Monday 26 January 2015

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 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.

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