BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:  August 25, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SJR  
          12 (Pan) - As Introduced June 2, 2015


                                  PROPOSED CONSENT


          SENATE VOTE:  38-0


          SUBJECT:  MITSUYE ENDO TSUTSUMI: PRESIDENTIAL MEDAL OF FREEDOM  
          NOMINATION


          KEY ISSUE:  SHOULD THE LEGISLATURE EXPRESS ITS SUPPORT FOR THE  
          NOMINATION FOR THE PRESIDENTIAL MEDAL OF FREEDOM OF MITSUYE ENDO  
          TSUTSUMI, who COURAGEOUSLY brought a successful legal challenge  
          to end the internment of japanese americans during wwii?


                                      SYNOPSIS


          This non-controversial resolution, sponsored by the Japanese  
          Americans Citizens League (JACL), expresses the Legislature's  
          support for the nomination of Mitsuye Endo Tsutsumi for the  
          Presidential Medal of Freedom, which is the nation's highest  
          civilian honor, and is awarded to individuals who have made  
          especially meritorious contributions to the security or national  
          interests of the United States, to world peace, or to cultural  








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          or other significant public or private endeavors.  Endo was one  
          of many Japanese Americans who were incarcerated in internment  
          camps during WWII pursuant to Executive Order No. 9066, issued  
          by President Roosevelt in 1942.  Endo was the plaintiff in Ex  
          parte Mitsuye Endo (1944) 323 U.S. 283, the case that  
          successfully challenged the authority of Executive Order No.  
          9066 and the War Relocation Authority to detain  
          Japanese-American citizens without charges.  The U.S. Supreme  
          Court's unanimous decision in the case enabled the closure of  
          the relocation camps and led to the release of 110,000 Japanese  
          Americans from forced incarceration.  According to proponents of  
          this measure, Endo is an authentic national heroine and deserves  
          to be honored for making a principled and courageous historic  
          stand to challenge her government when a wrong had been  
          committed against her and the Japanese American community.  This  
          resolution is supported by several chapters of the JACL and has  
          no known opposition.


          SUMMARY:  Expresses the Legislature's support for the nomination  
          of Mitsuye Endo Tsutsumi for the Presidential Medal of Freedom.   
          Specifically, this measure:   


          1)Finds that Mitsuye Endo was among 120,000 Japanese Americans  
            residing on the west coast of the United States who were  
            forced from their homes in the aftermath of the attack on  
            Pearl Harbor.


          2)States that, pursuant to President Franklin D. Roosevelt's  
            Executive Order No. 9066, Mitsuye Endo and her family were  
            uprooted from their Sacramento home and incarcerated for  
            nearly three years surrounded by barbed wire and guard towers  
            in some of the most remote and desolate areas of the United  
            States.


          3)Finds that Mitsuye Endo was a loyal American citizen, a Nisei  








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            (second-generation Japanese American) from Sacramento, a  
            Christian, had never been to Japan, and had a brother serving  
            in the United States Army.


          4)States that Endo was selected as the plaintiff for a test case  
            (Ex parte Mitsuye Endo (1944) 323 U.S. 283) that challenged  
            the authority of Executive Order No. 9066 and the War  
            Relocation Authority to detain Japanese-American citizens  
            without charges.


          5)Finds that the case was first filed on July 13, 1942, while  
            Endo was incarcerated at Tule Lake, denied in 1943, and  
            appealed to the United States Supreme Court in 1944; however,  
            while her case was proceeding, Endo rejected an offer from the  
            government for conditional release, choosing instead to remain  
            incarcerated to allow her case to continue through the court  
            system.


          6)Finds that on December 18, 1944, the United States Supreme  
            Court ruled 9-0 in favor of Endo, stating that "A citizen who  
            is concededly loyal presents no problem of espionage or  
            sabotage.  Loyalty is a matter of the heart and mind not of  
            race, creed, or color.  He who is loyal is by definition not a  
            spy or a saboteur.  When the power to detain is derived from  
            the power to protect the war effort against espionage and  
            sabotage, detention which has no relationship to that  
            objective is unauthorized."


          7)States that on December 17, 1944, the Roosevelt  
            administration, which had been alerted in advance of the  
            court's ruling, rescinded Executive Order No. 9066, and  
            beginning on January 2, 1945, only two weeks after the Endo  
            decision, Japanese Americans held in the camps were released  
            and able to return to the west coast of the United States. 









