Ninth Circuit Strikes Down California's Holocaust Era Statue of Limitations in Von Saher v. Norton Simon Museum of Art, but Permits von Saher to Proceed on Other Grounds – Petitions for Rehearing Pending
On August 19, 2009, the United States Court of Appeals for the Ninth Circuit issued its opinion in Marei von Saher v. Norton Simon Museum of Art at Pasadena, 578 F.3d 1016 (9th Cir. 2009), striking down as unconstitutional California's unique Holocaust Era statute of limitations, Code of Civil Procedure section 354.3. This statute permitted suit against a museum or gallery for the recovery of Holocaust Era artwork if commenced on or before December 31, 2010, arguably permitting claims that might have expired under California's general three-year statute of limitations.
Although the court held that section 354.3 "does not conflict with any current foreign policy espoused by the Executive Branch," it nevertheless was found unconstitutional under a field preemption analysis, because it infringed on a foreign affairs power reserved by the Constitution exclusively to the federal government. The Ninth Circuit pointed out that "the relevant question is whether the power to wage and resolve war, including the power to legislate restitution and reparation claims, is one that has been exclusively reserved to the national government by the Constitution. We conclude that it has."
The dissenting opinion by Judge Pregerson asserts that the majority read the statute too broadly by concluding that section 354.3 created a world-wide forum for resolution of Holocaust restitution claims and that the statute applied to any museum or gallery, when in fact it is limited to only those entities subject to the jurisdiction of the State of California. Judge Pregerson also remarked that section 354.3 does not provide for war reparations, but rather constitutes a regulation over property within the state's jurisdiction, a subject that is traditionally and appropriately a state function.
Although the majority cut off one avenue for von Saher, it opened another by ruling that the trial court erred when it held von Saher's claim time-barred under California's general statute of limitations, Code of Civil Procedure section 338(3), which is applicable to pre-1983 claims for the recovery of stolen art and other personal property. The Ninth Circuit noted that "[f]rom the face of Saher's complaint, it is not clear that the statute of limitations has expired . . . Saher's complaint should not have been dismissed without leave to amend." The case has been remanded to the trial court for further proceedings.
It is worth nothing that the California Supreme Court has not yet ruled on what standard governs the accrual of a claim to recover artwork stolen or converted before 1983, under section 338(3), although this standard has been addressed in two California appellate court decisions. Recognizing this, the Ninth Circuit pointed out that it was bound to apply a constructive discovery accrual rule under its prior opinion in Orkin v. Taylor, 487 F.3d 734, 741 (9th Cir. 2007), which held that a constructive discovery rule would be consistent with California Supreme Court precedent. Under this standard, "Saher's cause of action began to accrue when she discovered or reasonably could have discovered her claim to the Cranachs, and their whereabouts." The court noted that it could only reconsider earlier Ninth Circuit precedent by en banc review or after an intervening Supreme Court decision.
Petitions for rehearing and rehearing en banc were filed by both von Saher and the Norton Simon Museum in September 2009. Amicus briefs were filed in early October by the State of California and EarthRights International. Therefore, California's unique Holocaust Era statute of limitations may still be resuscitated, if only until it expires by its own terms at the end of 2010.
Visiting Scholar, Institute of European Studies
University of California, Berkeley