Vindicating Korematsu

Don Tamaki helped the defendant in the landmark internment case win exoneration

Published in 2005 Northern California Super Lawyers magazine

By Deanne Stone on July 20, 2005


When Don Tamaki graduated from Boalt Hall Law School in 1976, Asian-American lawyers in northern California had few career options. The big law firms weren’t hiring them, and they were all but invisible in local and state government. So what was an idealistic young lawyer to do? In the spirit of the times, Tamaki began organizing the Asian legal community, co-founding the Asian Law Alliance in San José. Today, Tamaki is managing partner with Minami, Lew & Tamaki in San Francisco, regarded as one of the best law firms in California. And, thanks to the pioneering efforts of Tamaki and his colleagues, the Bay Area is one of the best-organized Asian-American legal communities in the country.

The soft-spoken Tamaki seems an unlikely crusader. With his full head of gray hair, trimmed mustache and goatee, and rimless glasses, he looks more like an academic than a trial lawyer. Respected within his profession for his excellent work and strong ethics as a business and entertainment lawyer, he is better known in the Bay Area for his pro bono cases. He served on the legal team that reopened the landmark U.S. Supreme Court case of Fred Korematsu, the Japanese American who refused to be interned during World War II. Fighting another historic injustice, he served on the legal team representing the Japanese-American community in a suit against the San Francisco YWCA — a case rooted in California’s infamous Alien Land Law of 1913 that barred Japanese Americans from owning property. But the case that put Tamaki and co-counsel Michael Lee in the national spotlight was what he calls “the dumbest case I ever litigated”: the dispute over ownership of Barry Bonds’ record-setting 73rd home run baseball. Why did Tamaki spend a year and a half defending Patrick Hayashi, the San Franciscan who fished the ball out of a throng of screaming fans? Because lost in the media circus surrounding the case was an injustice — and that was something Tamaki couldn’t ignore. Tamaki thought that Hayashi was being defamed in the media merely for standing up for his rights.

Tamaki had an uneventful childhood growing up in a middleclass neighborhood in Oakland. Hovering over his pleasant family life but rarely mentioned at home was the story of how his parents met. Both had been interned in the Topaz detention camp in Utah during World War II. Rounded up along with 120,000 residents of Japanese ancestry living on the West Coast, they were interned in camps for the duration of the war. “My parents, like most Japanese Americans, viewed their internment as shameful,” says Tamaki, “as if they had done something wrong. Their M.O. was to put it behind them, keep their mouths shut, and avoid anything that would call attention to their ethnicity.”

Tamaki’s father was finishing his pharmacy degree at UC Berkeley when he was interned. Before the war he had wanted to be a lawyer. That dream was dashed by his father, who asked simply, “How would you make a living?” After the war, Japanese Americans had two options: they could start their own businesses or work for the government. Tamaki’s father settled for being a pharmacist in the Veterans Administration. It was his son, who came of age in a different America, who would live the father’s dream.

Tamaki was spared the extreme racism his parents suffered, but he remembers dreading the annual commemoration of Pearl Harbor, fearing that his classmates would blame him for the attack. And he tolerated the occasional mockery of being called “rice eater,” accepting that racism was part of American life. “It never occurred to me that I could do anything about discrimination,” he says. “That was just how things were. What changed everything was the black civil rights movement of the 1960s. Through it, we discovered our rights, our identity and our history as Asian Americans.” Buoyed by the example of civil rights lawyers, Tamaki and other Asian Americans poured into law schools, many imbued with the idealism of the times and the desire to right historic wrongs.

Tamaki received the Reginald Heber Smith Fellowship to practice poverty and civil rights law in San José after graduating from law school. And, in sharp contrast to the circumstances under which his parents met, Tamaki met his future wife, Suzanne Ah-tye, while working with University of Santa Clara law students to found the Asian Law Alliance, a public interest law firm modeled after the Asian Law Caucus in San Francisco. Then a law student, Ah-tye is now assistant chief counsel for the California State Compensation Insurance Fund.

After six years as a poverty law litigator, Tamaki set up a private practice in 1984. Three years later, he merged his practice with that of Dale Minami and Garrick Lew. Today, with a staff of 18 lawyers, Minami, Lew & Tamaki is one of the largest minorityowned firms in California.

“I always wanted to be part of a minority-owned practice that represented mainstream clients but stayed connected to our Asian-American roots,” says Tamaki. “We’ve achieved that, and we’ve done it our way. By doing excellent work, we gradually overcame prejudice. Now we’re in the mainstream, and we have clients that any firm would want to represent.”

Minami, Lew & Tamaki has succeeded by carving out niche areas ignored by most larger firms. Tamaki specializes in preparing and negotiating agreements involving technology research and development and technology licensing for large multinational and emerging companies. Dale Minami, a personal-injury attorney and entertainment law specialist, represents top television news anchors and the Olympic gold-medal skater Kristi Yamaguchi. Garrick Lew recently defended the first export control prosecution involving regulations issued after Sept. 11 that govern technology, and partner Minette Kwok has built an immigration division, working with clients like Google to hire foreign workers. This past November, partner Jack Lee added another star to the firm’s record with a big victory in an employment discrimination suit against Abercrombie & Fitch that accused the retailer of favoring white men in its branding and hiring practices. Minami, Lew & Tamaki filed the suit alleging gender discrimination, and Lieff Cabraser Heimann & Bernstein alleged race discrimination. The case was settled for nearly $50 million.

