9th Circuit Revives Quest for Nazi Plundered Art

Courthouse News Service 9 December 2013
By Tim Hull

(CN) - The 9th Circuit on Monday revived a California family's quest to recover a Camille Pissarro painting that they say the Nazis took from their ancestors.     The painting, Rue Saint-Honoré, après-midi, effet de pluie, completed by the Impressionist master in 1898, has since the 1970s resided with the Thyssen-Bornemisza Collection Foundation in Spain.

Julius Cassirer, the head of a prominent Jewish family in pre-Nazi Germany, purchased the painting in 1898. The painting passed to Julius' son, Fritz, and later to Fritz's wife, Lilly, who fled Germany in 1939 to escape the anti-Jewish Nuremberg Laws.

Nazi officials would not allow Lilly to take the Pissarro with her, and paid her about 900 Reichmarks, or some $360, before seizing the work, according to the ruling.

An anonymous buyer purchased the painting from the Nazis in 1943. After the war, Lilly tried unsuccessfully for years to find it. In 1962 the German government compensated her for the loss.

Noted art collector Baron Hans-Heinrich Thyssen-Bornemisza purchased the painting in 1976, and in 1993 it was installed in Spain's Thyssen-Bornemisza Museum after the country purchased the Thyssen-Bornemisza collection for more than $300 million.

When Lilly's grandson and heir, Claude Cassirer, found out that the painting was in Spain, he filed a lawsuit against the Kingdom of Spain and the Thyssen-Bornemisza Foundation. Los Angeles District Court found that it had jurisdiction to hear the case under the Foreign Sovereign Immunity Act's (FSIA) exception to sovereign immunity for lawsuits involving stolen or plundered property, and the 9th Circuit affirmed twice.

Meantime, Claude Cassirer died and left the fight to his grandchildren David and Ava Cassirer, and the nonprofit United Jewish Federation of San Diego County.

The Cassirers then dropped Spain from the lawsuit but moved forward against foundation. For its part, the foundation again moved to dismiss the case, this time alleging that it was both unconstitutional and untimely. U.S. District Judge Gary Feess agreed, finding that California's six-year statute of limitations for recovering stolen works of art was unconstitutional under the theory of foreign affairs field preemption, and thus held the Cassirers to a three-year statute of limitations instead.

The Cassirers then took the case to the 9th Circuit for the third time, and found success there on Monday in a unanimous reversal.

The California Legislature in 2011 approved a change to the civil rules of procedure that allowed for the longer statute of limitations in court cases involving the "specific recovery of a work of fine art brought against a museum, gallery, auctioneer, or dealer," according to the panel.

While the district court found that such a change "intrudes on foreign affairs," the three-judge appellate panel found otherwise.

The law "extends the statute of limitations for preexisting claims concerning a class of artwork that is unrelated to foreign affairs on its face," wrote Judge Harry Pregerson for the panel. "It does not require that those claims arise out of wartime injuries, or from any other specific source that might implicate the federal government's foreign affairs power."

Also, even though the Cassirer's lawsuit began before the new law, it included "any pending actions that have not yet reached final judgment or whose time to appeal has not expired," according to the ruling.

Sending the case back to the lower court, the panel found that the Thyssen-Bornemisza Foundation also failed to show that the six-year statute of limitations violated its right to free speech, and ruled that the foundation's due-process claim could not be considered through a motion to dismiss.
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