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No.11-4042-cv IN THE
~iten ~hth~z QIourt of
J\pp:ealz
FOR THE SECOND CIRCUIT
••• David Bakalar, PlaintifJ-Counter-Defendant-AppeUee, -againstMilos Vavra and Leon Fischer, Defendants-Counter-Claimant-AppeUants,
On Appeal from the United States District Court for the Southern District of New York Civil Action N. 05-CIV-3037 (WHP)
Motion for Leave to File Brief Amicus Curiae Edward McGlynn Gaffney, Jr. * Valparaiso Univ. School of Law 656 S. Greenwich Street Valparaiso, IN 46383 219-465-7860 *Counsel ofRecord
Jennifer Anglim Kreder Salmon P. Chase College of Law Northern Kentucky University Nunn Hall, Nunn Drive Highland Heights, KY 41042 859-572"5889
Attorneys for Amici Curiae
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Motion for Leave to File Brief Amicus Curiae 1. This motion is accompanied by the proposed brief, copies of which have been served by United States Mail on Counsel of Record for Plaintiff-Appellee and Counsel of Record for Defendants-Appellants, with a courtesy copy by email. The accompanying brief is submitted in accordance with Rule 29, F.R.App.P. 2. None of the Amici is a corporation. Neither counsel for the parties has authored the brief amicus curiae in whole or in part. No party or a party's counsel contributed money that was intended to fund preparing or submitting the brief, which was done on a pro bono basis. No person contributed money that was intended to fund preparing or submitting the brief. 3. The general interests of the amici curiae in this case are stated on page 1 of the accompanying proposed brief amicus curiae. Appendix A contains a statement of the particular interests of each amicus curiae. 4. The reasons why an amicus brief is desirable under the circumstances of this cased his discretion se are that amici are trained historians of modem European history and in particular of the history of the Shoah, and are concerned that the district court abused his discretion in refusing to be attentive to an expert witness report that explains many of the very issues presented in this conflict over restitution of a piece of art that was stolen by the SS from the home of a Viennese Jew in 1938 nor 1939. Amici offer this Court an account of the historical circumstances surrounding this theft, as well as an account of the circumstances surrounding the claim that the Defendants-Appellees should not prevail because the defense oflaches prohibits that result. These are the three headings of issues amici address in the accompanying brief amicus curiae. I. Federal Courts Should Normally Allow Testimony by Qualified Experts About Facts Directly Relevant to the Disposition of Cases Relating to the Looting of Property by German Agents or Collaborators During the Nazi Period.
II. The Erroneous Exclusion of Relevant Evidence from the Factfinding Process Deprived the Fact-finder of Information Directly Relevant to its Treatment of Laches. III. The Defense of Laches Should be Unavailable to Block Otherwise Meritorious Claims for Restitution of Nazi-looted Art, Especially in Situations Where a Claimant Has not Been Provided with Reliable Provenance Information.
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S. Counsel for Defendants-Appellants consented to the filing of this brief.
Counsel for Plaintiff-Appellant refused to consent to the filing of an amicus brief when the case was before this Court as No. 08-5119. In No. 11-4042, Counsel for Plaintiff-Appellant stated that he does "not oppose" the filing of the brief, but refused to consent to the filing of the brief without prior review of the draft. In an exchange of emails on Monday January 23, 2012, Counsel of record for Amici attempted unsuccessfully to resolve this ambiguity, necessitating the filing of this motion, with the brief accompanying this Motion. Respectfully submitted,
Edward McGlynn Gaffuey, Jr. * Valparaiso University School of Law 656 S. Greenwich Street Valparaiso, IN 46383 219.465.7860
[email protected] * Counsel of Record
Jennifer Anglim Kreder Northern Kentucky University Salmon Chase College of Law Nunn Hall, Nunn Drive Highland Heights, KY 41099 859.572.5889
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No. 11-4042-cv IN THE
~niten ~tah~5
([ourt of J\pp£a15
FOR THE SECOND cmCUIT
••• David Bakalar, P laintiff-Counter-Defendant-Appellee,
v. Leon Fischer and Milos Vavra, Defendants-Counter-Claimants-Appellants. On Appeal from the United States District Court for the Southern District of New York Civil ActionN. 05-CIV-3037 (WHP)
Motion for Leave to File Brief Amicus Curiae and Brief Amicus Curiae of Michael J. Bazyler, Haim Beliak Michael Berenbaum, Judy Chicago & Donald Woodman, Marion F. Deshmukh, Hedy Epstein, Klara and Renee Firestone, Irving Greenberg, Douglas and Marjorie Kinsey, Marcia Sachs Littell, Hubert Locke, Carrie Menkel-Meadow, Brendan Pittaway, Carol Rittner, John K. Roth, William L. Shulman, Arthur P. Stern, Fritz Weinschenk, Mel Weiss, As Amici Curiae in Support of Defendants-Appellants Fischer and Vavra Edward McGlynn Gaffney, Jr. * Valparaiso University School of Law 656 S. Greenwich Street Valparaiso, IN 46383 219.465.7860 * Counsel of Record
Jennifer Anglim Kreder Northern Kentucky University Salmon Chase College of Law Nunn Hall, Nunn Drive Highland Heights, KY 41099 859.572.5889
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Table of Contents Page(s) Statement of Interests ........................................................................................................ 1 Summary of Argument ...................................................................................................... 2 Argument ................................•.......................................................................................... 5 I. Federal Courts Should Normally Allow Testimony by Qualified Experts About Facts Directly Relevant to the Disposition of Cases Relating to the Looting of Property by German Agents or Collaborators During the Nazi Period .............................................................................. 5 A. Background Facts Essential to an Understanding of this Case ..................................... 6 1. Looting ................................................................................................................ 6 2. Genocide .....................•....................................................................................... 6
