Raising another hurdle to restitution claims, the U.S. District Court in Los Angeles against the Norton Simon Museum to the remnants of the famed Jacques Goudstikker collection, on the grounds that her case is preempted by the United States’ foreign affairs doctrine. In an unusually apologetic decision, the court ruled that regardless of the merits of her claims, the law of foreign affairs makes the dispute inappropriate for resolution by civil litigation.
The ramifications of this decision for wartime restitution claims could be very broad, and could be extended to a number of recent and pending cases. Indeed, in its litigation with the Cassirer heirs over Rue St. Honoré, effet de pluie by Camille Pissarro, the Thyssen-Bornemisza Collection Foundation, which was unable to have that case dismissed on Foreign Sovereign Immunities grounds (the 9th Circuit ruled that even if Spanish sovereign defendants did not take those paintings, they may be sued because the taking itself was alleged to be wrongful) has filed notice of the Von Saher decision, arguing that it disposes of those claims as well. The de Csepel case against Hungarian museums pending in Washington, DC is certainly vulnerable on this score as well; the impact of the 1973 US-Hungarian treaty is one of the issues certified on appeal.
Von Saher is the daughter-in-law and sole heir of Jacques Goudstikker, a well-known Dutch art dealer during the interwar period. Goudstikker purchased two paintings by Lucas Cranach the Elder, Adam and Eve from the Soviet Union in 1931. Goudstikker fled the Netherlands in 1940 following the German occupation. His extensive collection was forcibly sold in two events; the first an auction by the German bank Alois Miedl who purchased Goudstikker’s art dealership and some his property; the second the expropriation by Hermann Göring of virtually the entire Goudstikker fine art collection, including the two Cranachs. The purposeful targeting of the Goudstikker collection is among the most notorious examples of the plunder by high-level Nazi officials of prominent Jewish collectors. The U.S. Army recovered the Cranachs (and many other of Goudstikker’s paintings) after the war, and they were returned to the Dutch government in 1946.
Goudstikker’s widow filed timely claims with the Dutch government for her family’s property, and reached a settlement in 1952. Under that settlement, she received most of the property obtained by Miedl, but the settlement did not cover the art collection taken by Göring. The Dutch deadline for claims lapsed. The paintings were then the subject of a claim concerning Goudstikker’s initial acquisition from the Soviet Union. George Stroganoff-Scherbatoff successfully petitioned the Dutch government to return the paintings to him on the grounds that the Soviet Union had illegally taken the works before Goudstikker bought them. Stroganoff-Scherbatoff eventually sold the Cranachs to the Norton Simon Art Foundation around 1971, and they have been exhibited by the Norton Simon Museum roughly since then.
In 1998, Von Saher filed a claim with the Dutch Secretary for Education, Culture, and Science, seeking the return of property taken by Göring. The claim was rejected as untimely, and Von Saher’s appeals were denied, largely on the rationale that the late Mrs. Goudstikker “made a conscious and well considered decision to refrain from asking for restoration of rights” concerning the Göring-confiscated property. The Dutch government and appellate courts made this decision notwithstanding the by-then-well-known “Washington Principles.” The Washington Principles came out of the 1998 Conference on Holocaust-Era Assets, which encouraged investigation into wartime provenance, and appropriate restitution beyond objective legal obligations. Although the decisions rejecting Von Saher’s requests noted the existence of the Washington Principles, they held that the Goudstikker case was an exception where the original claimant had made a knowing waiver.
As part of the growing publicity over wartime art claims, California enacted Section 354.3 of its Code of Civil Procedure, which effectively abolished the statute of limitations for any claim to return Holocaust-era artwork, defined as “any article of artistic significance taken as a result of Nazi persecution during the period of 1929 to 1945.”
In 2007 Von Saher sued the Norton Simon Museum in U.S. District Court in California to return the Cranachs, and the museum moved to dismiss. The District Court dismissed the case on preemption grounds, concluding that the law abolishing the statute of limitations for wartime artwork claims “intrudes on the federal government’s exclusive power to make and resolve war, including the procedure for resolving war claims.”
On appeal in 2010, the Court of Appeals ruled slightly differently, holding the federal government’s role in external restitution ended in 1948, and thus did not occupy the area of law sufficient to forbid state laws on the subject under the Supremacy Clause (the basis of preemption law). The Court of Appeals upheld the dismissal, however, because “the power to legislate restitution and reparation claims is one that has been exclusively reserved to the national government by the Constitution.” After thus striking down the abolition of the statute of limitations, the court remanded for further proceedings to determine when Von Saher “discovered” her claim to the painting to enable the District Court to rule on whether the claim was timely.
In response, the California legislature amended the law again to hold (retroactively) a plaintiff only to actual, rather than constructive, notice of her claims to begin the statute of limitations. That is, only after a plaintiff has literal knowledge of the facts giving rise to her claim does the statute commence; even if obvious facts knowable to her would put a reasonable person on notice, she is safe.
Von Saher duly amended her complaint, and the museum moved to dismiss again. Rather than striking down the amendment to the statute of limitations that made the claim timely, however, the District Court held that the foreign policy of the United States is such that it has restituted artworks to nations, not individuals, and thus preempts state law claims. (Preemption has many twists and turns, but it is essentially the idea that where a federal law occupies a particular subject matter, states may not legislate on the topic). Relying on the 9th Circuit’s earlier decision, the Court deferred to the State Department’s determination that foreign nations, once art is returned there, are better situated to sort through the differences between real and sham transactions during the war.
The Court looked to the briefing that went to the Supreme Court when Von Saher unsuccessfully sought to have the striking down of the statute of limitations law reviewed by the high court. There, the State Department asserted the United States’ interest in finality of restitution claims. The Court disagreed with the plaintiff that the State Department’s briefing conflicted with the Washington Principles and the Terezin Declaration on Holocaust Era Assets and Related Issues. In effect, the Court held that there is no single way to encourage restitution of stolen artwork, and the State Department’s view is at least consistent with the Terezin Declaration (which is not binding, in any event). Whether it is the best manner is not for the civil courts to decide, the judge held.
More interesting still, the case makes no mention of the 5th Circuit ruling in Dunbar v. Seger-Thomschitz (2010), in which that Court of Appeals rejected the claimant’s argument that the Terezin Declaration, through the Holocaust Victims Redress Act (HVRA), Pub.L. No. 105‑158, §202, 112 Stat. 15, 17‑18 (1998), preempted state law (in that case she argued that the preemption should bar application of the state-law statute of limitations). Whereas the Dunbar court rejected Seger-Thomschitz’s reliance on the Supreme Court’s decision in American Ins. Ass’n v. Garamendi (2003) to argue in favor of preemption, the Von Saher court also cites Garamendi—for the opposite conclusion. These can probably be reconciled because Seger-Thomschitz was arguing for a federal common law of the sort disfavored by courts.
A strong precedent for museums, but expect controversy to follow. If the 9th and 5th Circuits eventually conflict on the preemption point, the Supreme Court may be interested in hearing the case (having turned down her first petition on the statute of limitations question last year).