No. 09-1254

Supreme Court, U.S. ’|

MAY 1 7 2010

IN THE~pr~m~ (~ourl of lh~ ~nii~ ~at~

MAREI VON SAHER,

Petitioner,

NORTON SIMON MUSEUM OF ART AT PASADENAand NORTON SIMON ART FOUNDATION,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THEUNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAECOMMISSION FOR ART RECOVERY

IN SUPPORT OF PETITIONER

MICHAEL A. LACHERLACHER & LOVELL-TAYLOR

460 Park AvenueNew York, NY 10022(212) 872-1500mlacher@lltlaw.com

Attorneys for Amicus Curiae

Blank Page

TABLE OF CONTENTSPage

TABLE OF CITED AUTHORITIES ..............ii

INTEREST OF AMICUS CURIAE ................ 1

SUMMARY OF ARGUMENT ..................... 5

ARGUMENT ........................................... 6

I. States Have A Recognized Interest InSetting Their Own Statutes of LimitationFor Various Claims, and § 354:3 Is NoDifferent .................................... 6

II. The yon Saher Ruling Will Have ADevastating Impact On Thousands OfIndividuals .................................. 8

III.The Policy of the Federal Government IsThat Holocaust Restitution ClaimsShould Be Resolved On The Merits, and §354.3 Is Consistent With ThatPolicy ...................................... 11

IV. Technical Defenses Like Statutes ofLimitations Should Not Be Used ToPrevent Recovery Of Nazi- Looted Art

ii

Page

TABLE OF CITED AUTHORITIES

FEDERAL CASES

American Ins. Ass’n. v. Garamendi, 539 U.S. 396(2003) ................................................ 7, 24

Detroit Institute of Arts v. Ullin,No. 06-10333,Memorandum Opinion and Order of Hon. DenisePage Hood, Dkt. 36(E.D. Mich. S. Div. Mar. 31, 2007) .......... 20

Erie R.R. Co. v. Tompkins,304 U.S. 64 (1938) ............................... 6

The Museum of Fine Arts, Boston v.Seger- Thomschitz,

Civ. Action No. 08-10097-RWZ,Memorandum of Decision and Order of Hon.Rya W. Zobel, Dkt. 59 (D. Mass. May 28,2009) .........................................................23

Schoeps v. Museum of Modern Art,594 F. Supp.2d 461 (S.D.N.Y. 2009 ........... 22-23

Toledo Museum of Art,477 F. Supp.2d 802(N.D. Ohio 2006) .................................. 2O

ooo111

Page

yon Saher v. Norton Simon Museum of Art,592 F3d 954, 966 (9th Cir. 2010)) .................................................................. 4, 7, 13

STATE STATUTES

Cal. Code Civ. Proc. {} 354.3 .............. passim

MISCE~OUS

American Association of Museums, List ofAccredited Museums, http://www.aam-us.org/museumresources/accred/list.cfm; .......... 18

Commission for Art Recovery, Cases andExperience,http://www.commartrecovery.org/cases.php .............................................. 2

Commission for Art Recovery, Mission Statement,http://www.commartrecovery.org/mission.php ....................................... 14

Ambassador J.D. Bindenagel, WashingtonPrinciples on Nazi-confiscated Art: Ten Years andPromises of the Washington Principles, HolocaustEra Assets Conference Prague and Terezin, CzechRepublic (June 26-30, 2009) http://www.commartrecovery.org/docs/bindenagel.pdf. ................ 15, 18

Page

Stuart E. Eizenstat, Head of U.S. Delegation tothe Prague Holocaust Era Assets Conferences,Opening Plenary Session Remarks at PragueHolocaust Era Assets Conference, PragueConference on Holocaust-Era Assets, CzechRepublic (June 28, 2009), http://www.state.gov/p/eur/rls/rm/2009/126158.htm ............. passim

Wesley A.. Fisher, Letter to Ford W. Bell (Oct. 20,2009), .............................................. 21

Guidelines Concerning the Unlawful Appropriationof Objects During the Nazi Era (Approved Nov.1999, Amended April 2001), http://www.aamus.org]museaumresources/ethics/naziguidelines.cfin...