B. An Alternative Narrative Grounded in Reliable Historical Research........................... 1 C. Law and Philosophy: Fact-finding, Insight, and Careful Judgment. .......................... 19 II. The Erroneous Exclusion of Relevant Evidence from the Fact-fmding Process Deprived the Fact-finder ofInformation Directly Relevant to its Treatment of Laches ............... ,...................... ;........................... 23 III. The Defense of Laches Should be Unavailable to Block Otherwise Meritorious Claims for Restitution of Nazi-looted Art, Especially in Situations Where a Claimant Has not Been Provided with Provenance Information..... 25 Conclusion
27
Appendix A: Particular Interests of Amici Curiae ....................................................... A-I Appendix B: Washington Principles (1998) ............................................................ 25, B:1 Appendix C: Terezfn Declaration (2009) ................................................................ 26, C-l Certificate of Word Count and Certificate of Service
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Table of Authorities Page(s) Cases: Bakalar v. Vavra, 619 F.3d 136 (2010) ......................................................................... 2, 6 Bakalar v. Vavra, 237 F.R.D. 59 (S.D.N.Y. 2006) ...................................................... 3, 15 Bernstein v. N. V. Nederlandsche-Amerikaansche Stoomvaart-Maatschappij, 173 F.2d 71 (2d.Cir. 1949), rev'd., 210 F.2d 375 (2d.Cir. 1954)
25
Sarah BlodgettDunbar v. Dr. Claudia Seger-Thomschitz, 638 F.Supp.2d 659 (Ed.D.La. 2009) .................................................................................. 9 Estate ofDominguez, 2002 WL 31844696 (Surrogate's Ct. Bronx Co. 2002) ................. 8 Garb v. Republic ofPoland, 440 F.3d 579 (2d Cir. 2006) .............................................. 11 Goldberg v. Kelly, 397 U.S. 254 (1970) ............................................................................ 7 Hotel Employees & Restaurant Employees Union v. City ofNew York Department ofParks & Recreation, 311 F.3d 534 (2d. Cir. 2002) ................................. 11 Marshall v. Jerrico, 446 U.S. 238 (1980) .......................................................................... 7 Museum ofFine Arts, Boston v. Dr. Claudia Seger-Thomschitz, 2009 WL 6506658 (D.Mass. Jun 12,2009) ....................................................................... 9 New York v. Shinnecock Indian Nation, 523 F. Supp.2d 185 (E.D.N.Y. 2007) ........... 8,11 Novak v. Wolpo./J & Abramson LLP, 536 F.3d 175 (2d Cir. 2008) ................................... 8 Republic ofAustria v. Altmann, 541 U.S. 677 (2004) (2d Cir. 2008) ................. 15, 23, 25 Whiteman v. Dorotheum GmbH and Co. KG, 431 F.3d 57 (2d Cir. 2005) .................... .15
Statutes: Holocaust Victims Redress Act, Pub.L. No. 105-158, § 201(4),112 Stat. 15 (1998) ..... 15 ii
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International Law: Convention on the Prevention and Punishment of Genocide (1948) ................................ 6 Hague Convention IV, Laws and Customs o/War on Land, Arts. 46-47, 56 (1907) ........ 6 Moscow Declaration, State Dep't Bull. No. 308 (1943), 38 AM. J. INT'LL. 635 (1944) .................................................................................... 13-14 Terezin Declaration (2009) ................................................................................. 5,App.C-1
Washington Principles (1998) ......................................................................... 4-5App.B-1 Rules: Rule 29, F.R.App.P ............................................................................................................ 1 Rule 23, F.R.Civ.P ........................................................................................................... 15 Rule 201, F.R.Evid........................................................................................................ 5-6 Other Authorities:
The Solomon R. Guggenheim Foundation, Art o/Tomorrow: Hilla Rebay and SolomonR. Guggenheim ........................................................................ 9 G5tz Aly, Hitler's Beneficiaries (2007) .................................................................... 11, 16 J.D. Bindenagel, "Apology, Reconciliation, and the German Foundation," in Taking Wrongs Seriously 280-310 (2006)
26
David Cesarani, Becoming Eichmann (2004) .................................................................. 16 Paulina McCarter Collins, "Has 'The Lost Museum' Been Found? Declassification of Government Documents and Report on Holocaust . Assets Offer Real Opportuntiy to 'Do Justice' for Holocaust Victims on the Issue of Nazi-Looted Art," 54 Maine L. Rev. 115 (2002) .................................... 16 John R. Crook, Brie/Notes, 105 Am. J. Int'l L. 160 (2011) ............................................ 12
iii
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Martin Dean, Robbing the Jews (2008) ..................................................................... 11, 16 Martin Dean, Constantin Gosch1er & Philipp Ther, eds. Robbery and Restitution (2007) ....................................................................................... 11 Stuart E. Eizenstat, Conference on Holocaust- Era Assets, Opening Plenary Session Remarks, (prague, June 28, 2009) .............................. 12,25-26 Stuart Eizenstat, Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War IJ(2003) ...................................................... 12, 14, Hector Feliciano, The Lost Museum: The Nazi Conspiracy to Steal the Greatest Works ofArt(1997) ............................................................................... 12-13 Janet Flanner, "Annals of Crime: The Beautiful Spoils," The New Yorker (Feb. 22,1947): 31-36ff., (March 1,1947): 33-38ff., (Mar, 8,1947): 38-42ff......... 12-13 Irving Greenberg, "Judaism, Christianity, and Partnership after the Twentieth Century," in Christianity in Jewish Terms 27 (Peter Ochs, ed. 2000) ............................... 1 Jennifer Anglim Kreder, "Reconciling Individual and Group Justice with the Need for Repose in Nazi-Looted Art Disputes: Creation of an International Tribunal," 73 Brook. L. Rev. 155, 155 n.1 (2007) ....................................................... 3, 15 Jennifer Anglim Kreder, "Guarding the Historical Record from the Nazi-era Art Litigation Tumbling Toward the Supreme Court," 159 U. PA. L. REv. PENNuMBRA 253 (2011) ................................................................................................. 16 Michael J. Kurtz, America and the Return ofNazi Contraband(2006) ......................... .l5 Hannah Lessing & Fiorentina Azizi, "Austria Conn-onts Her Past," in Holocaust Restitution: Perspectives on the Litigation and Its Legacy 230-231 (Michael Bazyler & Roger P. Alford, eds., 2006) .......................................................... 14 Lieber Code, Instructions for the Government ofArmies of the United States in the Field, Arts. 37-38 (1863) ......................................................................................... 6 Deborah E. Lipstadt, Denying the Holocaust (1993) ...................................................... 22 Bernard Lonergan, Insight: A Study ofHuman Understanding (1957) ........................... 18 iv
