal government’s foreign
affairs powers that states a plausible claim for relief.
Instead, even according to the facts alleged in the
Complaint, Glendale’s placement of the statue isentirely consistent with the federal government’s
foreign policy. Plaintiffs have not asked for leave toamend the Complaint to cure the deficiencies identified
by Defendant. Nor does the Court believe that any
amendment could cure those deficiencies. The Court
therefore concludes that Plaintiffs have failed to statea viable constitutional claim and that any amendment
would be futile. As a result, the Court dismisses Plaintiffs’ first claim with prejudice. See Reddy v. Litton
Industries, Inc., 912 F.2d 291, 296 (9th Cir. 1990). The
Court declines to address Defendant’s remaining arguments in support of its Motion to Dismiss.
C. Supplemental State Law Claim
The Court has supplemental jurisdiction over
Plaintiff’s remaining state law claim under 28 U.S.C.
§ 1367(a). Once supplemental jurisdiction has been
established under § 1367(a), a district court “candecline to assert supplemental jurisdiction over apendant claim only if one of the four categories specifically enumerated in section 1367(c) applies.” Exec.
Software v. U.S. Dist. Court for the Cent. Dist. of Cal.,
24 F.3d 1545, 1555–56 (9th Cir. 1994). The Court may
decline supplemental jurisdiction under § 1367(c) if:“(1) the claim raises a novel or complex issue of State
law, (2) the claim substantially predominates over theApp.36aclaim or claims over which the district court hasoriginal jurisdiction, (3) the district court dismissed
all claims over which it has original jurisdiction, or (4)in exceptional circumstances, there are othercompelling reasons for declining jurisdiction.”
Here, the Court has dismissed the only claim overwhich it has original jurisdiction. Accordingly, theCourt declines to exercise supplemental jurisdiction
over Plaintiffs’ state law claim. See 28 U.S.C.
§ 1367(c)(3). The Court therefore dismisses theComplaint’s second claim without prejudice.
III. Conclusion
For all of the foregoing reasons, the Court
concludes that Plaintiffs lack standing to pursue theirfirst claim for violations of the United States Constitution’s provisions concerning foreign affairs powers
and the Supremacy Clause. The Court additionallydetermines that the Complaint’s first claim also fails
to state a claim upon which relief can be granted. The
Court therefore dismisses the Complaint’s first claim
with prejudice. The Court declines to exercise
supplemental jurisdiction over the Complaint’s
remaining state law claim and dismisses that claim
without prejudice. Pursuant to 28 U.S.C. § 1367(d),this Order acts to toll plaintiffs’ statute of limitations
on their state law claim for a period of thirty (30) days,
unless state law provides for a longer tolling period.
Defendant’s Anti-SLAPP Motion is denied as moot.
IT IS SO ORDERED.

App.37a
JUDGMENT OF THE DISTRICT COURT(AUGUST 4, 2014)
UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA________________________MICHIKO SHIOTA GINGERY, KOICHI MERA, and
GAHT-USA CORPORATION

Plaintiffs,v.
CITY OF GLENDALE,

Defendant.

________________________

Case No. CV 14-1291 PA (AJWx)
Before: Percy ANDERSON, United States District
Judge.ss
Pursuant to the Court’s August 4, 2014 Minute
Order granting the Motion to Dismiss filed by defendant City of Glendale (“Defendant”), which dismissed
the sole federal claim asserted by plaintiffs Michiko
Shiota Gingery, Koichi Mera, and GAHT-USA Corporation (collectively “Plaintiffs”) with prejudice, anddeclined to exercise supplemental jurisdiction over
Plaintiffs’ remaining state law claim and dismissed
that claim without prejudice,
IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that Plaintiffs’ federal constitutional
claim for violation of the foreign affairs power andApp.38a
Supremacy Clause is dismissed with prejudice andPlaintiffs’ remaining state law claim is dismissed
without prejudice.
[....]IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that Plaintiffs take nothing and that
Defendant shall have its costs of suit.
IT IS SO ORDERED.
/s/ Percy Anderson
United States District Judge
DATED: August 4, 2014

App.39a
ORDER OF THE NINTH CIRCUITDENYING PETITION FOR REHEARING EN BANC
(OCTOBER 13, 2016)
UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT________________________MICHIKO SHIOTA GINGERY, an individual;
ET AL.,

Plaintiffs-Appellants,
v.
CITY OF GLENDALE, a municipal corporation,

Defendant-Appellee.

________________________
No. 14-56440

D.C. No. 2:14-cv-01291-PA-AJW
Central District of California, Los Angeles
Before: REINHARDT, and WARDLAW, Circuit
Judges, and KORMAN, District Judge.
Judges Reinhardt and Wardlaw voted to deny thepetition for rehearing en banc. Judge Korman
recommended denying it.

 The Honorable Edward R. Korman, United States District
Judge for the Eastern District of New York, sitting by designation.

App.40a
The full court has been advised of the petition forrehearing en banc and no judge requested a vote onwhether to rehear the matter en banc. Fed. R. App. P.
35.
The petition for rehearing en banc is DENIED.

App.41a
COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF(FEBRUARY 20, 2014)
UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA________________________MICHIKO SHIOTA GINGERY, an individual,
KOICHI MERA, an individual, GAHT-US CORPORATION, a California non-profit corporation

Plaintiffs,v.
CITY OF GLENDALE, a municipal corporation,
SCOTT OCHOA, in his capacity as Glendale City
Manager,

Defendants.

________________________
Case No. 2:14-cv-1291

Plaintiffs Michiko Shiota Gingery, Koichi Meraand GAHT-US Corporation (“GAHT”), allege as follows:
JURISDICTION
1. This action arises under, inter alia, 42 U.S.C.
§ 1983; the foreign affairs powers of the United States,
U.S. Const. art. II, sec. 1, cl. 1; sec. 2, cl. 1; sec. 2, cl. 2;
and sec. 3; and the Supremacy Clause, U.S. Constitution, art. VI, cl. 2. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3),

App.42a
and the power to grant declaratory and injunctive
relief under 28 U.S.C. §§ 2201 and 2202. This Court
also has supplemental jurisdiction under 28 U.S.C.
§ 1367 over all claims that are so related to claims in
the action within original jurisdiction such that they
form part of the same case or controversy.
2. Venue is proper in this district pursuant to 28
U.S.C. § 1391(b) because the conduct complained ofoccurred, is occurring, and/or will continue to occur in
Glendale, California, within this judicial district.
Defendant City of Glendale (“Glendale”) maintains its
offices in Glendale, California. Defendant Scott Ochoa(“Ochoa”), who is sued in his official capacity as theCity Manager of Glendale, maintains his offices in
Glendale, California.
NATURE OF THE ACTION
3. Plaintiffs seek injunctive and declaratory
relief relating to the presence of a monument authorized by Glendale and Ochoa and condemning the nation of Japan for its involvement with and treatmentof what have come to be known as “comfort women.”
The monument is located on public land in a publicly
owned park in Glendale known as Central Park, locatedat 201 South Colorado St., Glendale, CA 91205 (the“Public Monument”). Plaintiffs seeks this relief on the
grounds that the Public Monument exceeds the powerof Glendale, infringes upon the federal government’s
power to exclusively conduct the foreign affairs of theUnited States, and violates the Supremacy Clause of the
U.S. Constitution.
4. The Public Monument threatens to negatively
affect U.S. foreign relations with Japan, one of thisnation’s most important allies, and is inconsistentApp.43awith the foreign policy of the United States. That
policy is to encourage the relevant foreign nations
with direct involvement in the historic events
involving comfort women, including the governmentsof Japan and the Republic of Korea (“South Korea”),
to resolve the debate relating to comfort women
between or among themselves without the
involvement of the United States. The proper
historical characterization of the events in issue andthe precise role of national governments in those acts
have been the subject of discussions and negotiations
between the governments of Japan and South Korea
for decades, and remain an active topic of politicaldebate.
5. The emplacement of the Public Monument also
violates Glendale’s Municipal Code.
PARTIES
6. Plaintiff Michiko Shiota Gingery (“Gingery”) isa long-time resident of Glendale. Gingery lives in thevicinity of Central Park and the Public Monument.
Gingery is a founding member of Glendale’s Sister
City Committee, a committee created to develop andadminister Glendale’s Sister City Program. In thiscapacity, Gingery made significant contributions to
Glendale’s establishment of a Sister City relationshipwith the City of Higashiosaka (at the time called
Hiraoka), Japan, Glendale’s first Sister City. Gingery
was born in Japan, and is now a naturalized U.S.
citizen. As a Glendale resident of Japanese heritage,
Gingery believes the Public Monument presents an
unfairly one-sided portrayal of the historical andpolitical debate surrounding comfort women andpresents the potential to disrupt the United States’

App.44astrategic alliances with its closest East Asian allies,
Japan and South Korea. She also believes theemplacement of the Public Monument represents asignificant obstacle in maintaining friendly relations
among Glendale’s sister-cities, the primary objectiveof the Sister City Program. Gingery suffers feelings of
exclusion, discomfort, and anger because of the position espoused by her city of residence through its
display and endorsement of the Public Monument.
Gingery would like to use Glendale’s Central Park and
the Adult Recreation Center located within Central
Park. But she now avoids doing so because she isoffended by the Public Monument’s pointed expressionof disapproval of Japan and the Japanese people. In
addition, the presence of the Public Monument
diminishes Gingery’s enjoyment of the Central Parkand its Adult Recreation Center.
7. Plaintiff GAHT-US Corporation (“GAHT-US”)
is a non-profit public benefit corporation organizedunder the laws of the State of California. The purposeof GAHT-US is to provide accurate and fact-based
educational resources to the public in the U.S., including
within California and Glendale, concerning the history
of World War II and related events, with an emphasis
on Japan’s role. GAHT-US has undertaken this goalin an effort to enhance a mutual historical and cultural
understanding between and among the Japanese andAmerican people. Given its mission, GAHT-US believes
that the Public Monument advances an unfairly biased
portrayal of the Japanese government’s purported
involvement with comfort women during the Second
World War. Individual members of GAHT-US residein Glendale and nearby cities. GAHT-US’s members
suffer feelings of exclusion, discomfort, and anger by

App.45athe continued presence of the Public Monument, andthe controversial and disputed stance on the debate
surrounding comfort women that it perpetuates.
Although GAHT-US members would like to use
Glendale’s Central Park and its Adult Recreation
Center, they no longer intend to do so as a result of
their distress due to the Public Monument. In addition, the presence of the Public Monument diminishes
GAHT-US members’ enjoyment of the Central Parkand its Adult Recreation Center.
8. Plaintiff Koichi Mera (“Mera”) is a JapaneseAmerican resident of the City of Los Angeles and thePresident of GAHT-US. Mera disagrees with and isoffended by the position espoused by Glendale throughthe Public Monument and its pointed condemnation of
the Japanese people and government. Although Mera
would like to use Glendale’s Central Park and its
Adult Recreation Center, as a result of his alienation
due to the Public Monument, he avoids doing so. In
addition, the presence of the Public Monument
diminishes Mera’s enjoyment of the Central Park andits Adult Recreation Center.
9. Defendant Glendale is a political subdivision of
the State of California operating under a charter authorized by the State of California that empowers it topass lawful ordinances and to govern and administermunicipal activities within Glendale’s city limits, withauthority to be sued in its own name. Glendale’s
governing authority consists of city council, composedof five city council members (the “City Council”), one ofwhom also serves as the mayor. The City Council
makes policy decisions for Glendale, including
decisions regarding the use of public lands.

App.46a
10. At all relevant times hereto, defendant Ochoa
has been the duly appointed City Manager of Glendalewith supervisorial responsibility over the day-to-day
administration of Glendale’s various departments andstaff, including but not limited to Glendale’s
Department of Community Services and Parks,
Department of Public Works, Department ofCommunity Development, and Department of Management Services; these departments in one or anothermanner are involved in the management and operation of Central Park and/or the Public Monument.
Ochoa effectively acts as, and is publicly held out to
operate as, Glendale’s Chief Executive Officer. At all
relevant times with respect to the Public Monument,
Ochoa acted under color of state law and with thepower and authority granted to him by the State ofCalifornia and Glendale to deprive Plaintiffs of theirfederal constitutional rights, for which Plaintiffs seek
injunctive and declaratory relief.
FACTUAL BACKGROUND
Glendale’s Public Monument
11. At a Special Meeting on July 9, 2013, theCity Council approved the installation of the Public
Monument, described as “a Korean Sister City ‘Comfort
Woman’ Peace Monument,” on a substantial portion of
public land immediately adjacent to the Adult Recreation
Center Plaza in Central Park. The Public Monument
was unveiled 21 days later, on July 30, 2013. The Public
Monument is a 1,100-pound bronze statue of a young
girl in Korean dress sitting next to an empty chairwith a bird perched on her shoulder. Integral to andalongside the statue is a permanent bronze plaquethat reads:

App.47a
I was a sex slave of Japanese militaryTorn hair symbolizes the girl being snatchedfrom her home by the Imperial Japanese Army.



Tight fists represent the girl’s firm resolve fora deliverance of justice.

Bare and unsettled feet represent having beenabandoned 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 witnessedjustice.

Shadow of the girl is that of an old grandma,
symbolizing passage of time spent in silence.



Butterfly in shadow represents hope thatvictims may resurrect one day to receive theirapology.
Peace Monument

In memory of more than 200,000 Asian andDutch women who were removed from theirhomes in Korea, China, Taiwan, Japan, thePhilippines, Thailand, Vietnam, Malaysia,
East Timor and Indonesia, to be coerced into
sexual slavery by the Imperial Armed Forcesof 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App.48aJapanese Government to accept historicalresponsibility for these crimes.
It is our sincere hope that these unconscionable violations of human rights shallnever recur.
July 30, 2013.
12. No other monuments are present in this areaof Central Park and, upon information and belief, noother permanent markers may be placed there without
approval of the City Council.
13. Glendale exercises exclusive custody andcontrol of Central Park and the Public Monument, andupon information and belief, provides all necessary
maintenance services for the Public Monument.
The Historical Background of the Debate Concerning
Comfort Women
14. During World War II and the decade leading
up to it, an unknown number of women from Japan,
Korea, China, and a number of nations in Southeast
Asia, were recruited, employed, and/or otherwise acted
as sexual partners for troops of the Japanese Empire
in various parts of the Pacific Theater of war. These
women are often referred to as comfort women, a loosetranslation of the Japanese word for prostitute.
15. Beginning in the 1980s, a dispute arose
between South Korea and the government of Japan
concerning the hardships experienced by Korean
comfort women and whether the Japanese government forcefully recruited comfort women.
16. Officials of the Japanese government assertthat the Japanese military and Japanese ImperialApp.49agovernment were not responsible for or directly
involved in the recruitment of comfort women, andthat private firms and individuals undertook therecruitment.
17. Other governments, including that of South
Korea, claim that comfort women were recruited by
and/or forced into sexual slavery by the Imperial
Japanese government and/or officials of the Japanesemilitary.
18. The debate concerning historic responsibility
for the comfort women camps has been a significant
and ongoing source of tension in recent decades
between Japan and South Korea, both of which are
critical American allies. Disagreements concerning
responsibility for comfort women are a major
impediment to improved present-day relations
between Japan and South Korea, which are less thancordial.
Efforts by Japan and South Korea to Address the
Dispute19. After some years of controversy regarding
the Japanese Imperial Government’s alleged involvement with comfort women, in 1995 Japan establishedthe Asian Women’s Fund to distribute compensation
to former comfort women in South Korea, thePhilippines, Taiwan, the Netherlands, and Indonesia,
and to provide them with letters of apology from thePrime Minister of Japan.
20. Nonetheless, several governments, including
the government of South Korea, have continued todemand that Japan take additional steps to redress
grievances relating to comfort women.

App.50a
21. The Japanese government asserts that all
World War II-related claims against Japan, including
those related to comfort women, were resolved by theTreaty of Peace signed in San Francisco by Japan, theUnited States, and 47 other allied nations in 1951 (the“Treaty of San Francisco”), the Treaty on Basic
Relations between Japan and the Republic of Korea
dated June 22, 1965, and/or the Agreement on the
Settlement of Problems Concerning Property and
Claims and on Economic Co-operation between Japanand the Republic of Korea also dated June 22, 1965
(the “Settlement Agreement”).
22. Article 4(a) of the Treaty of San Francisco
provides that claims of Korean and Chinese nationals
relating to Japan’s wartime conduct, including issues
related to comfort women, are to be addressed throughgovernment-to-government negotiations between
Japan and each of those countries.
23. Article 2(1) of the Settlement Agreement
provides that the “problem concerning property, rights
and interests of the two Contracting Parties [i.e.,
Japan and South Korea] and their nationals (including
juridical persons) and concerning claims between theContracting Parties and their nationals . . . is settled
completely and finally.”
24. In December 2011, Japanese Prime Minister
Yoshihiko Noda and South Korean President Lee
Myung-bak held talks in Kyoto, Japan in an effort toimprove bilateral relations between the two neighboring countries. The discussions terminated when
President Lee pressed Prime Minister Noda to takeadditional responsibility for Korean comfort women.
Plaintiffs are informed and believe that no further

App.51a
discussions between Japan and South Korea havesince taken place.
Glendale’s Installation of the Public Monument
25. Glendale has established a Glendale Sister
Cities program to initiate ongoing communication and“promote[] interest and good will” between and among
Glendale and its Sister Cities. As of March 2009,
Glendale had six Sister City partnerships:
Higashiosaka, Japan; Hiroshima, Japan; Tlaquepaque, Mexico; Rosarito, Mexico; Ghapan, Armenia;
and Goseong City, the Republic of Korea.
26. On September 6, 2011, the City Council
instructed Glendale’s Community Services and Parks
staff to explore the possibility of dedicating a portionof public land within Glendale for acceptance andinstallation of memorials, monuments, and/or
artifacts representative of Glendale’s sister city
partners.
27. On March 26, 2013, the City Council voted to
dedicate a plot of public land within Central Park andadjacent to the Adult Recreation Center Plaza for the
purpose of sister city-related monuments andmemorials.
28. In the spring and summer of 2013, a proposal
was made to place a statue in Central Park dedicatedto comfort women. During that period, the City
Council received hundreds of letters and emails in
opposition to the installation of the monument, almost
entirely from residents and interested persons ofJapanese ancestry.
29. At a July 9, 2013 Special Meeting the City
Council considered and approved a motion to installApp.52athe Public Monument, described as a “Korean Sister
City ‘Comfort Women’ Peace Monument,” on public land
within Central Park. The report recommending
approval of the installation of the Public Monument,
submitted to the City Council in conjunction with the
motion, included a schematic diagram depicting the
proposed statue and its location. The inclusion of the
motion to approve installation of the Public Monumentin the Special Meeting agenda was submitted to andapproved by Ochoa.
30. The schematic diagram of the proposed statue
did not include any mention of, or reference to, the textof the plaque that currently is part of the Public
Monument. During the Special Meeting, City Council
Member Ara Najarian asked Glendale Community
Relations Coordinator Dan Bell whether the statue
would be accompanied by a plaque and, if so, its inscription. Mr. Bell advised the City Council that the plaquewould say that it was “commemorating and in honorof the comfort women.” Mr. Bell made no mention of
the text of the plaque that ultimately was installed aspart of the Public Monument.
31. During the Special Meeting, numerous
individuals, including Japanese-Americans, publicly
opposed and condemned the proposed installation of
the statue, arguing that the comfort women issue is amatter of current diplomatic communications between
South Korea and Japan, and the disputed viewadvanced by the South Korean government on comfort
women.
32. Notwithstanding the numerous objections
voiced at the Special Meeting, the City Council
approved the installation of the “Korean Sister City
‘Comfort Women’ Peace Monument” “as shown andApp.53a
described in the Report to Council dated July 9, 2013”by a vote of 4 to 1. Glendale Mayor Dave Weaver, who
voted against installation of the Public Monument,
later explained in a letter to Yoshikazu Noda, Mayorof Higashiosaka, Japan (a Glendale sister city) thatthe dispute over comfort women “is an international
one between Japan and South Korea and the City of
Glendale should not be involved on either side.”
33. Three weeks after the City Council’s
approval, on July 30, 2013, the 1,100 pound bronze
Public Monument was unveiled in Central Park. As
described above, the statue was accompanied by aplaque accusing the Japanese government of“coerc[ing]” more than 200,000 women “into sexual
slavery,” and “urging the Japanese Government toaccept historical responsibility for these crimes,”
which it labels an “unconscionable violations ofhuman rights.” The City Council never voted toapprove the language included on the plaque.
34. Following the Public Monument’s installation, at the July 30, 2013 Meeting of the City Council,
Glendale City Council Member Laura Friedman
commented: “We really put the city of Glendale on theinternational map today by doing this.”
35. The installation of the Public Monument
prompted opponents of the Public Monument to commence a petition to compel its removal. The petition,
posted on President Barack Obama’s website “We The
People” in late 2013, quickly received more than
108,000 signatures.

App.54a
The Japanese Government’s Reaction to the Public
Monument
36. Glendale’s decision to install the Public
Monument has elicited numerous unfavorable reactions from the Japanese government.
37. On July 24, 2013, Kuni Sato, the press
secretary of the Japanese Ministry of Foreign Affairs,
expressed Japan’s official displeasure, remarking that
installation of the Public Monument “does not coincidewith our understanding” of the comfort women dispute.
38. On July 25, 2013, Yoshikazu Noda, the Mayorof Glendale’s sister city, Higashiosaka, Japan, advised
the City Council that the installation of the Public
Monument was “an extremely deplorable situation andthe people of Higashiosaka are hurt at a decision madeby [Glendale] city to install a comfort woman
monument.”
39. On July 31, 2013, Kenichiro Sasae, Japanese
Ambassador to the United States, declared that
Glendale’s action is “irreconcilable” with the positionof the Government of Japan and is “highly regrettable.”
40. On July 31, 2013, Mr. Yoshihide Suga, Japan’s
Chief Cabinet Secretary, described Glendale’s decision
to install the Public Monument as “extremely
regrettable.” He added that Glendale’s action “conflicts
with the [Japanese] government’s view that the issueof the comfort women should not be part of any
political or diplomatic agenda.”
41. On August 13, 2013, Japanese Prime
Minister Shinzo Abe stated that he was “extremelyApp.55adissatisfied” with the installation of the Public
Monument.
42. On January 16, 2014, after being denied arequest to meet with Glendale’s Mayor and City
Council, an association of 321 local Japanese government legislators submitted an official letter to
Glendale, protesting the Public Monument’s installation “in the strongest terms” and requesting “that thestatue be removed immediately.” The letter advised
Glendale that “the distorted view of history that thestatue represents . . . will surely jeopardize world
peace and the possibility of a bright future for ourchildren.”
The Executive Branch’s Foreign Policy Position on
Comfort Women
43. The Executive Branch of the United States,
which has primary authority over the direction andconduct of U.S. foreign affairs, consistently has soughtto avoid having the United States become embroiled
in the contentious historical debate concerning
comfort women between its two most important East
Asian allies.
44. For example, on May 8, 2001, the UnitedStates filed a Statement of Interest in connection witha lawsuit brought by 15 former comfort women
against Japan entitled Joo v. Japan, United States
District Court for the District of Columbia, Case No.
1:00-cv-02233-HHK. That Statement of Interest warned
that addressing the comfort women issue in the UnitedStates could disrupt Japan’s “delicate” relations with
China and Korea, thereby creating “serious implications
for stability in the region.”App.56a
45. Based upon the Statement of Interest, theUnited States Court of Appeal for the District ofColumbia Circuit dismissed the Joo case as presenting
nonjusticiable political questions, holding that“choosing between the interests of two foreignstates . . . would adversely affect the foreign relationsof the United States.”
46. The United States continues to encourage
resolution of the comfort women issue between Japanand its neighbors through government-to-government
negotiations. During a January 7, 2013 press briefing,
White House Spokesperson Victoria Nuland reported
that the Administration “continue[s] to hope that thecountries in the region can work together to resolve
their concerns over historical issues in an amicable
way and through dialogue. As you know, we have no
closer ally than Japan. We want to see the newJapanese Government, the new South Korean Government, all of the countries in Northeast Asia working
together and solving any outstanding issues, whether
they are territorial, whether they’re historic, throughdialogue.”
47. During a trip to Seoul, South Korea inFebruary 2014, U.S. Secretary of State John Kerrysaid: “It is up to Japan and [South Korea] to put
history behind them and move the relationship forward.
And it is critical at the same time that we maintainrobust trilateral cooperation.” “We urge our friends inJapan and South Korea, we urge both of them to workwith us together to find a way forward to help resolve
the deeply felt historic differences that still havemeaning today . . . . We will continue to encourageboth allies to find mutually acceptable approaches tolegacy issues from the past.”

App.57a
48. In February 2014, Daniel Russel, the U.S.
Assistant Secretary of State for East Asian and PacificAffairs, commented that the U.S.’s position on the
comfort women issue is to continue efforts to help
manage “sensitive historical legacy problems in a waythat contributes to healing and forgiveness in []conversations in Japan and elsewhere in the region.”
The Public Monument Threatens Irreparable Injury
to Plaintiffs
49. Despite vocal domestic and international
public protest, Glendale persisted in installing the
Public Monument, forcing Plaintiffs to bring this action.
50. Allowing the Public Monument to remain inplace in Glendale’s Central Park threatens
irreparable injury to Gingery, Mera, GAHT-US, andits members. As a longtime resident of Glendale withactive involvement in Glendale’s Sister City Program,the presence of the Public Monument within thedesignated Sister City area of Glendale’s Central Park
has turned visiting Central Park into a highly
offensive endeavor, effectively denying Gingery fullenjoyment of the Park’s benefits.
51. The presence of the Public Monument has
had a similar impact on GAHT-US’s members,
including Mera, who avoid using and benefitting from
Glendale’s Central Park.
52. Plaintiffs have no adequate remedy at law toaddress the foregoing injuries.
53. If the Public Monument is removed, Plaintiffs will again make use of Glendale’s Central Parkand its Adult Recreation Center.

App.58a
54. An actual controversy has arisen and now
exists between Plaintiffs and Defendants.
55. Plaintiffs contend that installation of the
Public Monument unconstitutionally intrudes on the
Executive Branch’s authority to conduct American
foreign policy, and that Glendale’s installation of the
Public Monument violates Glendale’s Municipal Code.
56. Plaintiffs are informed and believe that
Defendants disagree with Plaintiffs’ contentions as set
forth in the prior paragraph.
57. A justiciable controversy therefore exists
between Plaintiffs and Defendants and a judicial
declaration is necessary and appropriate at this timein order to determine the legality of Glendale’s installation of the Public Monument.
FIRST CLAIM FOR RELIEF(Unconstitutional Interference With
Foreign Affairs Power)
58. Plaintiffs repeat and incorporate the allegations of Paragraph 1 through 57 herein.
59. The Public Monument interferes with the
Executive Branch’s primary authority to conduct foreign
relations by disrupting federal foreign policy as to theresolution of the historical debate concerning comfort
women. The Public Monument also violates theSupremacy Clause.
60. The Executive Branch’s authority in the fieldof foreign affairs is violated by state or local actions
that have more than an incidental or indirect effect on,or that have the potential for disruption orembarrassment of, United States foreign policy.