For all its achievements on the for-profit side of the firm, Minami, Lew & Tamaki is still best known for its high-profile pro bono cases, in particular, Korematsu v. United States. In 1942, Fred Korematsu challenged the removal of Japanese Americans from the West Coast. His case wound its way to the Supreme Court while he was jailed and later interned. Korematsu lost the case, with the justices ruling that military necessity justified the internment orders. Forty years later, Peter Irons, a constitutional lawyer, uncovered memos indicating that the government had suppressed information that the FBI and other agencies had denied that Japanese Americans were a threat to American security. Irons recognized the importance of having Asian-American lawyers reopen the case, and he gave them that chance. Dale Minami was lead counsel and Tamaki served on the legal team. Says Tamaki, “I would have paid to work on it.”

On November 10, 1983, U.S. District Judge Marilyn Patel exonerated Korematsu, ruling that the government had lied in accusing Japanese Americans of threatening American security. Her ruling won Korematsu a presidential medal from President Clinton and paved the way for redress for former internees, but the Supreme Court decision was never overturned. Under law, only the loser can appeal, and rather than pursue the case, the U.S. government withdrew its appeal. Nonetheless, the lower court ruling was a personal victory for the legal team, many of whose family members had been interned. It achieved two of the team’s three goals: to vindicate their families caught up in wartime hysteria and racism and to correct school history books. The third — to make sure it won’t happen again to others — is in doubt.

The case of Barry Bonds’ 73rd baseball was as ridiculous as the Korematsu case was sublime. Alex Popov, a Giants fan, claimed that he caught the ball and that another fan, Patrick Hayashi, assaulted him and stole it from him. Asserting that he was the rightful owner of the ball, which had an estimated value of $1.5 million at the time, Popov sued Hayashi.

“I took on Patrick’s case,” says Tamaki, “because he was being bullied by Popov and because he was the victim of a public smear campaign. The claim that Patrick, who is even shorter than I am, assaulted Popov was ridiculous. The videotape of the incident showed no evidence of a fistfight.”

Tamaki’s serious demeanor gives way to laughter as he recounts the wackiness of the trial. Researching a legal argument to determine ownership of captured property took him as far afield as wild animal jurisprudence and even rulings on abandoned manure. And the case made Tamaki famous with appearances on Court TV and ESPN.

Tamaki tried several times to settle the case, suggesting that Hayashi and Popov split the proceeds of the sale of the ball. Popov refused, offering Hayashi $5,000 for the ball. The case dragged on for a year and a half. The judge dismissed the charges against Hayashi, but before Tamaki could congratulate him, the judge ordered Hayashi and Popov to sell the ball and split the proceeds — the remedy Tamaki had suggested at the start. The case ended in a nationally televised auction with the ball finally selling for $450,000.

The low sale price brought another dilemma. If Hayashi paid the lawyers’ fee, he would be left with nothing. That didn’t seem fair to Tamaki and Mike Lee, who worked on the case with him, so they waived most of the fee — a class act by a firm known for fair play.

Thirty years ago when Tamaki started practicing law, it wasn’t uncommon for judges to mistake Asian-American lawyers for the defendants. Tamaki and his partners challenged the inbred racism of the profession and won the respect of their peers. Yet their success in changing the image of Asian-American lawyers in the Bay Area is not reflected on the San Francisco Superior Court bench. Only four of the 50 judges are Asian American in a city in which one-third of the population has Asian heritage. The Asian American Bar Association has been pushing to get more representation on the bench. Asked whether he’d like to be a judge, Tamaki dismisses the suggestion. “It’s too much fun being partisan,” he says. “I couldn’t participate in the public arena if I were a judge.”

What’s Tamaki speaking out against today? Among the many things bothering him is the targeting of people of Middle Eastern descent since Sept. 11. Detaining people on the basis of ethnicity, locking them up without charging them, depriving them of legal counsel is all too reminiscent of the racial hysteria directed at Japanese Americans during World War II.

“We lawyers are under so much pressure to bring in billable hours,” says Tamaki, “but we also have an obligation to protect civil liberties. The lessons of the Korematsu case are more relevant today than when it was overturned 20 years ago. We can’t let the same mistake be repeated again.”

Between working long hours and helping to raise 15-year-old twin sons Philip and Blake, Tamaki has little spare time except for his daily jogs. This summer, though, Tamaki, Suzanne and the boys will take their first trip to Japan — right in the middle of baseball season. Tamaki, a faithful Oakland A’s fan, attends about 20 games a year. “The A’s have no glamour and no money, but they try,” he says, smiling. “I like underdogs.”

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