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Ingo MUller, Hitler's Justice: The Courts o/the Third Reich (1991) .............................. 11 Lynn E. Nicholas, The Rape o/Europa (1994) ............................................................... 13 John T. Noonan, Jr., Persons and Masks o/the Law: Jefferson, Cardozo, and Holmes as Makers o/the Masks (1976) .................................................... 20 Norman Palmer, Museums and the Holocaust (2000) ..................................................... 16 Bruce Pauley, From Prejudice to Persecution: A History 0/Austrian Anti-Semitism (1998) ...................................................................................................... 14 Jonathan Petropoulos, Art as Politics in the Third Reich (1996) .............................. 15, 16 Jonathan Petropoulos, "Business as Usual: Switzerland, the Commerce in Artworks during and after World War II, and National Identity," 7 Contemporary Austrian Studies 229-42 (1998) ............................................................ ; 13 Jonathan Petropoulos, "Holocaust Denial: A Generational Typology," in Peter Hayes, ed., Lessons and Legacies 0/ the Holocaust: Memory, Memorialization, and Denial 239-47 (1998) ................................................................... 22 Jonathan Petropoulous, The Faustian Bargain: The Art World in Nazi Germany (2000) ............................................................................................................... 13 Jonathan Petropoulos, "The Art World in Nazi Germany: Choices, Rationalization, and Justice," in Frank Nicosia and Jonathan Huener, eds., The Arts in Nazi Germany 135-64 (2006) ................................................................. 13, 16 Jonathan Petropoulos, "The Nazi Kleptocracy: Reflections on Avarice and the Holocaust," in Dagmar Herzog, ed., Lessons and Legacies 29-38 (2006) ................ 13 David Roxan and Ken Wanstall, The Rape 0/Art (1964) ............................................... 13 Hans Safrian, Eichmann's Men (2009)
14
William L. Shirer, The Nightmare Years, 1930-1940 (1984) .......................................... 17
v
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Statement of Interests
Amid have diverse backgrounds and various life experiences. They are artists and art collectors; specialists in modem European history and art history; educators and moral philosophers; legal scholars and practitioners. The particular interests ofthe amici are set forth in Appendix A to this brief.
Amici are religiously diverse, but all agree with Rabbi Greenberg's famous conclusion: "No statement, theological or otherwise, should be made that would not be credible in the presence of burning children." Irving Greenberg, "Judaism, Christianity, and Partnership after the Twentieth Century," in Christianity in Jewish Terms 27 (Peter Ochs, ed. 2000). This caution extends beyond theology; it includes statements in lawyers' briefs and judicial opinions. Historians among the amici focus on modem Europe and more particularly on the Shoah ("disaster" or "catastrophe"). All amici - whether trained as historians or not . find a common purpose in sustaining the burden of accurate memory of the events of the Shoah. In their writings they urge that these things should never be forgotten so that they will never be repeated.
This brief is submitted in accordance with Rule 29, F.R.App.P. Counsel for Defendants-Appellants consented to the filing of this brief. Counsel for PlaintiffAppellee refused to consent to the filing of an amicus brief when the case was before this Court as No. 08-5119. In No. 11-4042, Counsel for Plaintiff-appelleestated that he does "not oppose" the filing of the brief, but refused to consent to the filing of the brief without prior review of the draft. In an exchange of emails on Monday January 23, 2012, Counsel of record for Amici attempted unsuccessfully to resolve this ambiguity, necessitating the filing of this motion, with the brief attached. 1
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Summary of Argument
The legal dispute at the heart of this case is lawful ownership of an Egon Schiele drawing ("Drawing") owned by Fritz Grunbaum, a prominent Viennese Jewish actor arrested by the Nazis as he attempted to flee from Vienna shortly after the Anschluss in 1938. The Gestapo then transferred him immediately to Dachau, where he managed to challenge the darkness of the place with wit. He once asked a guard for a bar of soap. The guard replied: "You don't get soap here." Grunbaum: "If you don't have soap for your guests, you shouldn't run a big camp." The guard beat Grunbaum for daring to make fun of the absurd inhumanity of the place. Grunbaum regularly performed a standup comedy routine for his fellow inmates, keeping them laughing in the face of terror until the SS tortured and murdered him in 1941. This case - principally between Plaintiff-Appellee David Bakalar (a private art collector who purchased the Drawing in New York in 1963) and Defendants-Appellants Milos Vavra and Leon Fischer (co-heirs of Grunbaum who discovered the whereabouts of the Drawing in 2005) has been going on for over six years, yet returns to this Court needing further attention. In Bakalar I this Court reversed and remanded with instructions to apply New York law, not Swiss law, to the resolution of the matter. Bakalar v. Vavra, 619 F.3d 136 (2010). This Court also corrected the erroneous burden placed by the district court on Defendants-appellants to prove that the Drawing was stolen: "New York law places the burden on Bakalar, the current possessor to prove that the Drawing was not stolen." 2