App.59a
61. Glendale’s installation of the Public Monument has a direct impact on U.S. foreign policy that isneither incidental nor indirect. By installing the
Public Monument, Glendale has taken a position in
the contentious and politically-sensitive international
debate concerning the proper historical treatment of
the former comfort women. More specifically, given
the inflammatory language used in the plaque that isprominently featured alongside the statue, Glendale
has taken a position at odds with the expressed position of the Japanese government.
62. The Public Monument is inconsistent withthe dual foreign policy objectives promulgated by the
Executive Branch on this controversial issue: (1) avoid
taking sides in this sensitive historical and politicaldebate between the United States’ two mostimportant East Asian allies; and (2) encouraging a
resolution to the current diplomatic impasse between
the two countries through further government-to-government negotiations.
63. As the reactions from the highest echelons of
the Japanese government make clear, Glendale’s
actions have great potential for disrupting the delicate
diplomatic line struck by the Executive Branch on thiscontentious issue. The Public Monument thus
threatens to undermine the U.S. government’s foreign
relations with a critical Asian ally and, more generally, to destabilize already strained diplomatic
relations in this important region of the world.
64. Glendale’s action also takes a position on amatter of foreign policy with no claim to be addressing
a traditional state responsibility.

App.60a
65. The actions of Glendale and the City Council
in approving and installing the Public Monument are
beyond its authority, in violation of the U.S. Constitution’s foreign affairs power and the Supremacy
Clause, and the Public Monument therefore must be
removed.
66. The actions of defendant Ochoa in approving
and submitting the proposal to install the Public
Monument on public land, and in including a motion
to approve the installation in the Special Meeting
Agenda, are beyond his authority and unconstitutional, and the Public Monument therefore must be
removed.
SECOND CLAIM FOR RELIEF(Violation of the Glendale Municipal Code)
67. Plaintiffs repeat and incorporate the allegations in Paragraph 1 through 66 herein.
68. Glendale Municipal Code Section 2.04.140
provides: “In all matters and things not otherwise
provided for in this chapter, the proceedings of thecouncil shall be governed under Robert’s Rules ofOrder, revised copy, 1952 edition.” Pursuant to Robert’s
Rules of Order, to introduce a new piece of business or
propose a decision or action, a motion must be madeby a group member. A second motion must then also be
made. And after limited discussion, the group thenvotes on the motion. A majority vote is required for the
motion to pass.
69. The Public Monument was not properly
approved by the City Council pursuant to Glendale
Municipal Code Section 2.04.140. An integral part of
the Public Monument—the plaque that specificallyApp.61a
attributes responsibility for, inter alia, “snatching[women] from their homes” and “coerc[ing them] into
sexual slavery” to Japan—was neither proposed to theCity Council nor made the subject of a motion to theCity Council, and was not approved by it, as required.
In fact, the proposed language presented to theCouncil never mentioned Japan at all, and the City
Council was specifically advised that the inscription
on the plaque would be different than the inscription
ultimately used.
70. As a result, the installation of the monument
violated the Glendale Municipal Code.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for the following
relief:
1. That the Court declare Glendale’s installationof the Public Monument unconstitutional and null andvoid;
2. That the Court preliminarily and permanently
enjoin and compel defendants, and each of them, toremove the Public Monument from public property in
Glendale, including but not limited to, any area in or
adjacent to Central Park;
3. That the Court award Plaintiffs their costs andattorneys’ fees pursuant to 42 U.S.C. § 1988; and4. For such other and further relief as the Court
may deem just and proper.
Mayer Brown LLP
Neil M. Soltman
Matthew H. Marmolejo
Ruth ZadikanyApp.62a
Rebecca B. Johns
By:/s/ Neil M. Soltman
Attorneys for Plaintiffs
Michiko Shiota Gingery,
Koichi Mera, and GAHTUS Corporation
Dated: February 20, 2014

App.63a
PLAINTIFFS-APPELLANTS’ OPENING BRIEF(MARCH 13, 2015)
IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT________________________MICHIKO SHIOTA GINGERY, KOICHI MERA,
and GAHT-US CORPORATION,

Plaintiffs-Appellants,
v.
CITY OF GLENDALE, a Municipal Corporation,
SCOTT OCHOA, in his capacity as
Glendale City Manager,

Defendants-Appellees.
________________________
No. 14-56440
On Appeal from United States District Court Central
District of California Case No. 2:14-cv-1291
Honorable Percy Anderson, Judge Presiding
Maxwell M. Blecher
Donald R. Pepperman
Taylor C. Wagniere
Blecher Collins Pepperman & Joye
515 South Figueroa Street,
Suite 1750
Los Angeles, CA 90071-3334
Telephone: (213) 622-4222
Attorneys for PlaintiffsAppellants

Ronald S. Barak
Law Offices of Ronald S. Barak
206 Giardino Way
Pacific Palisades, CA 90272
Telephone: (310) 459-3963
Attorneys for PlaintiffsAppellants

App.64a
CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure
26.1, none of the Plaintiffs-Appellants has a parent
corporation, subsidiaries, or affiliates that have issued
shares to the public.
STATEMENT OF JURISDICTION(A) District Court Jurisdiction: The district court
had subject matter jurisdiction pursuant to 28 U.S.C.
§§ 1331, 1343(a)(3), and 1367.
(B) Appellate Jurisdiction: Plaintiffs-Appellants
are appealing from the district court’s final judgment
and order granting Defendants-Appellees’ Motion toDismiss, entered on August 4, 2014. (ER 18-19.)1
Plaintiffs-Appellants timely filed a Notice of Appeal
on September 3, 2014. (ER 01-17.) This Court has
jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF ISSUESPRESENTED FOR REVIEW
1. Whether the district court erred in denying
leave to amend the Complaint?
2. Whether the district court erred in holdingthat Plaintiffs-Appellants lacked standing to bring aforeign affairs preemption claim against the City of
Glendale to challenge the installation and maintenanceof a 1,100 pound statue and plaque on public lands
that unconstitutionally intrudes on the federal government’s foreign affairs powers, where PlaintiffsAppellants suffered injury-in-fact by being unable touse and enjoy the public land where the monument and
1 “ER” refers to the Excerpts of Record filed concurrently.

App.65a
plaque were installed and/or, in the alternative, where
Plaintiff-Appellant Michiko Shiota Gingery has
municipal taxpayer standing?
3. Whether Glendale’s action is preempted by thefederal government’s exclusive authority to regulate
foreign affairs?
STATEMENT OF THE CASE
A.

Introduction

This is a case concerning whether the City of
Glendale, acting without any basis of traditional local
government authority, can purposefully inject itself
into a highly-charged and contested area of foreign
affairs by installing a 1,100 pound monument andaccompanying plaque concerning Comfort Women thatby their very nature and existence threaten
diplomatic relations with Japan, one of the UnitedStates’ closest international friends and allies. In July
2013, even though Glendale’s then-mayor recognizedthat the historical dispute over World War II Comfort
Women “is an international one between Japan andSouth Korea and the City of Glendale should not be
involved on either side” (ER 62, ¶32), Glendale
approved and installed in its Central Park a bronze
statue of a young girl in Korean dress sitting next toan empty chair with a bird perched on her shoulder.
(ER 57-58, ¶11.) Integral to and featured prominently
next to the bronze statue is a permanent granite
plaque that was never approved by the City Council.
Among other language describing the statue, theplaque contains the following language concerning
Japan’s activities during World War II:“I was a sex slave of the Japanese Military”;

App.66a“In memory of 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 Forcesof 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 the 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 shallnever recur.” (Id.)
Regardless of the historical accuracy of thesestatements (and, to be sure, there is significant
scholarly and diplomatic debate in the highest levelsof government as to what actually occurred), theinstallation of this monument and plaque—taking aforeign affairs position that Japan violated international
human rights law by coercing women into sexual
slavery and advocating that an important friend andally of the United States “accept historical responsibility
for these crimes”—clearly interferes with foreign
affairs, and violates the Supremacy Clause. Glendale’s
actions are thus preempted.
To be clear, these are not anodyne statements
merely “commemorating” historical events; this isadvocacy on the part of Glendale directed at Japan.
Indeed, public responses from the highest echelon of

App.67a
the Japanese Government, including Japan’s Prime
Minister, Japan’s Chief Cabinet Secretary, andJapan’s Ambassador to the United States, all confirm
that Glendale’s advocacy has created significant
diplomatic tensions with Japan. (ER 63-64, ¶¶36-42.)
Glendale knew this was to be expected. Since atleast 2001, the U.S. Government has taken the firm
position that the Comfort Women issue should be
dealt with exclusively by the federal government
because any other course could disrupt Japan’s“delicate” relations with China and South Korea andcreate “serious implications for stability in the region.”(ER 64, ¶44.) Glendale should not have addressed thisissue, especially through an unconstitutionalmonument and plaque on public lands.
The question before this Court is not whether
human rights atrocities were committed by Japan
during World War II, but instead whether a California
city may label Japan a violator of international humanrights for alleged actions during World War II andadvocate that Japan’s present government accept
public and international responsibility. Furthermore,
the question is who has standing to bring such a claim.
Neither one of these issues requires this Court to do
anything more than apply clearly establishedSupreme Court and Ninth Circuit precedent. This
Court can do so without entangling itself in foreign
affairs.
Notwithstanding clearly established precedent inthis Circuit providing Plaintiffs-Appellants (“Plaintiffs”) with standing, the district court held that Plaintiffs lacked standing to raise these claims because thiswas not an Establishment Clause case. (ER 23.) The
district court also held—even though it no longer had

App.68a
jurisdiction once it resolved the standing inquiry
against Plaintiffs—that they also failed to state aclaim upon which relief could be granted. (ER 24-26.)
It also refused leave to amend—even one time. (ER 26.)
This appeal now follows.
B.

Factual Background

Glendale is a small municipality in California.
(ER 56, ¶9.) Glendale’s governing authority consists ofa five-member city council (“City Council”), one ofwhom also serves as Glendale’s mayor. (Id.) Glendale’s
Central Park contains an Adult Recreation Center,
which the residents of Glendale and the surrounding
areas may freely use. (ER 57-58, ¶11.) Glendale
installed the monument and plaque immediately
adjacent to the Adult Recreation Center in Central
Park. (Id.)
Plaintiff Michiko Shiota Gingery is a long-time
resident of Glendale who would like to use the Adult
Recreation Center and enjoy Central Park. (ER 54-55,¶6.) As a Glendale resident of Japanese heritage, shestrongly believes the monument and plaque present
an unconstitutional and unfairly one-sided portrayalof the debate surrounding Comfort Women. She thus
suffers feelings of exclusion, humiliation, and anger
because of the unconstitutional monument and plaque’s
allegations concerning the Japanese during World War
II. (Id.) Plaintiff Koichi Mera is a Japanese-American
living in nearby Los Angeles. He is similarly alienated,humiliated, and angered by the unconstitutionalmonument and plaque. (ER 55-56, ¶8.) Despite wanting
to make use of Central Park, both Gingery and Mera
avoid using Central Park and the Adult Recreation

App.69a
Center because of the unconstitutional monument andplaque. (ER 54-56, ¶¶6, 8.)
The presence of the monument and plaque also
negatively affect Plaintiff GAHT-US Corporation’s(“GAHT-US”) local members, who avoid using andbenefitting from Glendale’s Central Park. (ER 66,¶51.) GAHT-US is a California non-profit corporation
with the purpose of strengthening the historical andcultural ties between the Japanese and American
people by providing educational resources about
World War II history and, specifically, Japan’s
involvement in World War II. (ER 55, ¶7.) Several of
GAHT-US’s members live in Glendale and thesurrounding areas. (Id.) These members suffer
feelings of exclusion, humiliation, and anger, and do
not use the Central Park or Adult Education Centeron account of the unconstitutional monument andplaque. If the monument and plaque were removed,
Plaintiffs would make use of Central Park and thefacilities located in it. (ER 66, ¶53.)
1. The Monument and Plaque
On July 30, 2013, Glendale installed the monument in Glendale’s publicly-owned Central Park near
the Adult Recreation Center. (ER 57-58, ¶11.) The
monument was approved at a Special Meeting ofGlendale’s City Council on July 9, 2013, during whicha schematic diagram depicting the proposed statue
and its location—but not the text of its accompanying
plaque—was presented to the City Council and the
public. (ER 61-62, ¶¶29-30.)
The monument and plaque relate to historicallycontested international events that occurred duringApp.70a
World War II concerning the allegedly forced recruitment of women who served as sexual partners for theJapanese Imperial Army. (ER 58-59, ¶¶14, 18.) The
heated international debate concerning responsibility
for these women, known as “Comfort Women,”
continues to this day, and has been a source ofcontinuing and substantial tension between thenations of Japan and South Korea in recent decades.
(ER 59, ¶18.) Japan asserts that all World War IIrelated claims were resolved pursuant to the Treaty ofPeace signed in 1951 by Japan, the United States, andnearly 50 other allied nations. (ER 60, ¶¶21-23.) Japan
also established the Asian Women’s Fund in 1995 tocompensate former Comfort Women in numerous
countries including South Korea. (ER 59, ¶19.) South
Korea, however, contends that the Comfort Women
issue remains unresolved and unredressed. (Id., ¶20.)
As recently as December 2011, the Comfort Women
issue was divisive in discussions between Japan’s
then-Prime Minister Yoshihiko Noda and South Korea’s
then-President Lee Myung-bak. (ER 60, ¶24.) In fact,
discussions aimed specifically at strengthening therelationship between the two countries terminatedwhen South Korea’s President Lee urged Japan’s Prime
Minister Noda to take additional responsibility for
Comfort Women. (Id.)
The federal government has generally andrightfully sought to avoid becoming a party to thiscontentious historical debate between its important
Asian allies. (ER 64, ¶43.) In 2001, the United States
filed a Statement of Interest in connection with adifferent lawsuit, Joo v. Japan, 413 F.3d 45 (D.C. Cir.
2005), brought by former Comfort Women against
Japan in the United States that warned of theApp.71a“delicate” relations involved and that pronouncing on
the Comfort Women issue in the United States could
create “serious implications for stability in the [EastAsian] region.” (Id., ¶44; ER 35-51.) In the last two
years, White House Spokesperson Victoria Nuland,
Secretary of State John Kerry, and Daniel Russel,
U.S. Assistant Secretary of State for East Asian andPacific Affairs, have all stated that the Comfort
Women issue is one between Japan and South Korea,
and that the United States is hopeful that the nations
will work together to resolve their differences. (ER 6465, ¶¶46-48.)
2. Local and International Criticism of theMonument and PlaqueBecause of the controversy surrounding Comfort
Women, there has been considerable backlash overthe monument and plaque from members of
Glendale’s community, local Japanese Americans, andJapanese governmental officials. (ER 61-62, ¶¶30-31.)
Public outcry over the outright and unconstitutional
foreign affairs advocacy of the monument and plaquebegan even before the monument and plaque were
unveiled on July 30, 2014. During the City Council’s
Special Meeting on July 9, 2013, numerous people
voiced their opposition to the monument, and manyargued to the City Council that the issue of Comfort
Women is a matter exclusively for diplomatic foreign
relations and that the proposed monument presented
a contentious viewpoint that inappropriately inserted
Glendale into foreign affairs. (ER 62, ¶31.)
After the monument and plaque were installed,
Japanese officials at all levels of government publicly
expressed disapproval of the monument and plaque andApp.72a
Glendale’s foray into international politics. (ER 63-64,¶¶37-42.) On July 24, 2013, the press secretary of theJapanese Ministry of Foreign Affairs commented thatthe monument and plaque “does not coincide with our[Japan’s] understanding” of the Comfort Women
dispute. (ER 63, ¶37.) Over the next week, at least
three other Japanese officials expressed disappointment
with Glendale’s actions. (ER 63-64, ¶¶39-42.) By August
2014, word of Glendale’s actions reached the highest
ranks of the Japanese government. (Id.) On August
13, 2014, Japanese Prime Minister Shinzo Abe statedthat he was “extremely dissatisfied” with the installation of the monument and plaque. (ER 63, ¶41.)
Members of Glendale’s City Council acknowledged
the foreign affairs intrusion of Glendale’s actions on
numerous occasions. At the July 30, 2013 City Council
Meeting, City Council Member Laura Friedman
commented: “We really put the city of Glendale on theinternational map today by doing this.” (ER 62, ¶34.)
Then-Mayor Dave Weaver admitted that it was
inappropriate for Glendale to comment on this specificforeign affairs matter: The dispute over Comfort Women“is an international one between Japan and South
Korea and the City of Glendale should not be involved
on either side.” (ER 62, ¶32.)
Importantly, when the monument was being
considered by the City Council, then-Councilmember
Zareh Sinanyan, now Glendale’s mayor, emphasizedthat Glendale intended to insert itself into foreign
affairs notwithstanding his expressly acknowledged
understanding that such action violated this Court’s
clear case law:
Another argument [is that] Glendale has no
authority to do anything about this issue, it’sApp.73aa federal issue. Just last year, the Turkish
government pushed a lawsuit which theysucceeded on in the Ninth Circuit making
the exact same argument, saying that therecognition of the Armenian genocide bystate authorities was not proper [presumablyreferring to this Court’s decision inMovsesian v. Victoria Versicherung AG, 670
F.3d 1067, 1072 (9th Cir. 2012)] . . . I’m sorry
it’s a moral issue, not a state issue. . . We aretaking a meaningful step to show our moral
support, our sharing of the pain that our
Korean brothers and sisters feel about thisissue . . .2
C.

The District Court’s Dismissal with Prejudice

On August 4, 2014, without any hearing, Judge
Anderson issued an opinion granting Glendale’s Federal
Rule of Civil Procedure 12(b)(1) motion and also,
without jurisdiction to do so, purported to grant
Glendale’s Rule 12(b)(6) motion. (ER 20-27.) In his
Order, Judge Anderson: (1) determined that the Court
2 See Plaintiffs-Appellants’ Motion To Take Judicial Notice filed
concurrently herewith, and Plaintiffs-Appellants’ Motion To File
Physical Exhibit, filed on February 27, 2015 (Doc. #15). This
Court may take judicial notice of these statements. See Fed. R.
Evid. 201(b)(2) (allowing a court to take judicial notice of a fact
“not subject to reasonable dispute because it . . . can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned”); Swartz v. KPMG LLP, 476
F.3d 756, 763 (9th Cir. 2007) (per curiam) (a court may consider“matters properly subject to judicial notice.”). Accordingly, Plaintiffs respectfully request permission file DVD copies of this video.
This content of this video recording can also be found on Defendant’s official website at http://www.glendale.granicus.com/
mediaplayer.php?view_id=12&clip_id=4249.

App.74a
did not possess subject matter jurisdiction; (2) in thealternative, dismissed the case on the merits; (3)declined to exercise supplemental jurisdiction over
Plaintiffs’ state law claim (ER 26); (4) denied Glendale’s
companion special “anti-SLAPP” motion to strike as“moot” (ER 27); and (5) tolled the statute of limitations
on Plaintiffs’ state law claim. (ER 26-27.) Plaintiffs’
federal cause of action was dismissed by Judge
Anderson with prejudice without allowing Plaintiffs toamend their complaint even a single time. (ER 24-26.)
In contravention of controlling precedent, Judge
Anderson ruled that “even if” the Court had subject
matter jurisdiction, “dismissal is still appropriate
because Plaintiffs have failed to allege facts that statea cognizable legal theory.” (ER 25.) On September 3,
2014, Plaintiffs filed a timely Notice of Appeal. (ER 0117.)
STANDARD OF REVIEWThis Court reviews de novo a district court’s
dismissal of a complaint under Rule 12(b) of the Federal
Rules of Civil Procedure. See, e.g., Haisten v. Grass
Valley Med. Reimbursement Fund, Ltd., 784 F.2d 1392,
1396 (9th Cir. 1986) (Rule 12(b)(1) dismissal for lackof subject matter jurisdiction); Ft. Vancouver Plywood
Co. v. United States, 747 F.2d 547, 552 (9th Cir. 1984)(Rule 12(b)(6) dismissal for failure to state a claim).
“For purposes of ruling on a motion to dismiss for wantof standing, both the trial and reviewing courts must
accept as true all material allegations of thecomplaint, and must construe the complaint in favorof the complaining party.” Warth v. Seldin, 422 U.S.
490, 501 (1975); see also Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). WhenApp.75a“reviewing a motion to dismiss,” this Court must notplace “an unreasonable burden” on plaintiffs. Desert
Citizens Against Pollution v. Bisson, 231 F.3d 1172,
1178 (9th Cir. 2000). Furthermore, in a de novo
review, absolutely no appellate deference should begiven to the district court’s decision. Rabkin v. Oregon
Health Scis. Univ., 350 F.3d 967, 970 (9th Cir. 2003).
Instead, this Court must look solely at the allegations
contained in the complaint, as well as any documentsthat are properly subject to judicial notice.
Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522,
526 (9th Cir. 2008). “Dismissal with prejudice andwithout leave to amend is not appropriate unless it isclear on de novo review that the complaint could not
be saved by amendment.” Eminence Capital, LLC v.
Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)(citing Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir.
1996)). Such a dismissal will be affirmed only if itappears “beyond doubt” that the complaint cannot besaved by further amendment. DCD Programs, Ltd. v.
Leighton, 833 F.2d 183, 188 (9th Cir. 1987) (citation
omitted).
SUMMARY OF ARGUMENT
1. The district court erred in dismissing theComplaint and refusing to grant Plaintiffs leave toamend—even once—because the Complaint could
easily be amended to establish standing and state aclaim upon which relief could be granted if that was
not already the case.
2. In any event, the district court crafted an
illogical and inconsistent rule for establishing thestanding of an individual plaintiff who loses theenjoyment and recreational use of public lands on

App.76a
account of the installation and maintenance of an
unconstitutional monument and plaque that injects a
local government into issues of foreign affairs constitutionally reserved for the federal government. The
district court held, notwithstanding this Court’s
controlling precedent in Barnes-Wallace v. City of San
Diego, 530 F.3d 776 (9th Cir. 2008) (recently
reaffirmed as the standing law of this Circuit byBarnes-Wallace v. City of San Diego, 704 F.3d 1067,
1076–77 (9th Cir. 2012)), that an individual plaintiff’s
avoidance of a public park on account of an unconstitutional monument and plaque erected by a city “issimply not the type of injury” that gives rise to
standing to raise a foreign affairs preemption claim.
(ER 23.) While the district court believed it could
decide which injuries are appropriate to afford
standing in a case raising important questions offoreign affairs preemption, this Court has been clearthat district courts should not mix the standing analysis
with the merits. The injury alleged by the individual
Plaintiffs here—psychological injury coupled with theloss of enjoyment and use of Glendale’s Central Parkon account of the installation and maintenance of an
unconstitutional monument and plaque—is precisely
the type of injury-in-fact that this Court has found sufficient for purposes of standing in Barnes-Wallace andnumerous other cases. As Barnes-Wallace iscontrolling precedent, the individual Plaintiffs clearly
have standing to bring suit, and the district court’s
holding to the contrary must be reversed.
Even if the individual plaintiffs do not havestanding under Barnes-Wallace, this Court should
hold that Plaintiff Gingery has municipal taxpayer
standing as she resides in Glendale and pays taxes

App.77athat are used to maintain the monument and plaque,and were used to acquire and maintain the land on
which the monument and plaque sit, in which case the
Court need not reach the standing of the other plaintiffs. Clinton v. City of New York, 524 U.S. 417, 431
n.19 (1998). At a minimum, this Court should grant
Plaintiff Gingery leave to amend her Complaint toshow municipal taxpayer standing.
Given that the individual Plaintiffs clearly havestanding in this case, the Court need not reach theorganizational Plaintiff’s standing. nonetheless, GAHTUS does have standing because one or more of its
members have standing and because the interests atstake are germane to the organization’s purpose andthe participation of individual members is not
required in the lawsuit.
3. Once the district court held that Plaintiffs
lacked standing, it no longer had jurisdiction to
adjudicate the merits. The district court, however,improperly assumed hypothetical jurisdiction andsought to resolve the merits. In light of the unique circumstances of this case where the district court hasgiven every reason to believe that even with Plaintiffs
standing established a 12(b)(6) dismissal is imminent,
this Court should not only find standing, but should
also hold that Plaintiffs state a claim upon which
relief can be granted and remand the case to the
district court for further proceedings consistent withsuch a holding. See Kimes v. Stone, 84 F.3d 1121, 1126
(9th Cir. 1996) (recognizing this Court’s discretion toproceed to the merits on appeal).

App.78a
ARGUMENTI.

THE DISTRICT COURT ERRED IN REFUSING TO GRANTLEAVE TO AMEND—EVEN ONCE

The district court dismissed Plaintiffs’ Complaint
without permitting leave to amend—even once—
contrary to this Court’s controlling case law. See
Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc.,
368 F.3d 1053, 1061 (9th Cir. 2004) (“Dismissal of acomplaint without leave to amend is improper unless
it is clear, upon de novo review, that the complaintcannot be saved by any amendment.”). The district
court provided no justification for this extreme
judgment. There are instances where leave to amend
should not be granted, “such as undue delay, bad faithor dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility ofamendment, etc.” Foman v. Davis, 371 U.S. 178, 182(1962). Plaintiffs’ Complaint falls into none of thesenarrow categories.3
The district court did not base its dismissal on thestatute of limitations or some other reason which
Plaintiffs would be unable to cure by amendment.
3 The district court noted that “Plaintiffs have not asked for leave
to amend the Complaint to cure the deficiencies identified by
Defendant.” (ER 26.) Though never given the opportunity, “[i]t isof no consequence that no request to amend the pleading was
made in the district court.” Schreiber Distrib. Co. v. Serv-Well
Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986) (emphasis
added) (citation omitted). No specific request for leave to amend
is needed to require a district court to comply with Rule 15. Doe
v. United States, 58 F.3d 494, 497 (9th Cir. 1995).