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          8)Finds that the United States Supreme Court's decision in Endo  
            created significant tension with the court's decision in Fred  
            Toyosaburo Korematsu v. United States (1944) 323 U.S. 214,  
            which was decided the same day and held that the government  
            could criminally punish someone for refusing to be illegally  
            imprisoned.


          9)Finds that Endo was the only female plaintiff in the four  
            United States Supreme Court cases that challenged the legality  
            of military orders selectively affecting over 120,000 Japanese  
            Americans during World War II.  Further finds that unlike  
            fellow plaintiffs Fred Korematsu and Gordon Hirabayashi, who  
            were later awarded the Presidential Medal of Freedom, Endo,  
            who brought the only victorious legal challenge filed by a  
            Japanese American during World War II, has not received that  
            award.


          10)Finds that Endo is an authentic American heroine who made a  
            principled, courageous, and historic stand and voluntarily  
            sacrificed her own freedom to secure the rights of all  
            Japanese Americans who were forcibly removed from their homes  
            and confined in camps without the benefit of due process.


          EXISTING LAW:  


          1)Provides that no person shall be deprived of life, liberty or  
            property without due process of law.  (Amendment V, U.S.  
            Constitution.)


          2)Provides that the privilege of the writ of habeas corpus shall  
            not be suspended, unless when in cases of rebellion or  
            invasion the public safety may require it.  (Article I,  
            Section 9, U.S. Constitution.)








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          FISCAL EFFECT:  As currently in print this measure is keyed  
          non-fiscal.


          COMMENTS:  This resolution, sponsored by the Japanese Americans  
          Citizens League (JACL), expresses the Legislature's support for  
          the nomination of Mitsuye Endo Tsutsumi ("Mitsuye Endo") for the  
          Presidential Medal of Freedom.  According to the author:


               Mitsuye Endo brought the only victorious legal challenge  
               to the incarceration filed by a Japanese American during  
               WWII.  Her story and courage are not nearly as well-known  
               as those of her male counterparts (Minoru Yasui and  
               Presidential Medal of Freedom recipients Gordon  
               Hirabayashi and Fred Korematsu), whose lawsuits were  
               unsuccessful in rescinding the orders of curfew and  
               exclusion.  The decision in Ex Parte Endo enabled the  
               closure of the Relocation Camps and the release of  
               110,000 Japanese Americans from their forced  
               incarceration . . . [This resolution] would recognize  
               this exemplary American and authentic national heroine,  
               who made a principled, courageous and historic stand to  
               challenge her government when a wrong had been committed  
               against her and the Japanese American community.


          Background on Mitsuye Endo, her family's internment, and  
          subsequent legal challenge.  According to the JACL, Mitsuye Endo  
          was a clerical worker for the State of California, and was  
          summarily dismissed with all other Japanese Americans from state  
          employment following the attack on Pearl Harbor.  She was among  
          the 110,000 Japanese Americans residing on the West Coast who  
          were forcibly taken from their homes pursuant to President  
          Franklin D. Roosevelt's Executive Order 9066.  Issued on  
          February 19, 1942, Executive Order 9066 gave the military broad  
          powers to exclude any citizen from coastal areas along the West  








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          Coast, ranging from Washington to California, as determined by  
          the military.  A month later, on March 18, 1942, the President  
          issued Executive Order 9102, which established the War  
          Relocation Authority and authorized the establishment of  
          relocation camps to house persons whose removal was required by  
          Order 9066 "in the interests of national security."  


          A few days later, Congress enacted the Act of March 21, 1942,  
          which ratified and confirmed Executive Order No. 9066.  The Act  
          provided as follows: 


               That whoever shall enter, remain in, leave, or commit any  
               act in any military area or military zone prescribed,  
               under the authority of an Executive order of the  
               President, by the Secretary of War, or by any military  
               commander designated by the Secretary of War, contrary to  
               the restrictions applicable to any such area or zone or  
               contrary to the order of the Secretary of War or any such  
               military commander, shall, if it appears that he knew or  
               should have known of the existence and extent of the  
               restrictions or order and that his act was in violation  
               thereof, be guilty of a misdemeanor and upon conviction  
               shall be liable to a fine of not to exceed $5,000 or to  
               imprisonment for not more than one year, or both, for  
               each offense.


