A Cezanne painting seized by Russian Bolsheviks as state property in 1918 will remain with the Metropolitan Museum of Art following a decision yesterday by a federal appeals court.
The U.S. Court of Appeals for the Second Circuit said the painting, “Madame Cezanne in the Conservatory” or “Painting of Madame Cezanne,” could not be claimed by the great grandson of noted art collector Ivan Morozov, whose art collection was nationalized as “property of the state” by the new Soviet government and later sold to an American collector.
The reason, the court said in upholding the dismissal of the suit brought by Pierre Konowaloff, is the act of state doctrine, which bars U.S. courts from inquiring into the validity of the public acts of a recognized foreign sovereign power within its territory, including the nationalization of property.
The decision in Konowaloff v. The Metropolitan Museum of Art, 11-4338-cv, was made by Judges Dennis Jacobs (See Profile), Amalya Kearse (See Profile) and Joseph McLaughlin (See Profile), who heard oral arguments on April 20, 2012. The ruling upheld the 2011 dismissal of the case by Southern District Judge Shira Scheindlin (See Profile).
The art collection of Morozov was decreed state property on Dec. 19, 1918.
The collection was then acquired in 1933 by Stephen C. Clark, an art collector and trustee of the Metropolitan Museum of Art from members of the Politburo in a transaction that Konowaloff alleged “may have violated Russian law,” including decrees that barred “the exports of objects of particular and historical importance,” including “artworks.”
Clark later donated the painting to the Met and Konowaloff alleged that “the Museum may have known that Clark’s bequest involved looted art.”
Although the United States did not recognize the Soviet Union until 1933, Scheindlin in her decision said “when a revolutionary government is recognized as a de jure government,” in the words of the U.S. Supreme Court in United States v. Pink, 315 U.S. 203 (1942), “such recognition is retroactive in effect and validates all the actions and conduct of the government so recognized from the commencement of its existence.”
Scheindlin also said the Supreme Court and courts in the Second Circuit have “consistently held Bolshevik/Soviet nationalization decrees to be official acts accepted as valid for the purpose of invoking the act of state doctrine.”
Writing for the circuit, Kearse said that under the act of state doctrine courts may not examine a foreign state’s acts even if the complaint alleges a violation of customary international law or the violation of that state’s own laws.
As noted by Scheindlin, Kearse said that although the doctrine “is an affirmative defense as to which the Museum had the burden, a court may properly grant a motion to dismiss on the basis of that doctrine when its applicability is shown on the face of the complaint.”
Here, she said, it is clear from the complaint that Konowaloff’s action was barred under the doctrine.
Konowaloff claimed that the painting was seized by the Bolshevik “party” rather than the Bolshevik government, but Kearse said his assertion that the confiscation was an “act of theft” was flawed.
“First, the characterization of the Soviet government’s appropriation as an ‘act of theft’ is a legal assertion, which the court was not required to accept,” Kearse said. “Second, the lawfulness of the Soviet government’s taking of the painting is precisely what the act of state doctrine bars United States courts from determining.”
And “‘while the current Russian government is apparently disinclined to engage in further appropriations of private property and has initiated an investigation into the 1930s art sales,” she said, “it has not repudiated the 1918 appropriation that is the government act that deprived Morozov, and hence Konowaloff, of any right to the painting.”
James E. Tyrell of Patton Boggs argued for Konowaloff.
David Bowker of Wilmer Cutler Pickering Hale and Dorr in Washington, D.C., argued for The Metropolitan Museum of Art.
@|Mark Hamblett can be contacted at email@example.com.