App.79a
Rather, each issue the district court relied upon was
based on facts alleged in the Complaint, which shouldhave been liberally construed in favor of Plaintiffs,
and, to the extent necessary, could have been fixedeasily through amendment.
Despite the district court’s erroneous conclusion
otherwise, allowing Plaintiffs to amend theComplaint—especially for the first time—would nothave been futile. This Court has held that thestandard for futility is extremely high. Miller v.
Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988).
As this brief shows, in particular in Part IIB infra at
26–28, addressing Plaintiff Gingery’s tax standing,amendment would not be futile.4

4 In addition to taxpayer standing, Plaintiffs could have pledfacts, especially with limited discovery, to show, for instance,that Glendale’s City Council erected the monument and plaquein order to influence foreign affairs and to discriminate against
Japan and the Japanese generally. Furthermore, Plaintiffs also
could have added facts demonstrating Glendale’s stigmatic
injury to Plaintiffs (and all Japanese-Americans) based upon thelanguage in the plaque and a resulting cause of action against
Glendale for violation of the Equal Protection Clause of the U.S.
Constitution. See, e.g., U.S. Dep’t of Agric. v. Moreno, 413 U.S.
528, 534–35 (1973) (“For if the constitutional conception of ‘equal
protection of the laws’ means anything, it must at the very least
mean that a bare congressional desire to harm a politicallyunpopular group cannot constitute a legitimate governmental
interest.”).

App.80aII.

PLAINTIFFS HAVE STANDING TO CHALLENGEGLENDALE’S INSTALLATION OF A PUBLIC MONUMENT
AND PLAQUE THAT UNCONSTITUTIONALLY INTERFERES WITH THE FEDERAL GOVERNMENT’S EXCLUSIVE POWER TO REGULATE FOREIGN AFFAIRSThe elements of Article III standing are wellestablished. The plaintiff must allege “(1) an ‘injury infact,’ (2) a sufficient ‘causal connection between the
injury and the conduct complained of,’ and (3) a‘likel[ihood]’ that the injury ‘will be redressed by afavorable decision.’” Susan B. Anthony List v. Driehaus,
134 S. Ct. 2334, 2341 (2014) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). A
complaint need not provide any detailed analysis
establishing the particular injury suffered. Rather, aplaintiff must set forth only general allegations of
injury because the court will “presume that general
allegations embrace the specific facts that are necessary
to support the claim.” Lujan, 504 U.S. at 561 (internal
quotations omitted).
As discussed below, it is clear under this Court’scase law that a plaintiff that alleges psychologicalinjury coupled with the inability to use and enjoy
public land on account of the placement of an unconstitutional monument on that land has standing to sue.
The district court, however, held that this case does
not raise the type of injury that affords a plaintiff
standing to raise a foreign affairs preemption claim.
(ER 23.) There is no legal basis for this holding. Under
the district court’s incorrect rationale, numerous plaintiffs alleging all manner of claims arising from unconstitutional use of public lands—from Establishment
Clause challenges regarding the placement of religious
symbols to challenges to environmental regulations—App.81awould be subject to dismissal for lack of standing inthis Circuit. This Court should hold, following BarnesWallace, that Plaintiffs satisfy all three prerequisites
for standing for the following reasons.
A. The Individual Plaintiffs Have Standing
Because Glendale’s Installation of theMonument and Plaque Directly Results in
Their Psychological Injury and Loss of
Enjoyment and Recreational Use of Glendale’s
Public Land
The individual Plaintiffs have suffered an injuryin-fact because Glendale’s unconstitutional placementof the monument and plaque in Glendale’s Central
Park causes them emotional harm that prevents themfrom using the Central Park and its Adult Recreation
Center, and thus denies them full enjoyment of thepark’s benefits. (ER 54-56, ¶¶6-9.) Plaintiffs avoid
using and enjoying the Glendale Central Park and its
Adult Recreation Center so long as the monument andplaque remain in place on account of strong feelings of
exclusion, discomfort, humiliation, and anger directly
caused by the unconstitutional monument and plaque.
(Id.)
While psychological injury alone is not an injuryin-fact sufficient for standing under Article III, Valley

Forge Christian College v. Americans United for
Separation of Church and State, 454 U.S. 464, 485–86(1982), under Supreme Court case law psychologicalinjury coupled with impairment of aesthetic andrecreational interests in the use of land is without
question sufficient to confer standing, Lujan, 504 U.S.
at 562–63; Duke Power Co. v. Carolina Envtl. Study
Group, Inc., 438 U.S. 59, 73–74 (1978); Sierra Club v.

App.82aMorton, 405 U.S. 727, 734–35 (1972). As the Supreme

Court has recognized, plaintiffs allege injury-in-fact
when they “are persons for whom the aesthetic andrecreational value of the area will be lessened by thechallenged activity.” Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U.S.
167, 182 (2000) (quoting Sierra Club, 405 U.S. at 735.)
This Court has also recognized that standing exists
where plaintiffs’ enjoyment and use of public land
would be diminished by events occurring on the land.
See Ocean Advocates v. U.S. Army Corps of Eng’rs,
402 F.3d 846, 860 (9th Cir. 2005) (holding that a plaintiff organization suffered injury from increased risk ofan oil spill that would impair its aesthetic orrecreational enjoyment of a stretch of Alaskancoastline); see also Alaska Wildlife Alliance v. Jensen,
108 F.3d 1065, 1068 (9th Cir. 1997) (finding standingfor diminished enjoyment of land in part because of“noise, trash and wakes of vessels[.]”).
The specific injury alleged here clearly gives rise
to standing because unconstitutional displays ofmonuments and memorials on public land may cause anindividual such distress (and thus an injury-in-fact)that he/she may no longer freely use and enjoy theland on which the display in located. See e.g., Buonov. Norton, 371 F.3d 543, 547 (9th Cir. 2004) (“We haverepeatedly held that inability to unreservedly use
public land suffices as injury-in-fact.”); BarnesWallace, 530 F.3d at 784 (“We have held that . . .
restrictions on plaintiffs’ use of land constitute
redressable injuries for the purposes of Article III
standing.”); Ellis v. City of La Mesa, 990 F.2d 1518,
1523 (9th Cir. 1993) (“[T]he district court properly
determined that a plaintiff has been injured due to his

App.83aor her not being able to freely use public areas.”)(internal quotations omitted); Hewitt v. Joyner, 940 F.2d
1561, 1564 (9th Cir. 1991) (affirming the district
court’sdetermination
that
“the
plaintiffs
demonstrated an injury in fact by the curtailment of
their right to use a public park.”). Affirmative
avoidance of public lands in light of symbols ormonuments displayed there is more than sufficient toestablish a legally cognizable injury for purposes ofstanding. Vasquez v. Los Angeles County, 487 F.3d
1246, 1252–53 (9th Cir. 2007).
While many of these standing cases arise in thecontext of Establishment Clause challenges to governmental displays of religious symbols on public lands,
this Court has been clear that the standing analysis is
not limited to just Establishment Clause cases. For
instance, in Barnes-Wallace, this Court held that
because the plaintiffs wanted to use portions of a park
leased to the Boy Scouts, but did not do so because
they were “offended” by the Boy Scouts’ policies
excluding homosexuals, atheists, and agnostics frommembership, they showed “both personal emotionalharm and the loss of recreational enjoyment” whichclearly constituted an injury-in-fact. 530 F.3d at 785(emphasis added). While this Court drew an analogy
to Establishment Clause cases, it explained that“[p]sychological injury can be caused by symbols or
activities other than large crosses.” Id. at 786 n.6. This
Court also noted, again by analogy, that standing
rules for environmental cases lend additional support
to a general rule of standing that psychological injury
coupled with a loss of enjoyment of public land on
account of events occurring on the land supports
standing. Id. at 785.

App.84a
There is no reason to view these cases as limited
to Establishment Clause claims, as Judge Anderson
erroneously did. (ER 23.) The Supreme Court has
explicitly rejected the view that standing doctrine
under the Establishment Clause is the product of“special exceptions.” Valley Forge, 454 U.S. at 488.
The Supreme Court has also applied the same standing
analysis from cases brought under the Establishment
Clause to cases in other contexts. See, e.g., Lexmark
Int’l, Inc. v. Static Control Components, Inc., 134 S.
Ct. 1377, 1386–88 (2014) (applying analysis from Valley
Forge when evaluating standing under the Equal
Protection Clause).
This Court’s rule for purposes of Article III
standing is clear: Where psychological injury “interfereswith [] personal use of [public] land,” there is standing
to bring suit. Barnes-Wallace, 530 F.3d at 784 (citing
Valley Forge, 454 U.S. at 485).
The Barnes-Wallace court employed a common
sense rule for standing where public monuments arechallenged as unconstitutional. That rule can be statedas follows: A mere ideological objection to a monument
does not confer standing, Valley Forge, 454 U.S. at
485–86, but a psychological injury on account of an
unconstitutional monument that causes plaintiffs toavoid public lands by reason of the unconstitutionalmonument itself and the message it displays clearly
does confer standing, Barnes-Wallace, 530 F.3d at
784.
Such a rule is particularly appropriate in casessuch as this where the suit is based on the Constitution
itself. In numerous cases, this Court has been clearthat suits raising constitutional claims are to beconstrued liberally when evaluating standing. See,App.85ae.g., LSO, Ltd. v. Stroh, 205 F.3d 1146, 1155 (9th Cir.

2000) (noting that when a case “implicates First
Amendment rights, the inquiry tilts dramaticallytoward a finding of standing.”) (emphasis added);Arizona Right to Life Political Action Comm. v.
Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003) (same).

As such, the presumption in a case like this where governmental action is challenged as unconstitutional is
to find standing.
Here, the Complaint, which must be construed infavor of Plaintiffs and accepted as true, alleges thatthey “would like to use Glendale’s Central Park and
the Adult Recreation Center located within Central
Park,” but they now avoid “doing so because [they are]offended by the Public Monument’s pointed expressionof disapproval of Japan and the Japanese people.” (ER55, ¶6.) For the same reasons, the presence of themonument and plaque in Glendale’s Central Park also“diminishes [their] enjoyment of the Central Park andits Adult Recreation Center.” (ER 55, ¶7.) Glendale
has erected a monument and plaque that associates
Japan and the Japanese with alleged war crimes,
sexual slavery, and “unconscionable violations ofhuman rights.” (ER 58, ¶11.) Plaintiffs thus suffer“feelings of exclusion, discomfort, and anger” because
they are of Japanese heritage, and are directly
implicated by the monument and plaque. (ER 54-56,¶6-8.) This takes Plaintiffs’ injuries far outside therealm of a “generalized grievance” because the injuries
are suffered uniquely by those of Japanese heritageliving in Glendale and the surrounding areas who havea direct interest in using the land and facilities locatedin Glendale’s Central Park. Plaintiffs would be
confronted with the monument and plaque any timeApp.86a
they attempt to make use of the Adult Recreation
Center facilities or enter Central Park. (ER 65-66,¶¶50, 53.) Even more than the Barnes-Wallace plaintiffs, Plaintiffs here must choose between avoiding
Glendale’s Central Park or being forced to confront themonument and plaque in order to use these public
facilities. See Barnes-Wallace, 530 F.3d at 785 (“Theplaintiffs are faced with the choice of not using Camp
Balboa and the Aquatic Center, which they wish touse, or making their family excursions under thedominion of an organization that openly rejects theirbeliefs and sexual orientation.”). The individual Plaintiffs have thus suffered an injury-in-fact under thisCourt’s clearly established case law.
The individual Plaintiffs likewise amply satisfy
the Article III requirements of traceability andredressability. Indeed, Glendale has never suggested
otherwise. Instead, all of Glendale’s standing arguments
before the district court were focused on injury-in-fact.
The “causal connection” between Glendale’s unconstitutional actions and the inability of the Plaintiffs touse and enjoy the Central Park and Adult recreation
center is unmistakable. See Lujan, 504 U.S. at 560(“[T]here must be a causal connection between the
injury and the conduct complained of[.]”); see also
Bennett v. Spear, 520 U.S. 154, 162 (1997) (injury
must be “fairly traceable to the actions of the defendant[.]”) (internal quotations omitted). Plaintiffs
objected to Glendale’s decision to install the monument
and plaque and expressed their disagreement at
Glendale City Council meetings well before filing suit.
(ER 61-62, ¶¶28, 31-32.) After the monument andplaque were erected, Plaintiffs avoided using
Glendale’s Central Park despite their stated wish toApp.87amake use of that land and its facilities. Their injuries
are much more than an “abstract objection” because atleast one of the Plaintiffs resides in Glendale in close
proximity to Central Park, they are JapaneseAmericans, and they have stated personal interest in
using the land at issue. See Barnes-Wallace, 530 F.3d
at 785 (“[Plaintiffs] reside in San Diego, where Camp
Balboa and the Aquatic Park are located, and haveexpressed a desire to make personal use of the
facilities operated by the Council.”). But for Glendale’s
installation and maintenance of the monument andplaque, there would be no injury.
A decision declaring that the monument andplaque are unconstitutional and an injunction requiring removal would plainly redress the injury. See
Lujan, 504 U.S. at 561 (“[I]t must be ‘likely,’ asopposed to merely ‘speculative,’ that the injury will be‘redressed by a favorable decision.’”). Plaintiffs’
psychological injuries and physical avoidance ofGlendale Central Park would be remedied by theremoval of the monument and plaque. As theComplaint makes plain, if the monument and plaqueare removed, Plaintiffs will make use of Glendale’s
Central Park. (ER 66, ¶53.) As long as Glendale
maintains the monument and plaque in its current
state, Plaintiffs will suffer continued humiliation andloss of recreational use of Glendale Central Park. See
Barnes-Wallace, 530 F.3d at 787 (“As long as theCouncil as an organization maintains policies that
exclude from participation and demean people in theplaintiffs’ position, no amount of evenhanded access to
the leased facilities will redress the plaintiffs’ injury:
emotional and recreational harm arising out of theApp.88a
Council’s control and administration of public landthat the plaintiffs wish to use.”).
Accordingly, under well-established jurisprudence,
the individual Plaintiffs have satisfied the “irreducible
constitutional minimum of standing.” Lujan, 504 U.S.
at 560.
B. In the Alternative, this Court Should Hold
that Plaintiff Gingery Has Municipal Taxpayer
Standing, or it Should Provide Her with Leave
to Amend the Complaint
Individual Plaintiff Michiko Gingery also has
municipal taxpayer standing because she pays taxes
as a resident of Glendale (ER 54-55, ¶6), and thesetaxes were used to support the monument and plaqueand are still being used to support its maintenance.
(ER 58, ¶13.) To establish standing in a municipal
taxpayer suit, this Court requires “pocketbook injury,”which “simply requires the ‘injury’ of an allegedly
improper expenditure of municipal funds.” Cammack
v. Waihee, 932 F.2d 765 (9th Cir. 1991).
Gingery alleges in the Complaint that she is “along-time resident of Glendale” (ER 54-55, ¶6) andthat “Glendale exercises exclusive custody and controlof Central Park and the Public Monument, and upon
information and belief, provides all necessary
maintenance services for the Public Monument.” (ER58, ¶13.) The Court should find standing based onthese allegations.
In the alternative, this Court should grant leave
to amend either by remanding the case to the district
court or under 28 U.S.C. § 1653 so that Plaintiff
Gingery may plead such standing with additional

App.89afacts, if required. Snell v. Cleveland, Inc., 316 F.3d
822, 828 (9th Cir. 2002); see also 28 U.S.C. § 1653(“Defective allegations of jurisdiction may beamended, upon terms, in the trial or appellate
courts.”); Blue Ridge Insurance Co. v. Stanewich, 142
F.3d 1145, 1148 (9th Cir. 1998) (declining to remandcase to district court where the jurisdictional defect in
the complaint “may be cured by amendment andnothing is to be gained by sending the case back forthat purpose”) (internal citations and quotations
omitted).
It is respectfully submitted that it would be awaste of judicial resources to remand this action to the
district court with directions to allow Plaintiff Gingery
to amend the Complaint. After she would amend toestablish standing, the district court would almost
certainly dismiss the Complaint for failure to state aclaim. Then, the parties would return again to thisCourt for resolution of the same issues presented on
the merits of this appeal. As discussed in greater
detail below in Parts III and IV, this Court should
thus allow amendment now, find standing, and thenhold that the Complaint states a claim upon which
relief can be granted. See Kimes, 84 F.3d at 1126.
C. Plaintiff GAHT-US
Standing

Has

Organizational

Given that the individual Plaintiffs clearly havestanding to sue in this case, the Court need not reachthe issue of GAHT-US’s organizational standing. See
Clinton, 524 U.S. at 431 n. 19 (where one party has
standing the court “need not consider” the standing
issue as to the other plaintiffs); Bowsher v. Synar, 478

App.90a
U.S. 714, 721 (1986) (same). nonetheless, GAHT-US
does have standing.
“An association has standing to bring suit on
behalf of its members when its members would
otherwise have standing to sue in their own right, theinterests at stake are germane to the organization’s
purpose, and neither the claim asserted nor the relief
requested requires the participation of individual
members in the lawsuit.” Friends of the Earth, 528
U.S. at 181 (citing Hunt v. Washington State Apple
Advertising Comm’n, 432 U.S. 333, 343 (1977)). As
demonstrated above, Plaintiffs Gingery and Koichi
Mera have standing as individual Plaintiffs because
they have sustained emotional injuries and have statedthat they “would like to use Glendale’s Central Parkand its Adult Recreation Center,” but, as a result ofalienation due to the monument and plaque, they avoid
doing so. (ER 55-56, ¶8.) Because Gingery and Mera
have standing, and are members of GAHT-US, GAHTUS also has standing. Id.; Hunt, 432 U.S. at 342–43.5
Glendale’s “unfairly biased portrayal of theJapanese government” has caused many of GAHT-US’smembers to also “suffer feelings of exclusion, discomfort,
and anger by the continued presence of the monument,
and the controversial and disputed stance on thedebate surrounding Comfort Women that it perpetuates.” (ER 55, ¶7.) Because of the monument andplaque, local GAHT-US members no longer feel
5 In the event this Court finds that the individual Plaintiffs did
not suffer injury-in-fact, Plaintiff Gingery has taxpayer standing
to support GAHT-US’s standing, in which case this Court stillneed not reach the standing of the other Plaintiffs. Clinton, 524
U.S. at 431 n.19.

App.91a
comfortable using Central Park and the facilities
located in it. (Id.)
The interests at stake in this lawsuit—the local,
global, and political implications of Glendale’s interference in foreign relations between the UnitedStates, Korea, and Japan—are completely germane tothe organizational purpose of GAHT-US, which is toprovide educational resources “concerning the history
of World War II and related events, with an emphasis
on Japan’s role,” and to “enhance a mutual historicaland cultural understanding between and among theJapanese and American people.” (ER 55, ¶7.)
Finally, GAHT-US’s individual members will notneed to participate in this litigation because only
declaratory and injunctive relief is sought. See Alaska

Fish & Wildlife Federation and Outdoor Council, Inc.
v. Dunkle, (9th Cir. 1987) 829 F.2d 933, 938 (finding
standing“becausethe[organization]
seeksdeclaratory and prospective relief rather than money
damages [and thus] its members need not participate
directly in the litigation”).

D. The District Court Erroneously Concluded
that There Was No Standing
Even though Plaintiffs have standing under wellestablished case law, the district court erroneously
dismissed the case for lack of standing. The district
court reasoned that “[t]he fact that local residents feel
disinclined to visit a local park is simply not the typeof injury that can be considered to be in the ‘line ofcausation’ for alleged violations of the foreign affairs
power and Supremacy clause.” (ER 23 (emphasis
added).) The district court provided no citation or support for this illogical and incorrect assertion.

App.92a
Under Barnes-Wallace, a plaintiff that avers
emotional injury and loss of enjoyment or use of public
land plainly has standing to challenge unconstitutional
actions by a city whatever the cause of action pledmight be. 530 F.3d at 784. The focus for standing
purposes is not on how the plaintiff pleads the case interms of a cause of action, but rather on what the
injury is that is alleged by the plaintiff. The district
court inappropriately conflated the standards for an
injury-in-fact that must be shown for Article III
standing purposes with the showing necessary toestablish Plaintiffs’ claim on the merits. To affirm the
district court’s rationale risks creating an illogical andnew standing doctrine in this Circuit where the meritsof the underlying claim matter for purposes of injuryin-fact. However, this Court has been clear that“[w]hether a plaintiff has a legally protected interest(and thus standing) does not depend on whether hecan demonstrate that he will succeed on the merits.”
Tyler v. Cuomo, 236 F.3d 1124, 1133 (9th Cir. 2000)(quoting Louisiana Energy & Power Auth. v. Federal
Energy Regulatory Comm’n, 141 F.3d 364, 368 (D.C.
Cir. 1998)). The determination whether Article III
standing exists should not be influenced by some sortof pre-judgment about the merits and, in any event, isprohibited by Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 93–97 (1998), which holds
that a court must determine that it has jurisdiction
before reaching the merits.
More so, despite striking similarities between
Plaintiffs’ case and this Court’s decision in BarnesWallace, the district court improperly tried to
distinguish that case as creating a unique rule forstanding in Establishment Clause cases. As explained

App.93a
above, however, this Court in Barnes-Wallace wasclear that its rationale applied beyond cases
challenging religious displays on public lands. BarnesWallace, 530 F.3d at 784–86 & n. 6. Indeed, the Court
there cited not only Establishment Clause cases but
also environmental cases to support its standing
rationale. The types of claims pled in Barnes-Wallace
were irrelevant, as they should be under this Court’scase law, to the determination of injury-in-fact.
Next, the district court sought to label this caseas one raising a generalized grievance. Without any
analysis, the district court cited Caldwell v. Caldwell,
545 F.3d 1126 (9th Cir. 2008), for the conclusion thatthe harm complained of here “is no more than an‘abstract objection’” and, therefore, there is “too slighta connection between [plaintiff’s] generalized
grievance, and the government conduct.” (ER 23.)
However, Caldwell is distinguishable. In
Caldwell, this Court held that a plaintiff lacked
standing to raise an Establishment Clause claim
arising from a discussion of religious views on a University of California website—a single section out of
more than 800 pages. 545 F.3d at 1128–29. The plaintiff alleged that the website “endorses beliefs whichhold that religion is compatible with evolutionary
theory and disapproves of beliefs, such as her own,that are to the contrary, thereby exposing her to government endorsed religious messages and making her
feel like an outsider.” Id. at 1228. This Court held that“there is too slight a connection between [plaintiff’s]
generalized grievance, and the government conduct
about which she complains” because she failed to allege
any specific harm connected with the direct exposure to
unwelcome religious material. Id. at 1133. In reachingApp.94a
this conclusion, this Court highlighted the fact thatneither the plaintiff nor her children had been exposedto the unwelcome discourse in the classroom. Id.
Indeed, all the plaintiff there could aver was that she,as a parent, was “offended” by the website’s portrayalof evolutionary theory and that she was “made to feellike an outsider[]” because upon accessing the website(which the University of California had madeaccessible to the public) she was “exposed to government-endorsed religious messages to her harm.” Id. at1130. Importantly, the plaintiff in Caldwell did notaver that she was unable to use the website or any
other public land or service on account of the message
conveyed. Id.
Unlike Caldwell, Plaintiffs’ injury here is morethan an abstract disagreement with one page of an
840 page website hosted by a public university. In thiscase, Plaintiffs objected to Glendale’s decision to
install the monument and expressed their disagreement
at City Council meetings well before filing suit. (ER61-62, ¶¶28, 31-32.) After the monument and plaquewere installed, Plaintiffs avoided using Central Park
despite their stated wish to make use of that land andits facilities. Their injuries are much more than an“abstract objection” because of their proximity toCentral Park, their status as Japanese-Americans,and their stated personal interest in using andinability to use the land at issue. See Barnes-Wallace,
530 F.3d at 785; cf. Caldwell, 545 F.3d at 1133(“[Plaintiffs] asserted interest—informed participation as a citizen in school board meetings, debates, andelections, especially with respect to selection of
instructional materials and how teachers teach thetheory of evolution in biology classes in the public

App.95aschools—is not sufficiently differentiated and direct toconfer standing on her[.]”). Even if Caldwell were on
point, Barnes-Wallace is the standing law of thisCircuit. See Barnes-Wallace, 704 F.3d at 1078
(explaining that Caldwell, “as a decision by a later
three-judge panel, cannot by its own force overrule
this panel’s prior opinion [in Barnes-Wallace.]”).
The district court determined that Plaintiffs were
not the appropriate plaintiffs to bring a foreign affairs
preemption claim against Glendale. Yet, the law of
this Circuit is clear that so long as the plaintiffs, as
here, suffer an injury-in-fact then they have standing
to sue regardless of how the district court views the
merits.
III. THIS COURT SHOULD FIND STANDING AND REACH
THE MERITS
Once the district court held that it lacked
standing, it had no power to reach the merits of thecase. Here, the district court incorrectly assumed
hypothetical jurisdiction and inappropriately sought
to rule on the merits. Specifically, the district court
stated: “Even if Plaintiffs possessed Article III standing,dismissal is still appropriate because Plaintiffs havefailed to allege facts . . . to support a conclusion that
the Comfort Women monument in Glendale’s Central
Park . . . violates the Supremacy Clause or foreign
affairs power.” (ER 25.) The district court’s ruling on
the sufficiency of plaintiffs’ claims therefore exceeded
its jurisdiction. See, e.g., Steel Co., 523 U.S. at 101–02; Sacks v. Office of Foreign Assets Control, 466 F.3d
764, 771 (9th Cir. 2006).
While as a general matter, a “dismissal for failure
to state a claim may be affirmed on any basis supported

App.96ain the record,” Public Util. Dist. No 1 v. IDACORP
Inc., 379 F.3d 641, 646 (9th Cir. 2004) (emphasis
added), there is appellate jurisdiction to do so only
where the district court exercised jurisdiction todetermine the complaint’s sufficiency to state a claim,
Steel Co., 523 U.S. at 94, 101. Here, the district court
could not do so because when it denied standing it nolonger had jurisdiction to reach the merits. Id. at 94–95.
Thus, in the normal course of events, this Court
would reverse the district court’s standing determination and remand for further proceedings. This case isunique, however, because the district court has
already signaled what it will do on remand. While anappellate court should not address the merits of newclaims not actually decided below, Singleton v. Wulff,
428 U.S. 106, 119–21 (1976), it is an appropriate
exercise of appellate jurisdiction for this Court to findstanding and resolve the Rule 12(b)(6) motion in favorof Plaintiffs where the claims have been fully briefed
and are ripe for review. In doing so, no deference
whatsoever should be given to the district court’s
hypothetical judgment on the merits. See Steel Co., 523
U.S. at 101 (“Hypothetical jurisdiction produces nothing
more than a hypothetical judgment[.]”).
The Supreme Court has held that the practice oflimiting appellate review to questions decided below
serves two purposes: (1) preserving the trial court’s“authority to determine questions of fact” and (2)preventing the parties from being “surprised on
appeal by final decision there of issues upon which
they have had no opportunity to introduce evidence.”
Hormel v. Helvering, 312 U.S. 552, 556 (1941). Where
these policies are not implicated, the appellate court
is not bound by the practice, which is “devised toApp.97a
promote the ends of justice, not to defeat them.” Id. at
557.
Neither of the purposes of limiting appellate
review is served in this case, where this Court is asked
to decide: (1) a purely legal question that (2) was
raised in the court below (indeed, the district court
tried to resolve the issue) and is being comprehensively briefed by both sides in this Court. There is no
possibility of Defendants-Appellees here being
unfairly “surprised” by appellate consideration of theconstitutional issues here. Remanding this constitutional merits issue to the district court would
accomplish nothing other than to delay justice andneedlessly prolong substantial uncertainty.
This Court has held that it has discretion toconsider a merits issue for the first time on appeal
when the argument involves a purely legal issue inwhich no additional evidence or argument would
affect the outcome of the case, especially in cases
where the Supremacy Clause is alleged to prohibit
governmental action. Kimes, 84 F.3d at 1126. That
description fits this case and is even more appropriate
here because none of the merits arguments are being
raised for the first time on appeal. Therefore, should
this Court hold that Plaintiffs have standing, it should
proceed to resolve the 12(b)(6) issue in favor of Plaintiffs.
IV. THE POLITICAL-QUESTION DOCTRINE DOES NOT BAR
THIS LAWSUIT
The political-question doctrine is “primarily afunction of separation of powers,” Baker v. Carr, 369
U.S. 186, 210 (1962), and “is designed to restrain the
Judiciary from inappropriate interference in the

