Thursday, August 20, 2009
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Court Strikes Down Law Extending Time to Sue Over Stolen Art
California Act Designed to Aid Holocaust Victims Usurps Foreign Affairs Power, Panel Says
By KENNETH OFGANG, Staff Writer
A California law reviving time-barred claims against museums and galleries allegedly harboring art stolen from Holocaust victims is unconstitutional, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel largely affirmed a ruling by U.S. District Judge John Walter of the Central District of California, who held that Code of Civil Procedure Sec. 354.3 interferes with federal primacy in foreign affairs. The court did, however, allow Marei Von Saher to amend her complaint against Pasadena’s Norton Simon Art Museum and its supporting foundation to allege facts that might make the suit timely under the three-year statute of limitations generally applicable to actions for recovery of stolen property.
Von Saher, a Connecticut resident, sued two years ago following the collapse of mediation over her claim that she and her family are the rightful owners of “Adam and Eve,” a diptych painted by famed German artist Lucas Cranach the Elder in the 16th century.
Leading Art Dealer
Von Saher’s late husband, Eduard “Edo” Von Saher, was the son of Jacques Goudstikker, a Dutch Jew who was one of Europe’s leading art dealers in the years leading up to World War II. Goudstikker fled Holland when the Nazis invaded in 1940, but was killed in an accidental fall aboard the ship.
His widow, Desiree Goudstikker, and their son eventually came to the United States and became citizens, having left behind their gallery; hundreds of art works, many of them by famous painters; and valuable real estate. Young Edo Goudstikker became Edo Von Saher after his mother remarried.
The parties agree that Jacques Goudstikker purchased the wood panels at an auction in Berlin in the 1930s. But while Von Saher claims that her father-in-law acquired good title from the Soviet government, the foundation charges that he knew that Cranach’s work had been wrongfully expropriated from the wealthy and powerful Stroganoff family after it fled the Russian Revolution.
The museum and foundation say museum benefactor Norton Simon lawfully acquired the panels for $800,000 from Commander George Stroganoff-Scherbatoff, who renounced his hereditary title, became a U.S. citizen, and served in the Navy during World War II. Von Saher claims that the diptych, which has been exhibited at the museum for more than 30 years, was never part of the Stroganoff collection.
Seized by Nazis
The Goudstikker properties were seized by the Nazis, and much of the artwork, including the diptych, wound up in the personal collection of Hitler’s second-in-command, Herman Goering. Along with other confiscated property discovered by the U.S. Army at the end of the war, the art was sent to a central collection point in Munich and was later turned over to the Dutch government.
Von Saher recovered about 200 paintings and artifacts from the Dutch government in recent years, valued at tens of millions of dollars.
In seeking restitution of the Cranach work, Von Saher argued that her action was timely both under Sec. 354.3, which establishes an extended deadline of Dec. 31, 2010 for suits over artwork and the like looted during the Holocaust era, and Sec. 338, which allows the victim of art theft to sue for return of the property up to three years from the date the plaintiff learns or reasonably should have learned that the defendant is in possession of it.
‘External Restitution’
Writing for the Ninth Circuit, Senior Judge David Thompson rejected the museum’s argument that Sec. 354.3 is preempted by President Truman’s 1945 policy of “external restitution,” whereby Nazi-looted art and artifacts were to be returned to the governments of the countries from which they were taken, rather than to individuals. Thompson noted that claims for restitution under that policy have not been accepted since 1948, and that external restitution is not the current policy of the U.S. government, which took no position in the case.
The judge went on to say, however, that the statute is unconstitutional because it has “infringed on a foreign affairs power reserved by the Constitution exclusively to the national government.”
The law, he explained, is not a “garden variety stolen property statute,” but rather an effort to create “a world-wide forum for the resolution of Holocaust restitution claims.” That “may be a laudable goal,” Thompson said, but falls outside the area of traditional state responsibility and “intrudes on the power to make and resolve war, a power reserved exclusively to the federal government by the Constitution.”
The judge went on to conclude, however, that the plaintiff may have a timely claim pursuant to Sec. 338.
Thompson explained that when the museum acquired the diptych, around 1971, Sec. 338 imposed a strict three-year limitations period that ran from the date of the theft, but that the current version of the law, applying a delayed-discovery rule, was enacted in 1982.
There is a conflict among California Court of Appeal panels, he explained, as to whether the delayed-discovery provision applies to claims based on thefts that occurred before the amendment took effect in 1983. But if it does, he said, it is subject to state Supreme Court precedent holding that the knowledge that triggers the time in which to sue based on delayed discovery may be either actual or constructive.
The district judge, Thompson said, erred in concluding that Sec. 338 was inapplicable on the face of the complaint. The correct rule, he said, is that “Saher’s cause of action began to accrue when she discovered or reasonably could have discovered her claim to the Cranachs, and their whereabouts,” and that the issue of whether she exercised due diligence in seeking out information about her possible claim cannot be resolved at the pleading stage.
Senior Judge Dorothy W. Nelson concurred, but Judge Harry Pregerson dissented in part.
Pregerson argued that Sec. 354.3 is not a war claims statute, but merely a regulation of property, applicable solely to California entities, and does not conflict with any federal law.
“Here, Appellee, a museum located in California, acquired stolen property in 1971,“ he wrote. “Appellant now seeks to recover that property. I fail to see how a California statute allowing such recovery intrudes on the federal government’s power to make and resolve war.”
The case is Von Saher v. Norton Simon Museum of Art, 07-56691.
Copyright 2009, Metropolitan News Company