WASHINGTON (CN) — The justices revealed little about how they would rule in a two-decade-old legal fight over a French painting stolen by the Nazis that asks how foreign states should be held accountable on Tuesday.
Over 80 years ago, Lilly Cassirer — a Jewish woman living in Germany — transferred her art collection, including Camille Pissarro’s “Rue Saint-Honoré in the Afternoon, Effect of Rain,” in exchange for her safe passage out of the country. The Nazis gave Cassirer around $360 for the painting, but the money was stored in an account she could never access.
While Lilly would never see the painting again, her grandson who survived the Holocaust, Claude Cassirer, recognized it on display at the Thyssen-Bornemisza Museum in Madrid in 2000. Cassirer asked Spain to return the painting, setting in action a legal battle traversing the globe.
The details of the case tell a compelling story, but they weren’t the focus of Tuesday’s arguments.
“I think that the context in which this case arose is obviously very compelling but to the extent people were looking to see if the justices were going to delve into the background and the fact of Nazi theft, and there was none of that,” William Charron, partner and co-chair of Pryor Cashman’s Art Law group, said in a phone call. “They were very in the weeds and they were very focused on a particular question that is important far beyond the context in which this case arose.”
The U.S. government has backed Cassirer, pointing the high court on Tuesday to the clear signal in the Foreign Sovereign Immunity Act that foreign states should be held accountable in the same way private individuals would be.
“Rather than creating an independent liability standard for FSIA cases, Congress directed that a foreign state should be liable in the same manner and to the same extent as a private individual under like circumstances,” said Masha Hansford, assistant to the solicitor general at the Department of Justice. “That language provides a clear answer to the question presented.”
A federal judge found the case had jurisdiction under FSIA, and the Ninth Circuit affirmed after an en banc rehearing. To decide which jurisdiction’s law applied in the lawsuit, the court used the choice-of-law rules. Finding that Spanish law should be used, the court applied their version of what is colloquially described as squatter’s rights and asserted that the foundation was the lawful owner of the painting.
The case went to the high court after a bench trial that ended with the district court finding that the foundation should be considered the rightful owner because it didn’t know the painting was stolen.
Representing Cassirer, attorney David Boies argued that the foundation was not entitled to immunity and should be treated like any other private individual. “If the respondent were a private museum and every other circumstance for exactly the same, California choice of law and rules would apply,” said Boies, who participated in the arguments remotely.
The foundation argued meanwhile that Congress did not mean for California’s choice-of-law rules to apply to a foreign state accused of committing a crime within its own borders.
“In the absence of an explicit statement, Congress did not intend the California choice of law test to determine the substantive law to apply to a foreign state alleged to have committed a wrong within its own borders,” said Thaddeus John Stauber, an attorney for Nixon Peabody representing the foundation. “But for Mr. Cassirer’s retirement to San Diego, California would have no interest in this case.”
Justice Elena Kagan said the foundation’s case goes against FSIA.