App.98abusiness of the other branches of Government[.]” UnitedStates v. Munoz-Flores, 495 U.S. 385, 394 (1990). It
thus “excludes from judicial review those controversies
which revolve around policy choices and value
determinations constitutionally committed for resolution to the halls of Congress or the confines of the
Executive Branch.” Japan Whaling Ass’n v. American
Cetacean Soc’y, 478 U.S. 221, 230 (1986). In Baker,
the Supreme Court identified six characteristics“[p]rominent on the surface of any case held to involvea political question,” including, as relevant here, “atextually demonstrable constitutional commitment of
the issue to a coordinate political department; or a lackof judicially discoverable and manageable standards
for resolving it.” 369 U.S. at 217. To determine
whether “one of these formulations” is applicable, thisCourt must engage in a “discriminating inquiry into
the precise facts and posture of the particular case.”
Id. The basic principle of the political-question doctrineis that where resolving a legal claim would require an
evaluation of quintessentially Executive Branch orLegislative Branch policy, the claim is nonjusticiable
under the political-question doctrine. This is not sucha case for the following reasons.
First, this Court is not being asked to pass
judgment on the content of U.S. foreign policy. Indeed,this Court can decide this dispute without questioning
the wisdom of U.S. foreign policy. This is so because
the question presented is whether under the U.S. Constitution Glendale can make its own foreign policy
regarding Japan by erecting and maintaining themonument and plaque. As this Court recently held in
Movsesian v. Victoria Versicherung AG, 670 F.3d
1067, 1072 (9th Cir. 2012) (en banc), “even when the

App.99afederal government has taken no action on aparticular foreign policy issue, the state [or amunicipality, such as Glendale] generally is not free
to make its own foreign policy on that subject.”
Reaching the same conclusion in this case in no way
requires the Court to interfere with other branches ofgovernment or pronounce on U.S. foreign policy.
Second, Plaintiffs submit that the political-question doctrine is inapplicable to a case raising a foreign
affairs preemption claim where the actions of a stateor municipality are being challenged. Indeed, there
are numerous cases, including Supreme Court andNinth Circuit, that have proceeded to the merits on
foreign affairs preemption claims. See, e.g., Am. Ins.
Ass’n v. Garamendi, 539 U.S. 396, 401–12 (2003)(holding unconstitutional a California statutedirecting production of Holocaust-era insurance
policies); Deutsch v. Turner Corp., 324 F.3d 692, 712–
16 (9th Cir. 2003) (holding unconstitutional a
California statute extending statute of limitations forclaims by World War II slave laborers).
Third, the appropriate use of the political-question doctrine in a case such as this can be seen in thecase of Joo v. Japan, a case where the U.S. government
urged the court to dismiss a lawsuit filed by former
Comfort Women against Japan on political-question
grounds. 413 F.3d 45, 48–53 (D.C. Cir. 2005). The Joo
plaintiffs, former Comfort Women who were nationalsof China, Korea, the Philippines, and Taiwan, soughtmonetary relief through private litigation against
Japan, arguing that their individual claims were notextinguished by treaties executed between theirrespective governments and Japan. Joo, 413 F.3d at 46.
The court decided that, in light of the Executive

App.100a
Branch’s primary authority in this area, interpretationof those treaties was appropriately delegated to the
Executive Branch because “adjudication by a domestic
court not only ‘would undo’ a settled foreign policy ofstate-to-state negotiation with Japan, but also could
disrupt Japan’s ‘delicate’ relations with China andKorea, thereby creating ‘serious implications forstability in the region.”’ Id. at 52. Critically, theUnited States urged that result in Joo because theadjudication of the plaintiffs’ claims would require thecourt “to judge the policy considerations underlying thedrafting, negotiation and ratification” of the U.S.
treaty with Japan that ended World War II. (ER 38.)
The political-question doctrine was applicable there
because a court was being asked to judge the policy of
the federal government in the area of foreign affairs.
In contrast, in no way is this Court being asked tojudge U.S. foreign policy. Instead, this Court is being
asked to determine whether the Constitution’s allocation of the foreign affairs power prevents Glendale,
notwithstanding Japan’s objection and without theconsent of the federal government, to inject itself into
a contested area of foreign affairs. Confirming ourview of the law, the United States has recently taken
the position that the political-question doctrine is notapplicable in a case where the court need not“question[] the wisdom” of U.S. foreign policy inresolving a claim that state tort law is preempted by
the foreign affairs power. Brief of the United States as
Amicus Curiae at 7–8, KBR, Inc. v. Metzgar, No. 13-

App.101a
1241, 2015 WL 231968 (U.S. Jan. 20, 2015).6 That isthe case here.
V.

GLENDALE’S ACTION IS PREEMPTED BY
FEDERAL
GOVERNMENT’S
AUTHORITYREGULATE FOREIGN AFFAIRSTHE
TO

Under the U.S. Constitution, “[p]ower overexternal affairs is not shared by the States; it is vested
in the national government exclusively.” UnitedStates v. Pink, 315 U.S. 203, 233 (1942). That is
because “for national purposes, embracing our
relations with foreign nations, we are but one people,
one nation, one power.” Chae Chan Ping v. UnitedStates, 130 U.S. 581, 606 (1889). As a result, “theSupreme Court has long viewed the foreign affairs
powers . . . as reflections of a generally applicable constitutional principle that power over foreign affairs isreserved to the federal government.” Deutsch, 324
F.3d at 709; see also Garamendi, 539 U.S. at 413–14.
Attempts by state or local governments to involve
themselves in foreign policy matters necessarily
constitute “an intrusion . . . into the field of foreign
affairs which the Constitution entrusts to the
President and the Congress.” Zschernig v. Miller, 389
U.S. 429, 432 (1968). Municipalities are subject to thesame limitations as states because neither is afforded
any role whatsoever in defining foreign policy. 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 interest of
6 A true and correct copy of this brief is attached as Exhibit B to
the Declaration of Maxwell M. Blecher in Support of Plaintiffs’
Motion To Take Judicial Notice filed concurrently herewith, andalso available at KBR, Inc. v. Metzgar, 2014 WL 7185601 (U.S.).

App.102athe people of the whole nation, imperatively requires
the federal power in the field of foreign relations to beleft entirely free from local interference.”). Glendale’s
installation and maintenance of the monument andplaque runs afoul of these constitutional requirements.
A. The Constitution Preempts Municipal Actionthat Interferes with Foreign Policy
It is firmly-established that a private party may
bring a claim alleging that state or municipal action ispreempted by the Constitution. See, e.g., Garamendi,
539 U.S. at 413–14; Crosby v. National Foreign Trade
Council, 530 U.S. 363, 372–73 (2000); Foster v. Love,
522 U.S. 67, 70–72 (1997); Gade v. Nat’l Solid Wastes
Mgmt. Assn, 505 U.S. 88, 96 (1992). State or municipal
action must not be permitted to “distort[] the allocationof responsibility to the national government for the
conduct of American diplomacy.” In re World War II
Era Japanese Forced Labor Litig., 164 F.Supp.2d 1160,
1168 (N.D. Cal. 2001) (internal quotations omitted),
aff’d sub nom. Deutsch, 317 F.3d 1005, opinion amended
and superseded on denial of reh’g, 324 F.3d 692 (9thCir. 2003). This principle is of such importance that“‘even in the absence of a treaty’ or federal statute, astate may violate the constitution by ‘establish[ing] its
own foreign policy.’” Deutsch, 324 F.3d at 709 (quoting
Zschernig, 389 U.S. at 441).
The Supreme Court has repeatedly recognizedthat state action in conflict with the federal government’s exercise of its foreign relations and war powers
is preempted. See Garamendi, 539 U.S. at 420–21;
Zschernig, 389 U.S. at 440; Pink, 315 U.S. at 230–31.
Even in the absence of such a conflict, however, theApp.103a
Supreme Court has indicated that state action ispreempted if it intrudes “into the field of foreign
affairs.” Zschernig, 389 U.S. at 432; see also Hines,
312 U.S. at 63 (“Our system of government. . .
imperatively requires that federal power in the field
affecting foreign relations be left entirely free fromlocal interference.”).
Following this precedent, this Court hasrecognized that the Constitution “gives the federal
government the exclusive authority to administer
foreign affairs.” Movsesian, 670 F.3d at 1071
(emphasis added). “Under the foreign affairs doctrine,
state laws that intrude on this exclusively federal
power are preempted.” Id. (citing Garamendi, 539 U.S.
at 418–20).
As this Court has explained, there are two typesof foreign affairs preemption: conflict preemption andfield preemption. “Under conflict preemption, a state
law must yield when it conflicts with an express
federal foreign policy.” Movsesian, 670 F.3d at 1071.
“But the Supreme Court has made clear that, even in
the absence of any express federal policy, a state law
still may be preempted under the foreign affairs
doctrine if it intrudes on the field of foreign affairs
without addressing a traditional state responsibility.
This concept is known as field preemption or ‘dormant
foreign affairs preemption.’” Id. at 1072.
When analyzing a case for field preemption, thisCourt’s Movsesian decision directs this Court to ask
whether a state or municipality has “addressed a
traditional state responsibility” or has instead “intruded
on a power expressly or impliedly reserved by the Constitution to the federal government.” Movsesian, 670
F.3d at 1074. In so doing, this Court must look toApp.104a
determine the “real purpose” of the state or municipal
action. Id. at 1075 (quoting Von Saher v. Norton Simon
Museum of Art at Pasadena, 592 F.3d 954, 964 (9thCir. 2010)). Glendale has acted beyond any area of
traditional responsibility and has impermissibly
intruded on the federal government’s foreign affairs
power by injecting itself into a contested area of
foreign affairs.
B. Under this Court’s Movsesian Decision,
Glendale’s Actions Are Preempted Because
They Do Not Concern an Area of Traditional
State Authority
Glendale’s actions in installing the monument
and plaque attempt to establish foreign policy anddisturb foreign relations in a deeply contested
international arena between Japan and South Korea
without addressing any traditional area of state ormunicipal responsibility. The Comfort Women issue
continues to be a highly charged international debatethat has not yet remotely been resolved to the satisfaction of the nations involved. (ER 59, ¶¶15-18.) As
Plaintiffs’ Complaint details, “[d]isagreements
concerning responsibility for Comfort Women are amajor impediment to improved present-day relations
between Japan and South Korea, which are less thancordial” (ER 59, ¶18), and the United States, even as
recently as February 2013, has continued to encourage
Japan and South Korea to “work together to resolve
their concerns over historical issues in an amicableway,” and to “put history behind them and move therelationship forward.” (ER 64-65, ¶¶46-47.) The
implications of the global discourse on the Comfort
Women issue, including the actions or omissions ofJapan as a foreign government, do not in any way

App.105a
touch on any traditional municipal responsibility of
Glendale. See Von Saher, 592 F.3d at 965 (providing aforum for Holocaust restitution claims, while “alaudable goal, it is not an area of ‘traditional state
responsibility,’ and the statute is therefore subject toa field preemption analysis.”); Movsesian, 670 F.3d at
1076 (extending insurance claim statute of limitations
for victims of the Armenian Genocide did not concern
an area of traditional state responsibility);
Garamendi, 539 U.S. at 425 (no state interest in“regulating disclosure of European Holocaust-era
insurance policies”); see also Zschernig, 389 U.S. at
440 (“The several States, of course, have traditionallyregulated the descent and distribution of estates. But
those regulations must give way if they impair theeffective exercise of the Nation’s foreign policy.”).
Because the Comfort Women issue is a matter ofcontinuing international relations controversy andnegotiation unrelated to Glendale’s local “traditional”
responsibilities, Glendale simply cannot be permitted
to infringe upon the federal government’s exclusive
authority to conduct foreign relations with andbetween Japan and South Korea. Japan Line, Ltd. v.
Los Angeles Cnty., 441 U.S. 434, 455 (1979)(“California may not tell this Nation or Japan how to
run their foreign policies.”). Glendale is a small
municipal government with local concerns, and has no
stake of any kind in controversies between South
Korea and Japan arising out of World War II.
Importantly, the monument and plaque here
challenged do much more than commemorate; they
advocate that Japan violated international humanrights during World War II and also advocate that theApp.106apresent day government of Japan accept responsibility and make amends for alleged activities that
occurred during World War II. Thus, while this Court
has not “offer[ed] an opinion,” and thus left open thequestion, whether there are circumstances where
foreign affairs preemption would be appropriate in acase where “California [] express[ed] support forArmenians by, for example, declaring a commemorative
day,” Movsesian, 670 F.3d at 1077 n.5, there is noauthority holding “that a state [or municipal] government’s First Amendment interests, if any, should weighinto a consideration of whether a state has impermissibly interfered with the federal government’s
foreign affairs power,” Nat’l Foreign Trade Council v.
Natsios, 181 F.3d 38, 62 (1st Cir. 1999), aff’d on othergrounds, 530 U.S. 263 (2000). Glendale’s arguments
before the district court that purely expressive conduct
is not subject to foreign affairs preemption is supported
by no authority. Indeed, it violates logic. Just as a city
cannot erect a monument that violates the Establishment Clause by expressing the position that, forexample, “This is a Christian government,” so too itcannot erect a monument and plaque that violates theSupremacy Clause. By way of another example, had
Glendale installed a monument and plaque that
expressed the view that “Glendale commemorates thevaliant efforts of ISIL’s freedom fighters against theUnited States,” it is our position that under governing
precedent this would be preempted under the foreign
affairs power because it unconstitutionally intrudes
upon the President’s foreign affairs and war powers.
Since in at least some circumstances merecommemoration and purely expressive conduct can bepreempted by the foreign affairs power, themonument and plaque here, which is much more thanApp.107acommemorative because it sides against Japan andadvocates that the present-day government of Japan
accept historical responsibility on contested foreign
affairs matters and make amends, is likewise subject
to foreign affairs preemption.
To be clear, the monument and plaque seek toestablish foreign policy by taking sides, casting blameon Japan, and pressuring Japan to “accept historicalresponsibility for these crimes.” This Glendale cannot
do. See Zschernig, at 441 (even in the absence of aconflicting federal policy, a state may violate the Constitution by “establish[ing] its own foreign policy”); seealso Japan Line, 441 U.S. at 455 (“California may nottell this Nation or Japan how to run their foreign
policies.”).
Lest there be any doubt, the “real purpose” ofGlendale’s action here was to unconstitutionally inject
itself into foreign affairs and not some alleged
traditional municipal purpose of merely expressing an
opinion. Glendale’s then-mayor, Dave Weaver,conceding that Glendale’s installation of themonument and plaque was improper, stated in a letterto Yoshikazu Noda, Mayor of Higashiosaka, Japan,that the dispute over Comfort Women “is aninternational one between Japan and South Korea
and the City of Glendale should not be involved oneither side.” (ER 62, ¶32.)
Indeed, when the monument was being consideredby the City Council, then-Councilmember Zareh
Sinanyan, now Glendale’s mayor, made clear that
Glendale intended to insert itself into foreign affairs
notwithstanding his expressly acknowledged understanding that such action violated this Court’s clear

App.108acase law. Addressing the questionable authority of
Glendale to approve the monument, Sinanyan stated:
Another argument [is that] Glendale has no
authority to do anything about this issue, it’sa federal issue. Just last year, the Turkish
government pushed a lawsuit which theysucceeded on in the Ninth Circuit making
the exact same argument, saying that therecognition of the Armenian genocide bystate authorities was not proper [presumablyreferring to this Court’s Movsesiancase] . . . I’m sorry it’s a moral issue, not astate issue. . . We are taking a meaningful
step to show our moral support, our sharingof the pain that our Korean brothers andsisters feel about this issue . . .7
Of course, even if it is “a laudable goal, it is not
an area of traditional state responsibility.” Von Saher,
592 F.3d at 965. Sinanyan’s presumptive reference tothis Court’s Movsesian decision clearly shows that heand presumably others on Glendale’s City Council
knew that in approving the monument they were
injecting
Glendale
into
foreignaffairs
notwithstanding this Court’s clearly established caselaw prohibiting such action.
Even if Glendale did have some local stake in thisinternational dispute spanning 70 years, which it does
not, field preemption would require that its interest
yield to the federal government’s command of foreign
affairs because “our system of government is such that
7 See Plaintiffs-Appellants’ Motion To Take Judicial Notice filed
concurrently herewith, and Plaintiffs-Appellants’ Motion To File
Physical Exhibit, filed on February 27, 2015 (Doc. # 15).

App.109a
the interest of the cities, counties and states, no lessthan the interest of the people of the whole nation,
imperatively requires that federal power in the field
affecting foreign relations be left entirely free fromlocal interference.” Hines, 312 U.S. at 63. Field
preemption is especially applicable here where there
is an absence of any local government interest that
Glendale may be able to cobble together related to the
Comfort Women issue. Garamendi, 539 U.S. at 425(“If any doubt about the clarity of the conflictremained, however, it would have to be resolved in the
National Government’s favor, given the weakness of
the State’s interest, against the backdrop of
traditional state legislative subject matter . . . ”).
C. Under Movsesian, Glendale’s Actions Are
Preempted Because They Intrude on Powers
Reserved to the Federal Government by
Seeking to Establish Foreign Policy Regarding
Comfort Women
Glendale’s intrusion on the federal government’s
exclusive power to conduct foreign affairs has hadmuch “more than some incidental or indirect effect inforeign countries.” Zschernig, 389 U.S. at 434–35(internal quotations omitted). Indeed, the monument
and plaque express a distinct point of view by taking
sides “with [its] Korean brothers and sisters” andcasting blame on Japan on a specific matter of foreign
policy. The monument and plaque seek to establish aforeign policy position, whereby the Japanese government is encouraged to “accept historical responsibility
for these crimes” at the behest of Glendale. See id. at
441 (holding that, even in the absence of a conflicting
federal policy, a state may violate the Constitution by“establish[ing] its own foreign policy”). Glendale has

App.110a
engaged in highly charged advocacy and condemnationof a foreign government’s disputed wartime conduct,
which it cannot, and should not be allowed to, do under
the Constitution. See id. at 435–36 (finding preempted
an Oregon statute because it invited courts to engage
in an analysis of foreign governments and theirconduct).
There is no doubt that Glendale’s actions havecompelled officials at nearly every level of government
in Japan to openly criticize Glendale’s actions and its
contested position on the Comfort Women issue. In
fact, the monument and plaque have been met withvehement disapproval from officials from the highest
levels of the Japanese government. Japan’s Prime
Minister, Japan’s Chief Cabinet Secretary, and Japan’s
Ambassador to the United States have all publicly
commented on and condemned Glendale actions
regarding the monument and plaque. (ER 63-64, ¶¶3642.) For example, shortly after the installation of themonument and plaque, the Japanese Ambassador to theUnited States, Kenichiro Sasae, stated that that theposition espoused by Glendale in the in the monument
and plaque is “irreconcilable” with the position of theGovernment of Japan and is “highly regrettable.” (ER63, ¶39.) The same day, Yoshihide Suga, Japan’s Chief
Cabinet Secretary, described Glendale’s conduct as“conflict[ing] with the [Japanese] government’s viewthat the issue of the Comfort Women should not be
part of any political or diplomatic agenda.” (Id., ¶40.)
Two weeks later, Japanese Prime Minister Shinzo Abe

App.111a
stated that he was “extremely dissatisfied” with
Glendale’s decision.8 (Id., ¶41.)
Glendale’s actions risk the United States’
relationship with both Japan and South Korea, andhave contributed to the continued animosity andunresolved tension between Japan and South Korea
on the issue of Comfort Women. In an international
context, “[e]xperience has shown that international
controversies of the gravest moment, sometimes evenleading to war, may arise from real or imagined
wrongs to another’s subjects inflicted, or permitted, by
a government.” Hines, 312 U.S. at 64. The Supreme
Court has long recognized that the potential to disrupt
foreign affairs is especially probable—even forseemingly benign issues on a domestic level—becauseof the volatility of such issues when magnified on aninternational scale. Japan Line, 441 U.S. at 456 (“Thiscase concerns foreign commerce. Even a slightoverlapping of tax—a problem that might be deemed deminimis in a domestic context—assumes importancewhen sensitive matters of foreign relations and nationalsovereignty are concerned.”).

8 Since Plaintiffs-Appellants’ Complaint was filed on February
20, 2014, Japan’s Chief Cabinet Secretary released a question
and answer press statement concerning the monument andplaque in which he stated: “This installation of a memorial statue
by a municipal government in the U.S. is incompatible with theviews of the Japanese Government.” Press Conference by the
Chief Cabinet Secretary, Feb. 21, 2014, available at http://japan.
kantei.go.jp/tyoukanpress/201402/21_p.html, a true and correct
copy of which is attached to as Exhibit A to the Declaration of
Maxwell M. Blecher in Support of Plaintiffs-Appellants’ Motion
To Take Judicial Notice filed concurrently herewith.

App.112a
Whether the wrongs are “imagined” or not, theComfort Women issue strikes at the core of Japan’sand South Korea’s wartime legacies on delicate issues
such as prostitution and sexual slavery—fragile subjects
for even the strongest of allies to traverse in a sensitive
and appropriate fashion. Glendale’s uninvited incursion
into international and diplomatic relations not only
has the “great potential for disruption orembarrassment” for the United States, Zschernig, 389
U.S. at 434–35, but negatively affects the strain
between Japan and South Korea, and risks therelationship between the United States and bothcountries. This Glendale cannot be permitted to do.
D. The District Court’s Merits Discussion Is
Entitled to No Deference and, in Any Event, Is
Wrong
As noted above, the district court’s “merits”
discussion is entitled to no deference because it was
based on hypothetical subject matter jurisdiction. In
any event, the district court applied the wrong legal
standard.
As already explained, field preemption prevents
Glendale from installing and maintaining thismonument and plaque. The district court made muchof the fact that the plaque’s language encouraging
Japan to issue a formal apology echoes the languageof House Resolution 121, which Congress passed inJuly 2007. (ER 25.) It matters not that Glendale
seemingly acted based on a legally nonoperative
resolution of one house of Congress. As this Court has
explained, whether the state action challenged is inaccord with the actions of some federal officials is
irrelevant to the analysis. Hines, 312 U.S. at 61

App.113a(finding preemption even though “[t]he basic subjectof the state and federal laws is identical[.]”); Crosby,
530 U.S. at 379–80 (“The fact of a common end hardly
neutralizes conflicting means[.]”); Gade, 505 U.S. at
103 (accord). This Court also confirmed this view inMovsesian:
The statute expresses a distinct politicalpoint of view on a specific matter of foreign
policy. It imposes the politically chargedlabel of ‘genocide’ on the actions of the
Ottoman Empire (and, consequently, presentday Turkey) and expresses sympathy forArmenian Genocide victims. The law establishes a particular foreign policy for California—one that decries the actions of the
Ottoman Empire and seeks to provide
redress for Armenian Genocide victims . . . .
670 F.3d at 1076 (internal quotations and citations
omitted).
Here, the situation is identical and even more
problematic. Field preemption precludes Glendale fromexpressing a distinct political point of view on a specific matter of foreign policy by using emotionallycharged language explicitly directed at a foreign government.
Importantly, this is not the standard type ofmonument erected by a local government, such as one
commemorating a U.S. war hero, a police officer lostin the line of duty, or a local citizen’s role in city
beautification. This is a monument where Glendale isadvocating that Japan take “responsibility” for alleged
human rights violations that allegedly occurred during
World War II. Indeed, this is in no way a matter of

App.114a
traditional municipal responsibility, such as
maintaining streets and transportation services andproviding other local public services.9 Glendale has noconstitutional authority to install and maintain amonument and plaque to stand as the moral compass
for the United States or the world when it comes toforeign policy.
Finally, the district court noted that a holding infavor of Plaintiffs “would invite unwarranted judicial
involvement in the myriad symbolic displays” undertaken by local governments and impinge upon thelocal government’s right to “communicate with thecitizenry.” (ER 25-26, citing Alameda Newspapers, Inc.
v. City of Oakland, 95 F.3d 1406, 1415 (9th Cir. 1996)).
This argument is a red herring, because, as noted
above, this is not mere commemoration but advocacy
directed at the Japanese government.

9 As for Glendale’s definition of its traditional local interests, see
Glendale’s Code of Ordinances, a true and correct copy of which
is attached to the Declaration of Maxwell M. Blecher in supportof Plaintiffs-Appellants’ Motion To Take Judicial Notice filed
concurrently herewith, and also available at https://www.
municode.com/library/ca/glendale/codes/code_of_ordinances. The
Code of Ordinances lists the following areas of governance: Titles
4 (Local Revenue and Finance), 5 (Business Taxes, Licenses andRegulations), 6 (Animals), 8 (Health and Safety), 9 (Public Peaceand Welfare), 10 (Vehicles and Traffic), 12 (Streets, Sidewalks
and Public Places), 13 (Public Services), 15 (Buildings andConstruction), 16 (Subdivisions) and 30 (Zoning). Nowhere does
the Code provide for Glendale to police or govern foreign nations,or even to urge them to accept responsibility for allegedinternational human rights violations, particularly foreign
nations today allied with the U.S., or to provide this country, anyother country, or the world with moral or ethical directives.

