California Statute Steps into Federal Territory
On January 14, 2010 the United States Court of Appeals for the Ninth Circuit refused to rehear an appeal en banc involving a women's claims to two paintings alleged looted during the Holocaust in Marei Von Saher v. Norton Simon Museum of Art, docket no. 07-56691.
The primary issue of the case revolves the validity of §354.3 of the California Code of Civil Procedure in regard to possible infringement of the federal government's exclusive power designated under the Foreign Affairs doctrine to redress war injuries. §354.3 extends the statue of limitations until 2010 for actions for the recovery of Holocaust-era art, id. 1018. The Court also examines an alleged contradiction of a well-established policy of external restitution enacted under the Truman administration post WWII.
As far as the code infringing on the national government's exclusive power in foreign affairs the court held that it does. The intention, according to the analysis of the Court, was to help Holocaust victims rather than regulate the State's museums and galleries. Although the Court deems this as a noble goal, the humanity underlying the State statute could not give the State the benefit of any doubt in resolving the conflict with national policies, id. 1032. California is in essence creating a distinct juristic personality one that overlaps into the realm of the foreign affairs doctrine, a power designated for the national rather than state government.
The United States government post WWII began external restitution efforts to return looted art under the Plunder and Restitution at SR-143 to its original country of origin--not to individual owners. The State Department recommended this plan of action to allow newly liberated governments to handle the specifics of claims of individuals. Over three million pieces were returned under this policy that ended in 1948, including the paintings in question. Had §354.3 been enacted during the 1940's it would have directly contradicted this external restitution policy since it offers a competing method of resolving restitution claims id 1029. However since the policy is no longer in effect, §354.3 cannot conflict with it.
The Court of Appeals affirms the position of the District court claiming that §354.3 intrudes on the power to make and resolve war, id. 1034. Petitions for rehearing have been denied, and the case has been remanded to the District Court for further proceedings. -- Stephanie Petrew, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Mon, / Embassy Law Link