Norton Simon Museum seeks rehearing after ‘Adam and Eve’ setback

A bite of the apple is said to have gotten Adam and Eve thrown out of the Garden of Eden.

Now the Norton Simon Museum wants another bite at the apple as it tries to have a legal threat to one of its most prized artworks thrown out of court. At stake are Lucas Cranach the Elder’s 1530 paired paintings “Adam” and “Eve,” which have hung in the Pasadena museum since the 1970s.

The museum has asked for a rehearing of a June decision that went against it in the U.S. 9th Circuit Court of Appeals, when two members of a three-judge panel revived Marei Von Saher’s claim to “Adam” and “Eve” after it had been dismissed two years earlier in U.S. District Court in Los Angeles.

The museum’s petition seeks a rehearing of the legal issues by a 11-judge panel of the 9th Circuit, in hopes a majority will take a different view. It’s pinning its hopes on the expanded panel seeing things the way the dissenting judge on the three-member panel did.

“Adam” and “Eve,” painted on separate wooden panels, were looted by the Nazis from Von Saher’s father-in-law, Jacques Goudstikker, a prominent Dutch Jewish art dealer. Goudstikker fled Amsterdam with his family when the Nazis invaded Holland in 1940, and his art collection subsequently was commandeered by Herman Goering, a leading henchman of Adolf Hitler. Goudstikker died in an accidental fall aboard the ship that was carrying his family to the U.S.

“Adam” and “Eve” have a complex and fascinating history, having been looted by the two bloodiest European regimes of the 20th century. About 20 years before the Nazis stole them, they had been expropriated by the Soviet Union from Russian owners whose identity is a matter of dispute.

But since 2007, when Von Saher sued the museum, the masterpiece’s history mainly has taken a back seat. The issue for all these years has been whether allowing Von Saher’s case to go forward would violate the Constitution and contradict established legal precedents.

The latest round centers on how the law views actions in the post-World War II years, when U.S. forces had sent “Adam” and “Eve” back to Holland and Desi Goudstikker, the art dealer’s widow, approached the Dutch government about getting her family’s art collection back.

Not trusting Dutch officials to deal fairly, she refused to negotiate an agreement. About 15 years later, in 1966, the Netherlands sold the paintings to an heir of Russian aristocrats who claimed that his family, the Stroganoffs, had lost them to the Soviets.

Museum founder Norton Simon bought “Adam” and “Eve” from the Stroganoff heir in 1971 for about $4 million in today’s dollars. A 2006 appraisal placed their value at an inflation-adjusted $28.3 million.

The key question in the current appeal is whether, despite the Netherlands’ subsequent admission that it had set up unwarranted roadblocks to many Holocaust victims’ claims to looted property, its dealings with Goudstikker’s heirs nevertheless had met the bare-bones restitution standards set by the United States.

Under a U.S. policy called “external restitution,” postwar governments in Western Europe were responsible for holding proceedings when claims arose over cultural property the Nazis had looted.

If the courts determine that the external-restitution proceedings for “Adam” and “Eve,” were sufficient, Von Saher’s claim would die and the Norton Simon Museum’s ownership would be secure. That’s because the Constitution gives the executive branch sole authority over foreign policy -- external restitution included. The judiciary has no right to second-guess the legality or outcome of U.S. foreign policy.

The two 9th Circuit judges who’ve revived Von Saher’s claim said Desi Goudstikker had good reason to walk away from negotiations with the Dutch government in 1951 because of the likelihood of unjust treatment. Because negotiations never were concluded, Judges Dorothy Nelson and Harry Pregerson held, the policy of external restitution was never carried out and so trying the case would not intrude on the executive branch’s constitutional authority.

But the dissenting judge, Kim McLane Wardlaw, said that unfairness in how the Netherlands handled art restitution after World War II did not mean it had failed to meet its minimum responsibilities under the external-restitution policy. Simply offering Goudstikker’s widow a chance to negotiate was enough, she said, in a minority opinion now echoed by the Norton Simon Museum as it seeks a rehearing.

Legal experts say the majority opinion could be groundbreaking if it’s upheld, because it’s the first time judges have said that U.S. foreign policy on Nazi-looted art is guided not just by the postwar external-restitution plan, but by international ethical codes adopted more than 50 years later.

Known as the Washington Principles (1998) and the Terezin Declaration (2007), the codes discourage owners of allegedly looted art from using legal technicalities such as statutes of limitation as roadblocks to otherwise legitimate claims.

Though not legally binding, and focused on government art holdings rather than private collections such as the Norton Simon’s, the codes have been influential in both government and private spheres. Von Saher didn’t even have to sue to reach a recent a settlement with the Cummer Museum of Art and Gardens in Jacksonville, Fla., which compensated her for “Vanitas,” a still-life by the 17th century Dutch painter Jacques Alophz. de Claeuw.

Contending that the international accords do not apply to the “Adam” and “Eve” case, the Norton Simon’s request for a rehearing relies heavily on a legal brief from an earlier round in its battle with Von Saher.

The U.S. solicitor general weighed in in 2010 with a finding that the Dutch government’s handling of “Adam” and “Eve” met the external-restitution policy’s basic requirements, was consistent with U.S. foreign policy and should be respected by the courts.

But Nelson and Pregerson did not find the solicitor general’s reasoning convincing. They wrote that the solicitor general, who represents the executive branch before the Supreme Court, had failed to take into account the 2000s findings of a Dutch review committee that had criticized how art-restitution claims historically had been handled in Holland.

“The Dutch government itself undermined the legitimacy of [the] restitution process by describing it as ‘bureaucratic, cold and often even callous,’” the majority opinion said.

But Wardlaw and the Norton Simon Museum contend that admitting flaws is not the same as admitting actions that violated the U.S. policy of external restitution. When the Netherlands restored more than 200 artworks to Von Saher in 2004, Wardlaw noted, Dutch authorities did not concede they were legally required to do so -- only that they had decided to return the art “as a matter of discretion.”

Wardlaw concluded that the solicitor general knows best what U.S. foreign policy was and is, and that her two fellow panelists had overstepped their judicial authority in second-guessing the solicitor general’s brief on Von Saher vs. Norton Simon Museum.

“The United States has determined, as a matter of its foreign policy, that its involvement with the Cranachs ended when it returned them to the Netherlands in 1945 and the Dutch government afforded the Goudstikkers an adequate opportunity to reclaim them,” Wardlaw wrote -- casting the solicitor general as the voice of the United States.

“This foreign policy also binds the federal courts,” she continued, “and it should end our many years of involvement with the Cranachs.”