Blog : Personal Injury

Echoes of History: From the Incarceration of Japanese Americans to the Travel Ban

Echoes of History: From the Incarceration of Japanese Americans to the Travel Ban

This article by Partner Dale Minami was original written for the October 2017 issue of Contra Costa Lawyer, the official publication of the Contra Costa County Bar Association.

December 7, 1941.  The United States is suddenly and deliberately attacked by the naval and air forces of the Empire of Japan.  A Day of Infamy.  Within two months, President Roosevelt issues Executive Order 9066 which banishes 110,000 Americans of Japanese ancestry from the West Coast states, two-thirds of whom are American citizens.  They suffer indefinite confinement in prison camps in the nether reaches of the country.  No notice of charges, no right to attorneys, no trials.  Japanese Americans are sent to live in horse stalls, ramshackle barracks in deserts behind barbed wire in abject living conditions.  The old, the infirm, the children are all deemed national security risks.  Their crime:  racial ancestry.

The Supreme Court validated the curfew and exclusion orders aimed at Japanese Americans in the infamous landmark decisions of Hirabayashi vs. United StatesYasui vs. United States and Korematsu vs. United States, meekly accepting the military’s bald assertion of “military necessity” despite the absence of any acts of disloyalty or any proof of espionage or sabotage by Japanese Americans. The Court pronounces a rigid scrutiny test but it fails to perform any thorough analysis of the military’s claims.

Almost 40 years later, in 1983, along with a group of young lawyers [1], I represented Fred Korematsu in his coram nobis petition (“Korematsu II”) to overturn his conviction. This rare writ is limited to cases in which a “fundamental error” has been committed after a sentence has been served.  Based upon evidence discovered by Professor Peter Irons and Aiko Yoshinaga Herzig demonstrating that the government had knowingly presented falsified and altered evidence of disloyalty and espionage by Japanese Americans, we filed the coram nobis petition in the United States District Court for the Northern District of California to overturn Korematsu’s conviction.  Later parallel filings were made in Portland, Oregon for Minoru Yasui and in Seattle for Gordon Hirabayashi.

When we filed the petition the stakes were significant.  Japanese Americans, along with allies of all colors, had sought redress and reparations from Congress for this monumental injustice.  Opponents of redress argued that the Supreme Court had validated the exclusion and by implication, the detention, in the Hirabayashi, Yasui and Korematsu cases in 1943 and 1944.  Losing these cases a second time would surely set back the redress movement.  However, winning a judicial declaration of the government misconduct and lack of military necessity would discredit the validity of those Supreme Court decisions and undermine a central argument by the opponents of redress.

When our legal team stood in the courtroom on a rainy 10th day of November in 1983 to argue for overturning Fred Korematsu’s 40-year-old conviction, we knew that an extraordinary event would be unfolding.  Judge Marilyn Hall Patel had the case reassigned to the “Ceremonial Courtroom,” a larger, more grandiose venue.  Folding chairs were brought in to accommodate the more than 1,000 spectators, and reporters were stuffed into the jury box.  The audience included many Japanese Americans, young and old, including former prisoners and Japanese American veterans of the US Army who volunteered while their families were incarcerated.  The entire scene produced palpable electricity for Japanese Americans who were about to get their first day in court on the issue of their imprisonment.

Fred Korematsu, who lost his case in 1944, felt the weight of responsibility for a decision that essentially justified the incarceration of his people.  The legal team felt that weight too, but understood that the powerful evidence of misconduct admitted by government attorneys in 1944 refuted the arguments advanced by the Solicitor General that Japanese Americans were dangerous or disloyal.  The Supreme Court never saw the favorable evidence which the Solicitor General intentionally suppressed. Clearly, a fraud was committed on the United States Supreme Court in 1943 and 1944.

In the middle of the litigation, the government first offered a pardon to resolve Korematsu’s petition which he rejected, then offered a “Pardon of Innocence,” a government construct which would both forgive punishment and establish Koremtasu’s innocence of charges.  But after we presented the offer to Korematsu and his wife, their response was what we had hoped for and reflected their integrity, resolve and principles – “We won’t accept a pardon from the government; if anything, we should pardon the government!”

