9th Circuit Doubleheader on Nazi-Plundered Art

Courthouse News Service 23 August 2013
By Matt Reynolds

PASADENA, Calif. (CN) - The heirs of European art collectors urged the 9th Circuit to put aside their diplomatic concerns and order a pair of museums to return paintings stolen during the Holocaust.

In the first of two cases up on appeal Thursday, the three-judge panel considered the history of "Adam and Eve," a diptych of 16th century oil paintings by Lucas Cranach the Elder.

Jacques Goudstikker, a Jewish art dealer, had left the piece in his gallery after the Nazis invaded the Netherlands in 1940, and Adolf Hitler's second-in-command Hermann Goering is said to have looted the collection.

Allied forces eventually recovered the Old Master paintings and gave them to the Dutch government. Goudstikker's wife Desi attempted to reclaim the artworks through the government's restitution process from 1946 to 1952, but she was defeated by a "bureaucratic" and "cold" restitution system designed to funnel the stolen art into Dutch museums, the Goudstikkers' daughter-in-law Marei Von Saher claimed.

In 1961, the Netherlands gave the paintings to an American Naval officer and former Russian prince named George Stroganoff Scherbatoff. The pair of paintings were sold a decade later to the Norton Simon Museum of Art in Pasadena, Calif., where they are still on display.

After spending eight years winding her way through the European courts, the widowed Saher recovered 200 old master paintings in the largest successful restitution claim of Nazi looted artworks. The majority of the paintings were sold off for tens of millions of dollars.

The Cranachs, though, remained in the Norton Simon. Von Saher asked the museum to return the 480-year old paintings, appraised at $24 million seven years ago. When it refused, she filed a federal complaint in the Central District of California.

U.S. District judge John Walters ruled last year that that a California statute for recovery of stolen art conflicted with the U.S. government's constitutional authority over foreign affairs. Walters specifically alluded to the decision of the United States to allow governments, not individuals, to manage artworks plundered by the Nazis, under a policy called external restitution.

"Plaintiff's action seeks to trump and interfere with United States foreign policy, by relying on an entirely different remedy for the restitution of Nazi-looted art, i.e. the laws of the State of California," the judge wrote in his 10-page order.

At the hearing Thursday, Von Saher's attorney Lawrence Kaye of New York City firm Herrick, Feinstein took issue with Walters' reliance on a brief in the case filed by the solicitor general of the United States.

The government's brief distinguished between the foreign affairs doctrine, and Von Saher's claims under California's six-year statute of limitations for allegations involving stolen works of art, Kaye argued.

"The District Court should have denied the motion to dismiss, and proceeded to decide the two issues in the case," Kaye said. "First, are Mrs. Von Saher's claims timely ... and if so, who has good title to the Cranachs? Mrs. Von Saher, or the museum?"

Judge Dorothy Nelson broke in: "How do we write an opinion granting your client relief without essentially telling the Dutch government that its most recent efforts, 50 years later, albeit, to fix the restitution, weren't good enough?"

Kaye argued that the paintings were never part of the restitution proceedings, only an illegitimate transfer of title to Stroganoff, who had claimed that Bolsheviks stole the paintings from his family during the Russian Revolution.

But Norton Simon's attorney Fred Rowley Jr. of Munger & Olson of Los Angeles accused Kaye of a "direct attack" on the federal government's foreign affairs policy.

Rowley said Von Saher was asking the court of appeals to "second-guess" the U.S. government.

Judge Harry Pregerson, seated between Nelson and Judge Kim Wardlaw, seemed annoyed by Rowley's argument.

"It's not just a matter of foreign policy, it's a matter of justice and what's right, and whose property it was," Pregerson said.

"I remember those days ... I lived through them," the judge said in reference to World War II.

Rowley, though, maintained the case is a "question of policy and not a question of fact."

"What you're really saying is we have no business sticking our noses in," Pregerson shot back.

Von Saher, seated in the courtroom, listened as Kaye urged the panel not to consider whether the Dutch restitution proceedings were "bona fide" - a question that preoccupied the panel throughout the proceedings.

"There is no need for this court or the district court to review, question, contradict, or invalidate any decision of the Dutch government," Kaye stressed.

The second case that the panel heard Thursday was Cassirer v. Thyssen-Bornemisza, a case that has gone before the 9th Circuit twice already. U.S. District Judge Allen Feess last year relied on the foreign affairs pre-emption to reject the claims in that lawsuit.

David and Ava Cassirer claim ownership of an Impressionist painting the Nazis extorted in 1939, "Rue Saint-Honore, apres-midi, effet de puie." The Camille Pissaro painting is on display at the Thyssen-Bornemisza art museum in Madrid.

Lawyer Stuart Dunwoody with Seattle firm Davis Wright Tremaine argued for the Cassirers. The Thyssen-Bornemisza Foundation is represented by Thaddeus Stauber, a partner of Nixon Peabody of Los Angeles.
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