Toyosaburo Korematsu v. United States

• Decision Date: 27 March 1943
• Docket Number: No. 10248.,10248.
• Citation: 140 F.2d 289
• Parties: TOYOSABURO KOREMATSU v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

140 F.2d 289 (1943)

TOYOSABURO KOREMATSU v. UNITED STATES.

No. 10248.

Circuit Court of Appeals, Ninth Circuit.

December 2, 1943.

Rehearing Denied January 7, 1944.

Writ of Certiorari Granted March 27, 1943.

Wayne M. Collins, of San Francisco, Cal., for appellant.

Charles Fahy, Director, War Division, Department of Justice, Edward J. Ennis, Head, Alien Enemy Control Unit, Department of Justice, John L. Burling, Nanette Dembitz, and Leo Gitlin, Attys., War Division, Department of Justice, all of Washington, D. C., Charles Burdell, Sp. Asst. to the Atty. Gen., Frank J. Hennessy, U. S. Atty., and A. J. Zirpoli, Asst., U. S. Atty., both of San Francisco, Cal., for appellee.

Robert W. Kenney, Atty. Gen., amicus curiae, for State of California.

Before WILBUR, GARRECHT, DENMAN, MATHEWS, HANEY, STEPHENS, and HEALY, Circuit Judges.

Writ of Certiorari Granted March 27, 1943. See 64 S.Ct. 786.

WILBUR, Circuit Judge.

Appellant was convicted of, and placed on probation for five years for, the offense of remaining in that portion of Military Area No. 1, covered by Civilian Exclusion Order No. 34 of the Commanding General, J. L. DeWitt, issued May 3, 1942, in which all persons of Japanese ancestry are excluded from, and not permitted to remain in, the City of San Leandro, County of Alameda, State of California, after 12 o'clock noon, P.W.T., May 9, 1942. The defendant appealed.

The government moved to dismiss the appeal on the ground that the probationary order was not a final order, and hence was not appealable. Owing to a diversity of opinion among the Circuit Courts of Appeal, we certified to the Supreme Court the question of whether or not this court had jurisdiction of the appeal from the order placing the appellant on probation prior to sentence. The Supreme Court on the 1st day of June, 1943, answered that question in the affirmative, Korematsu v. United States, 319 U.S. 432, 63 S.Ct. 1124. Consequently the motion to dismiss is denied.

Appellant is a native born citizen of the United States of America of Japanese ancestry and claims that the proclamation violated by him was void.

This case was argued with two companion cases, both of which were subsequently certified to, and decided by, the Supreme Court on June 21, 1943, entitled Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, and Yasui v. United States, 320 U.S. 115, 63 S.Ct. 1392, 87 L.Ed. 1793. These decisions involve the portions of the proclamation of General DeWitt imposing curfew restrictions upon Japanese citizens of the United States of Japanese ancestry. The Supreme Court held the curfew restrictions valid. The Supreme Court did not expressly pass upon the validity of the evacuation order which is involved in the case at bar. However, the Supreme Court held that under the Constitution the government of the United States, in prosecuting a war, has power to do all that is necessary to the successful prosecution of a war although the exercise of those powers temporarily infringe some of the inherent rights and liberties of individual citizens which are recognized and guaranteed by the Constitution.¹ We are of the opinion that this principle, thus decided, so clearly sustains the validity of the proclamation for evacuation, which is here involved, that it is not necessary to labor the point.

The constitutional questions concerning the authority of Congress and of the President and his subordinate, Lieutenant General DeWitt, and questions of discrimination because of race or ancestry raised by the appellant were also considered and decided by the Supreme Court contrary to contentions of the appellant, and for that reason these questions require no further elaboration by this court.²

Judgment affirmed.

DENMAN, Circuit Judge (concurring in the result, but dissenting from the grounds of the majority opinion).

It is with regret that I find myself in profound disagreement with a majority of my colleagues in their treatment of the claims of unconstitutionality and other illegalities, later considered herein, of General DeWitt's order to Korematsu. Korematsu is a fellow citizen, who, because happening to have a common ancestry with the people under the dominion of the Japanese Government, with which we are at war after decades of peaceful intercourse, was required to report for imprisonment in a military assembly stockade to await deportation for further such imprisonment.