We came to this moment in time after almost two years of work grappling with some difficult legal questions:  How to overturn a 40-year-old conviction affirmed by the Supreme Court?  How to prove that a fraud was committed on our highest judicial body?  Can we introduce evidence so old that most of the authors and creators of the evidence are deceased?  Can we show that the Justices of the Supreme Court would have reached a different decision if they had known the truth?  Perhaps most importantly, how do we turn a civil rights disaster not well known in the American community into a tool to educate Americans?

I argued the case for my client with an introduction:  “We are here today to seek a measure of justice denied to Fred Korematsu and the Japanese American community some 40 years ago.”  The United States attorney argued that no legal or factual decisions were necessary.  In an unusual accommodation, the Court allowed Korematsu to speak.  In a strong, firm voice, he asked the Court to overturn his conviction so that what happened to him would never happen to another American again.

Judge Patel then ruled from the bench and stated decisively that the justification of “military necessity” for the executive and military orders were based on “unsubstantiated facts, distortions and representations of at least one military commander, whose views were seriously infected by racism.”  She also declared that serious governmental misconduct resulted in a manifest injustice.  With those words, she overturned Fred Korematsu’s 40-year-old conviction.

Following the Korematsu decision, Minoru Yasui’s conviction was overturned but without any explanation.  Gordon Hirabayashi tried his case to a mixed verdict but received full vindication in the 9th Circuit in a strong decision by Judge Mary Schroeder.  All three men had their convictions vacated and in due time, all three men received the Congressional Medal of Freedom, the highest civilian honor in the country.

The significance of Korematsu II and the Hirabayashi and Yasui victories are in the critical lessons taught about the role of courts and political power.   The original Korematsu Court failed to demand justification for the military orders and granted virtually complete deference to the military orders and the President.  The result was a civil rights disaster.  By revealing the extraordinary misconduct undermining the government’s case during World War II, Korematsu II highlighted the dangers when judicial review becomes a rubber stamp.

For Japanese Americans, Korematsu II lifted the cloud of disloyalty and validated their political birthright to dissent.  And, in a larger sense, the Court’s decision was a victory for all Americans.   It taught America about the fragility of civil rights especially during times of international tensions.  It reinforced our belief that civil rights must be fought for and are not simply guaranteed by the Courts or by any governmental institution. Civil rights are not gifts; they are challenges.

Fast forward:  35 years after Fred Korematsu’s conviction was overturned and 75 years after President Roosevelt’s Executive Order incarcerating Japanese Americans, the echoes of history resound today.  In the battle against terrorism, President Trump issued an executive order banning persons from certain Muslim majority countries from entering the United States.  He argued that his order was unreviewable by the Courts and was justified by national security.  This time, however, both the Fourth Circuit and Ninth Circuit Courts of Appeals rejected those arguments which the original Korematsu decision endorsed:

“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”

State of Washington, et al. v. Donald J. Trump, President of the United States, et al. (9th Cir. 2017) 847 F.3d 1151, 1161.

The Ninth Circuit stated emphatically:  “[C]ourts are not powerless to review the political branches’ actions with respect to matters of national security.”  Id. at p. 1163.  Quoting United States v. Robel, the Court observed:  “[N]ational defense’ cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal…. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties … which makes the defense of the Nation worthwhile.”  Id.  To paraphrase Benjamin Franklin:  A country which values security over liberty deserves neither.

The Supreme Court is scheduled to hear full arguments on the immigration ban in October.  Through the lens of history, Asian-Pacific Americans remember the first immigration bans imposed on an ethnic group – the Chinese Exclusion Act of 1882, the Exclusion Act barring Japanese Americans in 1924 and the racial profiling of Japanese Americans during World War II which accepted group rather than individual guilt.  President Trump’s justification of “national security” for the ban on immigration from majority Muslim countries is eerily similar to the justification of “military necessity” proffered in times past.  History should teach us to be wary of the wrongs that can be perpetrated under the mask of sweeping justifications of national security.  It should teach us that our courts need to exercise their proper authority in the checks and balances system. Without that balance, we veer toward losing the democracy we cherish.