App.115a
A municipality has no right to “speak” in such amanner as to interfere with foreign affairs. Nat’lForeign Trade Council, 181 F.3d at 61 (Nothing“suggests that a state government’s First Amendment
interests, if any, should weigh into a consideration ofwhether a state has impermissibly interfered with thefederal government’s foreign affairs power.”).
Glendale does not have “free license to communicate
offensive or partisan messages,” and its speech isclearly limited by the Constitution. Pleasant Grove
City, Utah v. Summum, 555 U.S. 460, 468, 482 (2009);
see also R.J. Reynolds Tobacco Co. v. Bonta, 272
F.Supp.2d 1085, 1106 (E.D. Cal. 2003) aff’d sub nom.
R.J. Reynolds Tobacco Co. v. Shewry, 384 F.3d 1126
(9th Cir. 2004) opinion amended and superseded on
denial of reh’g, 423 F.3d 906 (9th Cir. 2005) (“[I]t is tobe hoped that the courts will recognize that limitations, both constitutional and otherwise derived,
constrain the government’s power to speak oncontroversial issues.”); Creek v. Village of Westhaven,
80 F.3d 186, 193 (7th Cir. 1996) (“Even if municipalities do have First Amendment rights, however, aquestion we need not decide, we do not think they
have the right to foment, whether through speech orotherwise, governmental discrimination on grounds ofrace.”); Adams v. Maine Municipal Ass’n, 2013 WL
9246553, at *19 (D. Me., Feb. 14, 2013) (“If government
speech is discriminatory, it might be challenged under
the Equal Protection Clause . . . Even when a challenge
is brought under the Free Speech Clause, the government speech doctrine’s protections appear to belimited.”); Downs v. Los Angeles Unified School Dist.,
228 F.3d 1003, 1007 (9th Cir. 2000) (the government
can and should regulate its own speech when it is“‘disrespectful,’ ‘offensive,’ ‘upsetting,’ ‘objectionable,’App.116aand ‘derogatory.’”). Just as a municipality cannot erecta monument that violates the Establishment Clause,
so too it cannot erect a monument and plaque that
violates the Supremacy Clause.
Furthermore, affirming the district court’s illogicalreasoning would mean that federal courts in this Circuit
could not evaluate whether all manner of arguablespeech by local governments accords with the Constitution. Just as it is not constitutionally permissible
under the Establishment Clause for a local government
to communicate to its citizenry that it is a Christian
government and impermissible under Equal Protection
for a local government to communicate that minorities,
immigrants, or a particular race are inferior to others in
the local community, so too is it impermissible under
the Constitution for a local government to take acontested position on a matter of foreign affairs andadvocate that a foreign government accept responsibility for its alleged crimes during World War II.
According to the district court, to hold for Plaintiffs
here would mean that “those who may harbor somefactual objection to the historical treatment of a stateor municipal monument to the victims of the Holocaust
could make similar claims to those advanced by Plaintiffs in this action.” (ER 25.) This assumption is misplaced. The atrocities committed during the Holocaust
are not subject to any serious debate, do not conflictwith U.S. foreign policy, nor would a statement
regarding the horrors of the Holocaust necessarily
draw the protest of the German government.
Furthermore, war crimes that occurred during the
Holocaust have been adjudicated by an international
tribunal, apologies have been issued, reparations havebeen paid, and Germany does not deny wrongdoing.

App.117a
More so, Germany’s horrific actions against Jewish
and other people during the Holocaust have not beena controversial issue of global politics for several
decades. This is not true for the Comfort Womendebate, as Japan’s strenuous objection to thismonument and plaque and the lack of scholarly
consensus make plain.
Glendale’s actions are also more than merelycommemorative because it has installed a 1,100 poundpermanent monument that monopolizes “the use of
the land on which [it] stand[s] and interfere[s]permanently with other uses of public space.”
Pleasant Grove, 555 U.S. at 479. As Glendale’s thenMayor and current Mayor explained, the monument
and plaque take a side on foreign affairs—a deeply
contested side—in the debate against an important
U.S. ally and proceed to adjudicate the blameworthiness of Japan and the Japanese people for wartime
activities in World War II.
This monument and plaque, as well as the district
court’s judgment, should not be allowed to stand.
CONCLUSION
For the foregoing reasons, Plaintiffs-Appellants
respectfully request that the judgment of the district
court be reversed as requested herein.
Respectfully submitted,
The Law Offices of Ronald S. BarakApp.118a
Blecher Collins Pepperman & Joye
Maxwell M. Blecher
Donald R. Pepperman
Taylor C. Wagniere
By: /s/ Maxwell M. Blecher
Attorneys for
Plaintiffs-Appellants
Dated: March 13, 2015

App.119a
SECOND AMENDED COMPLAINT TO THE
SUPERIOR COURT OF CALIFORNIAFOR THE COUNTY OF LOS ANGELES,CENTRAL JUDICIAL DISTRICT, FOR
DECLARATORY AND INJUNCTIVE RELIEF(OCTOBER 26, 2015)
FOR(1) UNCONSTITUTIONAL INTERFERENCE WITH FOREIGN
AFFAIRS POWER (IN VIOLATION OF MOVSESIAN V.
VICTORIA VERSICHERUNG AG (9TH CIR. 2012) 670
F.3D 1067);(2) VIOLATION OF THE GLENDALE MUNICIPAL CODE;(3) VIOLATION OF THE EQUAL PROTECTION CLAUSE OF
THE CALIFORNIA CONSTITUTION; AND(4) VIOLATION OF THE PRIVILEGES AND IMMUNITIESCLAUSE OF THE CALIFORNIA CONSTITUTIONSUPERIOR COURT OF THE STATE OFCALIFORNIA FOR THE COUNTY OF
LOS ANGELES________________________MICHIKO SHIOTA GINGERY, an individual,
KOICHI MERA, an individual, GAHT-US CORPORATION, a California non-profit corporation; andMASATOSHI NAOKI, an individual

Plaintiffs,v.
CITY OF GLENDALE, a municipal corporation,
and DOES 1 through 20, inclusive,

Defendants.

App.120a________________________
Case No.: BC556600
Second Amended Complaint for Injunctive andDeclaratory Relief for:(1) Unconstitutional interference with foreign
affairs power (in violation of Movsesian v.
Victoria Versicherung AG (9th Cir. 2012) 670
F.3d 1067);(2) Violation of the Glendale Municipal Code;(3) Violation of the Equal Protection Clause of
the California Constitution; and(4) Violation of the Privileges and Immunities
Clause of the California Constitution
Plaintiffs MICHIKO SHIOTA GINGERY, an
individual, KOICHI MERA, an individual, GAHT-US
CORPORATION, a California non-Profit Corporation,and MASATOSHI NAOKI, an individual, (collectively“Plaintiffs”) hereby complain against Defendant andallege as follows:
BACKGROUND ON
OFFENSIVE PUBLIC MONUMENT
1. Plaintiffs seek relief relating to the presence ofa monument located in Glendale’s public park andauthorized by Glendale, which condemns the nation ofJapan, and by implication, all persons of Japaneseorigin and descent, regarding individuals that havecome to be known as “Comfort Women” (the “Public
Monument”). During World War II and the decadeleading up to it, an unknown number of women from

App.121aJapan, Korea, China, and a number of nations inSoutheast Asia, were recruited, employed, and/or
otherwise acted as sexual partners for troops of theJapanese Empire in various parts of the Pacific Theaterof war. These women are now referred to as “Comfort
Women.”
2. At a Special Meeting on July 9, 2013, the City
Council of Glendale approved the installation of the
Public Monument, described as “a Korean Sister City
‘Comfort Woman’ Peace Monument,” on a substantial
portion of public land immediately adjacent to the
Adult Recreation Center Plaza in Central Park. The
text on a plaque permanently affixed to the Public
Monument reflects an explicitly pro-Korean and antiJapanese view of historical events during World War
II related to “Comfort Women” that are still vigorously
contested and debated in Asia and in the UnitedStates. The text on the Public Monument’s plaquestates:“I was a sex slave of Japanese military
Torn hair symbolizes the girl being snatchedfrom 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 andunsympathetic world.
Bird on the girl’s shoulder symbolizes a bond
between us and the deceased victims.

App.122a
Empty chair symbolizes survivors who are
dying of old age without having yetwitnessed justice.
Shadow of the girl is that of an old grandma,
symbolizing passage of time spent in silence.
Butterfly in shadow represents hope thatvictims may resurrect one day to receive
their apology.
Peace Monument
In memory of more than 200,000 Asian andDutch women who were removed from theirhomes in Korea, China, Taiwan, Japan, thePhilippines, Thailand, Vietnam, Malaysia,
East Timor and Indonesia, to be coerced into
sexual slavery by the Imperial Armed Forcesof 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 forthese crimes.
It is our sincere hope that these unconscionable violations of human rights shallnever recur.
July 30, 2013.”
3. The Public Monument is located on public land
in a publicly owned park in Glendale known as Central
Park, located at 201 South Colorado St., Glendale, CA
91205. The Public Monument is in a prominent location directly in front of Glendale’s Adult Recreation

App.123a
Center within Central Park. Glendale sometimes refers
to this area as “Adult Recreation Center/Central Park
Complex” (“Complex”). The Complex offers a numberof public benefits not offered elsewhere, including“senior programs and services that include healthscreenings and wellness programs, housing and legal
assistance, life-long learning classes, travel andvolunteer opportunities, recreational activities, andspecial events with an emphasis on diversity.”1 The
Complex offers reduced-price senior meals seven daysa week. It also offers all residents an exercise room
fitness classes and facilities, at reduced rates forseniors, and it may be reserved for private events.
Plaintiffs (including the constituent members of
GAHT-US) could benefit from these programs andservices but the Public Monument deters andinterferes with Japanese-American citizens’ use of theComplex and enjoyment of public benefits andfacilities, and therefore Glendale has injured thePlaintiffs. Plaintiffs have no adequate remedy at law
to address the foregoing conrete injuries.
4. Allowing the Public Monument to remain inplace in Glendale’s Central Park threatens
irreparable injury to Gingery, Mera, Naoki, and
GAHT-US, and its members. Glendale has deprived
Plaintiffs and Japanese citizens equal protection of
the laws and has offered certain privileges andimmunities on different terms to Japanese-Americans, including Plaintiffs, by its placing the “Comfort
Women” statue and plaque, which condemns Japanand the Japanese people, in such a manner to deprive
1 http://www.glendaleca.gov/government/departments/community-services-parks/parks-facilitieshistoric-sites/adult-recreation-center-App.124a
the Plaintiffs of certain public benefits and use ofproperty on equal terms as non-Japanese.
5. Glendale has singled out its JapaneseAmerican citizens and associated them with alleged
war crimes, sexual slavery and “unconscionableviolations of human rights” by their ancestors andrelatives, suggesting that the Japanese areunrepentant criminals. As a result of its decision to
single out the nation of Japan and the Japanesepeople, Glendale has caused injury to the Plaintiffs by
unfairly and one-sidedly implicating them ascomplicit with war crimes and “unconscionable violations of human rights,” resulting in alienation andexclusion from Glendale’s civic matters based on theirnational origin. Plaintiffs deplore the Public
Monument’s implication that they are associated withthe war crimes alleged against their ancestors and,despite wanting to use the Complex and Central Park,
avoid visiting the area because of the Public Monument.
As longtime residents of Glendale, Gingery and Naoki
have effectively been denied full enjoyment and the
public benefits of Glendale’s Central Park and feelthreatened and unwelcome at the Adult Recreation
Center.
6. On information and belief, Glendale has no
public monument dedicated to public condemnation ofalleged war crimes or human rights violations by anyother nation, race or people at the Complex, in Central
Park, or anywhere else within its city limits. Glendale
has no public memorial to the wartime suffering andpatriotism of its own Japanese-American citizens.
7. The subject of “Comfort Women” is intensely
debated in and among many nations in Asia,
particularly in Japan and South Korea. To this day, itApp.125a
is a subject of diplomatic discussions at the highest
levels of government of each nation. Officials of theJapanese government assert that the Japanese militaryand government were not responsible for or directly
involved in the forceful recruitment of Comfort Women.
Other governments, including that of South Korea,
claim that Comfort Women were recruited by and/or
forced into sexual slavery by the Japanese government
and/or officials of the Japanese military. There havebeen ongoing international efforts to finally resolve
the “Comfort Women” issue, and it has been theaddressed in at least three (3) international treaties
or settlements between foreign nations. nonetheless,several governments have continued to demand thatJapan take additional steps to redress grievances.
8. During Glendale’s Special Meeting, numerous
individuals, including Japanese-Americans, among
them Plaintiff Mera and members of GAHT-US,
publicly opposed and condemned the proposed
installation of the Public Monument, arguing that the
Comfort Women issue is a matter of current
diplomatic communications between South Korea andJapan, that the view advanced by the South Korean
government on Comfort Women has been severely
disputed, and that this controversy has become anelement of U.S. foreign relations toward both Asian
countries.
9. There has been significant international
outcry following Glendale’s installation of the Public
Monument, specifically from Japanese officials. On
July 24, 2013, Kuni Sato, the press secretary of theJapanese Ministry of Foreign Affairs, expressed
Japan’s official displeasure, remarking that installation of the Public Monument “does not coincide with

App.126a
our understanding” of the Comfort Women dispute.
On July 31, 2013, Kenichiro Sasae, Japanese
Ambassador to the United States, declared that
Glendale’s action is “irreconcilable” with the positionof the Government of Japan and is “highly
regrettable.” On August 13, 2013, Japanese Prime
Minister Shinzo Abe stated that he was “extremely
dissatisfied” with the installation of the Public
Monument.
10. The Comfort Women issue is not merely anelement of relations between Japan and South Korea,
but an element of the United States’ foreign relations
with Japan and South Korea. On April 25, 2014, while
visiting Seoul, South Korea, President Obama
addressed the issue, expressed a portion of the UnitedStates’ foreign policy view, and declared that the issue
will require the “coordinated effort of our three
countries.” During a press briefing on January 7, 2013,
White House Spokesperson Victoria Nuland reported
that the Administration “continue[s] to hope that thecountries in the region can work together to resolve
their concerns over historical issues in an amicable
way and through dialogue. As you know, we have no
closer ally than Japan. We want to see the newJapanese Government, the new South Korean Government, all of the countries in Northeast Asia
working together and solving any outstanding issues,
whether they are territorial, whether they’re historic,through dialogue.” Similar statements have been madeby U.S. Secretary of State John Kerry, and Daniel
Russel, U.S. Assistant Secretary of State for East
Asian and Pacific Affairs.

App.127a
PARTIES TO THE ACTION
11. Plaintiff Michiko Shiota Gingery (“Gingery”)
is a long-time resident of Glendale. Gingery lives inthe vicinity of Central Park and the Public Monument.
Gingery is a founding member of Glendale’s Sister
City Committee, as related to the City of Hihashiosaka(Japan), a committee created to develop and administer
Glendale’s Sister City Program. In this capacity,
Gingery made significant contributions to Glendale’s
establishment of a Sister City relationship with theCity of Higashiosaka (at the time called Hiraoka),
Japan, Glendale’s first sister city. Gingery was born inJapan, and is now a naturalized U.S. citizen. As a
Glendale resident of Japanese heritage, Gingery
believes the Public Monument presents an unfairly
one-sided portrayal of the historical and politicaldebate surrounding Comfort Women and presents thepotential to disrupt the United States’ strategic
alliances with its closest East Asian allies, Japan andSouth Korea.
12. Gingery suffers feelings of exclusion, discomfort, and anger because of the position espousedby her city of residence through its display andendorsement of the Public Monument. Gingery would
like to use and enjoy Glendale’s Central Park and
Adult Recreation Complex, but she now avoids doing
so because she is offended by the Public Monument’s
pointed expression of disapproval of Japan and theJapanese people. In addition, the presence of the
Public Monument diminishes Gingery’s enjoyment of
the Complex. Gingery contributes as a taxpayer to the
Adult Recreation Center/Central Park Complex, andthe services offered there. Gingery, a senior citizen
over the age of 60, could benefit from a variety of

App.128a
public services and benefits at reduced prices
available to senior citizens who reside in Glendale at
the Complex. However, because of the presence of the
Public Monument directly adjacent to the Adult
Recreation Center, Gingery feels threatened andunwelcome as a person of Japanese origin anddescent. Because the Public Monument states that her
nation of origin should “take historical responsibility”
for “unconscionable violations of human rights,” while
there is a vigorous, ongoing debate in the nations ofJapan, South Korea and the United States, andelsewhere, pertaining to the historical issue of“Comfort Women,” Gingery is intimidated and feels
unwelcome at the Complex for reasons beyond her
control.
13. Plaintiff GAHT-US Corporation (“GAHT-US”)
is a non-profit public benefit corporation organizedunder the laws of the State of California with amembership of nearly 500 people. The purpose of
GAHT-US is to provide accurate and fact-based
educational resources to the public in the U.S., including
within California and Glendale, concerning the history
of World War II and related events, with an emphasis
on Japan’s role. GAHT-US has undertaken this goalin an effort to enhance a mutual historical and cultural
understanding between and among the Japanese andAmerican people. Given its mission, GAHT-US believes
that the Public Monument advances an unfairly biased
portrayal of the Japanese government’s purported
involvement with Comfort Women during the WorldWar II. Individual members of GAHT-US reside in
Glendale and nearby cities, and elsewhere. GAHT-US’smembers suffer feelings of exclusion, discomfort,
humiliation and anger by the continued presence of

App.129athe Public Monument, and the controversial anddisputed stance on the debate surrounding Comfort
Women that it perpetuates. Although GAHT-US
members would like to visit and use Glendale’s Central
Park and its Adult Recreation Center, they no longer
intend to do so as a result of their distress due to the
Public Monument. In addition, the presence of the
Public Monument diminishes GAHT-US members’
enjoyment of the Adult Recreation Center/Central Park
Complex.
14. Plaintiff Koichi Mera (“Mera”) is a JapaneseAmerican resident of the City of Los Angeles and thePresident of GAHT-US. Mera disagrees with and ishighly offended by the position espoused by Glendale
through the Public Monument and its pointed condemnation of the Japanese people and government.
Although Mera would like to use Glendale’s Central
Park and its Adult Recreation Center, as a result of
his alienation due to the Public Monument, he avoids
doing so. In addition, the presence of the Public
Monument diminishes Mera’s enjoyment of theComplex.
15. Plaintiff Masatoshi Naoki (“Naoki”) is aJapanese-American resident of the City of Glendale.
Naoki disagrees with and is highly offended by the
position espoused by Glendale through the Public
Monument and its pointed condemnation of theJapanese people and government. Although Naoki
would like to visit and use Glendale’s Central Parkand its Adult Recreation Center, as a result of hisalienation due to the Public Monument, he avoids
doing so. In addition, the presence of the Public Monument diminishes Naoki’s enjoyment of the Adult
Recreation Center/Central Park Complex. He alsoApp.130a
deplores the Public Monument’s implication that he isassociated with the alleged war crimes of hisancestors.
16. Naoki contributes as a taxpayer to theComplex, and the services offered there. Naoki, asenior citizen over the age of 60, could benefit from avariety of public services and benefits available tocitizens of Glendale at the Adult Recreation Center.
However, because of the presence of the Public
Monument directly adjacent to the Adult Recreation
Center, Naoki feels unwelcome as a person ofJapanese origin and descent. Because the Public
Monument states that his nation of origin should “takehistorical responsibility” for “unconscionable violationsof human rights,” while there is a vigorous, ongoingdebate in the nations of Japan, South Korea and theUnited States, and elsewhere, pertaining to thehistorical issue of “Comfort Women,” Naoki feels
threatened and unwelcome at the Adult Recreation
Center for reasons beyond his control.
17. Defendant, the City of Glendale, is a politicalsubdivision of the State of California operating undera charter authorized by the State of California thatempowers it to pass ordinances and to govern andadminister municipal activities within Glendale’s city
limits, with authority to be sued in its own name.
Glendale’s governing authority consists of city council,
composed of five city council members (the “CityCouncil”), one of whom also serves as the mayor. The
City Council makes policy decisions for Glendale,
including decisions regarding the use of public lands,
and the offering of benefits and services to city
residents such as Gingery and Naoki and visitors suchas Mera and members of GAHT-US.

App.131a
18. Plaintiffs are ignorant of the true names andcapacities of Defendants sued herein as DOES 1
through 20, and therefore sues Defendants by suchfictitious names. Plaintiffs will amend this Complaint
to allege their true names and capacities whenascertained. Plaintiffs are informed and believe, and,based on such information and belief, allege each of
the fictitiously named Defendants is responsible insome manner for the injuries to Plaintiffs as alleged
herein. Plaintiffs further allege that their irreparable
injuries were proximately caused by such defendants,
and each of them.
PLAINTIFFS’ STANDING TO OBTAIN RELIEF
19. Because the Public Monument contains andconsists of a public condemnation of Japan and theJapanese people, and because it is placed on public
property adjacent to Glendale’s Adult Recreation
Center, it has a chilling effect on citizens of Glendale
and persons of Japanese origin and descent, alienatesand excludes persons of Japanese origin, and inflicts
emotional harm by associating them with alleged war
crimes, “sexual slavery” and “unconscionableviolations of human rights.” Plaintiffs are informed
and believe the Public Monument has also revived
anti-Japanese sentiment within Glendale. Plaintiffs
are informed and believe there have been reports inrecent years that school children of Japanese families
in Glendale and its vicinity have been alienated,bullied, marginalized, and insulted as a result of
Glendale’s treatment of its Japanese-American
citizens.
20. Glendale has singled out its JapaneseAmerican citizens. Plaintiffs deplore the Public

App.132a
Monument’s implication that they are associated withthe war crimes or human rights violations and,despite wanting to use the Complex and Central Park,
avoid visiting the area because of the Public
Monument. As longtime residents of Glendale, Gingery and Naoki have effectively been denied fullenjoyment and the public benefits of Glendale’s
Central Park and feel threatened and unwelcome at
the Adult Recreation Center.
21. By singling out its Japanese-American
citizens, Glendale has deprived Plaintiffs of equal
protection of the laws and has offered certain
privileges and immunities on different terms to Plaintiffs and other Japanese-Americans by placing the“Comfort Women” statue in a location that deprives
Plaintiffs of the use of Central Park and the Complex
on equal terms as non-Japanese. The presence of the
Public Monument has directly harmed Plaintiffs by
preventing and deterring their use and enjoyment of
the Complex and Central Park in contrast to other,
non-Japanese individuals.
22. Despite plans to use the Complex and Central
Park, Plaintiffs have intentionally avoided visiting thearea since the installation of the Public Monument.
Plaintiffs are offended by the anti-Japanese messageof the Public Monument and would be confronted withthis message if they attempted to make use of theComplex’s facilities or gain access to Central Park. As
longtime residents of Glendale, Gingery and Naoki
have effectively been denied full enjoyment of Central
Park’s benefits as Glendale has turned visiting thePark into a highly offensive locale and politicalhotbed. As senior citizens, they are also deprived of
the benefits and discounts provided to seniors at theApp.133a
Complex. The presence of the Public Monument has had
a similar negative impact on GAHT-US’s members,
including Mera, who avoids using and benefitting from
Glendale’s Central Park.
23. If not for the Public Monument, Plaintiffs
would make use of the Complex and Central Park.
Their disagreement with and humiliation from thehighly offensive statements on the Public Monument
interfere with Plaintiffs’ use of Central Park and theComplex, and they have suffered a loss of recreational
enjoyment as a result of the Public Monument. Plaintiffs are faced with the choice of not using Central
Park or the Complex, or being forced to confront the
Public Monument’s explicitly anti-Japanese message
in order to use these public facilities. This, in combination with the facts alleged above, confers standing on
Plaintiffs. See Barnes-Wallace v. City of San Diego(9th Cir. 2008) 530 F.3d 776.
JURISDICTION
24. This action arises under Article 1, Section
7(a) and Article 1, Section 7(b) of the California Constitution. This action also arises under inter alia, 42
U.S.C. § 1983; the foreign affairs powers of the UnitedStates, U.S. Cons. art. II, sec. 1, cl. 1; sec. 2, cl. 1; sec.
2, cl. 2; and sec. 3; and the Supremacy Clause, U.S.
Constitution, art. VI, cl. 2. In the absence of a statutory directive or clear legislative history, state courts
have jurisdiction over issues of federal law concurrent
with federal courts. Brown v. Pitchess (1975) 13
Cal.3d 518, 523; Gulf Offshore Co. v. Mobil Oil Corp.
(1981) 453 U.S. 473, 478. This court has jurisdiction
over all parties as they are residents of or doing
business in Los Angeles County.

App.134a
FIRST CLAIM FOR RELIEF(Against All Defendants)(Unconstitutional Interference With
Foreign Affairs Power)
25. Plaintiffs repeat and incorporate the allegations in Paragraphs 1 through 24 of this Second
Amended Complaint as though fully set forth herein.
26. Power over foreign affairs is expressly
reserved to the federal government of the UnitedStates. Movsesian v. Victoria Versicherung AG (9thCir. 2012) 670 F.3d 1067, 1072 cert. denied, (U.S.
2013) 133 S.Ct. 2795. States are not free to pursue
their own foreign policies even in in the absence of a
relevant federal policy. Id. Glendale’s actions attempt
to establish foreign policy and disturb foreign relations
on a highly politicized issue of global politics.
Glendale’s actions intrude on the federal government’s
exclusive power to conduct and regulate foreign affairs.
27. Foreign affairs field preemption occurs whena state attempts to establish its own foreign policy,
regardless of whether there is a statute or treaty
expressing a federal policy, and regardless of themessage of that policy. Movsesian, 670 F.3d at 1075;

Von Saher v. Norton Simon Museum of Art at Pasadena(9th Cir. 2010) 592 F.3d 954, 964; Deutsch v. Turner
Corp. (9th Cir. 2003) 324 F.3d 692, 714. Even if astate’s action purports to regulate an area of traditional
state competence, a state may not take action that
affects issues of foreign policy outside of its typical andquintessential state functions. Movsesian, 670 F.3d at
1075; Von Saher, 592 F.3d at 964.
28. Glendale’s action takes a position on mattersof foreign policy with no claim to be addressing a

App.135a
traditional state responsibility. Glendale is a small
municipal government with local concerns. The
historical and political implications of the international
debate over “Comfort Women,” including the actions
or omissions of Japan as a foreign government, are nota traditional state responsibility that Glendale may
properly regulate. The actions of Glendale inapproving and installing the Public Monument are
beyond its authority in violation of the U.S. Constitution’s foreign affairs power and the Supremacy
Clause. Movsesian, 670 F.3d at 1075.
29. Glendale has impermissibly intruded uponand interfered with foreign relations with Japan andhas taken a side in an international debate overforeign affairs. The text of the plaque on the Public
Monument constitutes a transaction of foreign policy
given that it takes a one-sided position on a hotly
contested international issue, criticizes the actions of
a foreign government and a United States ally, and isa direct solicitation to a foreign government to takeaction, among other things. In fact, Glendale Mayor
Dave Weaver, who voted against installation of the
Public Monument, later explained in a letter toYoshikazu Noda, Mayor of Higashiosaka, Japan thatthe dispute over Comfort Women “is an international
one between Japan and South Korea and the City of
Glendale should not be involved on either side.”30. Glendale’s Public Monument is intended tosend a political message on a distinct point of view
regarding a matter of foreign policy. It attempts tocondemn and force the Japanese government to makeadditional reparations and to provide a friendly forum
for foreign victims. This effect on foreign affairs is notincidental. Movsesian, 670 F.3d at 107.

