Will the Supreme Court Take Up Nazi-era Limitations Periods?

The U.S. Supreme Court has asked the Solicitor General to submit a brief on the issue of whether states can enact more permissive limitations rules when they may conflict with the foreign affairs doctrine. Marei Von Saher has been pursuing her claim against the Norton Simon Museum over these two works by Lucas Cranach the Elder. Von Saher is seeking certiorari with the Supreme Court—and the court has not granted review, it just wishes to hear the position of the federal government first, before deciding whether to review the case.

The 9th Circuit Court of Appeals ruled earlier this year that California may not set aside special rules for Nazi-era claims because it conflicted with the federal government's ability to govern foreign affairs. The claimant Marei Von Saher is the successor in interest to Jacques Goudstikker who bought the works in a 1931 auction in Berlin. The works remained there in Amsterdam until 1940 when the Nazis instituted a forced sale. After the war, Desiree Goudstikker reached a settlement with the Dutch government. She received some of her husband's inventory, but did not claim another set of works because that would have meant returning the purchase price received from the Germans.

The Dutch government transferred these Cranachs to George Stroganoff-Scherbatoff, the descendant of a noble Russian family who was thought to have lost the paintings to the Bolsheviks during the Russian Revolution. Stroganoff-Scherbatoff sold these works to the Norton Simon Museum in 1971. The 9th Circuit held first that California's special limitations rule for works looted during the Holocauset era, Sec. 354.3 conflicts with the foreign affairs doctrine. Though it does not conflict with Executive Branch policy via the President, it does conflict with a power reserved to the Federal government, as California created a "world-wide forum for the resolution of Holocaust restitution claims".

As a consequence, the claim was left to general limitations principles. In California the Discovery Rule applies. A claimant must bring her action within three years of discovering her claim. This means actual discovery, but also when a reasonably prudent claimant should have discovered she had a claim, and the work first went on display in 1977.