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Nazi-looted art, Ted Cruz and Christian flags top new cases headed to Supreme Court

As well as ordering a merits hearing on a case involving the Texas senator, the Supreme Court added four new cases to its docket Thursday.

WASHINGTON (CN) — The Supreme Court kickstarted its fall term Thursday with certiorari grants for four new cases, including one on Nazi art theft during the Holocaust and another about the fight to fly a Christian flag on Boston City Hall flag poles. Separately the justices have ordered a hearing on whether Senator Ted Cruz has a First Amendment right to lend his campaign as much money as he wants.

Regrets and repatriation

In the art case, the painting “Rue Saint-Honoré in the Afternoon, Effect of Rain,” by the French impressionist Camille Pissarro, was thought lost forever by the family of Lilly Cassirer, a Jewish woman who traded the piece to the Nazis in 1939 in exchange for her family’s safe passage out of Germany and 900 Reichsmarks, about $360, well below the market value.

Though the Cassirers would later accept restitution for the theft facilitated by a post-war Allied forces tribunal, that decision begat remorse in 2000 when Lilly’s grandson Claude Cassirer found the piece hanging at the Museo Thyssen-Bornemisza in Madrid.

The piece was one of hundreds acquired in the 1990s by the Thyssen-Bornemisza Foundation, named for Baron Hans Heinrich Thyssen-Bornemisza, for $338 million, with funding from the Spanish government.

In 2015, shutting down a federal complaint that by the Cassirer family, U.S. District Judge John Walter ruled that the foundation's acquisition of the painting satisfied Spanish law.

A Ninth Circuit panel affirmed that ruling in August 2020, following two rounds of oral arguments, leading the Cassirer family to petition the Supreme Court this past May. They argued that the Ninth Circuit deepened a circuit split on whether California or Spanish law should be applied to the family’s state law under the Foreign Sovereign Immunities Act.

“Under California law, a holder of stolen property (such as the Spanish state museum here) can never acquire good title, while under Spanish law, an adverse possession rule protects the museum’s title,” the family’s attorney David Boies of the firm Boies Schiller Flexner argues. Boies also notes that four other circuit courts have held that under FSIA the courts must apply the choice-of-law rules of the state the suit is taken up in.

Sarah Erickson André, who represents the foundation for the firm Nixon Peabody, responded in an opposition brief that Supreme Court intervention is unwarranted “because the split is shallow.”

Per the court's custom, the justices did not issue any statement in taking up the case Thursday.

Three 83-foot-tall flagpoles stand outside Boston City Hall. One always flies the U.S. flag and one always flies the state flag; the third usually flies the city flag, but citizens can petition to temporarily raise another flag. (Wikipedia Commons via Courthouse News)

Government speech

The justices did not comment on any of the cases in Thursday's order list, one of which pits the city of Boston against Howard Shurtleff, the co-founder of a group called Camp Constitution, who wants to fly a flag emblazoned with a red Latin cross outside Boston’s City Hall. 

The building has three 83-foot-tall flagpoles, one of which always flies the U.S. flag and another that always flies the state flag. The third usually flies the city flag but citizens can petition to temporarily raise another flag. 

As Shurtleff noted in his lawsuit, the city had approved each of the 284 requests it received to fly other flags between 2005 and 2017. It said no to Shurtleff, however, when he proposed flying the Christian flag associated with his group to mark the signing of the U.S. Constitution on Sept. 17, 1787.

Shurtleff seeks a Supreme Court reversal after a federal judge ruled against him and the First Circuit affirmed. The appeals court said the flagpoles represent the government’s speech, not the public’s speech, because a casual observer seeing the flags would assume that the city intended whatever message they convey.

Represented by attorney Mathew Staver of Liberty Counsel, Shurtleff said in petition for a writ of certiorari that Boston's conduct amounts to religious discrimination.

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“The city denied the request expressly because Camp Constitution’s proposed flag was called ‘Christian’ on the application form but, other than a common Latin cross on the flag itself, there is nothing to identify the flag as a ‘Christian” flag,’” Staver wrote.

Boston's attorney Susan Weise meanwhile responded in July that the denial is merely an effort to avoid the conveyance of government endorsement of a particular religion.

“The City’s flagpole is not a public forum, it is government property which the City may use in a manner best suited to its goals,” she wrote. “Petitioners therefore have no constitutional right to express their message on the City’s flagpole nor can they force the City to express itself in a particular way.”

Liberty Counsel founder and Chairman Mat Staver said in a statement Thursday that the firm is looking forward to the Supreme Court hearing.

“There is a crucial difference between government endorsement of religion and private speech, which government is bound to respect,” Staver said. “Censoring religious viewpoints in a public forum where secular viewpoints are permitted is unconstitutional and this case will set national precedent.” 

Weise declined to comment on the move citing city policy on pending litigation.

Tax review extension

The justices are also set to weigh in on the possibility of extending the 30-day time limit to seek review in Tax Court after receiving a determination from the Commissioner of Internal Revenue.

After the Eighth Circuit ruled that the deadline is jurisdictional, the small law firm Boechler PC in Fargo, North Dakota, wants the justices to reverse.

The dispute sprang from a notice the IRS sent in 2015 about the firm's purported failure to file W-2 and W-3 forms with the Social Security Administration for its employees. Boechler ignored the letter because it had filed the forms, only to receive an intent-to-collect notice a year later to the tune of $19,250, plus interest, for intentionally disregarding the first notice. 

The dispute over the fee led the firm to Tax Court, where it petitioned for review one day past the deadline.

Boechler is represented by Melissa Arbus Sherry for Latham & Watkins, who says the Eighth Circuit “incorrectly resolved an important and recurring issue that may disproportionately impact pro se and low-income taxpayers.”

Sherry expressed excitement about the high court taking the case Thursday.

“We are pleased that the Supreme Court recognized the importance of this issue for taxpayers nationwide, and we look forward to the opportunity to persuade the Court that this filing deadline should not be treated as the rare jurisdictional time bar,” she said.

The IRS meanwhile said review was not warranted.

When sentencing reform comes too late

One man's attempt to benefit from new sentencing-reform laws rounds out the cases granted cert Thursday. Carlos Concepcion was serving 19 years on a 2008 guilty plea holding and dealing crack cocaine when Congress passed the Fair Sentencing Act in 2010, which reduced the statutory penalties for many federal crimes involving crack cocaine, and the First Step Act of 2018, which made the Fair Sentencing Act retroactive. 

Represented by Lisa Schiavo Blatt with Williams & Connolly, Concepcion asks if a federal court deciding whether to resentence on old drug charges can consider information from the intervening years.

In his petition to the court, Conception notes that the court may determine that he is no longer a career offender or that he has benefitted from post-sentencing rehabilitation. One means recalculating the guidelines range for sentencing; the other that the sentence is reconsidered.

A Massachusetts federal judge denied his motion for resentencing, which the First Circuit affirmed.

Brian Fletcher for the Department of Justice represents the federal government in this dispute.

Follow Alexandra Jones on Twitter

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