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Restitution

California’s controversial restitution bill

Move to make it easier for claimants to recover looted art is dividing the state

A proposed California bill to make it easier for claimants to recover stolen art is causing controversy, and could have an impact across the whole of the US. The measure doubles the existing time limit for claimants to sue for stolen art in California from three to six years. But more radically, the clock does not start ticking until the claimant has actual notice of a claim—meaning express knowledge of the identity and whereabouts of whoever has the art. This appears to introduce one of the most permissive rules in the nation, but only applies to stolen art or other objects of historical or cultural significance.

Currently, under Californian law, the time limit on stolen art claims starts running when it can be shown that the claimant knew the facts, or could, with due diligence, have discovered them. This means that investigations should get under way reasonably quickly, and cases may be dismissed if they run out of time.

The bill is creating controversy on several fronts: first, it only applies to claims against museums, dealers and auction houses. Secondly, the law applies to ongoing cases, including those previously dismissed by a court under a statute that made it too late to sue at the time. Finally, the law would let claimants use the new California time limit even if it is longer than would be the case in the locality where the loss occurred.

Critics say the new law has been specifically created to let two pending Californian claims proceed that could otherwise fail. In one case, San Diego resident Claude Cassirer has demanded that the Thyssen-Bornemisza Museum in Madrid return a painting by Pissarro to him, which he says his grandmother lost to a Nazi art dealer as she fled Germany in 1939. The museum rejected the claim in 2000; he filed suit in 2005, which would now fit within the six-year limit (The Art Newspaper, February, p4). In a second case, a California court dismissed as too late a claim for two allegedly Nazi-looted paintings at the Norton Simon Museum in Pasadena. Marei von Saher, the daughter-in-law of dealer Jacques Goudstikker, says that a diptych by Lucas Cranach the Elder, Adam and Eve, 1530, was stolen from her father-in-law by Nazis in 1940. A request for appeal is now before the US Supreme Court.

In a letter dated 19 August, the California Association of Museums (CAM) told Mike Feuer, a member of the California State Assembly, that the only interests served by the bill’s “unusual constellation of provisions” are those of the claimant in the Thyssen-Bornemisza case. CAM said it would not oppose the bill, but that it could not support it because of certain “fundamental flaws”. It added that the bill unfairly places California’s art museums in a worse position than other art owners in the state, and invites California courts to become a centre for “lawsuits targeted only at museums”.

The May report of the Assembly Committee says the law seeks to aid victims of art theft who only learn “the whereabouts of the work many years later”. The current three-year limit does not take into account “the difficulties that claimants continue to experience in discovering the underlying facts and finding counsel to litigate their cases”, it adds, citing arguments advanced by Los Angeles attorney Randol Schoenberg who is representing the claimant in the Norton Simon lawsuit.

Thaddeus Stauber, an art restitution lawyer in California and New York who represents the Thyssen-Bornemisza Foundation in its defence against Cassirer’s claim, told The Art Newspaper he expected the statute will be challenged in court because it was an attempt to “rewrite the law to unlawfully favour” the two private claims.

The legislation has been passed by the Assembly and the Senate, but had not been signed by the Governor at the time of going to press.