Graber, Paez Bemoan Finality of Ruling in Looted Art Case

Friday, July 5, 2024

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Graber, Paez Bemoan Finality of Ruling in Looted Art Case

Senior Ninth Circuit Judges Say Court Should Rehear, En Banc, Decision Allowing Museum to Retain Painting

By a MetNews Staff Writer

Depicted is Camille Pissarro’s “Rue Saint-Honore in the Afternoon. Effect of Rain,” painted in 1897. Two senior judges of the Ninth U.S. Circuit Court of Appeals yesterday expressed regret that a decision of a three-judge panel declaring that a museum in Spain may retain the masterpiece rather than it going to the heirs of the woman from whom the Nazis confiscated it in 1939.

Two senior judges of the Ninth U.S. Circuit Court of Appeals yesterday bemoaned the decision by a majority of the full-time judges of the court not to rehear, en banc, the case in which a three-judge panel held on Jan. 9 that a museum in Madrid may retain a masterpiece looted by the Nazis, rather than it being handed over to the heirs of the woman from whom it was taken.

The result was reached by applying Spanish law rather than a California statute which would have resulted in heirs of Lilly Cassirer gaining possession of the 1897 painting “Rue Saint-Honore in the Afternoon. Effect of Rain” by French Impressionist Camille Pissarro. Her son and sole heir, Claude Cassirer, a California resident, brought his action in the U.S. District Court for the Central District of California in 2005 after learning that the painting had not been lost or destroyed but was in a state-owned museum in Spain, part of the Thyssen-Bornemisza Collection (“TBC”).

Claude Cassirer died in 2010. The action was maintained by his son David Cassirer, the estate of his daughter, Ava Cassirer, and the United Jewish Federation of San Diego County.

In a statement, attached to the order denying a rehearing, Senior Judge Susan P. Graber, joined by Senior Judge Richard A. Paez, expressed “regret” over “this court’s failure to rehear this case en banc.”

The panel that decided the appeal in January—Senior Judge Carlos T. Bea, who authored the majority opinion, Judge Sandra S. Ikuta who joined in that opinion, and Judge Consuelo M. Callahan who wrote a concurring opinion in which she decried the result—denied a panel rehearing; a judge called for an en banc hearing; the majority of the nonrecused active judges voted to let the panel’s decision stand.

Graber’s Statement

Graber wrote:

“We must ask, in the context of this particular dispute, which jurisdiction’s interest in enforcing its laws would be more impaired by applying the other jurisdiction’s law. That inquiry favors applying a new, specific, modern law that will frustrate the purpose of the other jurisdiction’s law only minimally. The test disfavors applying an old, general, isolated law that will eviscerate the purpose of the other jurisdiction’s law.

“The answer here is clear: California’s law applies.”

She explained:

“California’s law is new (enacted in 2010), specific to the recovery of stolen art, and consistent with nearly all domestic and international laws; and applying California’s law will affect the purpose of Spain’s law in only a tiny fraction of cases. By contrast, Spain’s law is old (enacted in 1889); applies generally to all private property; and is isolated, contrary to the law of nearly all other jurisdictions, and contrary to Spain’s own international commitments to return artwork stolen by Nazis. Finally, applying Spain’s law would undermine entirely the purpose of California’s law. The panel’s opinion concludes that Spain’s law applies by misstating the record about TBC’s alleged ‘good faith’ purchase of the painting, by applying principles that are inapposite, and by overlooking the relevance of the most important legal sources.”

‘Case Is Extraordinary’

The judge acknowledged that the full court seldom decides matters of state law but opined that “this case is extraordinary.” She continued:

“It has generated many decisions by the district court; seven published opinions by this court, including one by an en banc panel; and one unanimous published opinion by the Supreme Court reversing our earlier ruling in favor of TBC. In addition to generating significant judicial proceedings, the dispute has garnered intense media coverage and interest from all over the world. This also is the rare case that has not only a legal component, but also a moral component: Consistent with earlier statements by the district court and by the panel as a whole, Judge Callahan’s concurrence states that the opinion’s result is ‘at odds with [her] moral compass.’

“The issue is critically important. The world is watching. We should reach the result that is both legally compelled and morally correct. I am deeply disappointed by this court’s decision, which has the unnecessary effect of perpetuating the harms caused by Nazis during World War II.”

(The U.S. Supreme Court, in its 2022 decision mandating that California conflicts law be applied rather than a rule based on federal common law, noted that “[t]he painting is now thought to be worth tens of millions.”)

Graber noted the worldwide press coverage of the controversy and cited a Jan. 13 editorial in the Los Angeles Times titled “It’s outrageous that a Spanish museum refuses to return Nazi-looted art to the rightful heirs.” She quoted it as saying: “It is shameful that the museum and the Spanish government refuse to do what is just and moral, which is to return the painting that Lilly Cassirer hung on the wall of her apartment in Berlin.”

—AP

Above is a photo of Claude Cassirer, now deceased, who was the son and sole heir of the woman from whom the Nazis stole a painting now worth tens of millions of dollars. He brought suit in 2005 to gain possession of the artwork.

The jurist commented:

“We should apply the law correctly to this high-profile and morally weighty case. Nor is the contrary result unfair to Spain or its instrumentality, TBC. TBC may have lacked actual knowledge that the painting was stolen, but there is no unfairness in requiring TBC to relinquish it….[D]espite several strong red flags suggesting that the painting had been stolen by Nazis, TBC voluntarily chose not to investigate at all the painting or its provenance. Nothing required TBC to investigate, but TBC bore the risk that its rightful owner would make a claim.”