          Uprooted from their residence in Sacramento, Endo and her family  
          were first incarcerated in the Tule Lake Relocation Camp, and  
          later relocated to the Topaz Camp in Utah.  They were  
          incarcerated for a total of almost three years.  On July 13,  
          1942, attorneys working with the Japanese American Citizens  
          League filed a habeas corpus petition for Endo's release from  
          Tule Lake, where she and her family were being held at the time.  
           According to the JACL, Mitsuye Endo was believed to be an ideal  
          plaintiff for a test case challenging the incarceration of  
          Japanese Americans, because, among other things, she had never  








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          been to Japan, had a brother serving in the U.S. Army, was  
          Christian, and was a demonstrably loyal American citizen. 


          Landmark decision in the Endo case.  Endo's petition was first  
          heard in the trial court in July 1942, where it languished for a  
          year before the trial court dismissed the petition with no  
          explanation in July 1943.  Endo's attorneys appealed the case to  
          the Ninth Circuit Court of Appeals, which, rather than ruling on  
          the petition, took the unusual step of certifying the case  
          directly to the U.S. Supreme Court.  On October 11, 1944, the  
          Supreme Court heard both Ex parte Mitsuye Endo (1944) 323 U.S.  
          283 and the more well-known case Korematsu v. U.S. (1944) 323  
          U.S. 214.


          Endo's petition for a writ of habeas corpus alleged that she is  
          a loyal and law-abiding citizen of the United States, that no  
          charge had been made against her, that she was being unlawfully  
          detained, and that she was confined in the Relocation Center  
          under armed guard and held there against her will.  (323 U.S.  
          283, 295.)


          The Department of Justice and the War Relocation Authority,  
          representing the state, made a number of key concessions,  
          including, among other things, that:  (1) Endo was a loyal and  
          law-abiding citizen; (2) Endo was not detained on any charge and  
          not suspected of disloyalty; (3) Endo, having been granted  
          conditional leave, was not required to still be held within the  
          relocation center.  (Id. at p. 294-295.)  Furthermore, the  
          government also conceded that it was beyond the power of the War  
          Relocation Authority to detain citizens against whom no charges  
          of disloyalty or subversiveness have been made for a period  
          longer than that necessary to separate the loyal from the  
          disloyal and to provide the necessary guidance for relocation  
          (Ibid), and that Endo's detention was "not directly connected  
          with the prevention of espionage and sabotage at the present  
          time." (323 U.S. 283, 298.)  Notwithstanding these concessions,  








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          however, the government argued that Executive Order No. 9102  
          "confers power to make regulations necessary and proper for  
          controlling situations created by the exercise of the powers  
          expressly conferred for protection against espionage and  
          sabotage" (Ibid) and that continued detention for an additional  
          period (even after leave clearance had been granted, as in  
          Endo's case) is an essential step in the evacuation program.   
          (Id. at p. 295.)


          In December 1944, the U.S. Supreme Court reversed the lower  
          court decision and rendered a unanimous 9-0 decision in Endo's  
          favor.  In ordering Endo's release, however, it should be noted  
          that the Court took some pains to avoid addressing the larger  
          question of whether the detention and exclusion of Japanese  
          Americans was constitutional.  The question framed by the court,  
          for example, focused more narrowly on whether the Act of March  
          21, 1942 and Executive Order Numbers 9066 and 9102, which  
          authorized the exclusion of all persons of Japanese ancestry  
          from certain military areas, allowed the continued detention of  
          citizens of Japanese ancestry even if established that they are  
          loyal and no longer a threat to the United States.


          Recognizing the government's concessions about Endo's loyalty  
          and lack of threat to national security, the Court held that the  
          implied authority of Act and the Executive Orders to detain  
          citizens was not in this case "narrowly confined to the precise  
          purpose of the evacuation program" (Id. at 302), which included,  
          among other things, the segregation of loyal from disloyal  
          evacuees and the continued detention of the disloyal.  As  
          reflected in this resolution, the Court's majority opinion  
          famously states:


               We are of the view that Mitsuye Endo should be given her  
               liberty.  In reaching that conclusion we do not come to  
               the underlying constitutional issues which have been  
               argued.  For we conclude that, whatever power the War  








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               Relocation Authority may have to detain other classes of  
               citizens, it has no authority to subject citizens who are  
               concededly loyal to its leave procedure.  (Id. at p.  
               297.)


