Doctrines of judicial restraint in international cases take many forms, but they all have at their heart a concern about the proper role of courts, be they federal or state. This Article explores the proper role of courts in deciding state law conversion claims for art stolen or subject to forced or duress sale during the Nazi era. Many presume, incorrectly, that such claims must be precluded by separation of powers and federalism doctrines. This Article demonstrates the inaccuracy of such presumptions.
The Getty has voluntarily agreed to return a work it purchased—in good faith they claim—in 1972. According to Mike Boehm’s report in the L.A. Times, the Getty stands as the first North American Museum to voluntarily return a work to the Heir of Jacques Goudstikker. The work, Landscape With Cottage and Figures, by Mieter Molijn, dates to the 1640s. It is unclear how the disputed painting came to light, but the return of this work stands in contrast to the ongoing dispute between von Saher and the Norton Simon:
The Norton Simon Museum’s “Adam and Eve” also were among the Goudstikker-owned works the Allies repatriated to Holland after the war. But the Dutch government subsequently sold them to an heir of Russian nobility who claimed that his family, the Stroganoffs, had a prior claim on them, having owned them before they were seized by the Bolsheviks during the Russian Revolution. Goudstikker bought them at an auction in 1931, then lost them to the Nazis. Whether “Adam and Eve” had belonged to the Stroganoffs during the early 1900s is part of the dispute between Von Saher and the Norton Simon Museum. The museum’s founder and namesake bought them from the Stroganoff heir for $800,000 in 1971; the museum has had them appraised at $24 million.
In the “Adam and Eve” case, a federal judge in Los Angeles ruled in 2007 that Von Saher had filed her claim too late to meet the three-year statute of limitations for suing to recover allegedly stolen art, and that a 2002 California law suspending the statute of limitations for Holocaust-era art-restitution claims filed through the end of 2010 was unconstitutional because it intruded on the federal government’s sole prerogative to set foreign policy and war policy.
The U.S. 9th Circuit Court of Appeals agreed in 2009 that the California law was unconstitutional, although it directed the trial judge to reconsider whether Von Saher nevertheless has a legitimate claim under the regular statute of limitations.
Von Saher has appealed to the U.S. Supreme Court in hopes of reinstating the voided state law. The high court indicated in October that it is considering whether to take up the case, but first it asked the U.S. solicitor general to file a brief giving the federal government’s view. Kaye, the Von Saher attorney, said the brief hasn’t been filed yet.
So the Getty has voluntarily returned the work to the dispossessed heir, and should be praised for doing the right things. Yet that decision surely was much easier given that the painting was never displayed. The Norton Simon has decided to fight to retain possession of its disputed works—which are more valuable, and have a much more complex history, touching both the Bolshevik revolution and World War II.
- Mike Boehm, Getty Museum: Getty Museum agrees to return painting looted by Nazis, L.A. Times, March 29, 2011, http://www.latimes.com/entertainment/news/la-et-getty-painting-20110329,0,2892909.story (last visited Mar 29, 2011).
|“Hermann-Neisse with Cognac”|
Last Thursday, the Second Circuit Court of Appeals upheld a Federal District Court ruling denying the attempts by the late painter George Grosz to seek the return of three works currently held by the Museum of Modern Art in New York. The estate argued Grosz was forced to leave the works with his art dealer when the artist fled Nazi persecution in 1938.
In New York, the limitations period does not begin to run until a claimant demands, and is refused, a disputed work. So after that first request the claimant has three years to bring suit. In this case, the latest time in which that occurred was in 2005, while suit was not brought until April 10, 2010.
The Grosz estate argued that settlement negotiations were ongoing in 2005, and that under principles of fairness and equity (what the law calls equitable estoppel) the suit should not be time barred. So, an unsuccessful repatriation suit. The Met had declined to borrow at least one of the works in 2006 due to concerns about its provenance.
The disputed works were, Hermann-Neisse with Cognac, Self-Portrait with Model, and Republican Automatons.