J. Christian Kennedy, Special Envoy for HolocaustIssues, The Role of the United States in ArtRestitution, Remarks at the Conference inPotsdam, Germany (April 23, 2007), http://germany.usembassy.gov/kennedy_speech.html ....................................................... 10-12, 18-19

Nazi-Era Provenance Internet Portal www.Nepip.org; NEPIP Participating Museums,http://www.ncpip.org/public/scarcldmuscumscarch.cfm? action=musscarch&mcnu_typc=scarch ......... 18-19

Page

Lindsay Pollock and Philip Boroff, Judge SlamsMoMA, Guggenheim on Secret Holocaust ArtAgreement, June 18, 2009, http://preview.bloomberg.com]apps/new?pid=newsarchive_en 10&sid=ayZK6G301MfU ......................... 23

Report of the AAMD Task Force on the Spoliationof Art during the Nazi/World War II Era (1933 -1945) (June 4, 1998, Amended Apr. 30, 2001),http://www.amd.org/papers/guideln.php

Keren Blankfeld Schultz, For Many HolocaustSurvivors, a Final Struggle, Columbia NewsService Oct. 30, 2007, http://jscms.jru.Columbia.edu]cns/2007-10-30/schultz-perpetualsurvivors.html .......................... 8

Terezin Declaration on Holocaust Era Assets andRelated Issues (June 30, 2009), http://www. st at e.gov/p/eur/rl s/or/126162.htm ...................................................................... passim

Washington Conference Principles on Nazi-Confiscated Art (Dec. 3, 1998),http://www.state.gov/p/eur/rt/hlcst/122038.htm .................................................................. 14-15

Blank Page

1

INTEREST OF AMICUS CURIAE

The vortex of victimization of claimants seeking torecover property lost or stolen during the Holocaustcontinues. The Ninth Circuit Court of Appeals hasclosed a final window of opportunity. Making anunwarranted connection between pursuit ofconverted property under state law and the powerof the federal government concerning foreign policy,the court has extinguished a realistic and practicalapproach to resolve questions of title to propertyacquired through atrocity.

Precisely because there are uniquely incalculableimpediments to discovery - witnesses who aredead; documentation that is lost, hidden ordestroyed; and locations that are oi~en unknown -Nazi-looted property, which has been located afteran odyssey of horror, deserves recognition with anextended statute of limitations. To do otherwisedishonors not only property rights, but alsofundamental fairness and decency.

The Commission for Art Recovery ("CAR") isdedicated to supporting the search for lost artworksand restitution to rightful owners.1 That arduous

1 No counsel for a party authored this brief in whole or inpart, and no such counsel or party made a monetarycontribution intended to fund the preparation or submissionof this brief. No person other than the amicus curiae, or itscounsel, made a monetary contribution intended to fund its

2process, given the length of time, the need toidentify victims, places, supporting documentationfor authentication of provenance and often, the artitself, including lost family histories of title andpossession, gives special urgency to the availabilityof California’s extended statute of limitations forHolocaust-era artwork.

Hitler’s Nazi regime looted approximately twentypercent of Western art during World War II. SeeCommission for Art Recovery, Cases andExperience, http://www.commartrecovery.org/cases.php. Even now, sixty-plus years after the fall of theThird Reich, a huge amount of these items remainmissing, displaced, or destroyed. Id. Indeed,"[e]xperts have estimated that as many as 600,000paintings were stolen, of which more than 100,000are still missing. When furniture, china, rarebooks, coins, and items of the decorative arts areincluded, the numbers swell into the millions."Stuart E. Eizenstat, Head of U.S. Delegation to thePrague Holocaust Era Assets Conferences, OpeningPlenary Session Remarks at Prague Holocaust EraAssets Conference, Prague Conference onHolocaust-Era Assets, Czech Republic (June 28,2009) http://www.state.gov/p/eur/rls/rm/2009/126158.htm.

preparation or submission. The parties have been givenappropriate notice of amicus curie’s intention to file and haveconsented to the filing of this brief. Such consents are beinglodged herewith.

3CAR is a non-profit organization dedicated topromoting restitution efforts for artworks that wereseized, confiscated, or wrongfully taken as a resultof the Holocaust and Nazi policies. CAR workswith governments, museums, and variousinstitutions to research, identify, and publicizeworks in their collections which may have taintedties to the Nazi era. CAR’s efforts take the form ofresearching, monitoring, and supporting policy andlegislative change where needed. CAR also worksdirectly with claimants to assist in recovery oflooted art.

