By J.K. YAMAMOTO, Rafu Staff Writer
Robert Rusky of Mill Valley, a member of the legal team that reopened Fred Korematsu’s Supreme Court case in the 1980s, passed away due to cancer on Nov. 22. He was 78.
Rusky and his wife, Karen Kai, both lawyers, worked on the Korematsu case and other community causes.
Korematsu, Minoru Yasui and Gordon Hirabayashi deliberately violated curfew and evacuation orders imposed on Japanese Americans during World War II on the grounds that they were unconstitutional. Their cases went to the Supreme Court, which upheld their convictions.
In the early 1980s, researcher Aiko Herzig Yoshinaga and legal historian Peter Irons discovered declassified documents showing that the government withheld or falsified information provided to the Supreme Court in order to make it appear that the mass incarceration was a military necessity. Teams of mostly Japanese American lawyers filed a “writ of error coram nobis” to reopen the cases on the basis of new evidence in federal courts where they were originally heard — San Francisco for Korematsu, Portland for Yasui and Seattle for Hirabayashi.
The wartime convictions of all three men were vacated. The Korematsu and Hirabayashi cases resulted in findings of government misconduct. The Yasui case was complicated by the death of the plaintiff in 1986, while proceedings were still under way. Korematsu received the Presidential Medal of Freedom from President Bill Clinton; Hirabayashi and Yasui were recognized posthumously by President Barack Obama.
Dale Minami of Minami Tamaki LLP, leader of the Korematsu team, said, “Bob Rusky was the epitome of an ‘unsung hero.’ He was an indispensable part of our coram nobis efforts to overturn Fred Korematsu’s 40-year-old conviction for refusing the military orders aimed at all persons of Japanese ancestry during World War II. And with his wife, Karen Kai, collaborated with the Hirabayashi and Yasui teams to overturn their convictions.
“His legal research was brilliant and central to our efforts but he sought no credit, no acclaim and contributed with the purest of principles – to defend civil rights and those marginalized by our judicial and political systems.
“Those principles were evident not only in the coram nobis cases but throughout his career. We worked to restore the YWCA building to Japanese Americans in San Francisco when the Y’s leadership reneged on promises to hold the building for the benefit of JA women. He supported efforts to preserve the African American and Japanese American communities in San Francisco and continued to provide legal support for the legal challenges to civil rights in the aftermath of the Korematsu decision.
“There is so much more he did but he seemed always involved in some pro bono case on behalf of the downtrodden and people of color. I’m not sure how he could make a living or even listen to his beloved jazz with all the volunteering he devoted!
“Although he was so fiercely committed to civil rights, he was able to have calm, civil disagreements of ideas. A class act with a will of steel and a warrior for us all. He will be greatly missed.”
Peggy Nagae, leader of the Yasui team, said, “Bob Rusky was an incredible colleague, friend and lawyer. He and Karen were an instrumental part of the Yasui team: always willing to discuss issues, draft arguments, edit briefs, and whatever else it took.
“Bob not only had a keen mind for argument, he had a big heart filled with compassion and empathy. Through the years and decades he never lost sight of the goal: greater social justice, inclusive democracy, true due process and equal protection. He was there, not for ego, the spotlight, or personal gratification, but for the right reasons.
“Your legacy shines bright, Bob; I miss you; and you will forever be in my heart.”
Rod Kawakami, leader of the Hirabayashi team, said, “Bob was such a gentle man that it is hard to imagine that at the same time, he was such an unrelenting and ferocious social justice advocate. I admired his thoughtful and always nuanced legal mind and how he could adroitly wordsmith an issue that would captivate the essence of any argument.
“In addition to his participation on the Korematsu legal team, Bob, along with his wife, Karen Kai, both took time off during the Hirabayashi hearings to attend and lend their legal and moral support to our case. After that, I was fortunate to collaborate with Bob on several other amicus briefs for other civil rights cases.
“Bob was always content to stay in the background and was the consummate team player but would not hesitate to challenge the team’s strategy when he thought that a different perspective was needed. Bob had a huge heart and I will always appreciate his unwavering dedication to the coram nobis cases over the decades.
“Bob would monitor any writing or court case dealing with Korematsu, Hirabayashi and Yasui, which he would share with all of the legal team members to help make sure that the coram nobis cases and their true legacy remained relevant.
“I will deeply miss Bob as a lawyer, colleague and friend.”
In the late 1990s and early 2000s, the San Francisco YWCA attempted to sell its building at 1830 Sutter St. in Japantown, which housed Nihonmachi Little Friends and other community organizations. In the legal battle that followed, Rusky and other attorneys represented Soko Bukai, a consortium of the city’s Japanese American Christian churches.
It was proven in court that after Issei women built the Japanese YWCA, the prewar San Francisco YWCA agreed to hold the building in trust for them as they were unable to own the property due to the Alien Land Law. Under the settlement, the YWCA sold the building to Nihonmachi Little Friends.
More recently, Rusky was part of the legal teams representing the children of Korematsu, Yasui and Hirabayashi in filing amicus briefs in various civil rights cases. One was filed in Hedges v. Obama, a lawsuit challenging the constitutionality of a provision of the National Defense Authorization Act. The 2012 NDAA authorized the military to arrest and detain anyone, including American citizens on U.S. soil, without a warrant or due process if the military suspected them of supporting terrorism.
Another brief was filed in Trump vs. Hawaii, which challenged the administration’s ban on entry to the U.S. by people from selected countries, most of them predominantly Muslim.
Rusky and Kai supported a campaign to prevent Rago Arts & Auction from auctioning off crafts and other items made by Japanese American incarcerees during World War II. The items had been collected by the late Allen Eaton, author of “Beauty Behind Barbed Wire.” As a result of community opposition, the collection was eventually acquired by the Japanese American National Museum.
Rusky served as president of Friends of Hibakusha, a community-based nonprofit that works with Japanese American hibakusha (Hiroshima and Nagasaki survivors). FOH helps organize biennial medical examination visits by Japanese doctors and researchers for hibakusha residing in Northern California, has compiled a collection of hibakusha’s personal histories on deposit with the Bancroft Library, and provides public education about hibakusha’s experiences in order to promote nuclear disarmament.
Born on Oct. 25, 1943 in Chicago, Rusky received a B.A. from UCLA in 1966, M.A. from San Francisco State University in 1970, and J.D., magna cum laude, from University of San Francisco in 1978. He was admitted to the California Bar in 1978 and was later admitted to argue cases before the Ninth Circuit Court of Appeals and District of Columbia Court of Appeals. He was a member of the McAuliffe Law Honor Society and Asian American Bar Association.
Rusky is survived by his wife and their son, Quillan.