Academic journal article Harvard Law Review

Constitutional Law - Federal Preemption of State Law - Ninth Circuit Strikes Down California Law Extending Statute of Limitations for the Recovery of Holocaust-Era Artwork

Academic journal article Harvard Law Review

Constitutional Law - Federal Preemption of State Law - Ninth Circuit Strikes Down California Law Extending Statute of Limitations for the Recovery of Holocaust-Era Artwork

Article excerpt

CONSTITUTIONAL LAW--FEDERAL PREEMPTION OF STATE LAW--NINTH CIRCUIT STRIKES DOWN CALIFORNIA LAW EXTENDING STATUTE OF LIMITATIONS FOR THE RECOVERY OF HOLOCAUST-ERA ARTWORK.--Von Saher v. Norton Simon Museum of Art at Pasadena, No. 07-56691, 2010 WL 114959 (9th Cir. Jan 14, 2010).

The Supremacy Clause of the United States Constitution establishes that "the Laws of the United States ... shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (1) The field preemption doctrine, which has its "root[s]" in the Supremacy Clause, (2) "recognizes limited, but exclusive, areas of federal domain even in the absence of an explicit preemption provision from Congress." (3) Recently, in Von Saher v. Norton Simon Museum of Art at Pasadena, (4) the Ninth Circuit held a California law that extended the statute of limitations for the recovery of Nazi-looted artwork unconstitutional because it infringed upon the federal government's foreign affairs power. (5) In doing so, the court inappropriately applied the field preemption doctrine. The Ninth Circuit should not have struck down the statute.

In 1931, Jacques Goudstikker purchased a diptych painted by sixteenth-century artist Lucas Cranach the Elder entitled Adam and Eve ("the Cranachs"). (6) In May 1940, the Goudstikker family fled the Netherlands when the Nazis invaded the country, and Reichsmarschall Hermann Goring seized the Cranachs. (7) The works were recovered by the Allies following the war and returned to the Netherlands. (8) In 1966, the Dutch government transferred ownership of the paintings to George Stroganoff-Scherbatoff, who sold the Cranachs to the Norton Simon Art Foundation in 1971. (9) Since 1979, the paintings have been on continuous display at the Norton Simon Museum. (10) Marei von Saher, widow to Jacques Goudstikker's only child, claimed to have been unaware that the Cranachs were at the museum until November 2000. (11) Von Saher came forward to reclaim the Cranachs in 2001. (12) On May 1, 2007, she brought an action in federal district court against the museum under California Code of Civil Procedure section 354.3, (13) which provides that an owner's claim against "any museum or gallery" for the recovery of "Holocaust-era artwork" cannot "be dismissed for failure to comply with the applicable statute of limitation" so long as the action is commenced "on or before December 31, 2010." (14)

The museum filed a Rule 12(b)(6) motion in response to the complaint. (15) The district court granted the motion, dismissing the claim with prejudice. (16) The court found section 354.3's extension of the statute of limitations for Holocaust-era artwork claims to be a "facially unconstitutional" violation of the foreign affairs doctrine. (17) Specifically, the district court cited Deutsch v. Turner Corp., (18) in which the Ninth Circuit held that a "sister" statute of section 354.3 that created a private cause of action and extended the statute of limitations for slave labor claims arising out of World War II interfered with the federal government's exclusive power to "make and resolve war" (19) because it allowed California to "create its own resolution to a major issue arising out of the war." (20) The district judge found that section 354.3 similarly "intrude[d]" on the national government's ability to "resolv[e] war claims." (21) Without section 354.3's extension of the statute of limitations, the district court consequently found that von Saher's claim was time-barred under California Code of Civil Procedure section 338. (22)

The Ninth Circuit affirmed in part and reversed in part. (23) Writing for a divided panel, Judge Thompson (24) agreed with the district court that section

(354).3 "infringe[d] on the national government's exclusive foreign affairs powers" and was preempted. (25) The majority noted that the Supreme Court has applied preemption analysis in the foreign affairs context in two ways. …

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