Grosz v. Museum of Modern Art, (2nd Cir., 2010)
|“Portrait of Madame Cezanne”, Pierre Cezanne (1891)|
The Met has been sued by Pierre Konowaloff over this work. The claimant argues the work was stolen from his great-grandfather during the Russian Revolution, Ivan Morozov. Morozov was a Russian textile merchant, who collected a number of works by Cezanne. His works were zeized in 1918, and Morozov’s home was made a state museum. This work was apparently purchased by Morozov in 1911, and he owned the work for seven years. In contrast, the Met has had the work for the last 50 years. The work was donated to the Met in 1960 by Stephen Clark, who purchased it from a gallery in 1933.
This suit, if successful, would really extend the limits of restitution claims further into the past to touch not just the Second World War, but the first one as well.
Konowaloff is currently defending a declaratory judgment suit brought by Yale University over the disposition of Vincent Van Gogh’s “The Night Cafe”. Yale is seeking a court determination that it is the rightful owner of that work, which would preclude a sale by the claimant.
- Philip Boroff, Met Museum Sued Over Cezanne Painting Stolen by Bolsheviks From Collector, Bloomberg, December 8, 2010, http://www.bloomberg.com/news/2010-12-09/met-museum-sued-over-cezanne-taken-by-bolsheviks-from-collector.html (last visited Dec 10, 2010).
So the World is buzzing with all the revelations, mundane and otherwise, offered by the release of diplomatic cables via wikileaks. This has touched all manner of foreign and diplomatic relations, even cultural property and heritage issues. The Guardian has reprinted and summarized a series of recent cables which detail meetings between US officials and Spanish officials between 2007 and 2010. The various positions and points of concern related here really don’t come as much of a surprise. What is perhaps heartening to note is the importance of these issues at the highest levels of international relations. Nations take these disputes very seriously.
It is certainly possible to over-emphasize the importance of these, but both parties certainly seem to have very different priorities. In a 2008 cable, Spanish Culture Minister Molina is concerned with the then-emerging dispute with Odyssey Marine, while the American Ambassador focuses on Spain’s dispute with Claude Cassirer. As the embassy cable summarized,
The Ambassador stressed the USG’s interest in direct discussions between the Spanish government and Claude Cassirer, the AmCit claimant of a painting by Camille Pisarro (“Rue St. Honore”) in the Thyssen Museum. The Ambassador noted also that while the Odyssey and Cassirer claim were on separate legal tracks, it was in both governments’ interest to avail themselves of whatever margin for manuever they had, consistent with their legal obligations, to resolve both matters in a way that favored the bilateral relationship. The minister listened carefully to the Ambassador’s message, but he put the accent on the separateness of the issues. Molina said that no Spanish government could return the painting (if this is what the claimant wants). To begin with, while the minister presides over the board that manages the Thyssen Museum’s collection, the minister could not oblige the board to return the painting without a (Spanish) legal judgment. The minister added that paying compensation, as the British government has reportedly done in a number of cases, also posed legal problems.
- Giles Tremlett, WikiLeaks cables: Art looted by Nazis, Spanish gold and an embassy offer, The Guardian, December 8, 2010, http://www.guardian.co.uk/world/2010/dec/08/wikileaks-us-spain-treasure-art (last visited Dec 9, 2010).
It might. The U.S. Supreme Court has asked the Solicitor General to submit a brief on the issue of whether states can enact more permissive limitations rules when they may conflict with the foreign affairs doctrine. Marei Von Saher has been pursuing her claim against the Norton Simon Museum over these two works by Lucas Cranach the Elder. Von Saher is seeking certiorari with the Supreme Court—and the court has not granted review, it just wishes to hear the position of the federal government first, before deciding whether to review the case.
The 9th Circuit Court of Appeals ruled earlier this year that California may not set aside special rules for Nazi-era claims because it conflicted with the federal government’s ability to govern foreign affairs. The claimant Marei Von Saher is the successor in interest to Jacques Goudstikker who bought the works in a 1931 auction in Berlin. The works remained there in Amsterdam until 1940 when the Nazis instituted a forced sale. After the war, Desiree Goudstikker reached a settlement with the Dutch government. She received some of her husband’s inventory, but did not claim another set of works because that would have meant returning the purchase price received from the Germans.
