In considering ownership of a Nazi-looted painting, judges weigh: what’s legal vs. what’s right?

San Diego Union-Tribune 17 December 2922
By John Wilkens

Overturned by the U.S. Supreme Court, 9th Circuit judges express frustration about needle they have to thread in case involving La Mesa family

This May 12, 2005, file photo shows a visitor viewing the Impressionist painting called “Rue St.-Honore, Apres-Midi, Effet de Pluie” painted in 1897 by Camille Pissarro, on display in the Thyssen-Bornemisza Museum in Madrid.

Wading again into a legal dispute that’s been going on for 17 years, the federal judges arrived at a familiar crossroads: Does the law allow them to do what they might feel is morally right?

At issue is ownership of a French Impressionist painting that was taken in a forced sale by the Nazis during World War II and is hanging in a Spanish museum. The work by Camille Pissarro is worth tens of millions of dollars.

A La Mesa man whose grandmother owned the painting when it was seized is suing the museum to get the artwork back. The museum, an entity of the Spanish government located in Madrid, says it acquired title in good faith and shouldn’t have to relinquish it.

At a hearing this week in Pasadena, a three-judge panel of the 9th U.S. Circuit Court of Appeals kept the focus mostly on a jurisdictional question: In cases where a California resident sues a foreign entity, which property laws should apply, federal or state?

But there were times that the judges seemed frustrated by the needle they’ve been asked to thread in a dispute where the fairest outcome, on moral grounds anyway, seems obvious.

“It is,” Judge Consuelo María Callahan emphasized at one point, “a Nazi-looted painting.”

“Rue Saint-Honore, Afternoon, Rain Effect” depicts a Paris street scene. It was acquired by the Cassirers, prominent Berlin art dealers, shortly after it was finished in 1897. Passed down through the family, it belonged to Lilly Cassirer Neubauer in 1939 as the Nazis came to power.

As a Jew, she feared for her safety. To secure an exit visa, she was forced to sell the painting for $360 to a Nazi appraiser. After the war, she filed a claim to get it back and was told it could not be located. She received a settlement of about $13,000.

David Cassirer, the great-grandson of Lilly Cassirer, poses for a photo outside the Supreme Court in Washington on Jan. 18, 2022.

Neubauer died in 1962, not knowing that the painting had been auctioned by the Gestapo and sold to collectors twice. It eventually wound up in the hands of Baron Hans Heinrich Thyssen-Bornemisza, the son of a steel magnate, who lived in Switzerland.

His collection of 775 paintings — the Pissarro as well as works by Rubens, Gauguin, Picasso and others — was purchased by Spain for $338 million in 1993 and put on display in a museum that carries the baron’s name and is housed in a restored palace.

In 2001, after learning the painting’s whereabouts, Neubauer’s grandson, Claude Cassirer, a retired portrait photographer living in La Mesa, asked the museum to return it. The museum refused, and Cassirer filed suit in 2005 in California under the Foreign Sovereign Immunities Act.

The case has see-sawed through the courts ever since, outlasting Cassirer, who died in 2010. His son, David, a former San Diegan, has taken over as plaintiff.

In April, the U.S. Supreme Court unanimously overturned an earlier 9th Circuit ruling that gave ownership of the painting to the museum. The Supreme Court said the appellate justices had erred in applying federal law. It said to use California law.

The distinction is important because federal law defers to Spanish law, and under those rules, the museum gained adverse possession by publicly displaying the painting for eight years before Cassirer filed his claim. California law, meanwhile, offers more protections for owners whose goods have been stolen.

At last week’s appellate hearing, David Boies, Cassirer’s attorney, outlined the factors he believes support the application of state law, noting that parts of Spain’s property rules are more than a century old and an “outlier” compared to provisions in other places.

He also pointed out that Spain is a signatory to international guidelines calling for the return of Holocaust-looted art. He said its obligations there undermine any claims Spain might have that its interests will be unduly harmed by relinquishing the painting.

Thaddeus Stauber, representing the museum, disagreed. He said Spain has a deep interest in protecting the certainty of its property laws for the people and businesses there.

He argued for a ruling that would defer to the Spanish regulations. Doing otherwise, he said, could run afoul of due process rights by stripping the museum of something it has owned for 30 years.

The judges — Callahan, Carlos Bea and Sandra Ikuta — asked him questions that nibbled at the edges of the morality issue. Callahan pointed to torn labels on the back of the painting, which she said could be interpreted to show the baron and the museum had “actual knowledge” of its dark provenance.

Camille Pissarro painted this view of a street on a rainy day in 1897 (Courtesy of the Cassirer family)

Stauber acknowledged their frustration and said he understood they might “want to send a message,” just as a lower court judge did three years ago when he sided with the museum but also chided it for failing to honor its “moral commitments” regarding Nazi looting.

However, Stauber told the judges, “It’s not a moral test. It’s not a balancing test of what you’d like to see the outcome be. It’s not a question of the social norms. It’s a question of whose law” should be followed.

The judges indicated they might want to “certify” the choice-of-law question to the California Supreme Court, a process used to seek guidance on unsettled matters of law. In this case, for example, the Supreme Court could weigh in on what factors should be used in deciding whether state or federal law applies, and leave it to the 9th Circuit to use that guidance in deciding the outcome of the case.

Boies welcomed that. “We’re pretty confident of what the Supreme Court is going to do,” he said.

Stauber said he opposes certification because he doesn’t think it’s necessary, based on prior rulings in the case and other legal precedent.

The judges seemed unsurprised by his position. “You’re opposed,” Callahan said, “because you don’t think you’ll win.
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