Significantly, CAR encourages streamlinedprocedures for returning any such objects to theirrightful owners. Many collections were amassedover several generations, and their rightful ownersare denied an important connection to their past ifgovernments and museums use legal technicalitiesto retain art contaminated by wrongful acquisition.

As part of its work, CAR lobbies in Europe toconvince governments to improve their claimsprocedures and other regulations, thereby fosteringa favorable environment for Holocaust victims andtheir heirs to bring restitution claims. CAR intendsto expand this effort to the United States bypetitioning individual States to adjust theirstatutes of limitations, allowing for claimants toobtain decisions based upon the merits of each case.

4CAR’s interest in this case stems from its concernthat the Ninth Circuit decision holding Cal. CodeCiv. Proc. § 354.3 unconstitutional will have far-reaching effects beyond the State of California. Asnoted above, CAR intends to lobby at the state levelto have statutes of limitations extended forclaimants seeking restitution of art looted by Nazisor taken during World War II. The Ninth Circuit’sdecision in yon Saher v. Norton Simon Museum ofArt, 592 F.3d 954 (9th Cir. 2010), however, servesto encourage museums and others possessingobjects with a Nazi past to continue using technicaldefenses. Specifically, CAR fears this ruling willdissuade other states from passing similarlegislation extending their own statutes oflimitations for Holocaust-era claims out of fear thatthey, too, will be deemed unconstitutional.

The inability or reluctance of other states to passsimilar legislation will impact, negatively, theongoing battle to return Holocaust-era artwork andcultural items to their rightful owners. Holocaustvictims and their heirs will be harmed, cruelly,irreparably, and unnecessarily. The majority willbe lei~ without recourse to resolve their meritoriousclaims, as traditional statutes of limitations, on thewhole, do not adequately protect them given thespecial factors involved in investigating andaddressing Holocaust-era claims.

5SUMMARY OF ARGUMENT

CAR urges the Court to grant certiorari in this casebecause the constitutionality issue as decided bythe Ninth Circuit likely will deny justice to a largeclass of Holocaust claimants whose families havebeen victimized and cheated through no fault oftheir own. California has the right, as does everystate, to set its own statute of limitations forconversion claims, and may exercise this right toprovide Holocaust victims and their families withan extended limitations period.

Such legislation is within an area of traditionalState competence, and does not infringe on theFederal government’s war powers generally, nordoes it conflict with any specific federal program orpolicy. In fact, the Ninth Circuit’s decision iscounterintuitive. In its effort to avoid theappearance of a State policy intruding on an areadedicated to the Federal government, the NinthCircuit overlooked a, if not the, key factor:California’s desire to provide an extended statute oflimitations for victims of Nazi-era looting alignsperfectly with the Federal government’s statedpolicy that such claims should be resolved on theirmerits.

The Federal government has expressed that policydomestically and abroad. However, despite boththe Federal government’s established preference formerit-based resolution of these claims and the

6guidelines for the conduct of Museums andMuseum Directors set forth by The AmericanAssociation of Museums ("AAM’) and theAssociation of Art Museum Directors ("AAMD’),many U.S. museums continue to litigate Holocaustrestitution claims by relying on technical defenses.

In the absence of specific Federal legislationaddressing the issue, laws similar to California’s {}354.3 that are passed by individual states to extendtheir statutes of limitations for Holocaust-relatedclaims are the only way to ensure just andmeritorious resolution of those cases.

ARGUMENT

States Have A Recognized Interest InSetting Their Own Statutes ofLimitations For Various Claims, and§ 354.3 Is No Different

The establishment of a statute of limitations forconversion of property is a traditional statefunction. States have a recognized interest insetting their own statutes of limitations for variousclaims and regulating property over which theyhave jurisdiction. See Erie R.R. Co. v. Tompkins,304 U.S. 64 (1938). Section 354.3, which merelyapplies a state-specific statute of limitationsconcerning regulation of property to resident andnon-resident parties that are otherwise subject tojurisdiction within the state, is wholly consistent

7with the exercise of legitimate and traditional stateinterests. Id.

