Suit over Norton Simon artwork enters a final phase
A long-running lawsuit to force the Norton Simon Museum to surrender one of its prized artworks, 480-year-old paired paintings of Adam and Eve by Lucas Cranach the Elder that were looted during the Holocaust, has reached what could be its last legal round: plaintiff Marei Von Saher’s recent appeal to the U.S. 9th Circuit Court of Appeals.
If her appeal fails, it could have far-reaching implications, potentially undermining a larger class of claims to recover Nazi-looted art.
Von Saher, who lives in Connecticut, contends that the “Adam and Eve” diptych that has hung in the Pasadena museum since the late 1970s remains stolen goods. The paintings had belonged to her father-in-law, Jacques Goudstikker, a prominent Dutch-Jewish art dealer whose holdings were expropriated by one of Adolf Hitler’s top henchmen, Hermann Goering, in a forced sale after the family fled the Nazi invasion of Holland in 1940.
A key issue if the case went to trial would be whether Goudstikker’s heirs gave up their right to the diptych in what Von Saher contends were unfairly conducted negotiations with the Dutch government after the war.
U.S. District Judge John Walter dismissed Von Saher’s suit March 22, ruling that Dutch authorities’ handling of the Goudstikker claim more than 60 years ago was consistent with a U.S. policy at the time called “external restitution.”
The policy applied to Nazi-looted art, such as “Adam and Eve” and the other Goudstikker-owned works Goering had stolen, that had been recovered by U.S. forces in Europe. Under external restitution, the Army turned over the art to the countries from which it had been looted and left it to each nation’s government to conduct a legal process to determine the rightful owners.
Walter dismissed Von Saher’s claim after finding that the Netherlands had complied with its obligations under external restitution. He ruled that allowing the “Adam and Eve” case to go forward would improperly circumvent the sole authority over foreign policy that the constitution grants to the federal government.
His ruling hinged on a legal brief from the U.S. solicitor general, saying it’s the federal government’s position that the Netherlands conducted “bona fide … proceedings” that met the requirements of the external restitution policy and that 60 years later “the United States has a substantial interest in respecting the outcome.”
Walter acknowledged that his action could bar other Holocaust-related claims involving stolen art recovered by the U.S. military during and after World War II. The judge wrote that he was dismissing the case “with great reluctance … realizing the effect that this decision may have on victims of the Holocaust and their descendants.”
Von Saher’s attorney, Lawrence Kaye, said he has filed a notice of appeal with the 9th Circuit, which in 2009 kept her case alive by overturning part of Walter’s previous blanket dismissal, citing the statute of limitations.
The statute of limitations is no longer an obstacle because of a California lawthat went into effect in 2010, substantially lowering statute-of-limitations barriers to suits seeking the return of allegedly stolen artworks acquired by California museums or dealers. Walter took the unusual step of adding a footnote to his recent ruling that “the idea for the bill came from Randol Schoenberg,” a Los Angeles attorney and art-restitution expert who is on Von Saher’s legal team.
The Norton Simon Museum will fight the appeal and “remains confident that it holds complete and proper title to ‘Adam and Eve,’” its attorney, Luis Li, said last week. The paired paintings, which show Adam and Eve in the moment before their fall from grace, were appraised at $24 million in 2006.
Von Saher contends that the Netherlands acted unjustly in the early 1950s in its handling of her family’s restitution claim for “Adam and Eve” and other paintings Goering had seized. According to documents in the case, Desi Goudstikker, the art dealer’s widow, never made a formal legal petition for the artwork’s return because she didn’t trust that Dutch authorities would treat her fairly. She accepted a settlement for other property that had not gone to Goering but regarded the fate of “Adam and Eve” and other expropriated paintings as unfinished business.
In the 1960s, the Dutch government sold “Adam and Eve” to George Stroganoff-Scherbatoff, who in turn sold it in 1971 to museum founder Norton Simon. In a claim that Von Saher disputes, Stroganoff-Scherbatoff said that the Bolsheviks had seized “Adam and Eve” from his aristocratic family during the Russian revolution — and that Goudstikker’s purchase of it at a Soviet-sponsored auction in Berlin in 1931 was therefore not legal.
In 2006, the Dutch government turned over to Von Saher more than 200 other works that Goering had seized from Goudstikker’s holdings. Kaye said that action shows that the external restitution policy wasn’t followed properly by the Dutch and that Von Saher’s claim for “Adam and Eve” shouldn’t have been dismissed as an improper attemptto cancel a legitimate outcome of U.S. foreign policy.
But Walter’s ruling and the solicitor general’s legal brief maintained that the Dutch decisions in the early 1950s were legally valid. They emphasized that in returning paintings to Von Saher in 2006, Dutch authorities had stated there was no legal obligation to do so; the Netherlands instead said that other concerns rising from how the government had treated the Goudstikker claims after World War II made returning the paintings the proper thing to do, even though not mandated legally.
Kaye said that another likely issue on appeal will be whether Judge Walter applied the solicitor general’s foreign policy concerns too broadly. TheU.S. Supreme Courthad asked the solicitor general, who represents the federal government in Supreme Court proceedings, to weigh in as it considered whether to decide the constitutionality of a 2002 California law that Von Saher initially had relied on, suspending the statute of limitations for suits to reclaim Nazi-looted art. Those concerns have vanished, Kaye said, because Von Saher’s suit now relies on California’s “general” statute of limitations, which doesn’t mention the Holocaust or raise constitutional issues related to federal foreign policy prerogatives.
He pointed to a passage in the solicitor general’s brief that he thinks suggests that Von Saher has a right to press her claim. It noted that two appeals courts had determined that Holocaust art restitution claims brought under general statutes of limitations did not violate federal foreign policy prerogatives. “It is thus possible,” the solicitor general wrote, that Von Saher might be able to press her claim under California’s general statute.
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