When claims are made for the restitution of art lost during the Holocaust, they are often met with the defense that the statute of limitations on the claim has long since passed. Claimants argue that the limitations period is a technical defense that should not shield a defendant from a claim that is based in profound moral principle. Defendants argue that the adjudication of Holocaust claims involves events that occurred as much as 75 years ago and, in fairness, present exactly the sort of evidentiary issues that statutes of limitations were meant to address.

In 2002, in order to eliminate this procedural hurdle, the state of California enacted a statute that extended until December 31, 2010 the statute of limitations for all claims brought by "any owner, heir or beneficiary of an owner, to recover Holocaust-era artwork" from"anymuseumor gallery that displays, exhibits or sells any article of historical, interpretive, scientific, or artistic significance."

In August 2009, the United States Court of Appeals held that the statute was unconstitutional as it intruded on the federal government's sole power to control foreign affairs.

The case involved a diptych by Lucas Cranach the Elder entitled Adam and Eve, currently owned by the Norton Simon Museum of Art at Pasadena. The Museum purchased the works in 1971 from George Stroganoff Scherbatoff, who received them from the Dutch Government in 1966 after claiming that they had been expropriated from his family after they fled Russia in 1917. They were sold at an auction in Berlin in 1931 entitled "Stroganoff Collection Leningrad." The buyer was Jacques Goudstikker, an important Jewish art dealer. In 1940, Goudstikker fled the Netherlands when the Nazis invaded, leaving all of his assets behind (including his gallery and its inventory). Goudstikker later died at sea. Goudstikker's collection, including the Cranachs, was seized by Herman Goehring. In 1946, the Cranachs were returned by the Allied Forces to the Netherlands, which later gave them to Stroganoff Scherbatoff.

Marei von Saher, Goudstikker's daughter-in-law and sole surviving heir, says that she did not learn until late 2000 that the diptych was at the Museum. She approached the Museum in 2001, and entered into discussions -- and ultimately mediation – to negotiate their return. The parties were unable to reach an agreement, and Ms. von Saher sued the Museum in 2007, relying upon California's special statute of limitations for Holocaust claims, Section 354.3 of the California Code of Civil Procedure.

Although the Ninth Circuit held that the California law did not conflict with any current policy of the United States Government, the court determined that it was "pre-empted" because it impinged on foreign affairs, whose conduct is reserved to the federal government. The court also held that the statute intruded on the federal government's constitutionally granted "power to wage and resolve war, including the power to legislate restitution and reparation claims."

By the time that the von Saher matter reached the courts, two other California statutes that sought to extend the statute of limitations for other Holocaust-related claims had already been held to be unconstitutional as an intrusion into foreign policy – one relating to slave labor claims arising out of World War II, the other relating to insurance policy claims by victims and their heirs. Ms. von Saher argued that the statute relating to art claims was different because it related more directly to traditional state interests such as the regulation of property and the regulation of institutions and galleries within the state. The court rejected this argument, noting that the statute as passed was not restricted to galleries and museums inside the state; in fact, that restriction was eliminated from the legislation prior to passage. As such, according to the Court, the statute's "real purpose was to create a friendly forum for litigating Holocaust restitution claims" and to "express dissatisfaction with the federal government's resolution (or lack thereof) of restitution claims arising out of World War II."

The court gave Ms. von Saher the opportunity to amend her complaint so that she could recover Adam and Eve under the traditional three-year limitations period. To do that, she will have to show that her action was brought within three-years of the time that she either discovered or reasonably could have discovered her interest in the paintings and where they were located.

In early February, the Court of Appeals denied Ms. von Saher's request for a re-hearing.

Did the California Legislature lose by going too far?

A dissenting opinion issued in the von Saher case argued that the court "read the statute much too broadly," and that a fair reading would have limited the effect of the statute to museums and galleries within the state. The statute did not "target enemies of the United States," nor did it "provide for war reparations." It addressed the recovery of stolen property held within the state, a matter that is of traditional state concern, and "does not conflict with federal policy."

The statute may or may not have been upheld if the California legislature had been less ambitious in its scope. Its defeat, however, has at least temporarily affected efforts to enact similar legislation in other states, such as New York.

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Separate and apart from the constitutionality of the California statute, the very complex history of the Cranachs can be said to underscore the factual difficulties presented by restitution claims.

If the case were to be adjudicated, a key question would be whether the Museum received good title to the pictures when it purchased them from Stroganoff Scherbatoff. His title, in turn, derived from the decision of the Dutch government to restitute the pictures to him when he claimed them in 1966. The underlying facts of Stroganoff Scherbatoff's claim are disputed by Ms. von Saher's counsel, who argue that evidence would suggest that the Stroganoffs never actually owned the pictures. As such, they argue that the decision of the Dutch government was incorrect and should not preclude their obtaining the paintings.

So, a trial on of the von Saher case would involve facts that stretch back not only to the 1930's, but to 1917 – nearly a century ago – and would involve the expropriation of the pictures by two different regimes during separate periods of historic upheaval.

The case also spotlights the philosophic premise at the heart of World War II restitution efforts. The Holocaust of World War II may have been the most significant historic disruption of the 20th Century, but it was not the only one. Nor, sadly, was it the only instance of genocide. Victims of other eras have sought to extend beyond World War II the concept of restitution to reclaim property that they and their families lost.

In one recent example, the heir of a Russian art collector has sued Yale University to obtain a Van Gogh painting that has been in Yale's collection for nearly 50 years. The painting, The Night Café, was purchased by Ivan Morozov in 1908. It was expropriated by the Soviet government, along with the rest of Morozov's collection, after the revolution. The Soviets later sold the picture to a Yale alumnus who ultimately donated it to the University. Pierre Konowaloff, who says he is Morozov's great-grandson, argues that the Soviet confiscation was illegal, that Yale's acquisition of the picture was an act of "willful ignorance," and that he is entitled to the immediate return of the picture as well as damages.

Proponents of the restitution of Holocaust-related art reject the notion that the same principles need apply to other historic disruptions. The view is that the Holocaust is simply different. It is a view that has a compelling philosophical and moral basis – but one that may be more difficult to implement as a matter of law. The Ninth Circuit's rejection of California's special statute of limitation for Holocaust-related claims suggests that to do so will require legislative action on the part of the federal government.