App.136a
31. State and federal governments do not havelicense to promulgate or communicate offensive or
partisan messages. Glendale’s actions are in conflictwith Constitutional law and are not protected by freespeech principles. Pleasant Grove City, Utah v.
Summum (2009) 555 U.S. 460, 481 (Stevens, J.,
concurring).
SECOND CLAIM FOR RELIEF(Against All Defendants)(Violation of the Glendale Municipal Code)
32. Plaintiffs repeat and incorporate theallegations in Paragraphs 1 through 31 of the Second
Amended Complaint as though fully set forth herein.
33. Glendale Municipal Code Section 2.04.140
provides: “In all matters and things not otherwise
provided for in this chapter, the proceedings of thecouncil shall be governed under Robert’s Rules ofOrder, revised copy, 1952 edition.” Pursuant to Robert’s
Rules of Order, to introduce a new piece of business or
propose a decision or action, a motion must be madeby a group member. (Art. 1, Sec. 4.) A second motion
must then also be made. (Art. I, Sec. 5.) And after
limited discussion, the group then votes on the motion.
(Art. I, Sec. 7 & 9.) A majority vote is required for the
motion to pass. (Id.)
34. The Public Monument was not properly
approved by the City Council pursuant to Glendale
Municipal Code Section 2.04.140. An integral part of
the Public Monument—the plaque that specificallyattributes responsibility for, inter alia, “snatching[women] from their homes” and “coerc[ing them] into
sexual slavery” to Japan—was neither proposed to theCity Council nor made the subject of a motion to theApp.137a
City Council, and was not approved by it as required.
The report recommending approval of the installationof the Public Monument, submitted to the City Council
in conjunction with the motion, included a schematic
diagram depicting the proposed statue and its location.
The diagram, however, did not include any mention of,or reference to, the text of the plaque that currently ispart of the Public Monument. The proposed language
presented to the Council never mentioned Japan atall, and the City Council was specifically advised thatthe inscription on the plaque would be different than
the inscription ultimately used. Thus, the City
Council never voted to approve the text on the plaque.
35. Notwithstanding the numerous objections
voiced at the Special Meeting, ignorance over the textthat would be included, and Glendale’s failure to
consult its Sister Cities committee, or any of
Glendale’s non-Korean Sister Cities, the City Council
approved the installation of the “Korean Sister City
‘Comfort Women’ Peace Monument” “as shown anddescribed in the Report to Council dated July 9, 2013”by a vote of 4 to 1.
36. As a result, the installation of the Public
Monument violated the Glendale Municipal Code andhas cause irreparable harm to Plaintiffs.
THIRD CLAIM FOR RELIEF(Against All Defendants)(Violation of the Equal Protection Clauseof the California Constitution)
37. Plaintiffs repeat and incorporate theallegations in Paragraphs 1 through 36 of the Second
Amended Complaint as though fully set forth herein.

App.138a
38. Article 1, Section 7(a) of the California Constitution (“Equal Protection Clause”) states, inpertinent part: “A person may not be . . . denied equal
protection of the laws . . . ”
39. Plaintiffs seek a judicial declaration that the
Public Monument’s placement in the so-called Sister
City area of Glendale’s Central Park, adjacent to the
Adult Recreation Center, denies them equal protection of the laws, and thus violates the Equal Protection Clause, because: (a) the Public Monument
expressly and impliedly disapproves of individuals ofJapanese origin and descent by wrongly accusing theJapanese nation of “coercing” women into sexual slavery(a matter of international debate), and publically“celebrating” a bill that demands that the Japanesenation “take historical responsibility” for actions
which the Japanese, including Plaintiffs, believe thegovernment is falsely accused of, thereby adopting ananti-Japanese stance, while ignoring the wartime
suffering and patriotism of Japanese-Americans,resulting in alienation of Glendale’s Japanese-American
population; (b) to the extent the Public Monument
honors Glendale’s Korean sister city, no publicmonument exists in the Sister City area of Central
Park that honors any of Glendale’s sister cities inJapan, Mexico, and Armenia and none of the othersister cities were consulted by Glendale prior to its
decision to erect the Public Monument; and (c) the
Public Monument interferes with the Plaintiffs’ useand enjoyment of Glendale’s Central Park and
Glendale’s Adult Recreation Center, and (d) the Public
Monument discourages Plaintiffs Gingery, Mera andNaoki from equal and unfettered access to public

App.139a
services and benefits that are offered only at the Adult
Recreation Center.
FOURTH CLAIM FOR RELIEF(Against All Defendants)(Violation of the Privileges and Immunities Clauseof the California Constitution)
40. Plaintiffs repeat and incorporate theallegations in Paragraphs 1 through 39 of the Second
Amended Complaint as though fully set forth herein.
41. Article 1, Section 7(b) of the California Con–
stitution (“Privileges and Immunities Clause”), states:“A citizen or class of citizens may not be granted
privileges or immunities not granted on the sameterms to all citizens.” Plaintiffs seek a judicial declaration that the Public Monument’s placement in theso-called Sister City area of Glendale’s Central Park,
adjacent to the Adult Recreation Center, denies them,as Japanese-American citizens, privileges and immunities on the same terms as non-Japanese citizens,and violates the Privileges and Immunities Clause,
because: (a) the Public Monument expressly andimpliedly expresses disapproval of individuals ofJapanese origin and descent by publically demandingthat the Japanese nation “take historical responsibility . . . for unconscionable violations of human rights. . . ”, thereby adopting an anti-Japanese stance, while
ignoring the wartime suffering and patriotism ofJapanese-Americans, resulting in alienation ofGlendale’s Japanese-American population; (b) to theextent the Public Monument honors Glendale’s
Korean sister city, no public monument exists in the
Sister City area of Central Park that honors any of
Glendale’s sister cities in Japan, Mexico, and Armenia

App.140aand none of the other sister cities were consulted by
Glendale prior to its decision to erect the Public
Monument; (c) the Public Monument interferes with
the Plaintiffs’ use and enjoyment of Glendale’s
Central Park and Glendale’s Adult Recreation Center,and (d) the Public Monument discourages Plaintiffs
Gingery, Mera and Naoki from equal and unfetteredaccess to public services and benefits that are offered
only at the Adult Recreation Center.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for the following
relief:
1.

That the Court declare Glendale’s installation of the Public Monument unconstitutional and null and void;2.

That the Court preliminarily and permanently
enjoin and compel Defendants, and each ofthem, to remove the Public Monument frompublic property in Glendale, including but
not limited to, any area in or adjacent toCentral Park; or in the alterative, remove
the Public Monument’s offensive plaqueridiculing and condemning the Japanese
government;

3.

That the Court award Plaintiffs their costs
and attorneys’ fees pursuant to California
Code of Civil Procedure § 1021.5; and4.

For such other and further relief as the Court
deems just and proper.

App.141a
DeClercq Law Group
By:
William B. DeClercq
Attorney for Plaintiffs
Michiko Shiota Gingery,
Koichi Mera, and GAHTUS Corporation and
Masatoshi Naoki

Dated: February 20, 2014

App.142a
PETITION FOR REHEARING EN BANC(SEPTEMBER 16, 2016)
IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT________________________MICHIKO SHIOTA GINGERY, KOICHI MERA,
and GAHT-US CORPORATION,

Plaintiffs-Appellants,
v.
CITY OF GLENDALE, a Municipal Corporation,

Defendant-Appellee.
________________________
No. 14-56440
On Appeal from an order of the United States
District Court for the Central District of California
Case No. 2:14-cv-1291. The Honorable Percy
Anderson, United States District Judge
Maxwell M. Blecher
Donald R. Pepperman
Taylor C. Wagniere
Blecher Collins Pepperman & Joye
515 South Figueroa Street,
Suite 1750
Los Angeles, CA 90071-3334
Telephone: (213) 622-4222
Attorneys for Plaintiffs-Appellants

Ronald S. Barak
Law Offices ofRonald S. Barak
206 Giardino Way
Pacific Palisades, CA 90272
Telephone: (310) 459-3963
Attorneys for PlaintiffsAppellants

App.143a
I.

Introduction and FRAP 35(b) Statement

This petition presents an issue of extraordinary
national, international, and doctrinal importance left
open by this Court’s en banc opinion in Movsesian v.
Victoria Versicherung AG, 670 F.3d 1067, 1077 & n.5(9th Cir. 2012): Is local government expressive
conduct that intrudes on the federal government’s
exclusive foreign affairs power subject to field
preemption? In 2012, this Court en banc stated: “Weneed not and do not offer any opinion about
California’s ability to express” a particular viewpoint
on a matter of foreign affairs by, “for example,
declaring a commemorative day.” Id. at 1077 n.5. The
panel here held that the Supremacy Clause does notpreempt local government expression on foreign
affairs, even when it advocates a distinct viewpoint on
a contested matter of foreign affairs and urges aforeign sovereign to accept historical responsibility foralleged international human rights violations.
The panel’s holding is inconsistent with Supreme
Court precedent and this Court’s foreign affairs
preemption cases. See, e.g., American Ins. Ass’n v.
Garamendi, 539 U.S. 396, 421-25 (2003); Zschernig v.
Miller, 389 U.S. 429, 436-38 (1968); Movsesian, 670
F.3d at 1077; Van Saher v. Norton Simon Museum ofArt, 592 F.3d 954, 964-68 (9th Cir. 2010); Deutsch v.
Turner Corp., 324 F.3d 692, 708-16 (9th Cir. 2003). If
permitted to stand, the panel’s decision will upset theConstitution’s allocation of the foreign affairs power.
This suit challenges as unconstitutional
Glendale’s installation and maintenance of an 1,100
pound statue and plaque (collectively, “monument”)
that castigates the Japanese for their World War II
activities regarding Comfort Women, finds the Japanese

App.144a
guilty of alleged international human rights violations,and “urg[es] the Japanese Government to accept
historical responsibility for [its alleged] crimes.” (Dkt.
19-3, Excepts of Record (“ER”) 57-58, ¶11.) The panel(Circuit Judges Stephen Reinhardt and Kim McLane
Wardlaw, and Edward R. Korman, Senior District
Judge, sitting by designation) rejected arguments
based on Garamendi and Zschernig and this Court’s
decisions in Movsesian, Van Saher, and Deutsch that
Glendale’s installation of the monument is preemptedby the federal government’s exclusive foreign affairs
power.
The panel’s holding is incorrect as a matter of law
and fact and constitutes a danger to U.S. interests. It
cannot be reconciled with decisions of the Supreme
Court and this Court. The panel’s validation ofGlendale’s action is inconsistent with the constitutional
structure. En banc review is imperative.
II.

Factual Background

1. In July 2013, although Glendale’s then-mayor
recognized that the historical dispute over World War
II Comfort Women “is an international one between
Japan and South Korea and the City of Glendale should
not be involved on either side” (ER 62, ¶32), Glendale
installed in its Central Park a statue of a young girl in
Korean dress sitting next to an empty chair with abird perched on her shoulder (ER 57-58, ¶11).
Prominently affixed to the statue is a permanent plaquethat reads:“I was a sex slave of the Japanese Military.”

App.145a“Torn hair symbolizes the girl being
snatched from her home by the Imperial
Japanese Army.”“In memory of 200,000 Asian and Dutch
women who were removed from their homes
in Korea, China, Taiwan, Japan, thePhilippines, Thailand, Vietnam, Malaysia,
East Timor and Indonesia, to be coerced into
sexual slavery by the Imperial Armed Forcesof 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 the passing of House
Resolution 121 by the United States
Congress on July 30, 2007, urging theJapanese Government to accept historicalresponsibility for these crimes.”“It is our sincere hope that these unconscionable violations of human rights shallnever recur.” (Id.)
The monument was promoted and donated by a
Korean-American advocacy group. (Dkt. 42, Brief Of
Amicus Curiae The Korean American Forum Of
California, 1.)
This language relates to alleged World War IIforced recruitment of women to serve as sexual
partners to Japanese troops. (ER 58-59, ¶14.)
The debate concerning these women continues todate and has been a source of substantial tension
between Japan and South Korea in recent decades.
(ER 59, ¶18.) Japan denies responsibility for Comfort
Women recruitment and asserts that all World War

App.146a
II-related claims, including those related to Comfort
Women, were resolved by postwar treaties. (ER 60,¶¶21-23.) South Korea, however, contends that the
Comfort Women issue remains unresolved andunredressed. (ER 59, ¶20).
2. During this appeal, Japan and South Korea
entered into a binding international agreement on
December 28, 2015 that seeks to “final[ly] andirreversib[ly]” resolve the Comfort Women issue after
70 years of intractable debate.1 During the negotiations,Japan insisted that South Korea remove a monument
in Seoul almost identical to the one in Glendale’s
Central Park.2 The Seoul monument is one of the chief
hurdles to full implementation of the agreement.3
The United States has praised and supports thisagreement and “call[s] on the international community
to support it.”4 James K. Glassman, former U.S.
Undersecretary of State, recently opined that “the1 Japan and South Korea Agree To WW2 ‘Comfort Women’ Deal,
BBC NEWS, Dec. 28, 2015, http://www.bbc.com/news/world-asia35188135.
2 Ju-min Park, A monument of a ‘comfort woman’ is testing alandmark agreement between Japan and South Korea, REUTERS,
Dec. 28, 2015, http://www.businessinsider.com/comfort-womanstatue-testing-landmark-agreement-between-japan-southkorea-2015-12.
3 Prakash Panneerselvam and Sandhya Puthanveedu, 6 Months
Later: The ‘Comfort Women’ Agreement, THE DIPLOMAT, May 11,2016,
http://thediplomat.com/2016/05/6-months-later-thecomfort-women-agreement/.
4 Press Statement by John Kerry, Resolution of the Comfort
Women Issue, U.S. DEPARTMENT OF STATE, Dec. 28, 2015, http://
www.state.gov/secretary/remarks/2015/12/250874.htm.

App.147a
United States played a key role in helping South
Korea and Japan forge an agreement” to improve
economic and security relations in Asia.5 In responseto the agreement, continues Undersecretary
Glassman, North Korea and China “have been
deploying a strategy of undermining cooperation;” thegoal of which is to use the Comfort Women issue todrive South Korea and Japan apart.6 The Comfort
Women issue is thus one of strategic importance for
U.S. policy in Asia.
3. Besides supporting the agreement, the federal
government has sought to “avoid taking sides” in thiscontentious historical debate. (ER 64, ¶43.) In the last
two years, White House Spokesperson Victoria
Nuland, Secretary of State John Kerry, and Daniel
Russel, the U.S. Assistant Secretary of State for East
Asian and Pacific Affairs, have all stated that the
Comfort Women issue is one between Japan andSouth Korea, and that the United States is hopefulthat the nations will work together to resolve theirdifferences through government-to-government negotiations. (ER 64-65, ¶¶46-48.)7

5 James K. Glassman, North Korea, China Want to Undo theJapan-South Korea Alliance That the U.S. Helped Broker,

FOXNEWS, Aug. 8, 2016, http://www.foxnews.com/opinion/2016/08/08/north-korea-china-want-to-undo-japan-south-koreaalliance-that-us-helped-broker.html.
6 Id.
7 A key part of the panel’s analysis was that “the federal government has [not] expressed any view on the monument.” Gingery,2016 WL 4137637, at *8. Yet, the panel never requested theviews of the United States.

App.148a
4. Glendale’s monument has provoked significant
backlash. Japanese officials at all levels of government
have publicly expressed disapproval. (ER 63-64, ¶¶3742.) In late July 2013, the press secretary of theJapanese Ministry of Foreign Affairs commented thatthe monument “does not coincide with our [Japan’s]understanding” of the Comfort Women dispute. (ER 63,¶37.) Over the next week, at least three other Japanese
officials expressed disappointment with Glendale’s
actions. (ER 63-64, ¶¶39-42.) In August 2014, JapanesePrime Minister Shinzo Abe stated that he was“extremely dissatisfied” with the installation of themonument. (ER 63, ¶41.)
5. Plaintiffs sued Glendale, arguing, inter alia,that the monument interferes with the federal government’s foreign affairs power and violates theSupremacy Clause. Without hearing, the district court,
Judge Percy Anderson, dismissed Plaintiffs’ case withprejudice. The district court first determined that
Plaintiffs lacked standing, and, in the alternative,
held that Plaintiffs failed to state a claim. The district
court also declined to exercise supplemental jurisdiction over a state law claim, dismissing it without
prejudice. Plaintiffs were not, however, permitted toamend their complaint even a single time. (ER 23-26.)
6. On appeal, the panel affirmed. First, after
finding Article III standing because of Plaintiffs’“inability to unreservedly use” Glendale’s Central
Park, Gingery, 2016 WL 4137637, at *2-4, it held that
Plaintiffs Koichi Mera and GAHT-US Corporation8
failed to state a claim for foreign affairs preemption
8 Plaintiff Michiko Gingery’s claim was rendered moot by her
death.

App.149aand that the district court did not abuse its discretionin denying leave to amend, id. at *4-6, *8. The panel
framed the constitutional issue as follows: “whether
the Supremacy Clause preempts a local government’s
expression, through a public monument, of aparticular viewpoint on a matter related to foreign
affairs.” Id. at *5. Relying on Movsesian and Von Saher,
the panel held that Glendale’s monument “is wellwithin the traditional responsibilities of state andlocal governments,” id., and that Glendale’s actions
have not intruded on the federal government’s foreign
affairs powers, id. at *6.
Confirming the doctrinal importance of this case,
Judge Korman filed a concurring opinion that
concluded that Plaintiffs lack a constitutional, statutory, or equitable cause of action because a local government’s expressive, nonregulatory conduct is not“within the category of cases [that provide a] cause ofaction . . . to restrain conduct that touches on the
power of the President or Congress in the area of
foreign affairs.” Id. at *7-9.
III. The Petition Should Be Granted
A. Glendale’s Installation of the Monument Is
Preempted by the Federal Government’s
Foreign Affairs Power
1. Glendale’s actions are preempted because they
overstep
state
and
local
authorityby“intru[ding] . . . the State into the field of foreign
affairs.” Garamendi, 539 U.S. at 417 (quoting Zschernig,

App.150a
389 U.S. at 432).9 As this Court held in Movsesian,“even when the federal government has taken no action on a particular foreign policy issue, the state [or amunicipality, such as Glendale,] generally is not free tomake its own foreign policy on that subject.” 670 F.3d
at 1072; see also Japan Line, Ltd. v. Los Angeles
Cnty., 441 U.S. 434, 455 (1979) (“California may nottell the Nation or Japan how to run their foreign
policies.”). As the Supreme Court observed in
Garamendi, “[i]f a State were simply to take a position
on a matter of foreign policy with no serious claim tobe addressing a traditional state responsibility,” thenfield preemption is applicable. 539 U.S. at 419-20 n.11.
Indeed, foreign affairs preemption is most appropriate“when state action reflects a state policy critical offoreign governments and involves ‘sitting in judgment’on them.” Id. at 439 (Ginsburg, J., joined by Stevens,
Scalia, and Thomas, JJ., dissenting) (citation,brackets and quotations omitted and emphasis
added).
Yet that is just what Glendale did in installingthe monument at issue. Glendale took a foreign affairs
position that Japan is guilty of international humanrights violations. Glendale not only seeks to establish
a foreign policy, but also advocates that Japan, an
important ally of the United States, “accept historicalresponsibility for these crimes.” (ER 57-58, ¶11.)
Glendale’s conduct is preempted because it is morethan “merely expressive” or “commemorative,” Movsesian, 670 F.3d at 1077 & n.5; it advocates (throughcoercion and interference) that Japan take actions
9 Municipalities and states are subject to the same rules ofpreemption. Hines v. Davidowitz, 312 U.S. 52, 63 (1941).

App.151athat the federal government has never urged.10 It
thus intrudes upon the federal government’s exclusive
authority to regulate foreign affairs.
It is true that, for field preemption to apply, thechallenged action must have “more than someincidental or indirect effect in foreign countries.”
Zschernig, 389 U.S. at 434 (quotations and citations
omitted); Movsesian, 670 F.3d at 1072. But there canbe no doubt that Glendale’s conduct had such aneffect. Reactions from the highest ranks of theJapanese government—including the Prime Minister,
the Chief Cabinet Secretary, and Japan’s Ambassador
to the United States—are detailed in Plaintiffs’
complaint. (ER 63-64, ¶¶36-42.)
2. In rejecting field preemption, the panel’s first
response was that “Glendale’s establishment of apublic monument to advocate against ‘violations ofhuman rights’ is well within the traditional
responsibilities of state and local governments.” 2016
WL 4137637, at *5. But the panel’s description of thefacts and its legal conclusions are erroneous.
The panel recognized, but ignored, the basic rulethat on a motion to dismiss for failure to state a claim
the court must accept all of the facts alleged in thecomplaint as true and must construe them in the lightmost favorable to the plaintiff. Wilson v. HewlettPackard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). The
panel incorrectly characterized the monument as
merely “commemorating the ‘Comfort Women,’” id. at
10 Glendale’s reference in the plaque’s language to a nonoperative resolution of the House of Representatives does notprove that its actions are in accord with federal policy. Indeed,such a resolution cannot establish U.S. foreign policy.

App.152a*1, and “advocat[ing] against ‘violations of humanrights,’” id. at *5. The panel compounded this error by
misstating the purpose of the plaque as merely“memorializing victims and expressing hope that
others do not suffer a similar fate.” Id. at *6. In using
the words “similar fate,” the panel is referring tocriminal sexual enslavement. This shows the panel
admits what it denies as being the true focus of themonument. In essence, the panel selectively focusedon the plaque’s language directed only at the Comfort
Women, omitting virtually every plaque provision
critical of the Japanese. (ER 57-58.)
The panel’s selective reading of the facts
disregarded Plaintiffs’ well-pleaded, factual allegations
that the monument seeks to establish foreign policy bytaking sides, casting blame on Japan, and pressuring
Japan to “accept historical responsibility for thesecrimes.” (ER 57-58, ¶11.) The panel completely ignoredin its analysis that the monument “urg[es] the Japanese
Government to accept historical responsibility for [thecomfort women] crimes.” (Id.)
When the facts are viewed in the light mostfavorable to the Plaintiffs, it is clear that Glendale’s
monument does not merely commemorate Comfort
Women and advocate against violations of human rights
generally; it criticizes and sits in judgment of Japan.
Glendale is not merely expressing an opinion on someuncontested historical event, but takes a charged
political position on a contested matter of foreign
affairs by urging Japan to accept responsibility foralleged violations of international human rights law.
Calling one of the United States’ closest allies toaccount for war crimes is not a traditional local orstate responsibility and cannot “be fairly categorizedApp.153a
as a garden variety” commemorative memorial. Von
Saher, 592 F.3d at 964. Nor is it a traditional local
interest for Glendale to involve itself in a debate that
implicates not just Japan and South Korea, but China
and North Korea also.11
Even if the panel is correct that a local government may engage in expressive conduct related toforeign affairs that merely memorializes andcommemorates (not the case here), a local government
may not urge and advocate that a foreign nation takea course on a contested matter of foreign affairs. Just
as Glendale cannot install a monument urging Israelto accept Jerusalem as the Capital of Palestine, cf.
Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S.Ct. 2076,
2094 (2015), it cannot urge Japan to accept historicalresponsibility for contested World War II acts.
Compounding this error, the panel also reachedbeyond the record and inappropriately relied on
examples of other (oddly mostly foreign) governments
installing memorials to buttress its legal conclusionthat Glendale’s activities are traditional responsibilities of U.S. state and local governments. 2016 WL
4137637, at *5. The panel’s approach is improper
because unsubstantiated websites not in the record
should not be used to “establish legal principles” ordetermine “legislative facts.” See Von Saher, 592 F.3d
at 960 (quotations and citations omitted).
The panel’s extra-record (Internet-based) research,2016 WL 4137637, at *5 nn.5-8, exposes anotherproblem with the panel conducting its own unnoticed
investigation—the panel failed to give Plaintiffs the
11 Glassman, supra note 5.

App.154a
opportunity to respond. Clicks Billiards, Inc. v.
Sixshooters, Inc., 251 F.3d 1252, 1267 (9th Cir. 2001).
A response is critical here because the memorials cited
do not support the panel’s legal conclusion.
As to the 27 Holocaust memorials cited,12 only 4
are in the United States. The 23 foreign memorials
have nothing to do with traditional U.S. governmental
interests. Each of the 4 domestic memorials ismaterially different than the monument here because
they do not take a contested position on a matter offoreign affairs (the Holocaust is not subject to any
serious scholarly debate) and do not urge or advocatethat a foreign government accept historical responsibility for alleged crimes. Indeed, these memorials,
unlike the Glendale monument, are commemorative
works only and not works of advocacy. The Armenian
genocide monument cited by the panel is dedicated to“victims of the Genocide perpetrated by the Turkish
Government.”13 However, one cannot tell from thewebsite whether this is part of a group of expressive
displays or represents the views of the City ofMontebello. Regardless, that monument does not urge
the present-day government of Turkey to take any action or accept responsibility for crimes against
humanity. The positions taken by local government
officials on Apartheid and Boko Haram also areinapposite. 2016 WL 4137637, at *5 nn.7-8. The
12 See Gingery, 2016 WL 4137637, at *5 n.5 (citing Holocaust
Memorials, Ctr. for Holocaust & Genocide Stud., Univ. of Minn.,
http://chgs.umn.edu/museum/memorials/).
13 Id. at *5 n.6 (citing Monument at Bicknell Park in Montebello,
California, Armenian Nat’l Inst., http://www.armenian-genocide.
org/Memorial.118/current_category.75/offset.20/memorials_
detail.html).

App.155a
fleeting statement of two mayors on uncontested
foreign policy matters is a far cry from the permanentmonument challenged here. See Pleasant Grove v.
Summum, 555 U.S. 460, 479 (2009) (noting thatpermanent monuments are different than other government speech).
The panel’s Internet research does not uncover
any “long list of other American cities that have
likewise used public monuments to express theirviews on events that occurred beyond our borders.”
2016 WL 4137637, at *5. This was to be expected, as
there is simply no long tradition of local governments
demanding foreign allies to make amends for alleged
historical wrongs, especially when the federal government has not taken such a position.
Furthermore, Garamendi, Zschernig, Movsesian,Von Saher, and Deutsch, all require courts to look to
the “real purpose” of government action. The panel
retreated from its mandated responsibility to lookbeyond the stated purposes of the monument. See,e.g., Movsesian, 670 F.3d at 1076. The panel did noteven consider all the Plaintiffs’ evidence.14
The monument was donated by a Korean activist
organization that opposes the recent negotiations
between Japan and South Korea to resolve the comfort

14 Here again, the panel did not view the facts in the light mostfavorable to the Plaintiffs. Instead, it discounted Plaintiffs’
allegations and relied solely on “Glendale’s stated purposes” tocharacterize the monument as “memorializing victims andexpressing hope that others do not suffer a similar fate.” Gingery,2016 WL 4137637, at *6.