[1] Other core members of the Korematsu legal team included Don Tamaki, Karen Kai, Judge Dennis Hayashi, Judge Edward Chen, Lorraine Bannai, Robert Rusky, Eric Yamamoto, Leigh-Ann Miyasato, Marjie Barrows and Donna Komure.

‘Top 100 Settlements in California in 2016’ List Includes Three Cases by Dale Minami, Mark Fong, and Seema Bhatt

‘Top 100 Settlements in California in 2016’ List Includes Three Cases by Dale Minami, Mark Fong, and Seema Bhatt

Top Verdict’s ‘Top 100 Settlements in California in 2016‘ list recognized three cases by Minami Tamaki’s personal injury practice.

Top Verdict each year recognizes law firms and attorneys who have obtained some of the highest jury verdicts and settlements in specific areas of law. The lists are generated based on extensive research based on court records, electronic submissions by attorneys, and major legal publications.

Top Verdict says that “most firms would make a Top Verdict list only once in their history.” Minami Tamaki had three cases on the 2016 list of settlements in California.

The first case was a $3,250,000 settlement in the case of Estate of Lai v. San Francisco Municipal Transportation Agency. 78-year-old Cheng Jin Lai was killed by a Muni bus while riding his bicycle in the South of Market neighborhood of San Francisco. The bus made him lose control of his bicycle, causing him to fall under the rear wheel of the bus and be killed instantly. Partner Mark Fong, Associate Seema Bhatt, and Partner Dale Minami represented the Lai estate.

The second case was a $2,805,000 settlement in the motor vehicle injury case of Paul Hon Chow Lee v. Progistics Distribution Inc. et al. Our client was struck by a delivery van that ran a red light. The van was rented by the driver’s employer, Progistics Distribution, Inc. Mr. Lee suffered multiple traumatic injuries and is partially disabled, but thankfully has made significant improvement. Partner Dale Minami and Partner Mark Fong represented Mr. Lee.

The third case was a $1,250,000 settlement in the case of Delgado v. San Francisco Municipal Transportation Agency. Retiree Hanna Delgado was walking in a crosswalk in the Inner Sunset neighborhood of San Francisco when she was struck by a Muni bus. She sustained injuries to her pelvis, hip, lower back, and chest. Partner Mark Fong, Associate Seema Bhatt, and Partner Dale Minami represented Ms. Delgado.

Learn more about our personal injury practice.

‘Northern California’s Leading Lawyers’ Publication Recognizes Four Minami Tamaki LLP Cases

‘Northern California’s Leading Lawyers’ Publication Recognizes Four Minami Tamaki LLP Cases

Leaders in the Law recently recognized four Minami Tamaki LLP cases in its recent “Northern California’s Leading Lawyers” publication.

The publication included two new lists recognizing the region’s top verdicts and settlements compiled in partnership with LexisNexis.

Ranked in the Top 20 of both lists were the following cases:

A $3,250,000 settlement in the case of Estate of Lai v. San Francisco Municipal Transportation Agency. 78-year-old Cheng Jin Lai was killed by a Muni bus while riding his bicycle in the South of Market neighborhood of San Francisco. The bus made him lose control of his bicycle, causing him to fall under the rear wheel of the bus and be killed instantly. Partner Mark Fong, Associate Seema Bhatt, and Partner Dale Minami represented the Lai estate.

A $2,805,000 settlement in the motor vehicle injury case of Paul Hon Chow Lee v. Progistics Distribution Inc. et al. Partner Dale Minami and Partner Mark Fong represented Mr. Lee.

A $1,250,000 settlement in the case of Delgado v. San Francisco Municipal Transportation Agency. Retiree Hanna Delgado was walking in a crosswalk in the Outer Richmond neighbor of San Francisco when she was struck by a Muni bus. She sustained injuries to her pelvis, hip, lower back, and chest. Partner Mark Fong, Associate Seema Bhatt, and Partner Dale Minami represented Ms. Delgado.

