The magnificent Impressionist painting of a rainy Paris streetscape that hung on a wall in Lilly Cassirer’s home in Germany in 1939 was the price she paid to a Nazi art dealer in exchange for exit papers from the country. It was nothing close to a fair transaction. She was a Jewish woman relinquishing valuable artwork in exchange for safe passage.
Eventually her descendants discovered that the Camille Pissarro painting that Cassirer had owned, “Rue Saint-Honoré, Après-midi, Effet de Pluie,” was hanging on the wall of the Thyssen-Bornemisza National Museum in Madrid.
Cassirer’s family has spent two decades in and out of courts unsuccessfully trying to get the painting that all agree was stolen from her by the Nazis. It’s a travesty that this family is still fighting for the return of this painting.
Now they will ask the U.S. Supreme Court to weigh in on the legal saga. What makes this time different? A new California law, Assembly Bill 2867, which passed in August and was signed by Gov. Gavin Newsom in September. The new statute requires courts to use California law when hearing cases filed by California residents or their families to recover stolen art or other significant artifacts held by museums.
The Supreme Court is finally in a position to course-correct the lower courts on this matter, and it should do so.
Until that bill passed, when a California plaintiff sued a foreign entity such as the Spanish museum to recover stolen artwork, the court would decide whether to use the law of the state or the law of the defendant’s country. California law holds that a thief never has a legal right to stolen property, and whoever gets the property later never has a legal right to it either. But under Spanish law, after a certain amount of time passes, the holder of stolen property is legally allowed to keep it.
A federal district court hearing the Cassirer case used Spanish law and ruled that the Spanish museum could keep the painting. The 9th Circuit Court of Appeals — twice — ruled that the lower court was correct in deciding that the Spanish museum could keep the painting.
The Cassirer family is arguing that based on the new California statute, the 9th Circuit’s decision is now “irreconcilable with current California law.” The family is asking the Supreme Court to throw out that decision and return the case to the 9th Circuit, which in turn should follow the new statute, overturn the lower court’s decision and finally order the painting returned to the family.
We hope that’s exactly what happens. That outcome would be not only fair but also in keeping with broader norms: The Legislature specifically wrote the new law “to align California law with federal laws, policies, and international agreements, which prohibit pillage and seizure of works of art and cultural property, and call for restitution of seized property.”
In the past even some jurists were anguished over their decisions. Judge Consuelo Callahan on the 9th Circuit concurred with the decision upholding the museum’s right to the painting even as she said that appellate judges sometimes must “concur in a result at odds with our moral compass. For me, this is such a situation.”
U.S. District Judge John F. Walter, in his lower court ruling for the Spanish museum, lamented that he couldn’t force the museum to “comply with its moral commitments” as laid out in powerful but nonbinding international agreements (signed by dozens of countries, including Spain) that state there is a moral duty to return Nazi-looted art to its rightful owners or their heirs.
Now the California law opens the door for judges to make legal decisions that align with moral ones.
But the Spanish government, which owns the museum, doesn’t have to wait for those decisions. It should do the right thing and return this painting to its rightful owners. That would be the swiftest way for long-awaited justice to be done.