It's becoming more likely that a jury will decide whether the Norton Simon Museum's "Adam" and "Eve" can stay where they are despite having been looted by the Nazis during World War II.
U.S. District Judge John Walter has tentatively set March 29, 2016, as the opening day for a trial in a case that's already gone on for eight years.
Marei Von Saher, who lives in Connecticut, sued in 2007 for the return of "Adam" and "Eve" as stolen property the invading Nazis had seized from her family in 1940.
The paired paintings, done in 1530 by Lucas Cranach the Elder, were appraised at $24 million in 2006 -- years before the post-recession boom in prices for highly coveted artworks.
Museum founder Norton Simon bought "Adam" and "Eve" in 1971 after they'd passed through two other sets of hands following World War II.
The Norton Simon Museum doesn't dispute that Hitler henchman Hermann Goering stole the paintings -- and approximately 800 others -- in a forced sale after Jacques Goudstikker, a noted Dutch-Jewish art dealer, fled for his life with his family as the Nazis invaded.
Instead the museum has stood on tenets of property law and constitutional principles that it says give it clear title to "Adam" and "Eve" despite their having passed out of their owner's hands and into Goering's.
Norton Simon leaders say that handing over "Adam" and "Eve" when there are strong legal grounds for keeping them would betray an obligation to keep brilliant artworks available to the public.
But critics of the museum, including art collector Ronald Lauder, the president of the World Jewish Congress, have said it's unseemly for the Norton Simon to stand on legalities in the face of the undisputed fact that the Nazis stole "Adam" and "Eve" from the family that's now claiming them.
Goudstikker died on the ship bound for the United States that he and his family had boarded as the Nazis invaded. Von Saher, his daughter-in-law, took up the hunt to find the missing art after the death of Goudstikker's widow and son in 1996.
Based on court filings so far, what the Nazis did to Goudstikker will not be at issue. But jurors may be called on to consider who owned the paintings before he acquired them in 1931, and to decide whether Dutch authorities gave the art dealer's widow, Desi Goudstikker, a fair chance to claim them in the years immediately after World War II.
U.S. forces found Goering's trove of stolen art in Germany in 1945, and sent the works back to the countries from which they had been stolen. It was left to each postwar government to conduct proceedings to decide ownership claims.
Von Saher contends that the Netherlands slammed the legal door in her mother-in-law's face, and that she never gave up the right to bring a future claim against authorities who, according to a Dutch government commission's finding in 1998, had been "generally … legalistic, bureaucratic, cold and even callous" toward Holocaust art-restitution claims.
The Norton Simon Museum has countered that Desi Goudstikker had a fair chance to take up the matter with Dutch officials, and that she in effect voluntarily relinquished her claim to "Adam" and "Eve" by not following through.
In 1961, an American heir of Russian aristocrats, the Stroganoffs, stepped forward and claimed "Adam" and "Eve" as family property that the Soviet government had seized in the 1920s. The Soviets sold the Cranach paintings in a 1931 auction in which Goudstikker was the high bidder. It's a matter of dispute whether the paintings ever belonged to the Stroganoffs. According to court filings, the two sides agree that a list kept by the art dealer indicates that at least one of them, "Eve," was taken by the Soviets from a church in Kiev in what's now Ukraine.
In 1966, the Netherlands turned over "Adam" and "Eve" to George Stroganoff-Scherbatoff in a deal that included a monetary payment. He then sold them to Simon, who had amassed a fortune running Hunt's Foods.
Court records show that after losing in a series of preliminary court rulings over the last year, the museum's attorneys urged Walter in March to dismiss the case because time for bringing a suit had expired under the statute of limitations. In their view, the clock had run out during Desi Goudstikker's lifetime without her having sued. The motion characterized the suit Von Saher filed in 2007 as an unwarranted attempt to revive a dead issue.
But Walter ruled in April that, under California law, the clock starts ticking anew each time a piece of allegedly stolen property changes hands. Von Saher had brought her suit in time, he found, because of special legislation passed in 2010 that greatly relaxed the usual statute of limitations for a small category of cases -- ones seeking the return of allegedly stolen cultural property held by California museums or art dealers.
In his most recent ruling, on June 29, Walter denied a joint proposal by attorneys for Von Saher and the museum that would have given them authority to designate certain documents as "confidential." It would have allowed them to be kept out of the public court file, then destroyed after the case is over.
"There is no automatic right to file documents under seal," the judge wrote. Quoting case law, he added, "to the contrary, there is 'a strong presumption in favor of [public] access to court records.'" Walter said that the parties would have to show a "good cause" on a piece-by-piece basis if they want documents declared confidential and placed under seal.
In its first formal answer to the preliminary factual claims Von Saher has advanced, the Norton Simon Museum agreed with some points of history, but asserted that Desi Goudstikker had relinquished control of "Adam" and "Eve" by making "a deliberate and well-considered decision in the late 1940s and early 1950s to forgo filing a claim with the Dutch government."
Von Saher's side intends to paint it as a common property transaction rather than a sovereign act.