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Bakalar 1,619 F.3d 136, 147, citing Gugenheim Found. v. Lubell, 77 N.Y.S.2d 311,321 (1991). On remand, the district court misconstrued New York law on laches, switching the burden of proof from plaintiff Bakalar - who hid the art in question for decades before seeking an order of good title in federal court - and imputing it to the ancestors of defendants-appellants Fischer and Vavra knowledge of "potential intestate rights" and requiring a diligent search by their ancestors as a condition of recovery of the Grunbaum art. He ignored this Court's clear instruction that Plaintiff-Appellee has burden of proof to establish that the Nazis had not stolen the Drawing. Instead, he cited Judge Korman's concurring opinion, 619 F.3d 136, 148-152 (Korman, J., concurring), but did so dismissive1y, SPA 7 (citing dictum of Justice Frankfurter on unnecessary dicta). The district court also persisted in excluding the expert testimony of Petropoulos and Kostohryz. Bakalar II, 2011 WL 165407 (Jan. 21, 2011) A.1925. This unexplained inattentiveness to readily available and relevant information from experts again generated historical speculation that led the court into another legal error meriting reversal. Amici focus here on egregious errors of fact-finding arising from the district court's rejection of the proffered expert testimony about the historical context of the events of the Shoah and the trade in looted art in post-World War II, and about the ungrounded, speculative nature of the district court's reconstruction of events leading to error on who has the burden of proof on the defense of laches. 3
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In Part I we explore the district court's exclusion of relevant historical evidence in both phases of the litigation below. In Bakalar I the district court excluded the expert testimony and written report, A.1644-1749, of a well known historian of modem Germany, Dr. Jonathan Petropoulos, who has researched and published extensively on the very matter at the heart of the conflict in this case: Nazi looting of art owned by Jews. The district judge also excluded expert testimony of Dr. Milan Kostohryz, A.1787-1849, about Communist-controlled Czechoslovakia, which is directly relevant to the issue oflaches. Amici offer legal argument and cross-disciplinary critique of the district court's
refusal to allow even-handed access to historical experts in a case such as this, when such help can shed needed light on an obscure area. To refuse to hear accurate, reliable information directly relevant to the core issues of this litigation was an abuse of discretion. In Part II Amici briefly explore the connection between the district court's unnecessary exclusion of expert testimony and its erroneous application of laches to the Defendants-appellants rather than to the Plaintiff-Appellant. In Part III Amici offer another reason for reversal of the error on laches committed by the district court on remand. In 1998 Ambassador Stuart Eizenstat and colleagues in the State Department enabled forty-four countries to agree to a body of principles about the restitution of stolen art and the recovery of cultural heritage, collectively known as the "Washington Principles," attached as Appendix B. In 2009 4
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the Czech Republic assembled forty-six nations in Prague and Terezin at a major international conference on Holocaust-era assets. The delegates at this historic assembly agreed to "ensure that their legal systems or alternative processes ... make certain that claims to recover [Nazi-confiscated and looted] art are resolved expeditiously and based on the facts and merits." Terezin Declaration, Appendix C. This Court should support
efforts of the Executive Branch to conduct a foreign policy redressing some of the unfinished business of the Shoah. Argument I. Federal Courts Should Normally Allow Testimony by Qualified Experts About Facts Directly Relevant to the Disposition of Cases Relating to the Looting of Property by German Agents or Collaborators During the Nazi Period.
The disposition of the matter by the district court on remand now requires this Court to set this matter right once and for all. The Court can satisfy itself on the need to do so by comparing the district court's one-sided and insufficiently rigorous appreciation of modem history and that set forth in the profferred expert testimony the district court erroneously excluded from consideration. Compare A.572-581, SPA 2-7 (statement of the case in opinions of district court) with A.1644-1749 (statement of the case in profferred expert witness report by Petropoulos, disallowed by district court). The Court is free to correct historical mistakes of the district court, because it now reviews the matter de novo, and because under F.R.Evid. 201 it may take judicial notice of well-established noncontroversial interpretations of uncontestable acts, such as the events of the Shoah, including the massive looting of art by the Nazis. 5
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A. Background Facts Essential to an Understanding of this Case. Two sets of facts loom large in the immediate background of the controversy presented in this case: looting and genocide. Neither can be ignored. 1. Looting of property and destruction of cultural heritage have been going on as
long as history has recorded conflicts. Its antiquity, however, does not make it acceptable, either in law or morality. On the contrary, looting is specifically identified as a war crime in the famous Lieber Code, Instructions for the Government ofArmies of the United States in the Field, Arts. 37-38 (1863), and is expressly prohibited in the
Hague Convention IV, Laws and Customs a/War on Land, Arts. 46-47, 56 (prohibiting confiscation of private property, pillage, and seizure of works of art) (1907). 2. Genocidi - the mega-crime directly tied to destruction of cultural heritage -
also underlies this case, but one would search in vain to find the term "genocide" anywhere in the opinions of the district court below. Indeed, the district court concludes that the Nazis never stole this particular piece of art at all. SPA.8-9; but see Bakalar I, 136 F.3d 136,146-147,151. On April 26, 2006, the district judge stated his opinion that - after the notorious Nazi art-looter Franz Kieslinger meticulously prepared a thorough inventory of The Convention on the Prevention and Punishment of Genocide (1948) defines "genocide" to mean "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group." 2
6
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Grunbaum's art in the official registration on July 20, 1938 - Grunbaum's wife Lily "could have carried any of those works out of the apartment and given them to a relative" and that "any number of works could have been transferred by [Lily Grunbaum]." A.109. Realizing that the district judge was making assumptions that might sound reasonable in the abstract, but were wholly unreasonable in the specific context addressed, Defendants-appellants hired Drs. Petropoulos and Kostohryz to testify truthfully as knowledgeable experts, respectively, about two specific contexts: 1938-1945 Vienna and 1945-1989 Czechoslovakia. The district court refused to hear from either witness, without offering a serious explanation for the refusal. On the other hand, the district court allowed speculative, improbable scenarios described as "fact" by Jane Kallir, grand-daughter of Otto Kallir, the art gallery owner who sold the Drawing to Plaintiff-Appellee Bakalar. The district court did not allow Petropoulos even to rebut the unfounded opinions expressed by Jane Kallir. Such disparate treatment of the witness list falls considerably short of the evenhandedness rightly expected of a neutral magistrate as a fundamental aspect of procedural fairness. Goldberg v. Kelly, 397 U.S. 254, 271 (1970). "The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law .... " Marshall v. Jerrico, 446 U.S. 238, 242 (1980). Amici urge this Court to reverse the district court's ruling of January 14, 2011,
