Spain had nothing to do with the Nazis’ confiscation of a $20-million Impressionist painting from a German-Jewish family in 1939, but the Spanish government and an affiliated Madrid art museum nevertheless may have to answer to the victim’s heir in a Los Angeles courtroom, a federal appeals court ruled Tuesday.
A three-judge panel of the U.S. 9th Circuit Court of Appeals in San Francisco found that Spain can’t invoke the legal doctrine of sovereign immunity to throw out a suit brought by Claude Cassirer of San Diego, seeking the return of a painting (left) by Camille Pissarro that now hangs in the Thyssen-Bornemisza Museum.
Cassirer, an 88-year-old former portrait photographer, says his grandmother was forced to give up the Pissarro in exchange for permission to leave Germany on the eve of World War II.
The decision upheld U.S. District Judge Gary A. Feess’ 2006 refusal to dismiss the case on grounds of sovereign immunity — the principle that foreign governments can’t be sued in U.S. courts, except under certain limited circumstances.
But the appeals panel did set up one legal hurdle for Cassirer to overcome before his pursuit of the 1897 Parisian street scene can continue. It ruled that Feess, the trial judge, must reconsider the question of whether Cassirer should take his case to a court in Spain or Germany, before it can be heard in U.S. District Court in Los Angeles.
"We’re confident we’ll be able to show the judge that [an overseas lawsuit] shouldn’t be required in this case,” Cassirer’s attorney, Stuart Dunwoody, said Tuesday. Cassirer, he added, “wishes that the wheels of justice didn’t grind as slowly as they do. It’s been very slow, and he hopes he sees a resolution in his lifetime.”
In the suit he filed more than four years ago, Cassirer (left) said he learned in 2000 that “Rue Saint-Honore, Apres-Midi, Effet de Puie,” the Pissarro his grandmother, Lilly Cassirer, had sold under duress to an art dealer working for the Nazis, was hanging in the Thyssen-Bornemisza Museum. The museum opened in 1992 as a collaboration between the Spanish government and Baron Hans Heinrich Thyssen-Bornemisza, a resident of Switzerland. In 1993, Spain bought the baron’s 775-painting collection for $338 million, according to the museum’s website.
Cassirer’s suit says that the Nazis sold the disputed Pissarro at auction in 1943, and that by 1976, it had been sold at least two more times. Then, Thyssen-Bornemisza bought it from an art dealer.
In 1976, Congress passed the Foreign Sovereign Immunities Act, which specifies the limited circumstances under which a foreign government can be sued in the U.S. One exception is for “property taken in violation of international law.”
At issue in the appeal by the kingdom of Spain and the Thyssen-Bornemisza Collection Foundation was whether the country being sued must also be the country alleged to have stolen the property. The appellate judges found that it didn’t matter that Germany, rather than Spain, expropriated the Pissarro, because the text of the act and Congress' stated intention in passing the act say nothing about the nation being sued having to be the one responsible for the theft.
Also, the judges found that a second provision of the act applies to the Pissarro: Lawsuits are allowed when the dispute relates to a foreign government’s commercial dealings in the United States. The appeals court cited evidence that the museum foundation, and through it, the Spanish government, was involved in a wide range of art-related business transactions in the U.S. — including selling posters of the disputed Pissarro to buyers in California and North Carolina.
However, two of the three appeals judges, N. Randy Smith and Thomas G. Nelson, partly reversed Feess’ ruling that Cassirer didn’t need to exhaust his legal options in Germany or Spain before he could have standing to sue in L.A. Feess was correct that the FSIA didn’t require an overseas lawsuit, they ruled. But he should have considered other factors beyond the scope of the act, including whether the case has a strong enough connection to the United States, and whether forcing Cassirer to take his claim to Spain or Germany would likely make his quest for justice “ineffective, unobtainable, unduly prolonged, inadequate or obviously futile.”
The third appellate judge, Sandra S. Ikuta, said in a partial dissent that the trial judge was completely correct the first time, and that he shouldn’t be required to hold a hearing on whether the case ought to be pursued overseas rather than in the United States.
-- Mike Boehm