App.156a
women issue.15 Furthermore, Korean and Chineseorganizations filed amicus briefs herein opposing
Japan although previously rejected by the district
court. It is beyond obvious that the real purpose of themonument is to attack Japan and not merely tocommemorate comfort women.
Members of Glendale’s City Council acknowledged
the foreign affairs purpose of Glendale’s actions on
numerous occasions. At the July 30, 2013 City Council
Meeting, City Council Member Laura Friedman
commented: “We really put the city of Glendale on theinternational map today by doing this.” (ER 62, ¶34.)
Lest there be any doubt what Glendale’s “realpurpose” in installing the monument was, Councilmember Zareh Sinanyan, a lawyer, made clear that
Glendale intended to insert itself into foreign affairs
notwithstanding
his
expressly
acknowledged
understanding that such action violated this Court’s
clear case law: “Another argument [is that] Glendale
has no authority to be doing anything about this issue,
it’s a federal issue. Just last year, the Turkish government pushed a lawsuit . . . which they succeeded on in
the Ninth Circuit making the exact same argument . . . saying that the recognition of the Armenian
genocide by state authorities . . . was not proper[presumably referring to this Court’s Movsesian case].”(Dkt. 19-1, Plaintiffs-Appellants’ Opening Brief, at10.)16 According to him, this Court’s en banc decision
15 See KAFC Statement on the Japan-S. Korea Deal, KOREAN
AMERICAN FORUM OF CALIFORNIA, Apr. 23, 2016, http://
kaforumca.org/kafc-statement-on-the-japan-s-korea-deal/.
16 The panel refused to take judicial notice of this evidence
submitted by Plaintiffs, and other evidence properly before it. At

App.157a
was not to be followed because the Comfort Women
question is “a moral issue; it’s a state issue.” (Dkt. 371, Appellee’s Answering Brief, at 36-37 n.14.) But,
regardless of Glendale’s moral conviction, this is not astate issue; this is an exclusively federal issue.
Because the panel ignored its responsibility tolook to the “real purpose” of Glendale’s actions, its
opinion creates an irreconcilable conflict withdecisions of the Supreme Court and this Court thatnecessitates en banc review.
3. In rejecting field preemption, the panel’s
second response was that “even if Glendale wereacting outside an area of traditional state responsibility, Plaintiffs have not plausibly alleged that
Glendale’s actions intrude on the federal government’s foreign affairs power.” 2016 WL 4137637, at *6(quotations and citation omitted). The panel
concluded that Plaintiffs needed to allege, beyond thewell-pleaded statements of disapproval of Japanese
officials, that “this disapproval has . . . affected relations between the United States and Japan.” Id.
However, this Court’s field preemption cases do nothold that a state or locality’s prohibited intrusion into
foreign affairs must be pled in this way. Rather, thisCourt’s cases recognize a different principle—thata minimum, leave to amend should have been granted. See
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1053 (9thCir. 2003) (leave to amend should be granted when the plaintiff
offers additional evidence in good faith). The panel did, however,accept amicus briefs that supported Glendale, even though
admitted at the last moment without affording Plaintiffs any
opportunity to respond and even though the district court had
rejected the same briefs as irrelevant. Indeed, the panel could
have granted leave to amend to establish these facts.

App.158a“more than some incidental or indirect effect on foreign
affairs” can be shown when government action“expresses a distinct political point of view on a specific matter of foreign policy.” Movsesian, 670 F.3d at
1076 (quotations and citation omitted). As in
Movsesian, Glendale has “impose[d] the politicallycharged label,” id., that Japan has committed violationsof human rights. And, as in Movsesian, Glendale has
established “a particular foreign policy, . . . one thatdecries,” id., the actions of Japan and sits in judgmentof that government.
Glendale’s conduct impermissibly assigns Glendale
a role in the formation of foreign policy that the Constitution does not permit. Its actions are thus
preempted.
B. The Panel Impermissibly Narrowed Movsesianand has Effectively Announced the Rule That aState or Local Government’s non-Regulatory,
Expressive Conduct Is Not Subject to Foreign
Affairs Preemption
The panel recognized that this Court sitting en
banc has not expressed an opinion on whether a stateor local government’s commemorative expression on amatter of foreign affairs is subject to preemption. 2016
WL 4137637, at *5. The panel then explained that inaddressing the issue presented, its holding was
limited to “the circumstances of this case.” Id. Later inthe opinion, however, the panel included dangerous
dicta that, if not corrected by this Court en banc,effectively announces the rule in this Circuit that nonregulatory, expressive conduct of state and local governments is not subject to foreign affairs preemption.

App.159a
As the panel explained, “in contrast to state
actions we have found preempted, Glendale has takenno action that would affect the legal rights andresponsibilities of any individuals or foreign governments.” Id. at *6 (citing to Movsesian and Von Saher).
The panel’s dicta permits state and local governments to do an end run around Movsesian by labelingtheir conduct as expressive and nonregulatory, eventhough the real purpose of such conduct is to intrude
on the federal government’s exclusive foreign affairs
power. Unless this Court wishes to endorse that
position—providing local governments with a
blueprint for evading judicial scrutiny for theirintrusions into the federal government’s exclusive
domain—it must grant rehearing en banc.
En banc review is also warranted to resolve
whether Judge Korman’s concurring opinion, which
would hold that individuals do not have a constitutional, statutory, or equitable cause of action tochallenge expressive, non-regulatory government action as violative of the foreign affairs power, should be
the law of this Circuit. In noting that Judge Korman’sanalysis “may very well be correct,” id. at *9 n.9, thepanel has signaled (both in this footnote and in the
dicta discussed above) to courts in this Circuit that thequestion this en banc Court left open in Movsesian is
no longer open. But that would be in conflict withcases of the Supreme Court and this Court discussed
above where individuals clearly may state a foreign
affairs preemption claim. This en banc Court should
resolve this important question of doctrine.
IV. Conclusion
The Court should grant rehearing en banc.

App.160a

Respectfully submitted,
The Law Offices of Ronald S. Barak
Blecher Collins Pepperman &Joye, P.C.
Maxwell M. Blecher
Donald R. Pepperman
Taylor C. Wagniere
By: /s/ Ronald S. Barak
Attorneys for
Plaintiffs-Appellants
Dated: September 16, 2016

App.161a
BRIEF OF AMICUS CURIAE THE NIPPONTODAY’S RESEARCHERS SOCIETY (KINGEN) IN
SUPPORT OF PLAINTIFFS AND APPELLANTSPETITION FOR RECONSIDERATION EN BANC(SEPTEMBER 26, 2016)
UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT________________________MICHIKO SHIOTA GINGERY, an individual,
KOICHI MERA, an individual, GAHT-US CORPORATION, a California non-profit corporation,

Plaintiffs
and Appellants,
v.
CITY OF GLENDALE, a Municipal Corporation,
SCOTT OCHOA, in his capacity as
Glendale City Manager,

Defendants
and Appellees.

________________________
Case No. 14-56440

On Petition for Reconsideration after Appeal fromthe United States District Court for the Central
District of California, Case No. 2:14-cv-1291-PA-AJWDistrict Judge Hon. Percy Anderson

App.162a
William B. DeClercq, Esq.
william@declercqlaw.com
DeClercq Law Group, Inc.
225 South Lake Avenue, Suite 300
Pasadena, California 91101(626) 408-2150
Attorneys for (Proposed) Amicus Curiae
The Nippon Today’s Researchers (KINGEN)______________________________________________CORPORATE DISCLOSURE STATEMENTThe Nippon Today’s Researchers Society(KINGEN) is a not-for-profit, non-governmental organization based in Japan. KINGEN receives no financial
assistance from any outside group, and is wholly
funded by donations from its members. KINGEN has nocorporate parent and no other organization has anownership interest in KINGEN.
INTEREST OF AMICUS

Interest of the amicus. KINGEN has great interestin understanding the controversial issue of the“Comfort Women,” and has collected a wide range of
information and related documents on the subject.
KINGEN has a distinctly different view on the“Comfort Women” as compared to the views expressedin amicus briefs submitted to the Ninth Circuit Courtof Appeals by the interest groups, Korean American
Forum of California (“KAFC”) and the Global Alliancefor Preserving the History of WWII in Asia (“GAPH”).
Because the Ninth Circuit panel accepted those briefs
and presumably considered them in rendering its
opinion, the KINGEN feel compelled to present ourApp.163a
own findings to the Court in support of the plaintiffappellants’ motion for reconsideration en banc.
The members of KINGEN have studied Japanese
history from various angles, and believe that thecurrent controversy over the “Comfort Women” isdriven by a pro-Korean political agenda, coordinatedby pro-Korean organizations, with an objective todishonor and shame the Government of Japan and theJapanese and thereby lower its international
standing.
Japanese scholars take exception to the theory
that the “Comfort Women” were sex slaves, and argue
that the characterization is taken out of its proper
historical context and that it is not based on soundhistorical evidence. In this amicus brief, KINGEN
wishes to provide the Court with context and reliable
sources of information which support the Japanesedenial of the “sex-slave” theory, and explains the position of the Japanese government on the issue of“historical responsibility” on the accusation of war
crimes by Glendale and pro-Korean groups.
STATEMENT OF AUTHORSHIP AND FUNDING
Counsel for Plaintiff-Appellants had no involvement in the preparation of this brief or the accompanying motion. Counsel for KINGEN is not counsel
for any party in this action. However, undersigned
counsel discloses to the Court that he represented
Plaintiff-Appellants for approximately four months in
2014, commencing after the motion to dismiss was
fully briefed and ending in October 2014, before any
briefing on the appeal commenced. Counsel further
advises the Court that no confidential information of

App.164afunds from any party was used in the preparation ofthis brief or the accompanying motion.
Neither any party nor any counsel for any party
contributed any money that was intended to fundpreparing or submitting the brief or the accompanying
motion. No person—other than Amicus, its members,
or its counsel—contributed money that was intended
to fund the preparation or submission of this brief orthe accompanying motion.
ARGUMENTI.

Introduction

Glendale has installed a permanent monument ina public park—in stone and bronze—which sets fortha disputed and controversial view of history. Glendale
espouses the point of view of Korean interest groups
that over 200,000 “Comfort Women,” were “sex slaves”
during World War II, and demands that Japan “takehistorical responsibility” for alleged war crimes.
KINGEN respectfully submits that thesestatements are not appropriate nor supported by thehistorical record, and reflect a strongly pro-Koreaninterpretation of the issue, to the detriment of Japan,
resulting in anti-Japanese discrimination in Glendale.
Further, Glendale has violated the First Amendment
by permanently endorsed one viewpoint while excluding
others. In so doing, the panel improperly expanded thescope of Pleasant Grove City v. Summum, 555 U.S. 460,
470 (2009)—dealing with symbolic speech—and
Alameda Newspapers, Inc. v. City of Oakland, 95 F.3d
1406, 1414 (9th Cir. 1996)—dealing with a (nonpermanent) written resolution or proclamation. Thisis an entirely new statement of the law: that a city can

App.165a
adopt the foreign policy statement of an interest
group, in bronze and stone, in a public park, that aforeign nation should be held accountable for war
crimes over the objection of its citizens.
The new rule announced by the panel allows
statements in favor of a controversial foreign policy
agenda of an interest group to be set in stone in a
public park. This invites municipalities to engage inall manner of viewpoint-discriminatory speech in
public fora by conflating “merely expressive”
monuments with proclamations.
II.

Japan Denies That the “Comfort Women” Were
Enslaved
A. The “Kono Statement” Was a DiplomaticCompromise

In the spring of 2014, the government of Japanbegan aggressively denying the accusation that the“Comfort Women” were enslaved. The Kono Statement, announced on August 4, 1993, was interpreted
as an admission to police and military coerced
recruitment of the “Comfort Women.” But thestatement reveals no use of the words “abduct,”“slave,” nor an admission that these women were“enslaved by the Japanese Military.” However, Kono
Statements caused serious misunderstandings internationally, so a blue-ribbon panel of Japanese experts
revisited the statement in Spring 2014.
On June 20, 2014, the commission concluded that
the Kono statement was not a factual admission of
abduction/enslavement of “Comfort Women,” butrather a diplomatic concession to Republic of Korea

App.166a(“ROK”), a formal apology but not an admission of
fault, that was intended to bring an end to the dispute.
On February 20, 2014, a high-ranking Japanese
official expressed disappointment at the reversal by
the ROK. (Appendix, Exhibit A.) Japan felt compelled
to support the fragile country of South Korea in its
fight against communist threats, especially in the
Korean War, during the cold war, and even into the1990’s, in order to maintain warm diplomatic relations
with the ROK to keep Japan’s good standing with theUSA. (See Id.)
B. Japan Has Denied the Allegations on Four
Separate Occasions
Following the 2014 study, Japan addressed theissue of “Comfort Women” in great detail. Japanexplicitly and specifically denied forcible recruitment(abduction or slave hunting), slavery, and the claimthat “Comfort Women” numbered 200,000. Japan
named ASAHI Newspaper as a propagandist and themain disseminator of alleged disinformation. Japan’s
official denial started with a statement before the UN
Human Rights Committee (CCPR) on July 15, 2014, andJapan’s denial has been repeated four times. (Exhs. B, C,
D, E & G [summary prepared by KINGEN].) Japan’s
position to the international community directly
contradicts Glendale’s accusations, as Japan maintains:These are one-sided
corroborative evidence;

There is no documentation of state-sponsoredabductions of women,claims

which

lack

App.167a


The claim of “200,000 comfort women” is based
upon confusing “Comfort Women” with womenvolunteer corps.

The phrase expression “sex slaves” contradicts
the facts and it is inappropriate to consider the
comfort women system as “slavery” from theperspective of then-current international law.

Japan objects to the allegation of historicalrevisionism and maintains it has fully
addressed the issue “Comfort Women.”

III. Japan Disapproves of Glendale’s Monument to
the “Comfort Women.”
Glendale has disrupted the relationship between
Japan and the USA. Japan has expressed support forthis citizen lawsuit against the monument in
Glendale, and expressed disapproval of another very
similar statue in Seoul.
A. Japan
Calls
Glendale’s
Monument“Incompatible” and “Regrettable.”
On February 21, 2014, the day after plaintiffs
filed this action, Mr. Yoshihide Suga, Chief Cabinet
Secretary of Japan, gave a press conference, stating:“This installation of a memorial statue by a municipal
government in the U.S. is incompatible with the viewsof the Japanese Government,” and “extremely regrettable.” Mr. Suga expressed solidarity with the plaintiffs, Japanese, and Japanese-Americans. (Exhibit F)

App.168a
B. Another Diplomatic Compromise on “Comfort
Women”: Japan-Korea Agreement of 2015
On December 28, 2015, the Japan-Korea
Agreement on “Comfort Women” was announced andthe Foreign Minister of ROK, Mr. Yun, specificallyaddressed the “Comfort Woman” statue in Seoul, as
follows:
The Government of the ROK acknowledges
the fact that the Government of Japan isconcerned about the statue built in front of
the Embassy of Japan in Seoul from theviewpoint of preventing any disturbance ofthe peace of the mission or impairment of itsdignity, and will strive to solve this issue inan appropriate manner through taking
measures such as consulting with relatedorganizations about possible ways ofaddressing this issue. (Exh. H.)
Japan supports for the fragile government of the ROK,in the face of volatile situations in the South and East
China Sea, to maintain its alliance with the U.S.A.
Nevertheless, Japan requested removal of the statue
in Seoul, and the ROK has acknowledged the problem.
Similarly, the statue in the Glendale creates friction
amongst ethnic groups, and its continued presence in
Glendale threatens to destabilize the relationshipbetween the USA and Japan. (Exh. I.)
IV. Who Were the “Comfort Women”?
According to various reports, “Comfort Women”
were recruited through advertisements in newspapers(Exh. 6), proprietors of brothels, employment agencies,
panders, and other private individuals. As valuableApp.169a
employees, scholars argue, they were treated withrespect. Furthermore, historians claim that as a resultof the risk of their work near battlefronts, theyreceived high remuneration. Documents submitted
herewith reflect that one “Comfort Woman” depositedin her bank earnings then-equivalent to the purchaseprice for two houses in Tokyo, in only one year. (Exh.
J.)
U.S. Military reports have supported this view ofthe historical facts. Indeed, the U.S. Government has
previously investigated the allegations of atrocities
against the “Comfort Women” by the Japanesemilitary, at urging of amicus GAPH, without results.
A. U.S. Military Intelligence Report No. 49
On October 1, 1944, the U.S. issued a report,
Japanese Prisoners of War Interrogation on Prostitution Report No. 49, prepared by U.S. Office of War
Information, Psychological Warfare Team which was
attached to U.S. Army Forces India-Burma Theater,
APO 689. (Exh. K.) It is based on interrogations of“Comfort Women” captured by the U.S. in Burma. The
report concludes: “A ‘comfort girl’ is nothing more thana prostitute or ‘professional camp followers’ attachedto the Japanese Army for the benefit of the soldiers.”(Id., p.1) A summary of the major findings of thisreport follows:“Comfort Women” were recruited by Japanese
private-sector agents in May 1942 in Korea for“comfort service,” which was a contract
wherein the women or their families were paidin advance

The women’s age ranged from 21 to 28.

App.170a


Each woman lived, slept and transacted
business in a private room.

The report opines that they lived fairly
comfortably.



The report characterizes the relationshipbetween “Comfort Women” and soldiers as generally amicable and social with numerous
instances of marriage proposals and a few
marriages.



The report describes strict regulation to protect
the health and safety of the women and theircustomers.



The report states that women had time off andwere able to refuse a customer if they wished.

(Id.) U.S. military interrogations of Japaneseprisoners of war in south Asia and southern Pacificareas, held at the U.S. National Archives and Records
Administration (NARA), mirror Report No. 49 in the
depiction of “Comfort Women” in Manila, thePhilippines and Rabaul, Papua New Guinea. (Exhibit
L.)
B. Interagency Working Group Report of 2007
In response to the 1998 Nazi War Crimes
Disclosure Act, Public Law 105-246, amicus GAPH, a
Chinese-American organization, persuaded Congress
to also authorize and investigation into war crimes by
the Japanese resulting in the Japanese Imperial Government Disclosure Act, Public Law 106-567, (2000).
The Interagency Working Group (IWG)—consisting of
top U.S. government officials—began researching
alleged war crimes by the Japanese. After reviewing

App.171aover 8.5 million pages, little evidence was reported.
(Exhibit P.) Acting Chair Steven Garfinkel
acknowledged the disappointment of GAPH, who
hoped to unearth massive troves of evidence ofJapanese war crimes. (Exhibit Q.)
Despite the U.S. acknowledging a lack of
documentation, amicus curiae GAPH insists onpressing the “enslavement” theory, seeking redress for“Japan's aggression, invasion, and occupation of
mainland Asia and island nations of the Pacific.” (Exh.
M) But the U.S.A. has no policy regarding “Comfort
Women” as a war crime since it was a then-acceptable
and legal local practice. (Exh. L, p. 15) But Glendale,
following Amicus GAPH, ignores the policy of the U.S.
C. Glendale Strains Relations with Japan inFavor of Korea
Glendale’s monument has alienated its firstsister city, Higashi-Osaka. (Exh. U.) According to
KINGEN’s study, the mayor of Glendale has visited
its relatively new Korean sister cities, Goseong and
Gimpo, seven times in the last seven years, but notonce stopped in Higashi-Osaka, a few hours fromSeoul. By favoring Korea over Japan, Glendale has
shunned Japan—an American ally and home of
Glendale’s sister city dating back to 1960.
D. About Amicus GAPH
GAPH was established by Chinese-Americans innorthern California with the aim of alleging atrocities
by the Japanese military during World War II. GAPH
helped write The Rape of Nanjing, by Iris Chang, acontroversial text that many Japanese scholars argue
lacks credible evidence. GAPH lobbied Congress toApp.172acreate the IWG, which ultimately failed to unearth
documentation of the Japanese military’s alleged
crimes.
Also, GAPH opposes U.S. diplomatic policy by,among other things, claiming that the San Francisco
Peace Treaty of 1951 was controversial, and wasinvalidated in 1972 by a joint communique between
Japan and PROC. (Exh. M.) GAPH hopes Glendale will
generate “a formidable popular consensus (which) willcompel [] Japan to honor its postwar responsibilities.”(Id.) In short, GAPH is promoting the “Comfort Women”
to lower Japan’s standing.
E. Statements of the “Comfort Women”
Historical evidence of Glendale’s narrative relies
on narrative statements from self-proclaimed “Comfort
Women.” In The Comfort Women (University of Chicago
Press, 2008), author Sarah Soh, Professor of Anthropology at San Francisco State University, hasrigorously examined the evidence, concluding:1.

“Comfort Women”
kidnapped. (p.3)

were

not

typically2.

“Comfort Women” received advance payments
when recruited. (p.9)

3.

“Comfort Women” numbered 50,000 at most,not 200,000. (p.24)

Professor Park Yuha of Sejong University in South
Korea has resisted the pressure to adopt the ROK
version of history:“some well-known Korean [‘Comfort Woman’]survivors (such as Kim Hak-sun, Pae Ponggi, and most recently, Yi Yong-su) have given

App.173adifferent
versionof
testimonial
narratives. . . . In particular, the stories ofsome Korean survivors have varied regarding a crucial issue of the method of their
recruitment. . . . In the case of Yi Yong-su,
the published account states that she left
home at dawn when her age-mate andneighborhood friend Pun-sun knocked on her
window and whispered, ‘Come out quietly.’
Yi recalled: ‘I tiptoed out and furtively
followed Pun-sun to leave home . . . without
letting her mother know.’” (“Comfort Womenof the Empire” in 2013 [Korean], 2014
(Japanese, Asahi Newspaper)
But Yi recently revised her statements to allege she
was “dragged away by the Japanese military during
her sleep” dovetailing with the activists’ paradigmatic
discourse.” (Exh. V.)
By contrast, Special Edition of Bulletin of Showa
Kenkyujo collects 33 testimonials from military personnel and civilians, recounting conversations with
“Comfort Women,” along with Japanese military
discipline and attitudes, detailing the strict regulationof soldiers’ visits to “Comfort Stations,” the mandatethat natives of occupied territories be treated as
equals, and denials of Hitler’s theories of racial
supremacy. (Exh. N.) This argues Japanese military
was disciplined and that “Comfort Stations” decreased
the incidence of rape and prevented disease. (Exhibit
O). KINGEN finds these results consistent withprisoners’ interrogation reports. Indeed, KINGEN has
found no evidence of kidnapping, no evidence of
200,000 “Comfort Women,” and no mention of sexual
servitude. (Exh. W.)

App.174a
Glendale, and its amici, rely almost exclusively
on the narratives of self-identified “Comfort Women”
to proclaim the Japanese “guilty” of “war crimes.”
There has been no tribunal, no sworn testimony, andno such verdict, but the language of the monument in
Glendale’s Central Park insists otherwise. Permitting
a California municipality to act as judge, jury andexecutioner in a serious matter of international importinvites perjury, and insults the process of international
criminal courts.
Ironically, Glendale’s purported justification forthe monument—freedom of expression—actually limits
freedom of expression of opposing viewpoints by officially condemning the Japanese military as a criminal.
F. Argument Amongst Academic Historians
Historians are hotly debating the “enslavement”
theory, but debate is dead in Glendale Central Park.
Those who insist that “Comfort Women” were enslaved
have not responded for almost a half year since 50
Japanese historians presented evidence denying
enslavement. (Exhibit R).
V.

What Is the Real Purpose of the Monument?

Glendale’s monument purports to commemorate“200,000 Sex Slaves,” but significant historical evidence
suggests there were a quarter that many and that the“Comfort Women” were “nothing more than prostitutes
or professional camp followers” (Exh. K.) Indeed, noneof the Japanese “Comfort Women”—who as a groupconstituted the greatest number of these women—
have made any accusation of enslavement against the
military of Japan, nor have they demanded
reparations.

App.175a
This begs the question: why do the proponents ofthe monument fail to commemorate victims of sexual
exploitation and/or alleged war crimes, at any othertime, in any other place? Why does not Glendalecommemorate prostitutes who worked during the
Korean War, Vietnam War, elsewhere? KINGEN
respectfully submits that the “Comfort Women”
theory espoused by Glendale’s monument is a proxy
for anti-Japanese sentiment and is part of a campaign
to shame and demean the Japanese people, with a goalof Japan’s standing as an ally of the U.S.A.
As evidence, KINGEN has has collected images ofanti-Japanese demonstrations, rallies and signagearound the monuments by Korean and Chinese
activists. Although the monuments purport to promote
peace, they have become a lightning rod of division.
(Exh. S [KINGEN-assembled collage of anti-Japandemonstrations surrounding “Comfort Women” monument].) Therefore, KINGEN maintains that the“Comfort Women” issue is an international politicalissue, using a hypocritical double standard on women’s
rights, in order to marginalize Japan and theJapanese today. There have been many atrocities
during wars in history and in the world. To single out
Japan and to condemn Japanese persistently, in lightof the broader context and the complicated history ofthis issue is tantamount to state-sponsored discrimination and prejudice against the Japanese people.
VI. Plaintiffs and Appellants Can State a Claim
The panel concluded that Plaintiffs’ complaint
should be dismissed without leva to amend; however,in California, plaintiffs have alleged claims under theApp.176a
California Constitution Equal Protection and Privileges
and Immunities clauses.
Plaintiffs and Appellants should be permitted toamend their federal complaint in light of the analysis
above as Glendale’s pro-Korean position in light of thevigorous international dispute is a state-sponsoredproxy for anti-Japanese-American sentiment in
Glendale, California.
Plaintiffs Can State a Claim for Violations of
their First Amendment Rights
As alleged in Plaintiffs’ complaint, Glendale
decided to adopt the monument’s language – which wasprovided and supported by a pro-Korean interest
group—while ignoring the objecting views of its
Japanese citizens. Glendale’s Central Park is a publicforum and the City has adopted and set in stone theviews of one set of interests while denying the right ofothers to offer different views of the historical facts
and to defend the “trial by monument” in Glendale.
Glendale’s statement in the written plaque reads
as an out-of-court indictment of Japan—a foreign
power—and expresses subtle anti-Japanese animus.
The narrative plaque is not a valid “time, place andmanner” restriction on speech in a public forum, nor
is it mere “expressive speech.”Rather, the written statement set in stone in
Glendale’s Central Park is an impermissible government subsidy of controversial, highly charged, andinternationally relevant speech that adopts the viewsof a political activist group with anti-Japanese
objectives.