The Dutch government transferred these Cranachs to George Stroganoff-Scherbatoff, the descendant of a noble Russian family who was thought to have lost the paintings to the Bolsheviks during the Russian Revolution. Stroganoff-Scherbatoff sold these works to the Norton Simon Museum in 1971. The 9th Circuit held first that California’s special limitations rule for works looted during the Holocauset era, Sec. 354.3 conflicts with the foreign affairs doctrine. Though it does not conflict with Executive Branch policy via the President, it does conflict with a power reserved to the Federal government, as California created a “world-wide forum for the resolution of Holocaust restitution claims”.
As a consequence, the claim was left to general limitations principles. In California the Discovery Rule applies. A claimant must bring her action within three years of discovering her claim. This means actual discovery, but also when a reasonably prudent claimant should have discovered she had a claim, and the work first went on display in 1977.
Yet even if the Supreme Court denies certiorari, Von Saher may have recourse under the new limitations period rules recently signed into law by Gov. Schwarzenegger, which attaches an actual discovery date on the beginning of an action, eliminating the sometimes difficult due diligence requirement.
Gov. Arnold Schwarzenegger last week signed into law a new art-theft bill that doesn’t mention the Holocaust but gives all claims seeking the return of stolen art from museums, galleries and dealers a better shot at withstanding the legal argument that they were filed too late. In suits over allegedly stolen art and other scientific, historic and cultural artifacts, the statute of limitations has been extended from three years to six, and the six-year clock starts running when the plaintiff first learned where the object was. Previously, a museum could argue that the clock began running when a work’s whereabouts was first publicized to the extent that someone seeking its return should have known about it then.
“Adam and Eve” went on display in 1977 when the Norton Simon opened, prompting Los Angeles Times art critic William Wilson to write that he had experienced “a plain shock of unmitigated aesthetic fulfillment” upon seeing them. Museum founder Norton Simon bought the Cranachs from an heir of Russian aristocrats in 1971, and The Times first reported on them in 1972, saying they were among the industrialist’s holdings that were being loaned to Princeton University for an exhibition.
Von Saher’s attorney, Lawrence Kaye, said Monday that her legal team, which includes E. Randol Schoenberg, the Los Angeles attorney who in 2006 secured the return of five looted Gustav Klimt paintings from the Austrian government, will wait to see whether the U.S. Supreme Court reinstates the voided California Holocaust art law. If it does not, she would be able to amend her suit to proceed under the state’s new art-theft law. But the new law also would allow the Norton Simon Museum to use legal grounds other than the statute of limitations to press its argument that Von Saher waited too long to claim “Adam and Eve.”
- Mike Boehm, Norton Simon’s disputed ‘Adam and Eve’ getting closer look from Supreme Court | Culture Monster | Los Angeles Times (2010), http://latimesblogs.latimes.com/culturemonster/2010/10/art-adam-eve-holocaust-norton-simon-.html (last visited Oct 5, 2010).
It should come as no surprise that there are tensions between museums and claimants over how to respond to claims for works of art stolen or appropriated by the Nazis. Combine the general reluctance of many museums to allow transparency with the complicated stories of many works looted during World War II, and you have a recipe for ongoing disputes and mistrust. This should explain why litigation may be a crude solution to many of these disputes, and why other nations—mainly in Europe—have done a better job at resolving these disputes than the United States.
Robin Cembalest gives an overview for ARTnews, offering reactions from both sides. The dispute stems from a basic disagreement of what kinds of wrongdoing should constitute loot. Is a forced sale, or a sale under duress the same as outright theft? Wesley Fisher, director of resaearch at the Conference on Jewish Material Claims Against Germany argues “It is embarrassing that countries that previously did not have such good records in this field, such as Austria, are doing a very good job . . . And the United States is not doing as well as it was.” AAMD president Kaywin Feldman attributes the reluctance of some institutions to return objects to resources, “The real problem is that museums and claimants need help with research”. I think both of those sides offer some truth, though paying for increased provenance research would surely be less expensive than litigating a claim. At least part of the difficulty stems from different ideas of what constitute a looted work, and perhaps a commission modeled after the United Kingdom’s Spoliation Advisory Panel would offer a less controversial means of resolving these disputes.
- Robin Cembalest, Tensions are rising between the restitution community and U.S. museums over the proper way to handle Holocaust art claims, ARTnews, October, 2010, http://artnews.com/issues/article.asp?art_id=3073 (last visited Sep 27, 2010).