A.1917-1925, lest it signal approval to other courts in this Circuit of a practice that 7
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would effectively ban relevant testimony by competent historians or other experts on the history of the Shoah, or any other matter before a district court. Scholars should be welcomed to the courthouse, not chased away. The presumption should remain in favor of proof of historical facts through experts who know what they are talking about, with room for rebuttal testimony. New York v. Shinnecock Indian Nation, 523 F. Supp.2d 185 (E.D.N.Y. 2007) (collecting cases). New York law expressly allows parties to present expert testimony on the validity and effect offoreign legal documents and acts. Estate of Dominguez, 2002 WL 31844696 (Surrogate's Ct. Bronx Co. 2002) (Dominican divorce
. documents). Prior to trial, the district court excluded Dr. Petropoulos as a rebuttal witness (A.204-206 at 26:24-28:9), without providing its reasoning on the record, as required by Novak v. WolpofJ & Abramson LLP, 536 F.3d 175, 177 (2d Cir. 2008). The silencing of one side's account of what happened - as the district court did here -led the district court to make two large, unsupportable assumptions about (a) the freedom of Jews under Nazi rule in Vienna from 1938 to 1945, and (b) the freedom of anyone behind the Iron Curtain from 1945 to the fall of the Berlin Wall in 1989. Neither period was one in which our cherished "liberty of contract" or the centerpiece of the modem-day European Union - "free movement of persons, goods, and capital" - was tolerated, let alone fostered by either brutal police State, the Nazi Reich or Communist Czechoslovakia. Yet it seemed that the district judge was unfamiliar with this historical matrix within which he went about the delicate task of reconstructing the evidence. In the first era (1938-1945 Vienna), the district court settled the problem of provenance by 8
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speculating that Fritz Grumbaum's wife Elisabeth ("Lily") was physically free to come and go as she pleased with valuable art from the Grunbaum collection. This speculation is not grounded in any serious account ofthe times; see LB below. On this slender reed the district judge balanced his speculative meta-narrative. Without mentioning that any "transaction" involving Nazi-looted art is void under the Austrian Nullity Act of 1946, the district court asserts that in 1956 Grunbaum's sisterin-law Mathilde Lukacs-Herzl (not an heir of Grunbaum) "sold" the Drawing to Eberhard Kornfeld, A.574-575, was a partner in the Swiss art gallery Gutekunst &
Klipstein, notorious for "sale" of artworks seized by the Nazis. See The Solomon R. Guggenheim Foundation, Art of Tomorrow: Hilla Rebay and Solomon R. Guggenheim 99 (2005). In the same year Kornfeld sold the Drawing and other Schieles from the Grunbaum collection to the Galerie St. Etienne in New York, founded by Otto Kallir. 3 In 1963 the Galerie St. Etienne sold the Drawing to Bakalar, who secreted his purchase until the filing of this lawsuit for good title, which he commenced in 2005. New York law emphatically does not permit lawful acquisition of stolen property, no matter how often dirty hands have tried to launder it. See Brief of Defendants-Appellants, 4,7,11-
Otto Kallir's historical reputation as one who fled approaching Nazi persecution and rescued much modem art has been reexamined in light of evidence that he was a profiteer. See Museum of Fine Arts, Boston v. Dr. Claudia Seger-Thomschitz, 2009 WL 6506658 (D.Mass. Jun 12, 2009) (NO. CIV.A.08-10097-RWZ), Dr. Claudia SegerThomschitz's First Amended Answer and Counterclaim at Answer ~ 13, at Counterclaim ~~ 4, 53; Sarah Blodgett Dunbar v. Dr. Claudia Seger-Thomschitz, 638 F.Supp.2d 659 (E.D.La., 2009); Answer and Counterclaim at Answer ~~ 30-31,43. The district court allowed Otto's grand-daughter Jane Kallir to testify at trial as a fact witness, without rebuttal testimony by Petropoulos. 9
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12,61; and see the crisp, well-documented analysis of these very matters in the expert witness report prepared by Dr. Petropoulos and now open for this Court to review. A.1663-1670,1673-1675. In the second era (1945-1989), the district court settled the problem of laches by asserting that Defendants-appellants (a) knew they were heirs of Grunbaum's art collection during this period, (b) were physically (i.e. legally) free to come and go as they pleased in Communist-controlled Czechoslovakia, and (c) and financially able to hire experts to search for Grunbaum' s art and lawyers competent to undertake representation in this matter. Reconstructing the narrative this way is impermissible because it is inattentive to the reality of Nazi-occupied Vienna from 1938 to 1945 or of Soviet-dominated Czechoslovakia from 1948 to 1989. Its utter implausibility is easily surmised by reading the expert testimony of Dr. Kostohryz, A. 1787-1849, suppressed by the district court. Amici do not seek an exemption from normal tasks of litigation because the subject matter is the Holocaust. On the contrary, we urge the same standard for all: rigorous attentiveness to empirically verifiable facts, openness to insights offered by trained historians about the historical context of these facts, and reasonableness in drawing inferences from these facts and in explaining judgments. In the place (Nazioccupied Austria) and time (1938 to 1945) at the heart of this case, it is imperative, not optional, to accept the fact that Jews were not permitted by law to transfer property. It is not reasonable to presume that any so-called "transaction" occurring in that period has 10
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the force of law after World War II because in 1946 Austria adopted the Austria Nullification Act, voiding all such "transactions." SPA.26-27. B. The Necessity for Reliable Empirical Answers to Empirical Questions.
