The Norton Simon Museum in Pasadena’s efforts to bring an end to the claim by Marei von Saher to Lucas Cranach the Elder’s Adam and Eve failed yesterday, as the United States Supreme Court declined to hear the museum’s appeal from the decision last year by the Ninth Circuit Court of Appeals that restored the claims.  The Supreme Court denied what is called a writ of certiorari, which is a discretionary appeal from a lower court.  The high Court can accept cases on appeal from final judgments (as would be the case had the museum prevailed) or, as here, what are called interlocutory appeals—appeals of matters still in process.  The Ninth Circuit decision revived Von Saher’s case and sent them back to the District Court for litigation, and the Norton Simon’s petition asked the Supreme Court to intervene and put an end to it.  The overwhelming proportion of certiorari petitions are denied, interlocutory appeals even more so (courts favor hearing appeals of final judgments to avoid piecemeal adjudications).  This is the second certiorari petition in the case: in 2011, Von Saher was on the losing end of a petition when her case had been dismissed under an earlier version of California’s statute of limitations. 

This follows last year’s landmark ruling by the Ninth Circuit, which we analyzed at the time.  To recap:

Marei Von Saher is the daughter-in-law and sole heir of Jacques Goudstikker, a well-known Dutch art dealer during the interwar period.  Goudstikker purchased two paintings by Lucas Cranach the Elder, Adam and Eve from the Soviet Union in 1931.  Goudstikker fled the Netherlands in 1940 following the German occupation.  His extensive collection was forcibly sold in two events; the first an auction by the German bank Alois Miedl who purchased Goudstikker’s art dealership and some his property; the second the expropriation by Hermann Göring of virtually the entire Goudstikker fine art collection, including the two Cranachs.  The U.S. Army recovered the Cranachs and they were returned to the Dutch government in 1946. 

Goudstikker’s widow filed timely claims with the Dutch government for her family’s property, and reached a settlement in 1952.  Under that settlement, she received most of the property obtained by Miedl, but the settlement did not cover the art collection taken by Göring.  The Dutch deadline for claims lapsed.  The paintings were then the subject of a claim concerning Goudstikker’s initial acquisition from the Soviet Union.  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 before Goudstikker bought them.  Stroganoff-Scherbatoff eventually sold the Cranachs to the Norton Simon Art Foundation around 1971, and they have been exhibited by the Norton Simon Museum roughly since then.

In 2007 Von Saher sued the Norton Simon.  The District Court dismissed the case on preemption grounds, concluding that the then-recent California law abolishing the statute of limitations for wartime artwork claims (California § 354.3 of Code of Civil Procedure) “intrudes on the federal government’s exclusive power to make and resolve war, including the procedure for resolving war claims.” 

On appeal in 2010, the Ninth Circuit upheld the dismissal, because “the power to legislate restitution and reparation claims[] is one that has been exclusively reserved to the national government by the Constitution.”  After thus striking down the abolition of the statute of limitations, the court remanded for further proceedings to determine when Von Saher “discovered” her claim to the painting to enable the District Court to rule on whether the claim was timely under a more recently amended law that extended the statute of limitations for all art claims, not just World War II restitution cases.  In lieu of the old, universally-applicable three year statute of limitations, California enacted a six year statute of limitations, triggered only by the “actual discovery” of the whereabouts of a work of fine art, applicable to all claims then pending or filed before 2017, so long as the artwork had been taken in the 100 years prior.

In 2012, the Norton Simon’s second motion to dismiss was granted by the District Court, not on a finding of timeliness, but rather on the notion that complaints about the Dutch restitution claims process were preempted by the Executive Branch’s foreign affairs domain.  That is to say, the idea that Von Saher’s claim necessarily implicated a judgment about the propriety of the Dutch restitution proceedings—including in both the settlement with Von Saher and the rulings with regard to George Stroganoff-Scherbatoff—a judgment that conflicted with the foreign affairs objectives of the United States.

In last year’s opinion, the 9th Circuit posed the question like this: do Von Saher’s claims conflict with the foreign policy of the United States with regard to restitution?  (The Ninth Circuit had already found the revised law in § 338(c) was constitutional in the Cassirer case over Camille Pissarro’s Rue Saint-Honoré après-midi effet de pluie in 2013).  In answering its own question “no,” the Ninth  Circuit shifted its analysis from its earlier decisions in the same case about whether the revised statute of limitations was itself a restitution mechanism (also answered in the negative by Cassirer), to whether claims either revived by the California law generally, or Von Saher’s case specifically, conflict with the actual, current, foreign policy of the United States.  For the first time in the holding of a U.S. decision, the Ninth Circuit invoked the Washington Conference Principles on Nazi Stolen Art as the policy of the United States, and found the claims consistent with that policy. 

So, the unsuccessful certiorari petition was an effort to have the Supreme Court reverse this result and dismiss the case now (from which there could have been no appeal).  Denials of certiorari are rarely accompanied by any explanation or opinion, and so it was here.  The docket simply notes that the petition has been denied.

Challenges remain for the case, but being back in the District Court is precisely where a plaintiff like this wants to be.  For example, in its instructions on remand to the District Court last year, the Ninth Circuit identified one theory that might yet defeat the claims: the act of state doctrine.  This legal doctrine holds that notwithstanding a U.S. court’s jurisdiction to hear claims, it should avoid as a matter of prudence any case that concerns the act of a sovereign nation against one of its subjects.  The Ninth Circuit posited that the act of returning the paintings to Stroganoff-Scherbatoff might itself constitute an act of state beyond review.  In effect, the argument would go, even if returning the Cranachs to Stroganoff-Scherbatoff deprived Goudstikker’s widow of what was otherwise her property, that deprivation was an act by the Dutch government to the detriment of a Dutch citizen, and thus beyond review.

Expect pronounced calls for the museum to return the painting without further litigation to follow from many corners, as the case proceeds.