Supreme Court Denies Certiorari in Holocaust-Era Art Repatriation Case: Does it Matter?

On June 27, 2011, the Supreme Court denied the petition of Marei von Saher, daughter-in-law and only surviving heir of Dutch art dealer Jacques Goudstikker, to review the Ninth Circuit’s decision in Von Saher v. Norton Simon Museum of Art at Pasadena, 578 F.3d 1016 (9th Cir. 2003).  That well-publicized case involved the California Legislature’s attempt to temporarily eliminate the statute of limitations for claims related to artwork displaced by the Nazis during World War II.  (For additional discussion of the Ninth Circuit’s opinion, see David Gold, California Dreaming: The Continuing Debate in California Over the Constitutionality of Eliminating the Statue of Limitations on Holocaust-Era Art Repatriation Claims, 22 NYSBA ENTM’T, ARTS AND SPORTS LAW J. 22 (Spring 2011)).

Commentators have criticized the Court’s unwillingness to hear the Von Saher case, but have generally overlooked the actual reasons the Court declined.  The statute at issue in Von Saher expired on December 31, 2010, and the only additional case brought under it does not involve a challenge to the constitutionality of the statute.  See Cassirer v. Kingdom of Spain, 616 F.3d 1019 (9th Cir. 2010).  Moreover, as discussed further below, the Court may have recognized that Von Saher can now be resolved under California’s newly-enacted statute of limitations applicable to stolen and displaced artwork.  Although it would have been interesting to hear the Court’s view on the constitutionality of the statute, its analysis would only have applied to the two cases brought under the former statute, both of which appear to be covered by the new statute.

On October 4, 2010, while the Von Saher appeal was pending, the Supreme Court asked the Solicitor General for an advisory opinion on the narrow issue whether a state legislature can expand, or suspend entirely, statutory limitations periods on certain Holocaust-related claims when such action allegedly conflicts with the federal government’s exclusive foreign affairs power.  After a short analysis echoing the position of the Ninth Circuit, the Solicitor General concluded that the California statute at issue “impermissibly intrudes upon the foreign affairs authorities of the federal government.”

The Solicitor General’s opinion echoes the California Legislature’s response to the Ninth Circuit’s ruling.  The opinion notes: “this case involves a state statute that is specifically and purposefully directed at claims arising out of transactions and events that occurred in Europe during the Nazi era, that in many cases were addressed in the post-War period by the United States and European Governments.”  The California legislature anticipated this issue, and its solution, when passing Assembly Bill No. 2765 in September 2010, a statute of general applicability that expanded the statute of limitation for claims relating to “fine art . . . unlawfully taken or stolen.”  Noticeably absent from the new statute is any reference to the Holocaust, World War II, or any other language that could be intruding as infringing on the foreign affairs or wartime powers of the federal government.  The only apparent limitation to the new statute is that it applies to “the specific recovery of a work of fine art brought against a museum, gallery, auctioneer, or dealer.”  As such, claims against private individuals are seemingly excluded.

Although declaring the California statute an unconstitutional infringement on the foreign affairs power of the federal government, the Ninth Circuit remanded the case to the District Court to determine whether Von Saher’s claim was timely under general three-year statute of limitations for claims to recover stolen property in California.  It is extremely unlikely – given the amount of detailed information and documentation related to the stolen works – that Von Saher will be able to satisfy the three-year statute of limitations under California’s “discovery rule.”  Instead, Von Saher may be permitted to amend her complaint to invoke the new statute of limitations, applicable “to all pending and future actions commenced on or before December 31, 2017, including any action dismissed based on the expiration of the statute of limitations in effect prior to the date of enactment of this statute if the judgment in that action is not yet final or if the time for filing appeal from a decision on that action has not expired.”

The significance of the Supreme Court’s unwillingness to hear Von Saher should not be viewed as a major blow to the future of Holocaust-era art repatriation claims.  Rather, a thorough understanding of the history and legislative response to Von Saher serves as an example of how to properly draft legislation to avoid unnecessary constitutional challenges to the expansion of state statutes of limitations applicable to such claims.  Other cases, such as Grosz v. Museum of Modern Art, currently pending review by the Second Circuit Court of Appeals, should have a far greater impact on the future of such claims in jurisdictions where the applicability of general statutes of limitations (and the various means for calculating them) remain a often-fatal procedural barrier to otherwise potentially meritorious claims for repatriation.