Contrary to the Ninth Circuit’s finding in vonSaher, § 354.3 does not "create[ ] a new cause ofaction," whether aimed at wartime wrongs oranything else. See yon Saher v. Norton SimonMuseum of Art, 592 F.3d 954, 966 (9th Cir. 2010).Instead, it simply extends the statute of limitationsin certain property conversion cases, which is wellwithin California’s right to do.

Because the determination of an applicable statuteof limitations presents a legitimate state interest,and falls within an area of traditional statecompetence, the Ninth Circuit never should havereached a field preemption analysis. See Am. Ins.Assoc. v. Garamendi, 539 U.S. 396, 420 n. 11 (2003)(~If a state were simply to take a position on amatter of foreign policy with no serious claim to beaddressing a traditional state responsibility, fieldpreemption might be the appropriate doctrine...");see also von Saher, 592 F.3d at 970-71 (Pregerson,J., dissenting).

Furthermore, since states traditionally have beenresponsible for establishing statutes of limitationsfor conversion of property, the Ninth Circuit’sdecision would leave victims of Holocaust art theftwithout any legislative relief from the uniquecircumstances which California has determinedwarrant extension of the standard statute of

8limitations. Likewise, this decision will discourageother states from passing similar legislation aimedat assisting victims of Nazi looting.

Ho The von. Saher Ruling Will Have ADevastating Impact On Thousands OfIndividuals

The United States is home to the third-largestHolocaust survivor population in the world. KerenBlankfeld Schultz, For Many Holocaust Survivors,a Final Struggle, COLUMBIA NEWS SERVICE, Oct. 30,2007, available at http://jscms.jrn.columbia.edtdcns/2007-10-30/schultz-perpetualsurvivors.html.Thousands of these individuals have fought tolocate and recover property stolen from themselvesor their predecessors, or that they or theirpredecessors were forced to sell, as a result of theillegal and corrupt Nazi regime.

These claimants, through no fault of their own, arein a unique situation warranting an extension of thetypical or standard statute of limitations applied inconversion cases. As an initial note, the owners ofthe art in question were, if they were "lucky," able to"voluntarily" flee their homes and businesses, oftenleaving valuables and records, if any, behind. If theywere unlucky, they were physically evicted androunded up by Nazi officials, and likewise forced toleave their possessions and papers behind.Similarly, records tracking the theft or subsequent

9forced sale of the artwork at issue are frequently lostor nonexistent.

Another hurdle for pursuing these claims is thedifficulty in finding witnesses. Some relevantwitnesses may be living in foreign countries, if theyeven are able to be located. Others may havepassed away. Many Holocaust survivors tried toignore their terrible past and go on with their liveswithout looking back, only sharing stories andinformation with family later in life.

Locating looted art does not follow the typicalsequence or timeline of most stolen property cases.It is time-consuming and expensive. A substantialamount of research is involved, and much of it mustbe conducted abroad. Many documents thatclaimants are able to locate need to be translated,which itself is a protracted process. Additionally,claimants often find they need to consult historical,art, and legal experts to conduct and analyze thisresearch. This, too, adds to the expense and lengthof the search.

Moreover, for many years following the end ofWorld War II, other historical events preventedsearches and recovery of Nazi-looted artwork. Theworld was in the midst of the Cold War from WorldWar II’s conclusion until 1989, and generally "itwas not until the collapse of communism that aserious effort commenced to identify artworks thatstill had not been returned to their rightful

10owners." See J. Christian Kennedy, Special Envoyfor Holocaust Issues, The Role of the United Statesin Art Restitution, Remarks at the Conference inPotsdam, Germany (Apr. 23, 2007), http://germany.usembassy.gov/kennedy_speech.html.Thereai~er, archives that had been secret becamepublicly available for research.

Following the 1998 Washington Conference onHolocaust Era Assets, however, governments, alongwith private organizations and individuals, beganto acknowledge that prior restitution efforts hadbeen inadequate. CAR has been instrumental inlobbying for legislative and policy changes to reflectthis shii~ in perspective.

Applying a typical statute of limitations torestitution claims for Nazi-looted art fails torecognize that these theirs and forced sales wereundertaken by one of the most profoundly unlawfulregimes the world has ever known. Rather, itprevents justice for the victims of said regime byallowing for the use of technical defenses againstHolocaust victims and their heirs. Many of theseclaimants do not stand a chance of recovering theirproperty if they are required to face a standardstatute of limitations. Not only does a typicalstatute of limitations likely deny them suchrecovery, it also denies them the right to have theirclaim heard and resolved on the merits.

