New California Law May End the Legal Dispute Over a Nazi-Looted Pissarro in Madrid

ARTnews ^ | September 17, 2024 | Daniel Cassady

[nickcarraway]

A bill signed into law this week by California Governor Gavin Newsom may signal the beginning of the end of a decades-long dispute between the Museo Thyssen-Bornemisza in Madrid and the heirs of a Jewish collector over the rightful ownership of a work sold under duress during the Nazi regime.

In 1939, Lilly Cassirer Neubauer was forced to sell an 1897 oil by Camille Pissarro to a Nazi art appraiser in order to flee Germany before the impending war.

According to court documents, the Pissarro, titled Rue Saint-Honoré in the Afternoon, Effect of Rain, fetched only $360 (modern USD). The work has been estimated to be valued in the “tens of millions” today.

The bill would clarify a murky point in the legal battle between Neubauer’s heir, David Cassirer, and the museum that stems from a provision in California law that can allow the laws of foreign governments to supersede state law. That provision has allowed the museum to keep the painting despite a prior Supreme Court ruling that the California law should apply to the case; that ruling was overturned earlier this year by a three-judge panel of the Ninth Circuit.

The new law, which was jointly written by the Los Angeles-area Democrat and the co-chairs the California Legislative Jewish Caucus Assembly member Jesse Gabriel, proposes exceptions when the personal property in question was taken “as a result of political persecution”. In a statement, Newsom said that the state has a “moral and legal imperative” to return work stolen by Nazis to Holocaust survivors and their families.

The legal struggle over the Pissarro began in 2000, when Claude Cassirer, Lilly Cassirer Neubauer’s grandson and the father of David Cassirer, learned the painting existed. In 2005, after the museum refused to return the work – they claim the work was legitimately purchased and had no knowledge of its provenance – Cassirer filed a lawsuit.

After Claude Cassirer passed away in 2010, his legal claim was picked up by David Cassirer, his daughter Ava’s estate, and the United Jewish Federation of San Diego County.

Moving forward, the Cassirer has requested their claim to the Pissarro be kicked back to an 11-member panel of Ninth Circuit judges, according to the Los Angeles Times.

Gabriel told POLITICO that the Spanish government’s insistence that they retain the painting was “incredibly shameful…They know and have conceded that it was stolen from this family. It’s time for that wrong to be righted.”

[woodpusher]

The article is a bit misleading or incomplete.

The painting has been on display in the Museo Thyssen-Bornemisza in Madrid since 1992. The museum owns the painting. "In 1958, a German court awarded Lilly Cassirer Neubauer compensation of DM 120,000, the fair market value for the work."

If an American court ruled that the painting belonged to a descendant of the former owner who was awarded full market value for the work then considered as lost, how would the judgment be enforced? The California court could send a strongly worded letter to Spain. Perhaps there is a neo-con who would nuke Spain.

California is not a nation state. Spain is.

https://en.wikipedia.org/wiki/Rue_Saint-Honor%C3%A9,_dans_l%27apr%C3%A8s-midi._Effet_de_pluie

The painting has been displayed at the Museo Thyssen-Bornemisza in Madrid since the museum opened in 1992. It had been bought by Baron Hans Heinrich Thyssen-Bornemisza at the Hahn Gallery in New York in 1976, from a US collector who bought it at the Knoedler Gallery in New York in 1952. In 1993, the baron sold it with the rest of his collection of 775 works to the Spanish state for US$350 million. A claim that the painting was Nazi looted art was dismissed by US federal courts in 2019 and 2020, on the grounds that the law of Spain applied. However, in September 2021, the U.S. Supreme Court accepted certiorari to review that decision, and on 21 April 2022, the Court ruled that the lower courts had incorrectly applied federal common law to apply Spanish law when they should have applied the law of California, and remanded the case for further proceedings. On January 9, 2024, the federal intermediate appellate court ruled in favor of the Museo Thyssen-Bornemisza by holding that California would apply its law on conflict of laws in such a way as to defer to the law of Spain.

Provenance

The painting was bought from Pissarro by the German businessman Julius Cassirer in 1897, and it was inherited by his son Fritz Cassirer and then by Fritz's wife Lilly. She remarried, but in 1939, as a German Jew, she was forced to sell the painting to Jakob Scheidwimmer, an official of the Reichskammer der bildenden Künste [de], for the low price of 900 RM to secure an exit visa, shortly before the outbreak of the Second World War. The painting was sold at an auction in Berlin in 1943 for 95,000 RM and disappeared from public view. In 1958, a German court awarded Lilly Cassirer Neubauer compensation of DM 120,000, the fair market value for the work.

In 2005, Lilly's grandson Claude Cassirer and other heirs filed a claim to recover the painting. In January 2011 the Spanish government denied a request by the US ambassador to return the painting, and in 2015 a Spanish court ruled that the painting belonged to the museum. In April 2019 the United States District Court for the Central District of California ruled that the painting belongs to Fundación Colección Thyssen-Bornemisza, on the basis that the baron and then the museum did not know it was looted art when they bought it. While that decision was affirmed by the United States Court of Appeals for the Ninth Circuit in 2020, in September 2021, the U.S. Supreme Court accepted certiorari to review the Ninth Circuit's decision. The case was heard on January 18, 2022[1] and on April 21, 2022, the Supreme Court, disagreeing with the decision of the Ninth Circuit's decision, vacated the judgement.[2]

Writing for a unanimous court, Justice Elena Kagan ruled that the lower courts had erred in applying federal common law to resolve the threshold choice of law question of whether the law of Spain or the law of California would control.[2] The high court held that when hearing non-federal claims under the Foreign Sovereign Immunities Act, a federal court must apply state law to choice-of-law questions, which in this case meant the law of California.[2] Therefore, the case was remanded to allow the lower courts to apply the law of California governing conflict of laws, to determine whether a California state court would apply its own substantive property law to the ownership of the painting or would defer to the law of Spain.[2]

Following the Supreme Court's decision, the case was remanded to the Ninth Circuit, which tried to certify the choice-of-law question under California law to the Supreme Court of California. In August 2023, the state supreme court declined to hear that question and sent it back to the Ninth Circuit, meaning that the federal court was required to make an Erie guess as to how a California state court would resolve the question. On January 9, 2024, the Ninth Circuit ruled in favor of the foundation — holding that under the law of California (specifically, a 2010 landmark opinion of the Supreme Court of California involving Terrence McCann), ownership of the painting had to be decided under the law of Spain, rather than the law of California. The critical difference between the two is that the Civil Code of Spain allows for acquisitive prescription of personal property against the true owner, while California does not recognize adverse possession of personal property.[3]