Since this Court reviews this appeal de novo, it may obviously inspect the testimony of Drs. Petropoulos and Kostohryz in the record now before the Court, A.1644-1749; A.1787-1849 and base its opinion onthis very material. See New York v. Shinnecock Indian Nation, 523 F. Supp.2d 185, supra. In the event that this Court
prefers not to explore the profferred testimony rejected by the district court, Amici now offer the Court an alternative meta-narrative that is historically well grounded, with indications for unimpeachable sources. This factual information is easily encompassed within the perimeters of judicial notice, F.R.Evid. 201. See Garb v. Republic of Poland, 440 F.3d 579,594 n. 1 (2d Cir. 2006); Hotel Employees & Restaurant Employees Union
v. City of New York Department of Parks & Recreation, 311 F.3d 534, 540 (2d. Cir. 2002). From the earliest days oflawless Nazi rule, the Third Reich enforced confiscatory legislation and brutal tactics against a defenseless Jewish minority. Ingo MUller, Hitler's Justice: The Courts of the Third Reich (1991). The victims of the Shoah were forced to
transfer their own private wealth through special taxes, departure fees, and "Aryanization" of Jewish homes and businesses, to promote the general welfare of nonJews in the Third Reich, even to foot the bill of the Kristallnacht pogroms in 1938, and to underwrite the Wehrmacht once the war broke out in 1939. See Martin Dean, 11
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Robbing the Jews (2008); Martin Dean, Constantin Goschler & Philipp Ther, eds. Robbery and Restitution (2007); G6tz Aly, Hitler's Beneficiaries (2007). For those who
did not survive, the grand larceny of their property ultimately financed their mass murder. One particular form of Nazi theft - art heist - is staggering. The Task Force for International Cooperation on Holocaust Education, Remembrance, and Research reports that "an estimated 650,000 artworks were confiscated by the Nazis in occupied Europe .... [I]t is estimated that between 100,000 to 200,000 works are still missing." John R. Crook, Brief Notes, 105 Am. J. Int'! L. 160, 161 (2011). See also Stuart Eizenstat, Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II 187 (2003).
This enormous robbery also had a specifically Jewish component. Artworks of great value were stolen from Jews not only by brute force of arms, but also through forced sales of treasures to pay confiscatory fees for exit visas or to obtain foreign currency necessary to emigrate. During the war the Nazis systematically targeted prominent Jews like Grunbaum to steal their art and sell it in Switzerland for foreign currency or to arrange trades (old Masters for "degenerate" modem art). Long after the war looters maintained their contacts in "neutral" Switzerland, whose lax practices and loose law enabled the very "transactions" that Austrian law nullified in 1946. See Feliciano, The Lost Museum, supra, at 155-62; Petropoulos, "Business as Usual: Switzerland, the Commerce in 12
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Artworks during and after World War II, and National Identity," in 7 Contemporary
Austrian Studies 229-42 (1998). These facts were not recently unearthed. Shortly after the war ended in Europe, the U.S. Army secured vast treasuries ofhorded art. Pictures of General Eisenhower and his staff at these sites were featured in mass circulation newspapers. Two justices of the Supreme Court took a lead role in educating the public on these matters decades ago. To prevent profiting from these gross crimes, Justice Roberts - Chair of the American Commission for the Protection and Salvage of Artistic and Historical Monuments in War Areas - warned American museums, art institutions and art dealers in 1945 against trafficking in art whose provenance was "obscure or suspicious." As lead counsel at the Nuremberg International Military Tribunal, Justice Jackson approved prosecution of the war crime of looting, proved by entering into evidence the very documents the Nazis themselves assembled as they went about their massive theft. See Janet Flanner, "Annals of Crime: The Beautiful Spoils," The New Yorker (Feb. 22, 1947): 31-36ff., (March 1, 1947): 33-38ff., (Mar, 8, 1947): 38-42ff.; David Roxan and Ken Wanstall,
The Rape ofArt (1964). It is undeniable that museums, universities, and private art collectors - including many in this country - snapped up artworks at bargain prices in the period from 19331945 and the decade or so after the war. See Lynn E. Nicholas, The Rape of Europa (1994); Hector Feliciano, The Lost Museum: The Nazi Conspiracy to Steal the Greatest
Works of Art 184-189 (1997); Petropoulous, The Faustian Bargain: The Art World in 13
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Nazi Germany (2000). In 1943 the Allies issued the Moscow Declaration, describing Austria as "the first free country to fall a victim to Hitlerite aggression." State Dep't Bull. No. 308 (1943),
reprinted in 38 AM. J. INT'L L. 635 (1944). Historians are now well aware of the central role of Austrian Nazis in the Reich (beginning with Adolf Hitler and Adolf Eichmann, SS supervisor of Aryanization in Vienna), with the very high percentage of Austrians in the SS, and with the particular cruelty of the operation of Mauthausen. See Hans Safrian, Eichmann's Men (2009). These insights led to the correction of the mistaken view of the Anschluss (during which not a shot was fired) expressed in the Moscow Declaration. In short, no serious scholar would now entertain the assumptions and presuppositions about the period of National Socialism in the Austrian province of the Reich that undergird the narrative supplied in this case by the district court. See Bruce Pauley, From Prejudice to
Persecution: A History ofAustrian Anti-Semitism (1998); Hannah Lessing & Fiorentina Azizi, "Austria Confronts Her Past," in Holocaust Restitution: Perspectives on the
Litigation and Its Legacy 230-231 (Michael Bazyler & Roger P. Alford, eds., 2006). Once again, a case of this sort cannot readily be resolved in a satisfactory way without greater reliance on competent scholars who are knowledgeable about a particular period oftime and who have no motive to deceive. Some new claims were resolved in class action lawsuits on assets held in Swiss banks, and on compensation for slave labor. See generally Stuart Eizenstat, Imperfect 14
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Justice, supra. Mass dispute resolution of claims for restitution of Nazi-era stolen art, however, has thus far been impossible to achieve. The instant case illustrates this very point. Bakalar v. Vavra, 237 F.R.D. 59 (S.D.N.Y. 2006) A.129-146 (denying class action under Rule 23, F.R.Civ.P.); see Whiteman v. Dorotheum GmbH and Co. KG, 431 F.3d 57 (2d Cir. 2005) (class action concerning Austrian Nazi-era conduct excluding art theft), and Jennifer Anglim Kreder, "Reconciling Individual and Group Justice with the Need for Repose in Nazi-Looted Art Disputes: Creation of an International Tribunal,"