The $3,574,753 jury verdict in the case of Hagadorn et al v. County of Sacramento and Sacramento County Sheriff ‘s Department. Plaintiffs were four female law enforcement officers who complained about race and gender discrimination and sexual favoritism in the Sheriff’s Department. After their complaints, the Department retaliated against the female officers and derailed their careers. They were removed from their job positions, unfairly disciplined, subjected to punitive investigations, and passed over for promotions and specialty assignments.

The plaintiffs, four Sacramento County Sheriff’s Department officers, were represented by Lisa P. Mak of our consumer and employee rights practice and by The Law Offices of Jerry L. Chong and Alice W. Wong.

 

Four Minami Tamaki LLP Attorneys Selected for 24th Edition of The Best Lawyers in America

Four Minami Tamaki LLP Attorneys Selected for 24th Edition of The Best Lawyers in America

Minami Tamaki LLP Partners Dale Minami, Minette Kwok, and B. Mark Fong and Senior Associate Olivia Serene Lee were recently selected by their peers for inclusion in the 24th Edition of The Best Lawyers in America.

Dale and Mark were selected for the list in the practice area of Personal Injury Litigation – Plaintiffs. It is the fifth year in a row that they received this honor.

Minette was selected for inclusion in the practice area of Immigration Law. It is Minette’s fourth consecutive time on The Best Lawyers in America list.

Olivia was also selected for inclusion in the practice area of Immigration Law. It’s Olivia’s inaugural listing in The Best Lawyers in America.

Best Lawyers is a respected peer review publication in the legal profession. Recognition in Best Lawyers is widely regarded by both clients and legal professionals as a significant honor, conferred on a lawyer by his or her peers.

The Best Lawyers lists of outstanding attorneys are compiled by conducting exhaustive peer review surveys in which tens of thousands of leading lawyers confidentially evaluate their professional peers. If the votes for an attorney are positive enough for recognition in Best Lawyers, that attorney must maintain those votes in subsequent polls to remain in each edition.

Lawyers are not permitted to pay any fee to participate in or be recognized by Best Lawyers.

75th Anniversary of E.O. 9066 in the Spotlight at Ninth Circuit Judicial Conference

75th Anniversary of E.O. 9066 in the Spotlight at Ninth Circuit Judicial Conference

Minami Tamaki LLP Partner Dale Minami joined Judge Marilyn Hall Patel (Northern District of California), Judge Mary Schroeder (Ninth Circuit Court of Appeals) and Karen Korematsu at the recent Ninth Circuit Judicial Conference to discuss Korematsu v. U.S. and the persisting relevance of the government’s malfeasance in the Japanese American incarceration during World War II.

The annual Ninth Circuit Judicial Conference is a prestigious invitation-only forum that includes judges of the United States Court of Appeals for the Ninth Circuit and the U.S. district courts and lawyers practicing in these courts. This past conference was held July 17-20 at the Marriott Marquis Hotel in downtown San Francisco.

The conference included a special program marking the 75th anniversary of Executive Order 9066 and the presidential directives that led to the unjust incarceration of Japanese Americans citizens during World War II.

The program focused on the extraordinary search for justice by Fred Korematsu, Gordon Hirabayashi and Minoru Yasui – who waited four decades to be exonerated of criminal convictions for violating government orders based on the dangers posed by Japanese Americans, claims that were later proven false.  Documents admitting their falsity by government lawyers were suppressed and other evidence discounting the danger of Japanese Americans were altered, destroyed or suppressed from Supreme Court review.   In addition to historical accounts, the discussion focused on the imperfect balancing of civil rights and national security during a period of national uncertainty.

“The court gave almost complete deference to the military, and they refused to look at any underlying facts in the justification for the incarceration,” said Minami. “The duty of the courts is to judge any decision by any person on constitutional law – nobody is above the constitution. Those issues are still relevant today, as we well know.”

