U.S.: Youth Protection Act to get day in court

When the cities of Arcata and Eureka face off with the United States government Tuesday over their youth protection acts, they will do so with a lot of help.

The San Francisco law firm of Minami and Tamaki, which is representing the city of Arcata pro-bono and has shouldered the lion's share of work in the case, has faced off with the federal government before, and won. But, even with the high-powered help, virtually all agree the cities face long odds in defending the two voter-passed measures.

On Nov. 4, 2008, voters in Eureka and Arcata overwhelmingly -- 60 percent in Eureka and 73 percent in Arcata -- passed virtually identical versions of the Youth Protection Act, which prohibits the military recruitment of minors within city limits. Within weeks, the federal government filed a complaint challenging the measures.

Tuesday, when oral arguments are expected to be presented in a San Francisco federal courthouse on the case, attorneys for the United States are expected to make their case, arguing that the measures run so far out of the purview of local governments that they should be determined null and void without a trial.

”The ordinances purport to authorize the cities to directly regulate the activities of the federal government,” U.S. attorneys argue in their complaint. “Further, the ordinances purport to legislate areas that are committed to the sole discretion of the plaintiff United States ... . The ordinances are,

accordingly, invalid under the Supremacy Clause of the United States Constitution, Article VI, Clause 2.”
Further, the feds argue that the military recruitment campaigns serve a vital national interest, maintaining the readiness of the country's armed forces to mount a national defense.

While most agree the federal government's argument is very likely to hold up in court, attorneys representing Eureka and Arcata certainly aren't conceding the issue.

”I think we've made some credible arguments and raised some credible issues that are worthy of addressing concerning whether the U.S. is complying with international treaty laws,” said Eureka City Attorney Sheryl Schaffner, who along with San Francisco attorney Dennis Cunningham is defending Eureka's measure.

And, according to Schaffner, it's been Minami and Tamaki, and particularly its attorney Brad Yamauchi, that have done the bulk of the work researching the case and coming up with arguments.

Friday, Yamauchi said the firm was happy to volunteer its time on the case, as it has a long history of taking on civil rights cases. It's also stared down the federal government before.

In 1983, Minami and Tamaki represented Fred Korematsu in his case arguing that his 1944 conviction for refusing to be interned with other Japanese Americans during World War II was unconstitutional. The Supreme Court ruled in Korematsu's favor, paving the way for federal reparations for interned Japanese Americans.

Yamauchi said he doesn't expect to see the same type of result in the Youth Protection Act case, but thinks there are some good arguments to be made.

In pre-trial motions filed with the court, Yamauchi and company argue that United States' recruiting policies are in violation of U.S. law, specifically a treaty, or a protocol, ratified by the U.S. Senate in 2002 concerning the involvement of children in armed conflicts.

The international treaty expressly prohibits children under the age of 17 from being recruited, trained or used in any armed forces. But, U.S. military recruiting manuals clearly target minors for recruitment.

”Think of your school recruiting efforts as a long-term investment,” states one such manual, according to court filings. “You will find that establishing trust and credibility with students, even seventh- and eighth-graders, can positively impact your high school and post-secondary school recruiting efforts.”

Further, attorneys for Eureka and Arcata argue that many recruiting violations are alleged annually, noting that the Government Accountability Office documented more than 6,500 such allegations in 2005.

”Although we expect to lose all the way through, the stance should be made that there are limits to the federal government's recruiting efforts,” said Yamauchi. “When the government enters into an international treaty or protocol, that becomes the law of the United States. That protocol trumps the military policies with respect to recruiting.”

While oral arguments in the case are expected Tuesday, the judge is not required to hear them. Schaffner and Yamauchi said they are just hopeful they are given the chance to be heard, and that the case will clear this hurdle and head into the discovery phase leading up to a trial.

Schaffner said, to this point, the cash-strapped city of Eureka hasn't spent a dime defending the Youth Protection Act, and credited Dave Meserve, and other proponents of the acts, with following through on their promise to find pro-bono legal help to defend the measures in the event they were challenged.

”(Meserve) definitely delivered,” Schaffner said. “These folks have just been a godsend.”

Even if the cities aren't successful in defending the ordinances, Yamauchi said mounting a defense and going through the court process could lay important framework that may allow Meserve, or other like-minded folks, to craft similar measures in the future in such a way that they would be more immune to legal challenges. But, Yamauchi said he expects to be involved with this case for the long haul.

”I think in the long run, no matter the outcome, we're going to have an appeal to the 9th Circuit, and possibly to the Supreme Court,” Yamauchi said. “The question really is does the local government have the right to regulate how military recruiters interact with their youth.”

For more information, visit Stop Recruiting Kids.org

Eureka Times Standard