App.177a
In permitting the language of the plaque (separately and distinct from the “expressive” monument ofa sitting Korean woman) the panel improperly
expanded the scope of Pleasant Grove City v.
Summum, 555 U.S. 460, 470 (2009)—dealing withsymbolic speech—and conflated it with the holding of
this Court in Alameda Newspapers, Inc. v. City of
Oakland, 95 F.3d 1406, 1414 (9th Cir. 1996)—dealing
with a (non-permanent) written resolution or
proclamation.
The result is an entirely new statement of thelaw: in reading the opinion, a city could adopt theforeign policy statement of any interest group, andcast it in bronze and stone, in a public park, arguingthat a foreign nation should be held accountable forwar crimes over the objection of its citizens. The ruleannounced by the panel would permit cities to engage
in all manner of viewpoint discriminatory speech in
public fora under the guise of “merely expressive”
proclamations.
Given California’s troubled history of mistreating
Japanese residents, this monument and its one-sided
view of history can rightfully be seen as the first stepon a slippery slope of government-sponsored antiJapanese sentiment. If the monument and its incendiary narrative stand, nothing prevents Glendalefrom adding, as additional “expressive speech,” anymanner of divisive or exclusionary rhetoric.
CONCLUSION
The “Comfort Women” monument was promoted,
funded and created by Korean interest groups anderected three years ago by the City of Glendale, leading
to international tensions and disenfranchisement of

App.178athe plaintiffs, because Glendale accepted a pro-Korean,anti-Japanese view. Indeed, a very similar statue in
Seoul has created diplomatic tensions between Japanand South Korea. Substantial historical evidence andacademic scholars question the theory that “200,000‘Comfort Women’ were ‘sex slaves’ of the Japanesemilitary,” but Glendale ignored the perspectives of theJapanese and embraced the views of pro-Koreangroups. From a Japanese perspective, the monument
does not preserve peace nor promote human rights,
but rather defames and demeans Japan and theJapanese in the USA.
The Ninth Circuit should rehear the case en bancand reverse the ruling of the panel because a failure
to act will cause the situation to worsen, resulting in
more anti-Japanese monuments promoted by the
Korean interest groups, threatening to weaken the
U.S.-Japan Security Treaty. Performance of a bilateral
security treaty is “greatly dependent on a mutual
friendship,” as stipulated in the first line of the firstparagraph in the Security Treaty. (Exh. T)
The monument threatens the friendship of Japanand the U.S.A. From the perspective of the Japanese
members of KINGEN, the “Comfort Women” monument
in Glendale is not just a 20-ton bronze memorial; it isa sharp and subversive dagger aimed at the U.S.-Japan
Security Treaty, a Trojan Horse that threatens thesafety of the Japanese and Japanese-Americans in
Glendale. The opinion of the panel suggests
improperly that municipalities can intervene in a
global diplomatic issue without regard to U.S. policyor the right of its citizens to have equal access to
express their viewpoints in a public forum.

App.179a

Respectfully submitted,
DeClercq Law Group, Inc.
By:

/s/ William B. DeClercq, Esq.
Attorneys for (Proposed)
Amici Curiae Nippon
Today’s Researchers Society(KINGEN)

Dated: September 26, 2016

App.180a
EXHIBIT S TO THE NIPPON TODAY RESEARCH
SOCIETY AMICUS BRIEF(SEPTEMBER 26, 2016){ Note: These photographs appeared in the appendix
to the Nippon Amicus brief. The photo arrangement has
been reformatted to fit the booklet format. We haveplaced all the narration together in sequence, while placing captions on the pages with the matching images. }ANTI-JAPAN RALLIES AROUND THE STATUES
1. Around the Glendale Statue in USA (1/2)
As of Sept 2016, there are two statues and sevenmonuments in US. Chinese and Korean groups areplanning to erect more statues, and are now deploying
anti-Japan activities.
These are the photos of their anti-Japan activities
related to around the statue of Glendale city.
[...]
Before and after PM Abe’s speech in the Congress
Chinese and Korean Americans jointly and separately
protested in the US. Some held signs “COMFORTWOMEN WERE SEX SLAVES NO COVER UP OF
WAR CRIMES!”, and some “COMFORT WOMENDESERVE SINCERE APOLOGY!
No matter what PM Abe says in his speech, they
just do accusations against any Japan.

App.181a

Prime Minister Shinzo Abe addressed a Joint
Congressional Meeting of the US Congress in April 29,
2015 titled "Toward an Alliance of Hope.”

App.182a
He emphasized especially an enhancement of USJapan security. The speech was applauded by themembers with standing ovations.

App.183a1.

Around the Glendale Statue in USA (2/2)
Before and after PM Abe’s speech in the Congress
Chinese and Korean Americans jointly and separately
protested in the US. Some held signs “COMFORTWOMEN WERE SEX SLAVES NO COVER UP OF
WAR CRIMES!”, and some “COMFORT WOMENDESERVE SINCERE APOLOGY!” No matter what PM
Abe says in his speech, they just do accusations
against any Japan.

App.184a

App.185a2.

Around the Statues . . . “Enslaved
Woman” in South Korea (1/4)

ComfortHow Contradictory They are! 1. Claiming Justiceby the Illegal Statue! 2. Radical/Violent Rallies aroundthe “Peace Monument”
Now 34 statues have been erected all over theSouth Korea. The first statue was installed in front of
the Japanese Embassy in Seoul in December 2011.
Even after the Japan-S. Korea Agreement, so far onlywith 9 months, 11 statues were erected in publicvenues by private organizations.
The agreement stipulates refrainment fromaccusations in international societies, however the
Koreans seemingly understand that they could doanything freely in their homeland.

App.186a
On December 14, 2011, the first slaved comfort
girl statue was erected in front of the Japanese
Embassy in Seoul. The statue is called “Peace
Monument” in South Korea. Since then anti-Japan
protesters rally and perform radical anti-Japan
activities around the statue.

Source:https://justiceforcomfortwomen.org/category/
uncategorized/
The statue faces the front gate of the Embassy. The
idea seems to be her angry staring at Japan andJapanese, who never apologize for “their alleged
atrocities”.

App.187a2.

Around the Statues . . . “Enslaved Comfort Woman”
in South Korea (2/4)

Sino-Korea Alliance against whom?
Two months before the Japan-Korea Agreement,a paired statue of Korean and Chinese girls was
unveiled on October 28, 2015. Cooperation between
China and Korea was materialized like this.
According to this article “A representative of theSouth Korean group said similar statues will be set up
in Shanghai and San Francisco.”

Statues honoring Korean, Chinese ‘comfort
women’ erected in Seoul. (Japan Times Oct. 29, 2015)
http://www.japantimes.co.jp/news/2015/10/29/national/
politics-diplomacy/statues-honoring-korean-chinesecomfort-women-erected-in-seoul/#.V-I2qSiLTIU

App.188a
Radical Rallies Against the PM of Japan Are These
Expressions of Their Opinions?
Around the statue rallies were performed by antiJapan activists, who insult the Prime Minister anddeface the national flag of Japan. The statue is the
symbolic icon of the anti-Japan campaign.

The Himalayan Times August 15, 2015 Protests inSouth Korea
http://thehimalayantimes.com/multimedia/photogallery/protests-in-south-korea/

App.189a
2.

Around the Statues . . . “Enslaved
Woman” in South Korea (3/4)

ComfortDo they claim “Peace”? The rallies’ main claim isfor an official Apology. Does that mean once the government apologized, these campaigns would cease? Does
the Government of South Korea keep the promises? So
far it has not. So far the government of Japan, basedon the agreements made with the South Korean
government, announced 3 times that the issue wassettled, as “all claims is settled completely and finally”(in 1965), “all settlement by unclear Kono statements”,
and thirdly J-K Agreement of Dec. 2015 as “final andirrevocable resolution”. The first two were broken by
South Korea without any apologies
so far. The Government of South
Korea promised
to work for removal of the statue,
but Japanese still
wait and see how
the situations develop.
Protesters defame PM Abe under names of: “Human
Rights” “Freedom of Expressions” “Peaceful Societies”
and put his face photos under their feet. Do they claim“Peace”?
Photo Caption: “Peace monument” for former “comfort
women” during an anti-Japan rally outside theJapanese embassy in Seoul on April 1, 2015 By: Jung
Yeon Je. Getty Images. http://en.koreaportal.com/
articles/3292/20151030/south-korea-japan-comfortwomen-statues.htm

App.190a

A man (left)
wearing a mask of Japanese Prime Minister Shinzo
Abe kneels down in a mock apology next to the statue(right) of a teenage girl symbolizing former “comfort
women,” in Seoul on August 15, 2016 (AFP Photo/Jung Yeon-Je)

Rejecting a deal announced by the South Korean
and Japanese governments, people protest on Dec. 30
at a statue symbolizing “comfort women” in front of
the Japanese Embassy in Seoul. PHOTO: REUTERSApp.191a
2.

Around the Statues . . . “Enslaved
Woman” in South Korea (4/4)

Comfort“Oppose the Alliance between U.S. and Japan andJapan’s Wartime atrocities.” (AP)Former comfort women Kil Un-ock, boom, andKim Bock-dong who were forced to serve for theJapanese troops as a sexual slave during World War
II, shout slogans during a rally against a visit by
Japanese Prime Minster Shinzo Abe to the UnitedStates, in front of the Japanese Embassy in Seoul,
South Korea, Wednesday, April 29, 2015.
Abe has sidestepped a question on whether hewould apologize for the sexual enslavement of womenby Japan’s army during World War II.
The letters at cards read “Oppose the alliance
between U.S. and Japan and Japan’s wartime atrocities.”(AP Photo/Ahn Young-joon) April 29, 2015.
http://www.apimages.com/metadata/Index/SouthKorea-US-Japan-Comfort-Women/14f28419b25a4
d1a979eb05d13cad00f/312/0

App.192a“A Protester Chops an Effigy of Japanese Prime
Minister Shinzo Abe with an Axe.” (Reuters)
A protester chops an effigy of Japanese Prime
MinisterShinzoAbe with an axe
during an antiJapan rally on theoccasion of the70th anniversaryof liberation fromJapan’s 1910-45
colonial rule, on
Liberation Day inSeoul, South Korea, August 15, 2015.
http://thehimalayantimes.com/multimedia/photo-gallery/protests-in-south-korea/

Belfast Telegraph (AP Photo/
Yonhap, Kim Ju-Sung)

http://www.belfasttelegraph.co.uk/news/worldnews/korean-activist-launches-knife-attack-on-usambassador-mark-lippert-in-seoul-leaving-him-withnerve-damage-and-80-stitches-31042768.html

App.193a
3. The Statue of Glendale in Australia is Used foraccusing Japan and generating ethnical frictions, notfor peace.
The Korean Committee of United Austral
Korean-Chinese Alliance Against Japanese War
Crimes (UAKCA)”, one of main driving organizations
for erecting the statue in Australia, uses in the headof HP (http://designbank.wixsite.com/korean-andChinese) a snap shot of the statue of Glendale City forpromoting the first similar statue in Australia at a
public venue.
According to statements of the HP: UAKCA isdetermined to have the statue built. “Increase publicawareness about the Japanese government’s hidden
policy of neo-militarism, distortion of war history andwar crimes, including the use of sex slaves and the
Nanjing Massacre.
Erect a girls’ statue that represents those who
were forced to work as sex slaves, commonly known as‘comfort women’. The purpose of this statue is toinform growing second generations of Korean andChinese in Australia and Australian citizens of thebrutality and atrocity suffered by hundreds ofthousands of women during the Second World War.
We would like to further educate the generations tolearn the lessons from history so that we can prevent
this dark past from happening again in the future.”
UAKCA declares that by erecting statues (likeone of Glendale), he will educate younger generation
about Japanese military’s “brutality and atrocity”.
The statue does not represent a peaceful world,
instead generate frictions among ethnics.

App.194a

Head page of UAKCA HP (printed at 11:00 am(JST)on September 11, 2016)

Photo: Statue in Glendale City

App.195a
4.

The Mayors of the Glendale City (1/3)

Mayor Frank Quintero studied the comfort women in
Seoul on April 14, 2013

Ex-Mayor Frank Quintero visits the statue locatedjust in front of the Japanese Embassy in Seoul.
04.14.2013 / News 1
Mayor Frank Quintero with a well-known proCommunist group- “The Korean Council for the
Women Drafted for Military Sexual Slavery by Japan”(Chong Dae Hyup )App.196a
Mayor Frank Quintero was taken a photo with arepresentative of “The Korean Council for the Women
Drafted for Military Sexual Slavery by Japan” (Chong
Dae Hyup ), a famous organization very close to North
Korea, formed by the South Korean communists. It issaid that Chong Dae Hyup was confining surviving
women in a nursing home called “House of Nanumu”.
Some of Chong Dae Hyup’s members werearrested as North Korean spies. The issue of comfort
women was used by them for its political purpose–to
drive a wedge into U.S.-Japan–South Korea security
alliances.

Frank Quintero with the Statue and Pro-Communist
in front of the Japanese Embassy in Seoul. 04.14.2013/ News 1

App.197a
4.

The Mayors of the Glendale City (2/3)

In merely three and a half months from the study,
the statue was erected. Both the Statue and the
ceremony followed a well prepared template at an
amazing speed and efficiency.
Unveiling Ceremony on July 30, 2013 4 of 5 City
Council Members attended Back row from left:- Zareh Sinanyan- Ara Najarian (Ex-Major)- Frank Quintero (Former Mayor)- Laura Friedman (Former Mayor)(Source: http://ironna.jp/article/3855)

App.198a

Four of all five Council members had visited
South Korea before this ceremony, and three of themattended the unveiling ceremony. None of them had
visited Japan.
The three studied only one-side of the issue.
The three were the all Ex Mayors:- Frank Quintero- Ara Najarianand- Laura Friedman.

Source: http://ironna.jp/article/3855

App.199a
4.

The Mayors of the Glendale City (3/3)

Ex-Mayor Dave Weaver visits Goseong City on
January 15, 2009

Source:http://www.koreadaily.com/news/read.asp?art_id=772034
Then Mayor Frank Quintero visits Goseong City
for the first time on September 13-14, 2009

App.200a
Then Mayor Ara Najarian visits Goseong City on
August 26, 2010.

Source:http://www.newsty.net/news/articleView.html?idxno=2442
Ex-Mayor Frank Quintero with the statue in
Seoul on April 14, 2013/ News 1

App.201a
AFTER THE ERECTION IN THE GLENDALE CITY
Then Mayor Zareh Sinanyan on November 17, 2014.

photp@newsis.com 2014-11-17
The present Mayor Paula Devine on July 2-4, 2016

http://www.gndomin.com/news/articleView.html?idxno=114626

App.202a
THE SOCIETY FOR DISSEMINATION OF
HISTORICAL FACT (SDHF) AMICUS CURIAE
BRIEF IN SUPPORT OF PLAINTIFFS AND
APPELLANTS PETITION FOR
RECONSIDERATION EN BANC(SEPTEMBER 26, 2016)
UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT________________________MICHIKO SHIOTA GINGERY, an individual,
KOICHI MERA, an individual, GAHT-US CORPORATION, a California non-profit corporation,

Plaintiffs
and Appellants,
v.
CITY OF GLENDALE, a Municipal Corporation,
SCOTT OCHOA, in his capacity as
Glendale City Manager,

Defendants
and Appellees.

________________________
Case No. 14-56440

On Petition for Reconsideration after Appeal fromthe United States District Court for the Central
District of California, Case No. 2:14-cv-1291-PA-AJWDistrict Judge Hon. Percy Anderson

App.203a
William B. DeClercq, Esq.
william@declercqlaw.com
DeClercq Law Group, Inc.
225 South Lake Avenue, Suite 300
Pasadena, California 91101(626) 408-2150
Attorneys for (Proposed) Amicus Curiae
The Society Dissemination of Historical Fact (SDHF)______________________________________________CORPORATE DISCLOSURE STATEMENTThe Society for Dissemination of Historical Fact
(SDHF) is a not-for-profit group based in Japan. SDHF
receives no financial assistance from any outsidegroup, and is wholly funded by donations from its
members. SDHF has no corporate parent and no otherorganization has an ownership interest in SDHF.
INTEREST OF AMICUS

Interest of the amicus. SDHF has a serious interestin this lawsuit. SDHF has been disseminating historicalinformation as related to Japan’s modern era for 10
years. This organization has serious interest in theinteractions of Japan with neighboring nations during
the Pacific War and prior years. The membership of
SDHF has authorized and prepared substantial
portions of this brief in order to assist the Court inunderstanding the historical context of the “Comfort
Women.”
There are numerous academic materials on the
topic in Japanese, but only a small fraction of them
have been translated into English. As a result, English
speaking populations do not have all of the facts andApp.204a
perspectives available. SDHF has sponsored many
articles and books specifically examining the issue of“Comfort Women.” However, the information has notreached yet to a large majority of people outside ofJapan. The members of Glendale’s City Council are
not exceptions, nor are some of the judges in California
and other parts of the United States. One of the best
ways of sharing an overview of the situation is tointroduce to this Court the opinions of scholars in the
United States and that of Japanese scholars on theissue of “Comfort Women.”
Fortunately, since this lawsuit started in
February 2014, serious academic discussion started
between historians in the United States and those ofJapan on this particular issue of Comfort Women.
These views have been published in publicly available
publications.
STATEMENT OF AUTHORSHIP AND FUNDING
Counsel for Plaintiff-Appellants had no involvement in the preparation of this brief or the accompanying motion. Counsel for SDHF is not counsel forany party in this action. However, undersigned
counsel discloses to the Court the he represented
Plaintiff-Appellants for approximately four months in
2014, commencing after the motion to dismiss was
fully briefed and ending in October 2014, before any
briefing on the appeal commenced. Counsel further
advises the Court that no confidential information offunds from any party was used in the preparation ofthis brief or the accompanying motion.
Neither any party nor any counsel for any party
contributed any money that was intended to fundpreparing or submitting the brief or the accompanying

App.205a
motion. No person—other than Amicus, its members,
or its counsel—contributed money that was intended
to fund the preparation or submission of this brief orthe accompanying motion.
ARGUMENTI.

THE “COMFORT WOMEN” ARE THE SUBJECT OF
INTENSE SCHOLARLY DEBATE ACROSS THE PACIFIC
AND THE “HISTORICAL FACTS” ARE FAR FROMSETTLED.

In the plaque accompanying the monument, theCity of Glendale declares that there were more than
200,000 “Comfort Women,” all of whom were “sexslaves” of the then-government of Japan, which is
responsible for “war crimes,” suggesting that Japan
must “take responsibility.” While the plaque is “set instone” the historical facts are far from agreed, andindeed have generated intense controversy amongst
historians and even have involved the government ofJapan.
A.

The Controversy over “Enslavement” Starts in
the United States.

The modern controversy amongst the society ofhistorical researchers has recently come to a headwith an article published in a noted academic journal
Perspectives on History of the American Historical
Association (AHA), the largest professional organization
serving historians in all fields in the United States, in
its March 2015 edition, concerning “Comfort Women.”
The article was written by Ms. Alexis Dudden, aprofessor of history at the University of Connecticut,

App.206a
titled with “Standing with Historians of Japan,” representing a total of 20 American historians, and began
as follows:“We express our dismay at recent attempts by theJapanese government to suppress statements in history
textbooks both in Japan and elsewhere about theeuphemistically named ‘comfort women’ who sufferedunder a brutal system of sexual exploitation in theservices of the Japanese imperial army during WorldWar II.” [Appendix, Exhibit 1]
The central allegation in the article argued that
the Japanese military had committed atrocities
against women during World War II. The article by
Ms. Dudden focused on a request by the governmentof Japan to McGraw Hill Companies, publisher of aworld history textbook, Traditions and Encounters: A
Global Perspective on the Past, to correct some
portions of the textbook’s depiction of the “Comfort
Women.”
Ms. Dudden went on to accuse the government ofJapan of attempted censorship, arguing that although
there was vigorous debate regarding the numbers of
women involved, and the role the military played, thatnevertheless, the Government of Japan was wrong todeny “the fact that comfort women were enslaved.” A
vigorous debate over this proposition has roiled theacademic community dividing those who preferred tocharacterize the “Comfort Women” as “enslaved” andthose who argued that the facts in the textbook were
not documented and that there was little or noevidence that the “Comfort Women” had been
“enslaved.”

App.207a
By contrast, as relevant to this case, the City of
Glendale had already cast its view of history in bronze
and permanently affixed it to a monument in its
Central Park. Meanwhile, the professional historians
are far less certain–even those who objected to theconcerns of the Japanese government–and the debate
continues, as it should, amongst academics.
B.

The “Enslavement” Controversy Expands to
Become an International and Full-Scale Dispute.

Months later, Perspectives on History accepted arebuttal commentary by 50 Japanese historians led by
Mr. Eiji Yamashita in its December 2015 issue,
entitled On “Standing with Historians of Japan”.
[Exhibit 2] The Japanese historians identified several
factual errors concerning “Comfort Women” describedin the textbook, specifically taking issue with anassertion of enslavement, and the failure to referencea crucial document, the Interagency Working Group
Report of 2007.1
The letter of the Japanese historians concluded,“American historians need to make an effort to checkthe appropriateness of American history textbook in
America, across the board, rather than point fingers
at the Japanese government when it tries to call attention to these errors of fact.” This commentary was
1 U.S. Nazi War Crimes and Japanese Imperial Government
Record Interagency Working Group, The Final Report, 2007 at
https://www.archives.gov/iwg/reports/final-report-2007.html. The
report was the result of thorough research by the US National
Archive and Records Administration (NARA). Cooperating with
OSS, CIA, FBI, etc., taking 7 years and $30 million for investigating Japan and Nazi WWII war crimes based on the bill.
Nothing was found on the comfort women.

App.208a
introduced by a newspaper Japan Times, andcomments from readers were invited.
Ms. Dudden responded on December 26, 2015.
She chose Japan Times as the forum for debate andsent an article entitled, “Learning from past best way
to move forward.” (Exhibit 5.) In the article, Professor
Dudden at first, criticized a contributor Dr. Jason
Morgan, a resident in Wisconsin (Exh. 4) saying he“intentionally misreads my words to create scurrilous
fantasy.” Secondly, Dudden begs the question byasserting baldly, as if it is a well-established fact for“historians,” that, “The history of Japan’s statesponsored militarized system of sexual slavery is aninternational history,” re-asserting the controversial
and polarizing “enslavement” theory of “Comfort
Women” without citing any evidence or proof.
Professor Yamashita refuted Dudden’s position
with a paper published in Japan Times on March 9,
2016. [Exhibit 7.] In the paper, he emphasized two
points, the lack of proof on enslavement and theinappropriate attitude of the 20 American historians’
basic stance as scholars and educators. Yamashita
offered authoritative evidence that “Comfort Women”
were not enslaved by pointing to a number of papers,
documents of Japan and the U.S., eyewitness testimony, and the longstanding denial of Japanese government. Yamashita closed with his serious concern
about the attitude of American scholars who are notreceptive to new information and insisting a theory
without solid evidence. Ms. Dudden and the other 19
historians have not so far responded to Yamashita’s
rebuttal.
These historical controversies existed, and wereraised in the public hearing held before the GlendaleApp.209a
City Council’s decision to approve the monument, but
the city did not consider any viewpoints other than the
promoters of the monument.
C.

The “Enslavement” Theory Relies on the Absenceof Documents and on Testimonial Accounts ofSurviving “Comfort Women.”Those historians who insist that “Comfort Women”
were part of a government-sponsored system of sexualenslavement and exploitation that was allegedly
controlled and operated by the Japanese military rely
upon two additional arguments: (1) unlike the Nazis,
who had preserved the documentation of their own war
crimes, the then-government of Japan allegedly engaged
in a concerted campaign to destroy all unfavorable
documents just before and after the end of World War
II; and (2) surviving “Comfort Women” have offered
first-hand “testimonials” of their experiences. SDHF
respectfully submits that these factors are not reliable
evidence of the “enslavement” theory.
First, even assuming Japanese some military
documents were lost or destroyed, the balance ofremaining documents fail to support the enslavement
theory. Indeed, many Japanese scholars have argued
that the available documents contradict the “enslavement” theory. Japanese historians argue that theabsence of documents does not support a conspiracy
theory or a cover-up.
“Personal narratives” are the single major sourceof evidence for the proponents of the “enslavement”
theory. However, Japanese scholars note that these“statements” are not “testimony” of the sort imagined
in war crime tribunals, but instead are recorded inApp.210a
non-public places without oath, cross-examination, or
supporting documentary evidence.
Scholars studying the issue have also observedthat there is an organization which is allegedly“coaching” former “Comfort Women” on constructing
narrative testimonies, as described in the English-language book by C. Sarah Soh, The Comfort Women.2
Another book by a Korean scholar, Professor Park
Yuha, alleges in her recent book The Empire of
Comfort Women, that Chong Dae Hyup, an organization located in South Korea, and heavily influenced by
North Korea, has been actively coaching former“Comfort Women” to construct testimonies to attempt
to shame the Japanese.3 Indeed, Professor Soh
carefully illustrates how the prevailing, simplistic
view of the phenomenon overlooks the diversity of thewomen’s experiences, the influence of historicalfactors and the role that Koreans and others played incausing women to become “Comfort Women.”
Professor Soh explains how South Korean activists
and their supporters have framed alleged humanrights abuses as solely a Japanese problem, byattacking the those in the Japanese military in WorldWar II without a frame of reference, and ignoring theongoing and widespread grave human rights
violations of women, especially those working in thesex industry in postcolonial South Korea.
2 Soh, C. Sarah, The Comfort Women: Sexual Violence andPostcolonial Memory in Korea and Japan (University of Chicago

Press, 2008).

3 Park, Yuha, 朴裕河、帝国の慰安婦, Asahi Newspaper Co.,2014. English summary at http://scholarsinenglish.blogspot.com/
2014/10/summary-of-professorpark-yuhas-book.html

App.211a
Moreover, with regard to historians’ reliance on“personal narrative,” pro-Japanese historians may
additionally offer testimonial statements, under oath,by officers and soldiers of Japanese Imperial Military.
These eyewitnesses have revealed many personal
details including their names and places of residence,
position and rank, and confesses to the exact nature ofsexual activities with the “Comfort Women” inwartime.
These personal narrative testimonies have been
published so as to be cross-examined, and the detailsof these testimonials contradict the theory that the“Comfort Women” were all sex slaves in a systematic,
government-sponsored program of war crimes andsexual violence. One of these narratives is translated
into English and is attached as Exhibit 7.
SDHF regrets that the City of Glendale hasapparently accepted as true, espoused, and literally
set in stone, an unfairly pro-Korea version of history
that is not accurate, and that draws conclusions thatare hotly debated by scholars, and which result in government-sponsored defamation of Japan andJapanese.
SDHF supports human rights and abhors sexual
violence and exploitation wherever it may occur; but
the City of Glendale has improperly inserted itself into
an international dispute and a historical dispute
where it does not belong. The appeal of plaintiffappellants should be reheard en banc.
DATED: September 26, 2016

App.212a
Respectfully submitted,
DECLERCQ LAW GROUP, INC.
By: /s/ William B. DeClercq, Esq.
WILLIAM B. DECLERCQ, ESQ.
Attorneys for (Proposed) Amici Curiae
SOCIETY FOR DISSEMINATION OF
HISTORICAL FACT (SDHF)