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Ninth Circuit:
Museum in Madrid May Retain Painting Looted by Nazis
Utilizing California’s Choice-of-Law Test, Panel Concludes That Spain’s Interest in Its Law Being Applied Is Stronger Than California’s Competing Interest; Case Returns to Ninth Circuit Upon Remand by U.S. Supreme Court
By a MetNews Staff Writer
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Depicted above is “Rue Saint-Honore in the Afternoon. Effect of Rain,” painted by Camille Pissarro in 1897, who viewed the street from his hotel room. The Ninth U.S. Circuit Court of Appeals yesterday held that a museum in Spain may retain the painting, applying Spanish law, under which the museum has a prescriptive easement in the work, rather than California law, under which it would be restored to the heirs of the woman from whom the Nazis stole it in 1939. |
The Ninth U.S. Circuit Court of Appeals has held, for the second time, that heirs of a woman from whom the Nazis stole a painting in 1939 will not be able to recover the artwork, part of a collection in a Madrid museum, in light of Spain’s strong interest in having its law being applied, under which a foundation it set up has a prescriptive interest in the property.
If California’s law were to be applied, the looted painting would be recovered.
Ninth Circuit Senior Judge Carlos T. Bea authored the majority opinion, in which Judge Sandra S. Ikuta joined. Judge Consuelo M. Callahan, in a concurring opinion, expressed the view that the majority correctly applied the law, but bemoaned the result.
In 1939, in Germany, the Nazis stole the 1897 painting by French Impressionist Camille Pissarro—“Rue Saint-Honore in the Afternoon. Effect of Rain”—from Lilly Neubauer who had fled Germany. In 2000, her son and sole heir, Claude Cassirer, a California resident, learned that the painting had not been lost or destroyed but was in a state-owned museum in Spain, part of the Thyssen-Bornemisza Collection; in 2005, he brought suit in the U.S. District Court for the Central District of California under the Foreign Sovereign Immunities Act (“FSIA”).
Summary Judgment
Judge John F. Walter granted summary judgment in favor of the Thyssen-Bornemisza Collection (“TBC”) Foundation, holding that Spanish law applies and, under its law, TBC has valid title. The Ninth Circuit, in an opinion by Bea, on July 10, 2017, reversed and remanded.
Applying federal common law, it determined that Spanish law governs, but that, under Spanish law, TBC would not own the painting if it had awareness that the work had been stolen. On remand, Walter held that TBC had no such awareness, granting judgment in its favor.
The Ninth Circuit affirmed—in a memorandum opinion by Bea, Callahan and Ikuta—on Aug, 17, 2020, affirmed, saying:
“The district court’s finding that TBC lacked actual knowledge that the Painting was stolen was not clearly erroneous.”
On April 21, 2022, the U.S. Supreme Court, in an opinion by Justice Elana Kagan, reversed and remanded, holding:
“A foreign state or instrumentality in an FSIA suit is liable just as a private party would be….That means the standard choice-of-law rule must apply. In a property-law dispute like this one, that standard rule is the forum State’s (here, California’s)—not any deriving from federal common law.”
California Law Applied
In yesterday’s opinion, Bea applied California’s choice-of-law test, first finding that an actual conflict between California law and Spanish law exists.
“Under Spanish law, a possessor of stolen property can acquire prescriptive title that is superior to the original owner’s title,” he wrote. “In contrast, under California law as it stands today, a possessor of stolen property does not acquire possessory rights to stolen property that are superior to the rights of the true owner until the statute of limitations expires.”
A six-year statute of limitations began to run in 2000 when Cassirer learned that the painting is in a museum in Spain and he brought suit timely, five years later, Bea said.
The question then became whether Spain or California—each of which filed an amicus brief in the case—has a stronger interest in having its law applied. Bea noted that “California Supreme Court precedent teaches that the place in which the relevant conduct occurs in the particular case is a crucial factor in measuring the jurisdictions’ relative interests under the comparative interest analysis.”
Minimal Interest
He declared:
“[B]ecause no relevant conduct with respect of the Painting occurred in California, the impairment of California’s interest that would result from applying Spanish law would be minimal….Claude Cassirer’s decision to move to California—a move that was unrelated to his claim for the Painting—is ‘not sufficient to reallocate’ lawmaking power from Spain to California.”
He added:
“In contrast, applying California law would significantly impair Spain’s interest in applying Article 1955 of the Spanish Civil Code.”
Callahan’s Opinion
Callahan said in her concurring opinion:
“Sometimes our oaths of office and an appreciation of our proper roles as appellate judges require that we concur in a result at odds with our moral compass. For me, this is such a situation.”
She said she wanted to “reaffirm the point we made in footnote three of our opinion” in 2020, remarking:
Spain, having reaffirmed its commitment to the Washington Principles on Nazi-Confiscate Art when it signed the Terezin Declaration on Holocaust Era Assets and Related Issues, should have voluntarily relinquished the Painting. However, as we previously held, ‘we cannot order compliance with the Washington Principles or the Terezin Declaration.’…Our opinion is compelled by the district court’s findings of fact and the applicable law, but I wish that it were otherwise.”
2020 Footnote
In the 2020 footnote, the judges commented:
“It is perhaps unfortunate that a country and a government can preen as moralistic in its declarations, yet not be bound by those declarations. But that is the state of the law.”
Cassirer died in 2010. Seeking the painting are his son, David Cassirer, his children, the estate of his late wife, and the United Jewish Federation of San Diego County.
The painting was “purchased” from Lilly Neubauer by an art dealer in Berlin, acting for the government, for 900 Reichsmarks—then the equivalent of $360, about $250,000 in today’s dollars (which Neubauer was not allowed to keep). The U.S. Supreme Court’s opinion observes: “The painting is now thought to be worth tens of millions.”
Yesterday’s opinion comes in Cassirer v. Thyssen-Bornemisza Collection Foundation, 19-55616.
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