11

The Policy of the FederalGovernment Is That HolocaustRestitution Claims Should BeResolved On The Merits, and § 354.3Is Consistent With That Policy

The clearly articulated position of the UnitedStates Federal government is that looted Nazi-eraproperty should be returned to its rightful pre-Warowners, and that the use of technical defenses tocombat the resolution of claims for restitution ofthis property should be discouraged. See Kennedy,The Role of the United States in Art Restitution.Rather, these claims should be resolved on themerits. As expressed by Ambassador StuartEizenstat, who represented the U.S. as the head ofthe U.S. delegation for the Prague Holocaust EraAssets Conference in June 2009:

I am also concerned by the tendency ofholders of disputed art to seek refuge instatutes of limitations and lachesdefenses in order to block otherwisemeritorious claims even in situationswhere the claimant has not been providedwith provenance information. Given thenature of the Holocaust and the Cold Warthat followed, many families simply wereunaware or only partially aware of theirheritage. The difficulty in gettingdocumentation and the uncertain nature

12of the current restitution process createsfurther uncertainty. For a defendant totake advantage of circumstances totallybeyond the control of the claimantcompounds the grotesque nature of theoriginal crime.

Eizenstat, Opening Plenary Session Remarks atPrague Holocaust Era Assets Conference.

Most of the art claims brought in the U.S. involve aclaimant on one side and a private museum,gallery, institution or individual collector on theother, and thus "the role of U.S. government hasbeen limited..." Kennedy, The Role of the UnitedStates in Art Restitution. Furthermore, "[w]hile thegovernment can urge institutions to participatevoluntarily in programs such as the one sponsoredby the Museum Association, the government doesnot have any leverage to force compliance..." Id.Because claims are almost exclusively broughtagainst private organizations and individuals,"[t]his leaves no specific role for the federalgovernment in the art restitution process. Id.

While the Federal government encourages a policyof meritorious claim resolution and the return ofart to pre-War owners, it has not sought, orindicated an intention to seek, specific federallegislation to support that goal. Individual Statesmay act within their traditional competence to passlegislation to discourage the use of statutes of

13limitations defenses to prevent the adjudication ofNazi-looted art claims on the merits. Extendingstatutes of limitations for property conversion,which is a long-standing area of Stateresponsibility, is one possible solution. Thus, {}354.3 both supports explicit Federal policyaddressing the issue of Holocaust-era art, and is apermissible and constitutional vehicle forCalifornia to achieve its goal of promotingmeritorious resolution of Holocaust-related artrestitution claims. See yon Saher, 592 F.3d at 970-71 (Pregerson, J., dissenting).

CAR is prepared to lead a nationwide campaign forchanges to statutes of limitations law aimed ataccommodating this preference, expressed both bythe U.S. government and the worldwide communityof nations, but these changes must be made at thestate level. To do this, CAR needs to seek statelegislation that discourages the use of statutes oflimitations as a defense in cases seeking restitutionof Holocaust-era property. However, that missionwill be impossible if the yon Saher decision, whichrenders such legislation unconstitutional, is left tostand by the Supreme Court. Guidance from theSupreme Court on this issue is therefore critical.

14

Technical Defenses Like Statutes ofLimitations Should Not Be Used ToPrevent Recovery Of Nazi-Looted Art

CAR has worked with governments worldwide toensure that the recovery process is streamlined,and that Holocaust-related art restitution claimsare decided on the merits, rather than on technicallegal defenses, such as statutes of limitations orlaches arguments. See Commission for ArtRecovery, Mission Statement, http:]/www.commartrecovery.org/mission.php. There is a wideconsensus among international governments andinstitutions acknowledging that claimantsrequesting return of Nazi-looted art should receivejust resolutions. Indeed, the U.S. has made clearover the last decade that it, too, espouses thispolicy.

The U.S. State Department, in conjunction with theUnited States Holocaust Memorial Museum,convened the 1998 Washington Conference onHolocaust Era Assets, where the 44 participatingnations, including the U.S., agreed upon andadopted the Washington Conference Principles onNazi-Confiscated Art. These non-bindingPrinciples dictate that "steps should be takenexpeditiously to achieve a just and fair solution"when pre-War owners of Nazi-looted art can beidentified. Washington Conference Principles on

15Nazi-Confiscated Art (Dec. 3, 1998), http://www.state.gov/p/eur/rtJhlcst/122038.htm.