73 Brook. L. Rev. 155, 155 n.1 (2007). As this litigation illustrates, claimants and present-day possessors of stolen art are forced to wrestle with each claim to each tainted piece of art individually, and at great expense. Fees alone can be prohibitive. Republic of Austria v. Altmann, 541 U.S. 677, 685, 706 (2004) (noting $350,000 fee to seek restitution in Austria of several Klimt paintings stolen by the Nazis from the Bloch-Bauer family and housed for decades in the Austrian Gallery in Vienna). Destruction of Jewish life and culture and targeted pillaging of its art were central pillars of the Nazis' "Final Solution." The Holocaust Victims Redress Act includes the following legislative finding of fact: "The Nazi policy of looting art was a critical element and incentive in their campaign of genocide against individuals of Jewish and other religious and cultural heritage." Pub.L. No. 105-158, § 201(4), 112 Stat. 15, 18
(1998); see also Michael J. Kurtz, America and the Return of Nazi Contraband 15 (2006). The Nazis maintained "that Jews had intentionally duped the German people 15
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into embracing nontraditional aesthetic styles" and "that they had promoted modem art as a ploy to reap huge profits." Petropoulos, Art as Politics in the Third Reich 54 (1996). Hitler, a failed artist, sought to eliminate Jewish culture from the Third Reich, including modem art, which he deemed "degenerate." Petropoulos, Art as Politics, supra, at 6061; Norman Palmer, Museums and the Holocaust 7-9 (2000). The Nazi regime targeted such art to destroy it, trade it for other works, or sell it, often through Swiss dealers, to raise foreign currency. Petropoulos, Art as Politics, supra, at 7; see also Palmer,
Museums and the Holocaust. The Nazis actually documented most of their theft and persecution to insure its "legality" under the Nuremberg and pre-War laws. Their practices were engineered to make involuntary transactions appear ordinary and legal, such as by allowing "payment" for seized assets - but into blocked accounts. Gotz Aly,
Hitler's Beneficiaries, supra, 44-46; David Cesarani, Becoming Eichmann 67 (2004); Martin Dean, Robbing the Jews, supra. The declassification of vast amounts of archival materials also disclosed irrefutable historical documentation of popular Austrian complicity with its Nazi regime. See generally, e.g., Paulina McCarter Collins, "Has 'The Lost Museum' Been Found? Declassification of Government Documents and Report on Holocaust Assets Offer Real Opportunity to 'Do Justice' for Holocaust Victims on the Issue of NaziLooted Art," 54 Maine L. Rev. 115 (2002); but see Jennifer Anglim Kreder, "Guarding the Historical Record from the Nazi-era Art Litigation Tumbling Toward the Supreme Court," 159 V.PA.L.REv. PENNuMBRA 253, 260-62 (2011). 16
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The instant case is but another example of a district court opmlOn tilting. decidedly in favor of the current possessor of stolen art. The district judge held that Fritz Grunbaum once owned the Drawing, SPA.2, but doubted the efficiency of the Nazis to follow through on the inventory and actually seize the art their chief looter had meticulously documented. The district court offers no basis for this doubt. Although this Court may not be satisfied with the following explanation of events, at least we offer one; the district court does not. The probability is very high that the Nazis did loot the Grunbaum art collection for these reasons. First, they wanted the money from the sale of "degenerate art" for their coffers in Berlin or their bank accounts in Switzerland. Second, a prominent Jewish entertainer in Vienna with a significant art collection would have been a prime target for Nazi theft. Third, he was arrested shortly after the Anschluss and immediately transported to the Dachau concentration camp near Munich.
Fourth, the Nazis didn't forget about Grunbaum; they forced him to sign a Power of Attorney providing his wife, Elisabeth, with the legal power to manage his assets in accordance with Nazi law. A.577-578. Fifth, also "in accordance with Nazi law," they
forced Elisabeth to sign, on Fritz's behalf, a lengthy property declaration listing all assets, specifically including art collections, for assessment by Nazi appraisers. Sixth, the SS tortured Fritz in Dachau and murdered him in November 1941; they murdered his wife in Minsk in October 1942. Seventh, the supreme legal farce in this case is that before Elisabeth's murder, she was forced to sign a document stating: "[T]here is no estate ... [and] in the absence of an estate, there are no estate-related proceedings." 17
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A.578; see William L. Shirer, The Nightmare Years, 1930-1940 30 (1984) (quoting American Consul General in Vienna: "There is a curious respect for legalistic formalities. The signature of the person despoiled is always obtained, even if the person in question has to be sent to Dachau in order to break down his resistance."). In the wake of the actual reality of what happened to both Fritz and Lily Grunbaum, the fanciful assumption of the district court about the freedom of Viennese Jews to come and go as they pleased and to steal discreetly from the official looters is worse than preposterous; it is immensely sad. If the district court had allowed the proffered testimony and expert witness report of Dr. Petropoulos, the court would have avoided many needless errors of fact that now require correction by this Court, lest these historical errors take on a life of their own by subsequent citation to the erroneous decision below. For example, the district court credits the hypothesis that Fritz's sister-in-law Mathilde Lukcas-Herzl (not an heir of Grunbaum) sold the Drawing to Kornfeld, although Kornfeld himself stated in the 1956 Catalogue that he got the Drawing from Grunbaum (an obvious lie, if comparatively more credible than the Lukcas story). The district judge opined that in 1938 Lukas might have stolen the Drawing from the Grunbaum apartment after one of the chief Nazi looters had registered it for confiscation and taken it to her home. What home? A glance at the Petropoulos report reveals that the Gestapo evicted Jews from their dwellings and moved them from one squalid, overcrowded apartment in the Vienna Ghetto to another. A.1654. 18
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Herbert Gruber tried to explain that a "Registration of Death" is part of an Austrian probate proceeding, A.553;715:8-716:24, the district court inaccurately described this document as a "death certificate," A.578. As noted above, Grunbaum was murdered at Dachau. When one needs information, better to seek reliable help. C. Law and Philosophy: Fact-finding, Insight, and Careful Judgment. Lawyers
and judges are obviously not the only ones who sift through facts to try to understand what they mean and then come to judgments about verification and falsification. Every attentive, intelligent, and reasonable person does. So it helps to have a check once in a while from other disciplines. Amici offer a synopsis of an empirically-grounded account of the normal progression of human understanding in recurrent, inter-related operations. See Bernard Lonergan, Insight: A Study a/Human Understanding (1957).
