Court Revives Claim to Art
Panel concludes the law at issue doesn't infringe on foreign affairs doctrine.
When Lilly Cassirer Neubauer escaped Germany in 1939, a Nazi appraiser demanded she surrender a painting from her collection. She did so, accepting the equivalent of $360 for the piece, "Rue Saint-Honoré, après-midi, effet de pluie," by French impressionist Camille Pissarro.
Neubauer died in 1962 before discovering what happened to the painting. Her grandson discovered it in 2000 hanging in a museum in Spain. He sued to get it back.
The action has helped to define case law in California involving claims to artwork lost during the Nazi era. On Dec. 9, the U.S. Court of Appeals for the Ninth Circuit breathed new life into the case. A panel concluded the claims, brought under a California law, did not infringe the federal government's exclusive power to conduct foreign affairs — the so-called foreign affairs doctrine. The ruling was a major win for plaintiffs attorneys who have aggressively campaigned on behalf of Holocaust victims with art claims.
"I'm hoping for a similar result," said E. Randol Schoenberg of Burris, Schoenberg & Walden in Los Angeles, who helped draft the law at issue in the Neubauer case — and who is behind a separate case pending before the same Ninth Circuit panel.
A raft of such claims followed the reunification of Germany two decades ago, which opened up records of property taken during the Holocaust. In California, those efforts were hampered by the common law statute of limitations of three years. But in 2002, the California Legislature enacted a new law that permitted suits against certain museums or galleries over Nazi-era art claims through Dec. 31, 2010.
FIRST TRY UNCONSTITUTIONAL
In the law's first test case, the Ninth Circuit in Von Saher v. Norton Simon Museum of Art struck it down as unconstitutional in 2009, citing the foreign affairs doctrine. That case involved a diptych — "Adam" and "Eve," by Lucas Cranach the Elder — that Marei Von Saher claimed the Nazis stole from her father-in-law when Germany invaded the Netherlands in 1940. The piece is now with the Norton Simon Museum in Pasadena.
Following the ruling, Schoenberg, who represents Von Saher, turned to the Legislature — specifically, former state Assemblyman Mike Feuer, then head of the judiciary committee, now city attorney for Los Angeles.
"I contacted his office and we talked about should he extend the statute that was just declared unconstitutional, or should they try to do something else?" he said. "I said something else, because if it was unconstitutional it makes no sense extending it."
So in 2010, the Legislature voted to extend California's common law statute of limitations to six years for art claims against museums, galleries, art dealers and auction houses. Schoenberg had a good reason to push for six years: He had once represented Neubauer's grandson, who had filed suit five years after discovering the Pissarro painting at the Thyssen-Bornemisza Museum in Madrid.
The Neubauer case had languished in the courts because of jurisdictional disputes. After Neubauer's grandson died in 2010, his children invoked the amended statute of limitations. But they also had the Von Saher decision to contend with. From the start, they sought to distinguish the case from Von Saher, arguing that the amendment dealt only with the statute of limitations and made no mention of the Holocaust, whereas the law the Ninth Circuit struck down in Von Saher f ocused on artwork looted by the Nazis. The museum's foundation argued that the amendment was "functionally equivalent" to the Holocaust law and therefore preempted by the foreign affairs doctrine.
On May 24, 2012, U.S. District Judge Gary Feess in Los Angeles agreed, calling the amendment and its legislative history an "end run around Von Saher." He threw out the case.
"Despite his initial ruling that the case could go forward, he found that the statute was written for a purpose, and that purpose was to revive otherwise stale claims that arise out of the Holocaust and out of wartimes," the museum foundation's attorney, Thaddeus Stauber, said. He is a partner at Nixon Peabody in Los Angeles who heads the firm's art and cultural-institutions team.
However, the Ninth Circuit, which made no mention of the amendment's legislative history, found the two laws dissimilar — one involved art looted during the Holocaust and the other general claims over "fine art," the panel said. Because it simply dealt with statute of limitations the law did not interfere with U.S. foreign policy, because it "does not create a remedy for wartime injuries by creating a new cause of action for the recovery of artwork," Judge Harry Pregerson wrote.
Pregerson, by the way, provided the sole dissent in the Von Saher opinion. But Stauber insisted the ruling conflicts with Von Saher. "We don't think the decision will withstand an en banc review, and we maintain as we have before that the foundation is the rightful owner of the painting," he said.
Neubauer's attorney, Stuart Dunwoody, a partner at Seattle's Davis Wright Tremaine, doubted whether the Ninth Circuit would grant en banc review. "We're looking forward to presenting our arguments to the district court," he said.
Meanwhile, Schoenberg has appealed a second dismissal of the Von Saher case. After the U.S. Supreme Court denied a petition to review the Ninth Circuit's holding, U.S. District Judge John Walter in Los Angeles tossed the case, concluding on March 22, 2012, that U.S. foreign policy preempted Von Saher's claims. On appeal, Schoenberg challenged Walter's reliance on an amicus brief filed by then-acting U.S. Solicitor General Neal Katyal — and signed by Harold Koh, then the legal adviser to the State Department — in opposing Von Saher's petition for certiorari before the U.S. Supreme Court.
On Aug. 22, the Ninth Circuit heard oral arguments in the Von Saher and Neubauer cases.
Contact Amanda Bronstad at abronstad@-alm.com.