The Washington Conference served to shed a much-needed spotlight on the issue of Holocaust-era art,so much so that "[i]mmediately following theconference, we saw more positive action by nationson this issue in the last six months than at anytime since 1950." J.D. Bindenagel, WashingtonPrinciples on Nazi-confiscated Art: Ten Years andPromises of the Washington Principles, HolocaustEra Assets Conference Prague and Terezin, CzechRepublic (June 26-30, 2009), http://www.commartrecovery.org/docs/bindenagel.pdf.

More recently, the U.S. has signed on to theTerezin Declaration on Holocaust Era Assets andRelated Issues, which was adopted at the 2009Prague Conference and endorsed by 46 nations. Asan initial matter, the Terezin Declaration:

Recogniz[es] that art and culturalproperty of victims of the Holocaust(Shoah) and other victims of Nazipersecution was confiscated, sequesteredand spoliated, by the Nazis, the Fascists,and their collaborators through variousmeans including theft, coercion andconfiscation, and on grounds ofrelinquishment as well as forced salesand sales under duress, during the

16Holocaust era between 1933-45 and as animmediate consequence,...

Terezin Declaration on Holocaust Era Assets andRelated Issues (June 30, 2009), http://www.state.gov/p/eur/rls]or/126162.htm.

Drawing on the support of, commitment to, andexperience gained since, the WashingtonConference Principles on Nazi-Confiscated Art, theTerezin Declaration pointedly:

[U]rge[s] all stakeholders to ensure thattheir legal systems or alternativeprocesses, while taking into account thedifferent legal traditions, facilitate justand fair solutions with regard to Nazi-confiscated and looted art, and to makecertain that claims to recover such art areresolved expeditiously and based on thefacts and merits of the claims and all therelevant documents submitted by allparties.

do

Through the Terezin Declaration, the U.S.government thus reiterated the central tenet of itscommitment to resolve Holocaust-era art claims inan expeditious and just manner: to wit, addressingonly the merits of such claims.

17

The AAMD and the AAM also provide theirmembers with non-binding ethical guidelinesrelating to Nazi-era objects. Report of the AAMDTask Force on the Spoliation of Art during theNazi~World War H Era (1933 - 1945) (June 4,1998, Amended Apr. 30, 2001), http://www.amd.org/papers/guideln.php; Guidelines Concerning theUnlawful Appropriation of Objects During the NaziEra (Approved Nov. 1999, Amended April 2001),http://www.aam.us.org/museumresources/ethics]nazi-guidelines.cfm. The AAM’s guidelinesspecifically acknowledge that museums "maychoose" to forego technical defenses when facedwith Holocaust restitution claims. Id.

Many museums, however, do not choose to foregothese defenses, and CAR is concerned thatmuseums are not acting properly to ensure thatNazi-looted art is returned to rightful owners. AsAmbassador Eizenstat has noted:

Some holders of artworks have nothonored the [Washington] Principles andhave gone to great lengths to retainobjects in the face of facially valid claims.In the United States, declaratoryjudgments are being used to make it moredifficult for claimants to prove theirownership. Other holders of art havesimply refused to consider claims, therebyforcing the claimants either to give up

18their claims or engage in expensive anddifficult legal proceedings.

Eizenstat, Opening Plenary Session Remarks atPrague Holocaust Era Assets Conference.

Ambassador Bindenagel has expressed similardistress over the treatment of Holocaust-relatedclaims by U.S. museums and Courts. SeeBindenagel, Washington Principles on Nazi-confiscated Art: Ten Years and Promises of theWashington Principles.

