Clergy-abuse precedent invoked in Nazi art case

Nashville Post 1 June 2009
By E. Thomas Wood

A recent ruling that allowed alleged victims of sexual abuse by priests to sue the Vatican itself may have an impact on a local case involving artworks looted by Nazi forces.

If a brief filed last month in Nashville's federal court is successful, the decision of the Sixth Circuit Court of Appeals in a Kentucky lawsuit against the Holy See could enable Fred Westfield of Nashville to move forward with his lawsuit against the Federal Republic of Germany.

Westfield wants the German government held responsible for the seizure and sale of a vast collection of paintings from his uncle, German art dealer Walter Westfeld, a Jew who perished at Auschwitz. Containing works by Pissarro, El Greco, several of the 17th-century Dutch masters and other renowned artists, the collection would be worth many millions of dollars today.

Together with several other heirs of the collector, retired Vanderbilt University economics professor Westfield filed suit against Germany in Davidson County Chancery Court last year. Lawyers for the German state got the case moved to federal court, where they have sought to have it dismissed on the grounds that the statute of limitations for any legal action has long since run out and that the government cannot be sued because it is protected by the Foreign Sovereign Immunities Act, a federal law.

Each side has filed briefs with extensive arguments about the statute of limitations issue and the immunity issue. The Foreign Sovereign Immunities Act gives foreign governments absolute immunity from lawsuits unless their acts are covered by certain exceptions. O’Bryan v. Holy See, the Kentucky case in which the Sixth Circuit issued a ruling early this year, addressed how courts are to judge who bears the burden of proving that an exception applies.

"Once the plaintiff offers evidence that an exception to immunity applies," that decision stated, "the party claiming immunity bears the burden of proving by a preponderance of the evidence that the exception does not apply." The O'Bryan ruling is binding upon courts in the Sixth Circuit, which includes Middle Tennessee.

In their brief on Westfield's behalf, Overton Thompson III of Bass, Berry & Sims PLC and Jeffrey Schoenblum of Vanderbilt University Law School claim that his case meets the exemption test and therefore should not be thrown out.

"We believe our position is sound and supported by the law," William S. Walton of Miller & Martin PLLC, one of the authors of Germany's motion to dismiss the case, told last week. He said he and colleagues will file a response in due course, but declined to comment further at present.
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