Along with him are 70,000 American citizens — men, women and children — who, under similar orders, have been torn from their homes, farms and places of business to be imprisoned together in large groups, first in barbed wire stockades called Assembly Centers, then, after deportation, in distant places under military guard. As Justice Murphy states in his concurring opinion in Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 1389, 1390, 87 L.Ed. 1774, their treatment is not unlike that of Hitler in so confining the Jews in his stockades.

The order here under consideration is the initial step in a unit succession of orders, held by the Supreme Court to be a "single program," (cf. infra) ultimately leading to such a cruel consummation. The court properly should take judicial notice of the fact that the result is that such forcible confinement of American citizens made Poston the third largest city in Arizona; Manzanar the second largest city in California east of the Sierras; and a large town on the Southern Pacific Railway and the National Highway between San Francisco and San Mateo of the assembly stockade at Tanforan. I cannot agree that taking judicial notice of these facts, known to the world, is "lending aid and comfort to the enemy," and hence that Korematsu's contentions be suppressed.

In this conspicuous appeal of such a member of one of America's minority groups, the opinion of this court disposes of Korematsu's major contentions without their mention, much less their consideration.¹ Outstanding is the avoidance of the question of imprisonment and deportation. It is buried in the euphemism "evacuation," without suggestion of its forced character or its accomplishment by compulsory confinement.

The opinion of this court concerning such unmentioned imprisonment for deportation is based solely upon an interpretation of the decision of the Supreme Court in Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, on the validity of a curfew order. That order is treated by that Court as analogous to the control of civilians by lines about a burning building, established by the police or firemen, or the requirement of citizens to remain indoors during the brief period of a blackout.

In so disposing of his case, Korematsu has received a treatment similar to that accorded Hirabayashi in connection with our decision to refuse to decide the questions he brought before us and their certification to the Supreme Court without stating various of his contentions nor the facts on which he relied.^1a

Americans are to face a peace table at which our prestige and power will rest upon the belief of a world questioning Caucasian sincerity, a world which includes a billion Asiatics. There no one will shut his eyes to the Postons, Manzanars and Tanforans. One of the questions will be what sort of judicial consideration do minority groups of American citizens receive from the courts of a claimed democracy.

A. The Supreme Court refused to consider the validity of the orders to report for imprisonment. This case was consolidated for argument with that of Hirabayashi v. United States, No. 10,308, on the question of the validity of General DeWitt's orders. For the reason, stated in its certificate in the Hirabayashi case, that the question arising from such a measure as mass imprisonment to prevent espionage and sabotage was "difficult" and for which "this court knows of no decision" as a precedent,^1b a majority of this court avoided its decision. Cf. the last four paragraphs of my attached dissent. Instead, this court certified to the Supreme Court in that case the following question:

"1. Was Lt. Gen. DeWitt's Civilian Exclusion Order No. 57 of May 10, 1942 excluding all persons of Japanese ancestry, including American citizens of Japanese ancestry, from and after 12 o'clock noon, May 16, 1942, from a particular area in Seattle, Washington within Military Area No. 1 established by General DeWitt's Proclamation No. 1 of March 2, 1942 and requiring a responsible member of each family, and each individual living alone, affected by the order to report on May 11 or 12, 1942, to the Civil Control Station in the said area in connection with said exclusion, a constitutional exercise of the war power of the President derived from the Constitution and statutes of the United States?" (Emphasis supplied.)

The Supreme Court expressly refused to decide that question. Hirabayashi's indictment also charged a violation of an order entirely different from that one of the series of deportation orders with which the above quotation is concerned. What is passed upon is the validity of General DeWitt's Proclamation No. 3 of March 23, 1942, imposing a curfew, not only on persons of Japanese descent but, on all enemy aliens for whom no general exclusion order has ever been made. It required them to remain in their places of residence between the hours of 8 p.m. and 6 a.m.²

It permitted such movement of all these aliens within the curfew hours as pertained to their voluntary evacuation of the coastal military areas. This court's certificate in the Hirabayashi case certified the question of the validity of the curfew order, also because it found the question difficult and without precedent.

Concerning the question of the curfew order, as distinguished from the deportation order, the Supreme Court said, "Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the...