Judges Patel and Schroeder who authored the decisions in the Korematsu and Hirabayashi cases, respectively, told poignant stories of how the cases affected them and became some of the most significant rulings in their long and respected careers.  Karen described the ostracism her father suffered from his own community for challenging the Military Orders and appealing to the Supreme Court for relief.

Read more about the program in this article on courthousenews.com:
https://www.courthousenews.com/trumps-policies-wwii-internment-linked-9th-circuit-conference/

Dale to Speak on Korematsu Case at Japan Society Event on Aug. 24

The Japan Society of Northern California has invited Dale to speak at its event on August 24, 2017, from 6:00 p.m. to 9:00 p.m. at the Dentons law firm, Spear Tower, 1 Market Plaza, San Francisco.

Dale will share details of the Korematsu coram nobis team’s successful effort in 1983 to overturn the conviction of Fred Korematsu, whose defiance of the World War II Japanese American exclusion order led to Korematsu v. United States, one of the most controversial United States Supreme Court decisions of the 20th century.

The Korematsu cases remain highly relevant today as our nation wrestles with issues of race, ethnicity and immigration. Earlier this year a Ninth Circuit federal judge referred to the Korematsu case to raise questions about President Trump’s proposed ban on visitors from Muslim-majority countries.

For more information about the August 24 event, visit
http://www.usajapan.org/event/insights-on-the-fred-korematsu-case-with-dale-minami/

Congratulations to Our Firm’s 2017 Northern California Super Lawyers


SUPER LAWYERS 2017 (Photo by Gary Wagner) – BACK ROW (L-R): Seema Bhatt (Rising Stars); Donald K. Tamaki (10-plus years); La Verne A. Ramsay; Suhi Koizumi (Rising Stars); Sean Tamura-Sato (Rising Stars); Olivia Serene Lee (Rising Stars); Heather Osuna; B. Mark Fong (Super Lawyers); FRONT ROW: Jack W. Lee* (10-plus years); Lisa P. Mak (Rising Stars); Minette A. Kwok (10-plus years); Dale Minami (Top 10, Top 100, 10-plus years)

We’re proud to announce that all of Minami Tamaki LLP’s Partners and more than 70 percent of our Associates were selected as Northern California Super Lawyers for 2017. Super Lawyers is a rating service of outstanding lawyers who have attained a high-degree of peer recognition and professional achievement.

Three of our Partners have been named Northern California Super Lawyers for the last 14 consecutive years. Dale Minami was named to the Top 10 and Top 100 lists.

Dale Minami – Personal Injury
Super Lawyer Top 10, 2017 (5 years)
Super Lawyer Top 100, 2017 (10 years)
Super Lawyer, 2017 (10+ Years)

Minette A. Kwok – Immigration
Super Lawyer, 2017 (10+ Years)
Super Lawyer, Past Top 50 Women, Northern California (3 years)

Jack W. Lee – Consumer and Employee Rights (*Retired)
Super Lawyer, 2017 (10+ Years)
Super Lawyer, Past Top 100 (1 year)

Donald K. Tamaki – Corporate and Nonprofit Counseling
Super Lawyer, 2017 (10+ Years)

B. Mark Fong – Personal Injury
Super Lawyer, 2017 (8 Years)
Super Lawyer, Past Top 100 (2 Years)

Sean Tamura-Sato – Consumer and Employee Rights
Rising Stars, 2017 (5 years)

Suhi Koizumi – Immigration
Rising Stars, 2017 (8 years)

Olivia Serene Lee – Immigration
Rising Stars, 2017 (4 years)

Lisa P. Mak – Consumer and Employee Rights
Rising Stars, 2017 (3 years)

Seema Bhatt – Personal Injury
Rising Stars, 2017 (inaugural year)

Congratulations to all of you!

Lisa P. Mak Honored at Asian/Pacific Bar of Sacramento Foundation Event

On May 25, 2017, Associate Lisa P. Mak received a legislative resolution presented by the Asian Pacific Islander Legislative Caucus and the Asian Bar Association of Sacramento Law Foundation for her success in the Hagadorn v. Sacramento County Sheriff’s Department case.

