Ninth Circuit Urged to Revive Suit Over Art Looted by Nazis

Metropolitan News Enterprise
By Kenneth Ofgang

An attorney for the family of a Dutch art dealer yesterday urged the Ninth U.S. Circuit Court of Appeals to reinstate an action claiming that the plaintiffs are the rightful owners of a 500-year-old pair of art masterpieces that were seized by Bolsheviks and later by Nazis.

A federal district judge erred in striking down a California statute reviving time-barred claims against museums and galleries allegedly harboring art that was stolen from victims of the Holocaust, New York attorney Lawrence Kaye told the appellate panel.

“This has nothing to do with foreign policy,” Kaye told the judges. U.S. District Judge John Walter of the Central District of California had ruled that Code of Civil Procedure Sec. 354.3 is preempted because it conflicts with federal primacy in foreign affairs.

Fred A. Rowley Jr. of Munger, Tolles and Olson, representing Pasadena’s Norton Simon Art Museum and its supporting foundation said the district judge was correct and the dismissal of Marei Von Saher’s action should be affirmed.

Von Saher, a Connecticut resident, sued last year following the collapse of mediation over her claim that she and her family have lawful title to Adam and Eve, a diptych painted by famed German artist Lucas Cranach the Elder in the 16th Century.

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 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 Goodstikker 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. The Bolsheviks apparently seized the work from a church in Kiev in the early 1920s—although it is not clear how the art came to be in the church.

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 artwork was sent to a central collection point in Munich and was later turned over to the Dutch government.

That action, Rowley explained yesterday, was part of a government policy, enunciated by President Harry Truman and formally conveyed to the military, of restoring looted artwork and artifacts to the countries from which they were seized, rather than seeking out individual owners for restitution.

That policy has never been revoked, and Sec. 354.3—which establishes an extended deadline of Dec. 31, 2010 for suits over art works and the like looted during the Holocaust era—must yield to it, Rowley argued.

He based his argument in part on American Ins. Assn. v. Garamendi (2003) 539 U.S. 39, which struck down a California law designed to assist state residents in collecting on policies issued during that period by insurers who now do business in the United States.

In Garamendi, the high court ruled 5-4 that the state’s Holocaust Victim Insurance Relief Act, which required insurers doing business in California to disclose details of insurance policies issued to persons in Europe between 1920 and 1945, conflicted with the authority of the president to conduct foreign affairs. An aggressive policy of seeking redress from insurers embodied in the HVIRA was at odds with the thinking behind executive agreements negotiated with the leaders of Germany and Austria after the war, the Garamendi majority declared.

Rowley said the art law was not merely an extension of the statute of limitations, but rather “on its face and by its terms created a new cause of action” for a type of war-related injury, contrary to the federal government’s decision to “allow countries to handle these matters as [they see] fit.”

Kaye, however, said the federal government, which completed making restitution to governments in 1948, now takes a neutral view of such claims and leaves it to individuals to seek restitution in the courts.

He cited Alperin v. Vatican Bank, in which the Ninth Circuit ruled that victims of Nazi persecution in Eastern Europe could sue the Vatican Bank for restitution of property allegedly misappropriated by the Nazi puppet regime that ruled Croatia during World War II.

The panel held in that case that the plaintiffs’ “garden-variety” property claims were not within the exclusive jurisdiction of the executive and legislative branches.

Kaye’s argument appeared to strike a chord with Judge Harry Pregerson, who emphasized in his questions that the case did not involve war crimes claims and dealt with a subject within the “traditional competence” of the states.

Senior Judge David Thompson asked fewer questions and gave little in the way of a clue has to how he might come down in the case. The third panelist, Senior Judge Dorothy W. Nelson, was not present.

 Pregerson explained that Nelson was absent because her husband was undergoing surgery, but that she had read the briefs and would be viewing a videotape of the arguments.

The case is Saher v. Norton Simon Art Museum, 07-5669.
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