               A citizen who is concededly loyal presents no problem of  
               espionage or sabotage.  Loyalty is a matter of the heart  
               and mind, not of race, creed, or color.  He who is loyal  
               is by definition not a spy or saboteur.  When the power  
               to detain is derived from the power to protect the war  
               effort against espionage and sabotage, detention which  
               has no relationship to the objective is unauthorized.   
               (Id. at 302.)


          In his concurring opinion, Justice Owen Roberts wrote:


               I conclude, therefore, that the court is squarely faced  
               with a serious constitutional question:  whether the  
               relator's detention violated the guarantees of the Bill  
               of Rights of the federal Constitution and especially the  
               guarantee of due process of law.  There can be but one  
               answer to that question.  An admittedly loyal citizen has  
               been deprived of her liberty for a period of years.   
               Under the Constitution she should be free to come and go  
               as she pleases.  Instead, her liberty of motion and other  
               innocent activities have been prohibited and conditioned.  
                She should be discharged.


          Although the decision in Endo effectively freed Endo and other  
          Japanese Americans from incarceration, the decision is difficult  
          to reconcile with the court's holding in Korematsu (1944) 323  
          U.S. 214, decided the same day, in which the court upheld the  
          constitutionality of the underlying Executive Orders providing  
          for the exclusion of Japanese Americans from the West Coast.  In  
          the Korematsu decision, in which Justice Roberts was the only  








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          dissenter, the Court essentially accepted the government's  
          argument that military necessity justified the exclusion of  
          Japanese Americans from the West Coast, and allowed their  
          punishment for refusing to be incarcerated.  In Endo, however,  
          the Court sought a more narrow resolution by holding only that  
          under the Act and Executive Orders, the government had no legal  
          authority to continue to imprison a citizen who was concededly  
          loyal and thus posed no threat to national security.


          Background on the Presidential Medal of Freedom.  The  
          Presidential Medal of Freedom is the nation's highest civilian  
          honor, and, according to the White House website, "presented to  
          individuals who have made especially meritorious contributions  
          to the security or national interests of the United States, to  
          world peace, or to cultural or other significant public or  
          private endeavors."  Previous recipients of the Medal of Freedom  
          in the area of activism include Cesar Chavez, Dolores Huerta,  
          Rosa Parks, Dr. Martin Luther King, Jr, Senator Daniel Inouye,  
          as well as fellow Japanese-American activists Fred Korematsu  
          (awarded in 1998) and Gordon Hirabayashi (awarded in 2012).


          On May 11, 2015, Sen. Brian Schatz (D-Hawaii) sent a letter to  
          President Obama urging him to posthumously bestow the  
          Presidential Medal of Freedom to Mitsuye Endo Tsustsumi.  In his  
          letter, Schatz wrote:  "Awarding the Presidential Medal of  
          Freedom to Mitsuye Endo would provide long-overdue recognition  
          of the courage and sacrifice of a civil rights heroine whose  
          low-key demeanor belied her steadfast pursuit of justice during  
          World War II."  (See  
           http://www.rafu.com/2015/05/schatz-recommends-mitsuye-endo-for-pr 
          esidential-medal-of-freedom  ).  Proponents note that despite the  
          government's offer of conditional leave to Endo during the  
          litigation, she agreed to remain confined so her case could  
          continue through the court system.  This resolution would  
          declare the support of the California Legislature for the  
          nomination of Mitsuye Endo for the Medal of Freedom.









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          Previous Legislation.  ACR 19 (Pan), Res. Chapter 104, Stats.  
          2013, issued an official apology to Japanese Americans who were  
          dismissed from their state civil service positions in 1942 as a  
          result of Senate Concurrent Resolution 15 of 1942.  Mitsuye Endo  
          was also one of these dismissed state employees.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Japanese Americans Citizens League (JACL), Berkeley Chapter


          Japanese Americans Citizens League, Central California District  
          Council


          Japanese Americans Citizens League, Sacramento Chapter


          Japanese Americans Citizens League, San Jose Chapter


          Japanese Americans Citizens League, Silicon Valley Chapter




          Opposition


          None on file









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          Analysis Prepared by:Anthony Lew / JUD. / (916)  
          319-2334