Marei von Saher vs. Norton Simon Museum of Art at Pasadena, et al.

This case concerns two sixteenth-century oil paintings looted in 1940 from the collection of noted Dutch Jewish art collector and dealer Jacques Goudstikker. The two paintings in question, "Adam" and "Eve" by Lucas Cranach the Elder, were acquired by the Norton Simon Museum of Art in Pasadena, California in or around 1971, and have been regularly on view. In May of 2007, Marei von Saher, who is the Goudstikker's sole heir, filed a complaint in the Federal Court for the Central District of California seeking to recover the looted property. She alleged that her claim was timely pursuant to Cal. Code. Civ. Proc. §354.3, which extended the limitations period for the recovery of Nazi-looted art in museums and galleries until December 31, 2010.

The museum moved to dismiss the complaint, and the court granted the motion. The court held that section 354.3 was an unconstitutional intrusion into the federal foreign affairs power and also found that the regular three-year limitations period under Cal. Code. Civ. Proc. §338 had expired. On appeal, the United States Court of Appeals for the Ninth Circuit affirmed the lower court’s ruling that section 354.3 was an unconstitutional infringement on the federal government’s exclusive power to conduct foreign affairs. However, the Ninth Circuit reversed the lower court’s decision on §338, concluding that von Saher’s claim was not time-barred on the face of the complaint and that she should be allowed to amend her complaint to allege timeliness under §338.

In April 2010, von Saher petitioned the U.S. Supreme Court for a Writ of Certiorari, arguing that the issue of the District Court ruling a state statute unconstitutional should be heard by the nation’s highest court. Three amicus briefs were filed on behalf of the plaintiff—from a group of Californian organizations, from the Attorney General of California, and from the Commission for Art Recovery. At the request of the court, the Solicitor General filed an amicus brief providing the views of the United States, which argued that §354.3 improperly infringed on the federal government’s foreign affairs powers. The Supreme Court denied von Saher’s petition on June 27, 2011. While this petition was pending, the California legislature extended the statute of limitations for all stolen art claims -- not just Holocaust-era claims as has been the case with Cal. Code. Civ. Proc. §354.3 -- to six-years from the time of “actual” discovery of the location of the stolen artwork and the information about the theft needed by the victim to make the claim.

Von Saher filed an amended complaint with the District Court on November 8, 2011. Defendants’ Motion to Dismiss was granted on March 22, 2011. The court found, based largely on the brief submitted by the Solicitor General in the Supreme Court, that the claims themselves were preempted by the foreign affairs doctrine.

The constitutionality of a similar statute to the one in von Saher was at issue in Movsesian v. Victoria Versicherung which went through the California Federal Courts at the same time the von Saher case was under consideration. Von Saher and Movsesian were designated as “related cases” and were heard together by the same three-judge panel on the same day. The initial decisions by the panel found that both §354.3 and §354.4 impermissibly intruded on the federal government’s foreign affairs powers. Both plaintiffs sought rehearing. Von Saher’s decision for rehearing was denied on January 14, 2010. On December 10, 2010, the three-judge panel granted rehearing in Movsesian and reversed its prior decision. The Defendants in Movsesian then sought rehearing en banc by the Ninth Circuit, which was granted. On February 23, 2012, the Ninth Circuit held that section 354.4, which extended the statute of limitations for insurance claims brought by Armenian Genocide victims, is preempted under the foreign affairs doctrine.

On June 6, 2014, the U.S. Court of Appeals for the Ninth Circuit reversed the decision of the District Court in von Saher.  The court found not only an absence of conflict between von Saher’s claims and federal policy since the Cranachs were never subject to internal restitution proceedings but believe her claims are consistent with the Washington Principles and not preempted by it.  The panel stated that von Saher is just the type of case that the Washington Principles encourage, the first time the Ninth Circuit has invoked the policy.  While this does allow for a more extensive view,  the court did remand for further development on the act of state doctrine which could defeat the claims.  The act of state doctrine bars domestic courts from reviewing actions taken by a foreign government (see Yale University vs. Konowaloff).  The Norton Simon Museum petition for a rehearing has been denied 

Marei von Saher vs. Norton Simon Museum of Art at Pasadena, et al.

Lucas Cranach the Elder Adam ca. 1530, Eve ca. 1530
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