Wednesday, October 1, 2003
Supreme Court to Decide Whether Suit Against Austria Over Art Stolen by Nazis Can Go Forward
By KENNETH OFGANG, Staff Writer/Appellate Courts
The U.S. Supreme Court will decide whether sovereign immunity laws bar a Los Angeles trial against Austria over the Nazi-era theft of priceless artwork, the court said yesterday.
In a one-sentence order, the court said that it had granted the republic’s petition for review of a Ninth U.S. Circuit Court of Appeals decision allowing Maria V. Altmann of Cheviot Hills to press her suit. Altmann’s attorney, E. Randol Schoenberg, and Scott P. Cooper of Proskauer Rose, who represents Austria in the case, said they were told that the case is likely to be argued in January or February.
Schoenberg said in an e-mail he was disappointed that his client, who will turn 88 in February, will have to wait even longer to obtain a decision.
Cooper declined to predict how the case would be decided but said the grant of review “gives us an opportunity to show that the Ninth Circuit got the analysis wrong.”
Altmann seeks to recover—or be compensated for—six Gustav Klimt paintings owned by her uncle, Czech banker and sugar magnate Ferdinand Bloch. The paintings, with an estimated value of $150 million, are now part of the collection of the Austrian Gallery in Vienna.
A three-judge panel ruled last December that Austria could not possibly have expected sovereign immunity to apply to artworks that were stolen by Nazis and were allegedly retained illegally by the government after the war.
That, and the fact that the paintings have been reproduced and sold numerous times in the United States in the form of posters and catalogs, is enough to overcome protections of the Foreign Sovereign Immunities Act, Judge Kim Wardlaw wrote for the panel.
In fact, some of the Klimt works apparently have become part of American commercial and popular culture. It is possible to purchase reproductions of the most famous of the paintings—the golden, Byzantine-influenced “Adele Bloch-Bauer I,” a portrait of Altmann’s aunt—on wristwatches and other goods.
There are Klimt computer games, playing cards and stationery.
Klimt was already famous in the early 1900s as co-founder of the Vienna Secessionists when Bloch commissioned him to paint Adele Bloch-Bauer. The painting is often grouped with Art Nouveau works and signals a departure from the classical development of European painting.
Bloch displayed the work, a second portrait of his wife and four Klimt landscapes in his Vienna home, but lost them to Nazi looters in Germany’s 1938 invasion of Austria. Bloch fled to Switzerland and died soon after the war’s end.
Bloch was Jewish. Altmann said his property was taken as part of an “Aryanization” program.
Austria claims that Bloch’s wife wanted the gallery to have them on her death and that an attorney for Altmann’s brother concluded an agreement to “donate” the works in 1948.
Altmann sued soon after a scandal over other allegedly stolen Austrian paintings rocked the art world.
In 1998, the City of New York seized two Egon Sciele paintings, claiming Nazis expropriated them illegally. The Austrian government responded by opening the culture ministry’s archives to permit research, in the process uncovering documents that showed the Austrian Gallery’s claim to the paintings was based on the will of Bloch-Bauer.
The will included a “request” that the paintings be left to the museum—an insufficient instruction under Austrian law to constitute a bequest, Altmann’s Austrian and American lawyers insist.
Altmann, herself an immigrant from Austria who moved to Los Angeles in the 1940s, first brought suit in Austria, but laws there requiring her to pay fees amounting to a percentage of the property in question would have resulted in a $1.6 million payment just to prosecute the case, her attorneys told the Ninth Circuit.
She qualified for a vastly reduced fee but abandoned the case anyway because it still would have required too much money to bring the suit, Schoenberg said. Instead, she brought suit in 2000 in the U.S. District Court for the Central District of California.
Austria challenged jurisdiction, but Judge Florence-Marie Cooper said the suit could go forward. Wardlaw, joined by Judge William Fletcher and U.S. District Judge Ronald M. Whyte of the Northern District of California, sitting by designation, agreed.
The Foreign Sovereign Immunities Act—which includes an exception for improperly expropriated works—applies retroactively to cover the six paintings because Austria could not reasonably expect “to receive immunity from the executive branch of the United States for its complicity in and perpetuation of the discriminatory expropriation of the Klimt paintings,” Wardlaw said.
Under the act, Altmann satisfied a requirement of showing a nexus to an agency engaged in commercial activity in the United States—the sale of Klimt reproductions here by the Austrian Gallery, the judge said. She cited an earlier Ninth Circuit ruling that allowed an Argentine expatriate to sue for the misappropriation of his properties, including a resort hotel, by the government of his former country.
The required nexus existed, the Ninth Circuit held, because the hotel had, under the government’s ownership, solicited guests in the United States and taken payment through U.S. credit cards.
Copyright 2003, Metropolitan News Company