BILL ANALYSIS Ó
SJR 12
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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