Supreme Court rejects Norton Simon's appeal in looted art case

On 20 January, the US Supreme Court declined to hear the Norton Simon Museum's appeal in a case contesting its ownership of diptych "Adam" and "Eve" by Lucas Cranach the Elder. The Supreme Court's rejection allows Marei Von Saher to pursue her lawsuit to reclaim the Cranach paintings. 

Von Saher alleges that the diptych was looted from her father-in-law, Jacques Goudstikker, during the Nazi era. More specifically, that the Nazis conducted forced sales of Goudstikker's artworks, including the diptych, which Goudstikker left behind when he fled the Netherlands in 1940 (see our previous post for more details). 

The museum had argued – both in the California appeal court and in its application to the Supreme Court – that Von Saher's claims conflicted with the US policy on resolving war-related art disputes, and with its right to conduct foreign affairs. The US District Court agreed. 

Last June, however, the 9th Circuit Court of Appeals overturned the District Court's ruling, stating that allowing Von Saher's claim to proceed "would encourage the Museum...to follow the Washington principles [which call for restitution]...Perhaps most importantly, this litigation may provide Von Saher an opportunity to achieve a just and fair outcome to rectify the consequences of the forced transaction with Goering during the war". 

The immediate consequence of the Supreme Court's decision is that the case, which has focused solely on preliminary legal issues since it was filed in 2007, will resume with additional preliminary proceedings before a federal judge in Los Angeles. Nevertheless, the outcome of this lawsuit remains uncertain. Indeed, LA District Court judge John Walter has already twice dismissed the case, only to have his rulings appealed and overturned by the 9th Circuit. 

Regardless how the battle over "Adam" and "Eve" turns out, however, the consequence of the Supreme's Court non-action is that the legal theory behind the 9th Circuit's ruling becomes binding precedent in federal courts in nine Western states. 

The 9th Circuit held that US courts should accept the 1998 Washington Principles and the 2007 Terezin Declaration as statements of US foreign policy. These two documents provide that signing members should no longer put legal obstacles to legitimate claims for the return of Nazi-looted art. Art law experts, therefore, foresee that a possible consequence of the Supreme Court's decision is that these two document have legal effect in US Courts. 

The 9th Circuit also said that the US District Court should turn its attention whether the Act of State Doctrine applies to the paintings. This Doctrine states that US courts cannot hear cases involving government policies and the official actions of foreign governments. If the Doctrine does apply, the Judge will have to evaluate whether the Dutch government's handling of "Adam" and "Eve", in particular whether their 1996 sale of the diptych, qualifies as a policy action by the Dutch government.

Ownership of Nazi-looted art at Pasadena Norton Simon Museum disputed

Another post on Art & Artifice on looted art.

This case concerns two sixteenth-century oil paintings looted in 1940 from the collection of a noted Dutch art collector and dealer, Jacques Goudstikker. The two paintings "Adam" and "Eve" by Lucas Cranach the Elder were acquired by the Norton Simon Museum of Art in Pasadena, California in 1971 and, to date, have regularly been on display.

In May of 2007, Marei von Saher, Jacques Goudstikker's sole heir, filed a complaint in the Federal Court for the Central District of California seeking to recover the paintings.

The history of the two paintings is complicated by multiple lootings and suspicious changes-of-hand.

Before the 20th century, the diptych was in a Kiev Church for more than 400 years, until the Soviets moved the works to the Art museum of the Ukranian Academy of Science. Then, the Soviet government decided to auction the works in Berlin where the Jewish art dealer, Jacques Goudstikker, bought them in 1931.

During World War II, in 1940, Mr Goudstikker fled the Netherlands when Germany invaded and died while crossing the Atlantic to South America. Several hundreds of works in his gallery, including the two Cranach paintings, were later sold in two circumstances: to the German bank Alois Miedl during an auction, and to the Nazi Reichsmarschall Hermann Göring at a fraction of their value.

At the end of the World War II, the works were eventually restituted to the Dutch government in 1946 by the Monuments Men.

Goudstikker’s widow filed timely claims with the Dutch government and reached a settlement in 1952. Under that settlement, she received most of the property taken by Alois Miedl, but the agreement did not cover the artworks taken by Göring.

The paintings were then the subject of a claim concerning Goudstikker’s initial acquisition from the Soviet Union. A Mr George Stroganoff-Scherbatoff successfully petitioned the Dutch government to return the paintings to him on the grounds that the Soviet Union had illegally taken the works from his Russian family before Goudstikked bought them. So, in 1966, the Dutch government quietly gifted the work back to George Stroganoff-Scherbatoff, denying the restitution claims by Goudstikker’s wife. Then, in 1971, the Norton Simon museum acquired the panels from George Stroganoff-Scherbatoff.

Finally, three decades later, Von Saher learned of the paintings whereabouts, and sued the Norton Simon Museum in 2007, after six years of talks failed to resolve the case.

In March 2012, US District Judge John Walter dismissed the case, finding that Von Saher's claims conflicted with US policy on recovered art.

However, on June 6, the 9th US Circuit Court of Appeals reversed the 2012 decision, returning the case to the District Court. 

Now we will have to wait and see whether the transfer to Stroganoff-Scherbatoff will be considered as a Dutch "act of state" that a US court should not disturb or not.