The AAM has not been completely ineffectual. Tohelp promote its guidelines, the AAM has taken thepositive step of setting up a portal linking websitesof major U.S. museums that have posted theprovenance of their possessions known to havechanged hands between 1933 and 1945 in Europe.See Nazi-Era Provenance Internet Portal atwww.nepip.org ("NEPIP’). However, this system isimperfect. See Kennedy, The Role of the UnitedStates in Art Restitution. Not all museums aremembers of the AAM or participate in the NEPIP.A particularly notable exception is the NortonSimon Museum. See American Association ofMuseums, List of Accredited Museums, http:/!www.aam.us.org/museumresources/accred/list.cfm;see also NEPIP Participating Museums, http://www.nepip.org/public/search/museum.cfm?action=mussearch&menu_type=search. A recognized gap inthe NEPIP system is that many smaller museums

19have not submitted provenance data for theircollections, claiming the research cost is too high.Kennedy, The Role of the United States in ArtRestitution. The U.S. government "stronglysupports" efforts by the AAM "to close that gap."Id.

As of April 2007, the portal contained 25,424objects from 155 museums. Kennedy, The Role ofthe United States in Art Restitution. The portalcurrently includes 28,141 pieces of art owned by168 U.S. museums. See "Project Status" section onNEPIP Home Page, http://www.nepip.org.Approximately 9,500 have been added since July2006. See Kennedy, The Role of the United Statesin Art Restitution (approximately 7000 works wereadded between July 2006 and April 2007); see alsoNEPIP Home Page, www.nepip.org (28,141 workscurrently listed in portal).

Clearly, research into these works is ongoing, andmany claimants might not learn the location of aparticular artwork until it is posted on the portal.Unfortunately, just because a particular piece hasnot been posted on the portal until recently doesnot insulate a claimant from a statute oflimitations defense, or from losing in the courtroomon the basis of that defense. For example, theDetroit Institute of Arts and the Toledo Museum ofArt both maintained statutes of limitationsdefenses against individuals seeking the return ofNazi-era artwork, even though those claimants

20only gained actual awareness that the museumspossessed the art in question aider finding theworks listed on a website. See Detroit Institute ofArts v. Ullin, No. 06-10333, Memorandum Opinionand Order of Hon. Denise Page Hood, Dkt. 36, slipop. at 4-6 (E.D. Mich. S. Div. Mar. 31, 2007) andToledo Museum of Art v. Ullin, 477 F. Supp.2d 802,805-08 (N.D. Ohio 2006).

In both of these cases the museums argued, and therespective courts held, that the claims of ownershipwere barred by the applicable statute of limitationsbecause the claimants or their predecessorsreasonably should have discovered the whereaboutsof the paintings at issue well before the museumsposted information about the works. See DetroitInstitute of Arts, slip op. at 6 (finding that claim topainting accrued in 1938, and that even if discoveryrule were applied, claim would have accrued in1973 because claimant’s predecessors ~’through theexercise of reasonable diligence should havediscovered’ that they had a possible cause of actionto recover the Painting."); Toledo Museum of Art,477 F. Supp.2d at 808 ("no matter what date isselected [for the running of the statute oflimitations]...Defendants’ claims are time barredwell before their filing in 2006.").

AAM has been made aware of problems with therepeated use by U.S. museums of technicaldefenses to Holocaust-related restitution claims,and the concerns that such behavior has raised.

21For example, on October 20, 2009, Wesley A.Fisher, the Director of Research for the Conferenceon Jewish Material Claims Against Germany, Inc.wrote to AAM President Ford W. Bell, requestingthe AAM to revise its Guidelines to reflect theprinciples articulated in the newly-adopted TerezinDeclaration. See Letter from Wesley A. Fisher,Director of Research, Conference on JewishMaterial Claims Against Germany, Inc., to Ford W.Bell, President, AAM (Oct. 20, 2009), Appendix A,attached. Mr. Fisher pointed out that the AAM’sstance is that relying on technical legal defenses,such as statutes of limitations, is appropriate, andeven a museum’s "obligation," when presented with"non-meritorious" claims. Id. at 2. Unsurprisingly,Mr. Fisher further explained that he was:

[G]reatly troubled by the idea thatmuseums should assign to themselves therole of determining whether a particularclaim has merit, instead of submittingthat determination to a court of law orother neutral arbiter. This strikes at thevery heart of the principles adopted bythe forty-six nations in Prague, not tomention our system of justice, as well asthe AAM’s stated desire to have claimsdetermined on the merits. In no caseshould the museums - or for that matter,the claimants - appropriate tothemselves the power to determine themerits of a case. Moreover, we do not seehow a museum could ever be obligated to

22keep in its collection a work that bearsthe taint of Holocaust-related eventsbased solely on technical defenses that donot go to the factual merits of a claim.

do

The Detroit Institute of Arts and Toledo Museum ofArt are not the only U.S. museums in recentmemory that have stopped good-faith negotiationsto instead bring declaratory judgment actions toquiet title to works in their collections.

