LOS ANGELES (CN) — The Ninth Circuit Court of Appeals once again concluded that a Spanish museum was the rightful owner of a Camille Pissarro painting stolen by the Nazis in 1939 from its Jewish owner as she was trying to flee Germany.
The heirs of Lilly Neubauer were thrown a lifeline when the U.S. Supreme Court in 2022 agreed with them that the Ninth Circuit should have used California choice-of-law rules, rather than federal ones, to determine whose law — Spain's or California's — should decide whether the Thyssen-Bornemisza National Museum in Madrid was the proper owner of "Rue Saint Honoré, après midi, effet de pluie."
However in Tuesday's decision the appellate panel concluded that even if it applied California choice-of-law rules, the ownership question would still need to be based on Spanish law.
That's because the state's rules stipulate that when there's a conflict between the laws of two jurisdictions, the laws of the jurisdiction that has most at stake in the outcome should be applied, the panel ruled.
"California’s governmental interest rests solely on the fortuity that Claude Cassirer moved to California in 1980, at a time when the Cassirer family believed the painting had been lost or destroyed," wrote Senior U.S. Circuit Judge Carlos Bea, a George W. Bush appointee, referring to Neubauer's heirs. "None of the relevant conduct involving the painting occurred in California."
Attorneys with Boies Schiller Flexner who are representing the heirs said they believed the decision was incorrect in its application of California’s choice-of-law framework and that Cassirer will seek en banc review.
"Among the important issues, the court’s decision fails to explain how Spain has any interest in applying its laws to launder ownership of the spoils of war, a practice outlawed in the Hague Convention of 1907, and a series of other international agreements joined by Spain for over a century," they said. "Nor does it explain how a national museum owned by the Spanish government justifies holding onto a painting that it knows was looted by the Nazis from a Jewish family in the Holocaust."
The Madrid museum acquired the paining in 1993 from Baron Hans Heinrich Thyssen-Bornemisza, who had bought it from a New York art dealer in 1976. Claude Cassirer learned in 2000 that the Thyssen-Bornemisza was displaying his grandmother's paining and petitioned the Spanish government to return the impressionist masterpiece, and when that failed, filed a lawsuit in federal court in Los Angeles for its return.
Under Spanish law, the museum is deemed the rightful owner if it purchased and owned the painting for three years in good faith, without believing that it had been stolen. Under California law, on the other hand, a possessor of stolen property does not acquire possessory rights superior to the rights of the true owner until the statute of limitations expires.
Moreover, the Ninth Circuit panel observed, the Cassirers had a forum in California to bring their claim because Claude Cassirer brought suit in 2005, only five years after he discovered the whereabouts of the painting in 2000.
Thus, according to Tuesday's decision, although the museum had acquired superior title to the painting under Spanish law, it had not acquired superior possession rights under California law.
Nevertheless, under California law, the decision which law should apply when there's a conflict is determined by which place would be most impacted by the choice-of-law determination. In this situation, the Ninth Circuit said, allowing California law to apply to property in Spain would significantly impair Spain’s interests in promoting reliance, predictability, and investment.
U.S. Circuit Judge Consuelo Callahan, also a George W. Bush appointee, while concurring in the panel's opinion, wrote separately that Spain should have voluntarily returned the painting per its commitment to international agreements covering art works looted by the Nazis.
"Our opinion is compelled by the district court’s findings of fact and the applicable law, but I wish that it were otherwise," Callahan said.
U.S. Circuit Judge Sandra Ikuta, a George W. Bush appointee as well, was the third judge on the panel.
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