In May 2016, a jury awarded our clients a collective total of over $3.5 million in economic and non-economic damages for their claims of employment retaliation.  Earlier this year, the County dropped its appeal of the successful verdict.

Presented by Assemblymember Phil Ting, the congratulatory resolution praised the case as “a stunning victory not only for the plaintiffs, but also for the four Asian American lawyers who had so ably and steadfastly represented them.”

The resolution also commended Minami Tamaki for its “successful legal representation in practice areas inclusive of civil rights and employment discrimination and its leadership role as a preeminent Asian American law firm in California.”

At the same event, Partner Dale Minami presented a keynote address titled “Empowering the Community and Educating the Public through Law.”

Dale spoke about his legal career working on cases with significant national impact, including: the reversal of the convictions of Fred Korematsu, Min Yasui, and Gordon Hirabayashi for challenging the internment order of Japanese Americans during World War II; the unfair denial of tenure to Professor Don Nakanishi at UCLA that highlighted discrimination in academia; and the first employment class action lawsuit in the country brought by Asian Pacific Americans, challenging employment practices at Blue Shield.

Dale emphasized the importance of using legal cases to empower our communities and educate the public, and the need to increase diversity in our leadership and judiciary.  Dale is a founding member of ABAS, the Asian American Bar Association of the Greater Bay Area, and the Asian Law Caucus.

 

Heather Osuna Joins Minami Tamaki’s Personal Injury Group

Heather Osuna Joins Minami Tamaki’s Personal Injury Group

We are pleased to announce that Heather Osuna has joined Minami Tamaki’s Personal Injury Group as an Associate. Prior to joining us, Heather represented individuals who were victims of personal injuries from asbestos exposure and the victims’ families. She served as second and third chair in complex asbestos trials with verdicts in the millions of dollars.

Heather received her law degree from Golden Gate University School of Law in 2014. During law school she served on the board of the La Raza Student Organization and Student Bar Association. She was the recipient of a CALI Excellence for the Future Award and two Witkin Awards for Academic Excellence. She is currently a member of the San Francisco La Raza Lawyers Association, San Francisco Trial Lawyers Association, Asian American Bar Association and the American Association for Justice.

Welcome Heather!

Minami Tamaki Recovers $3.25 Million for Family of Man Killed by Muni Bus

Minami Tamaki Recovers $3.25 Million for Family of Man Killed by Muni Bus

Personal Injury Group Partner Mark Fong and Associate Seema Bhatt represented the wife and children of 78-year-old Cheng Jin Lai, who was killed by a Muni bus while riding his bicycle in the South of Market neighborhood of San Francisco.

The bus made him lose control of his bicycle, causing him to fall under the rear wheel of the bus and be killed instantly.

The police claimed Mr. Lai caused his own death by turning into the bus, citing an eyewitness. However, at deposition, the eyewitness testified the bus turned into Mr. Lai’s path and, in effect, “cut him off.”

Mark and Seema argued the bus driver violated Muni policies which required its drivers to maintain at least three feet of clearance from other vehicles, including cyclists. They also showed the bus was missing a mandatory wheel guard which prevents people from being run over by the buses’ rear wheels.

Survived by his wife and seven children, Mr. Lai had overcome great adversity during his lifetime.  To escape persecution during the Sino-Vietnamese war, he led his family on foot from Vietnam to China, pushing his youngest children in a wheelbarrow.

After retiring from his job as a factory manager in China, Mr. Lai emigrated with his wife to the United States in 1996 to live with their children.  Although he lived in low-income housing, he remained the patriarch of his family in the U.S. Tragically, his dream of reuniting his entire family in America was never realized, as the last of his children arrived in the states four months after he was killed.  A lifelong cyclist, Mr. Lai was in excellent health when he died.

The family’s wrongful case settled at mediation for $3.25 Million.  In honor of Mr. Lai, Minami Tamaki has donated $80,000 of its attorney’s fees to help build a new Community Center in the Ping Yuen Housing Project in San Francisco Chinatown.