In Schoeps v. Museum of Modern Art, the Museumof Modern Art and the Solomon R. GuggenheimFoundation filed a declaratory judgment action toquiet title as to two Picasso paintings being claimedby the heirs of Paul von Mendelssohn-Bartholdy, aGerman of Jewish descent. Schoeps v. Museum ofModern Art, 594 F. Supp.2d 461, 463 (S.D.N.Y.2009). Before the court was able to reposition theparties "to more accurately reflect" their positions,the Museums had moved for summary judgmentbased on laches, choice of law questions, and atechnical argument that the claimants were notpermitted to bring conversion and replevin claims"without first having been appointed asrepresentatives of the relevant estate by the NewYork Surrogate," despite the fact that their ownwitness testified that the concept of an "estate" doesnot exist under German law - which the Museumsotherwise had argued governed the relevant causes

23of action. Id. at 463, 465-68. Fortunately for theSchoeps claimants, the Museums’ motion forsummary judgment was denied, id. at 468, and theparties entered into a confidential settlement onthe eve of trial. See Lindsay Pollock and PhilipBoroff, Judge Slams MoMA, Guggenheim on SecretHolocaust Art Agreement, June 18, 2009, availableat http://www.bloomberg.com/apps/news?pid=20601088&sid=ayZK6G301MfU.

By contrast, the claimant in The Museum of FineArts, Boston v. Seger-Thomschitz did not fare sowell. In that case, the Museum moved for adeclaratory judgment seeking to quiet title to apainting by Oskar Kokoschka, and moved forsummary judgment, arguing that Dr. Seger-Thomschitz’s claims were time-barred. TheMuseum of Fine Arts, Boston v. Seger-Thomschitz,Civ. Action No. 08-10097-RWZ, Memorandum ofDecision and Order of Hon. Rya W. Zobel, Dkt. 59,slip op. at 1-2 (D. Mass. May 28, 2009).

Such assertions by museums do not harmonizewith the stated Principles in the TerezinDeclaration, and with the U.S. government’sexplicit position that Holocaust-era restitutionclaims should be resolved on their merits.Claimants deserve at least a day in court to havetheir allegations decided on the facts, whether ornot the outcome is in their favor.

24CONCLUSION

California’s § 354.3, and the policy behind it, issupportive of the Federal position that Holocaustrestitution claims should be resolved on theirmerits. This statute does not encroach on theFederal government’s foreign affairs or war powers,and both the absence of a conflicting federal policyand the existence of a legitimate state interest inan area traditionally regulated by the states,meaningfully differentiate it from the provisionreviewed and found unconstitutional by the Courtin Garamendi. The Ninth Circuit’s decision insteadresounds in inconsistency when finding that aclaim for Holocaust-era assets may be pursuedwithin California’s existing, traditional, statute oflimitations without infringing on federal warpowers, yet becomes an imposition on those warpowers when that same claim is permitted to bepursued under an extended statute of limitations.

States should be encouraged to pass legislationlimiting the use of technical defenses againstHolocaust claims, consistent with the Federalpolicy of meritorious resolution of such claims.While such legislation will enable Holocaustclaimants to get into court without facing technicaldefenses, it will not mean an automatic victory forevery plaintiff. Indeed, there may well be manyinstances where plaintiffs will lose their cases evenwithout the bar of statutes of limitations or othertechnical defenses commonly used. This does not

25mean, however, that those claimants should bedeprived of the right to have their claims heard andresolved on the merits.

An opportunity for recovery through California’sdetermination of which statute of limitations toapply to property conversion cases presented in itscourts has nothing to do with federal power overforeign policy - and everything to do withrecognition of reality.

For all of the foregoing reasons, Petitioner Mareivon Saher’s petition for writ of certiorari should begranted.

Respectfully Submitted,

MICHAEL A. L~CHERCounsel of RecordLacher & Lovell-Taylor460 Park AvenueNew York, NY 10022(212) 872-1500mlacher@lltlaw.com

Attorneys for Amicus

Blank Page