Justices Take Nazi-Looted Art Case

By David F. Pike

Daily Journal Staff Writer WASHINGTON - Maria V. Altmann's
determined quest to recover six Gustav Klimt paintings that she claims were
stolen from her family by the Nazis in the 1930s and early 1940s and
transferred to the Austrian government suffered a new setback Tuesday at the
Supreme Court.

In December, the San Francisco-based 9th U.S. Circuit Court of
Appeals gave the 87-year-old Cheviot Hills woman the green light to pursue
her case against Austria in the U.S. District Court for the Central
District, in Los Angeles. The suit contends the paintings are worth $150
million.

But in May, the justices stayed the circuit's ruling.
And Tuesday, the court announced that it will review the decision,
probably in February. Republic of Austria v. Altmann, 03-13.
"The Supreme Court is here to do justice. And in this case, justice
would be that we would get returned what was taken from us," Altmann told
The Associated Press Tuesday. "This is the first time I've had anything to
do with the U.S. Supreme Court. It's a great honor, but on the other hand,
I'm a little scared."

Her attorney, E. Randol Schoenberg of Los Angeles' Burris &
Schoenberg, said his client is disappointed at the delay.
But, he added, "she has a lot of faith in the U.S. judicial system."
"She has waited 60 years, and she says she can wait another seven or
eight months," Schoenberg said. "My client, fortunately, is in good health."
Altmann plans to travel to Washington, D.C., for the arguments and
"will tour the sites," Schoenberg said.

The case was among 10 granted review by the justices Monday at their
first conference of the 2003-04 term. (See grant highlights, Page 4.)
The court has 48 cases on its docket for the term, which opens
officially Monday.

The justices' decision to grant Austria's petition for review is
limited to one question: whether the Foreign Sovereign Immunities Act of
1976, which contains an exception cutting off immunity when possession of
stolen property violates international law, can be applied to conduct that
occurred before 1952, when the United States agreed to lower the sovereign
immunity shield.

The Supreme Court declined to consider the questions of whether
Altmann's suit is barred because she has not pursued legal remedies in
Austria and lacks the required contacts with that country for a suit in the
United States, and whether her suit was filed in the wrong court.
Austria's attorney, Scott P. Cooper of Proskauer Rose in Los
Angeles, said he was "very pleased the court decided to consider this
matter."

"Although we think it certainly would be a positive thing if the
court could consider all of the questions, we understood [the granted issue]
was the likeliest question," Cooper said.

As he did in his brief in arguing for review, Cooper said that the
9th Circuit's decision conflicts with rulings by other federal circuits.
"There is no other case in which U.S. courts have allowed suits
against a sovereign foreign government for governmental acts that occurred
exclusively in that country," he said. "That was a new interpretation of the
[immunities act] by the 9th Circuit."

The facts in the case go back to the early 1900s, when Altmann's
uncle, Czech sugar magnate Ferdinand Bloch-Bauer, commissioned Klimt to
paint several portraits of his wife, Adele Block-Bauer. When she died in
1925, she left a will requesting that her husband leave the paintings to the
state-owned Austrian Gallery in Vienna.

But in 1938, when the Nazis invaded Austria, Ferdinand Bloch-Bauer,
who was Jewish, fled to Switzerland, leaving his possessions behind. The
Nazis seized the paintings.

Before he died in exile in Switzerland in November 1945, Bloch-Bauer
wrote a new will leaving his entire estate to one nephew and two nieces, one
of them Altmann.

When the Nazis invaded Austria, they moved Altmann to a guarded
apartment and imprisoned her husband, Fritz Altmann, in the labor camp at
Dachau. After the couple won release, they fled to Holland and then to
Hollywood, where Altmann became a U.S. citizen in 1945.
The Klimt paintings ended up in the Austrian Gallery, and after her
attempts to retrieve them failed, Altmann filed suit in 2000. She argued
that the paintings were looted and that the Austrian government was keeping
them illegally.

In May 2001, U.S. District Judge Florence-Marie Cooper of Los
Angeles rejected Austria's argument that U.S. courts have no jurisdiction
over a sovereign foreign state.

Cooper held that the Foreign Sovereign Immunities Act's exception
for possession of stolen property allowed the suit to proceed.
The 9th Circuit affirmed, in an opinion by Judge Kim M. Wardlaw, who
was joined by Circuit Judge William A. Fletcher and U.S. District Judge
Ronald M. Whyte of San Jose, sitting by designation.

The decision sent Altmann's suit back to Cooper for trial.
At the time of the decision, Altmann told the Daily Journal that she
would like to see the paintings hang in the United States or Canada, where
she has family.

"I don't want them with private parties any longer," she said. "I
want them hung for everybody to see."
Schoenberg said Tuesday he is confident his client will prevail at
the high court.

"Austria has no defense on the merits, only procedural arguments,"
he said. "I'm still relatively confident that, when the justices consider
the merits, they will agree with the four judges below.
"The justices probably were concerned with the other cases in the
2nd Circuit and the D.C. Circuit; that muddled the issue somewhat."
The court's precedents on retroactivity, the U.S. Constitution and
the understanding of sovereign immunity before 1952 all favor Altmann's
position, Schoenberg said.

"No one relied on immunity, neither the Nazis nor Austria," he said.
Schoenberg said Altmann has not pursued the case in Austria "because
of statute-of-limitations problems" and because that country has set "a $2
million fee" to file such a claim.

Scott Cooper said he, too, is confident of prevailing in the Supreme
Court.
"We are right on the law," he said. "All of the Supreme Court
precedents regarding retrospective application of statutes are consistent
with our interpretation."

Justices Take Nazi-Looted Art Case