First, we focus on experience. Scientists gather data. Historians review documents and situate texts within their context. We seek to know accurate answers to these questions: "Who did what? When? Where? And how?" Here the methodological watchword or imperative is "Be attentive." Failure to be attentive to relevant data can vitiate human understanding, no matter whether the person inquiring is a lawyer or doctor, a nuclear physicist or a groundskeeper, a referee or a judge. Second, attentiveness to facts engenders questions for meaning. We also ask "Why?" Such questions always engage us in interpretation. We keep enquiring and searching. We dig deeper until we can formulate a hypothesis that seeks genuine understanding of what is really going on. Here the methodological watchword or 19
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imperative is "Be intelligent." We try to understand, but distractions can inhibit us from working diligently to achieve it. Or bias can favor facile simplicity over complexity. By contrast, a critically reflective mind can overcome such biases and search in an untrammeled way for meaning. By virtue of their training to be aware and intelligent about the past, historians may shed light on things that may otherwise be obscure. Third, there are judgments or assessments of truth and falsehood and shades in between. Our insights may be based on prior convictions, and we may miss something important. As we listen to others, we realize that there is another side to a story. We may need to return to the data to reevaluate the reliability of the information or to revise its meaning in the light of new information. An answer that seemed satisfactory only yesterday may turn out to be an oversight, or a bias. In attaining at last to judgments that satisfy the dynamics of the search for truth over falsehood, the methodological watchword or imperative is "Be reasonable." Because attentiveness, intelligence, and reasonableness are universally necessary for any fruitful endeavor to sort out competing claims about meaning, Amici employ these categories in applying this philosophical structure to law generally and to this case. First, the law demands attention to experience, to empirical facts, whether gathered by legislators in hearings to help them shape public policies, or by lawyers interviewing their clients to find out what happened in a particular instance of applying legal norms to lived experience or a real story. This is especially true of the common 20
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law, which famously reqmres attentiveness to facts as the pnmary mode of differentiating precedents; a case in this tradition announces a rule no larger than the facts thejudge or jury has found. Evidence first, verdict afterwards. When that rule gets reversed, we have tumbled with Alice down to Lewis Carroll's Wonderland. Yet, as Circuit Judge Noonan explained in his famous Holmes lectures at Harvard Law School, lawyers are adept at the creation of masks that keep legal decision-makers from focusing intently on the very real, very fragile, and often broken human persons caught up in the intricacies of the law. John T. Noonan, Jr., Persons and Masks of the Law: Jefferson, Cardozo, and Holmes as Makers of the Masks (1976). Just as Judge Noonan
exposed the brutality of the status laws and control laws of Virginia that stripped Africans of their personhood and reduced them to chattel, Noonan, id. 29-64, so also a vast literature on the Shoah has recorded the actual experience of the dispossession, torture, and mass murder of Jews in Vienna, and throughout the Reich and its occupied territories. See section I.B above. The district court understated these empirical realities. When Nazi art crimes are both enumerated and situated within the context or the Shoah, the reality is much starker precisely because it is linked to the overarching goal of the genocidal project of the "Final Solution": "die Vemichtung der judischen Rasse in Europa" ("the annihilation of the Jewish race in Europe") - Speech of Adolf Hitler to the Reichstag, Berlin, Jan. 30, 1933.
21
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Grunbaum and the overwhelming majority of the 180,000 Jews living in Vienna in 1938 suffered massive dispossession, including eviction from their homes and seizure of their assets and belongings. Approximately 50,000 Austrian Jews were murdered in infamous camps such as Mauthausen and Dachau and Auschwitz-Birkenau. It is against this stark reality that this Court should evaluate the plausibility of the district court's narrative of what probably happened to Grunbaum's art collection. Second, to engender insight, or to make sense of what has happened, lawyers offer arguments in support of this or that interpretation of events. To be accepted, an argument needs to organize data in an intelligent fashion. It is an oversight - the opposite of insight - to adopt a naIve description of life under constant duress. Third, the law provides to its makers a process for continuous reassessment that can enable sharper, more refined or Judgments to emerge. Lawyers represent plaintiffs and defendants with obligations to advocate the cause of respective clients zealously within the bounds of the law. Appeals may be taken, and orders may be set aside or modified, in a never-ending search for answers that are more satisfactory because they account for more data with fewer gratuitous assumptions. When an order is deficient or a law is uncommonly silly, the remedy usually comes from a higher viewpoint rather than from denying that something that really happened ever took place. Trivializationor, worse yet, radical denial of the reality of another's actual experience - re-injures the victim. That is what makes Holocaust denial such a hateful phenomenon. See Deborah E. Lipstadt, Denying the Holocaust (1993); and Jonathan PetropOUlos, "Holocaust 22
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Denial: A Generational Typology," in Peter Hayes, ed., Lessons and Legacies of the
Holocaust: Memory, Memorialization, and Denial 239-47 (1998). II. The Erroneous Exclusion of Relevant Evidence from the Fact-finding Process Deprived the Fact-finder of Information Directly Relevant to its Treatment of Laches. As Defendants-Appellants note in their brief, 39-56, the district court misconstrued the New York law on laches, switching the burden of proof away from plaintiff Bakalar, who hid the art in question for over four decades before seeking an order of good title in federal court. The district court also erred by imputing to the ancestors of defendants-appellants Fischer and Vavra knowledge of "potential intestate rights" and by requiring them to conduct diligent search for the art hidden by Bakalar. As Amici noted above, Part I._, disclosures from new access to archival data also brought to the surface new infonnation that enabled heirs to bring claims about Nazi-era dispossession for the first time. For example, Maria Altmann, the only surviving heir of the Viennese sugar magnate Ferdinand Bloch-Bauer, came to learn of the deception and fraud perpetrated on her family only in 1998, when a journalist undertaking research in the archives of the Austrian Gallery discovered the fraud. This led eventually to her victory in Republic ofAustria v. Altmann, 541 U.S. 677 (2004). Recent discoveries in freshly opened archives are also critical in the instant case to this Court's review of the discussion of laches. Even if the heirs of Grunbaum should
have looked for hidden art (they have no such duty), the district court erroneously
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assumed that the Austrian Fischer could have done so before knowing he was an heir and the Czech Vavra could have done so in Communist-controlled Czechoslovakia. Omitted from the district court's narrative is (a) any legal justification for shifting the burden of proof to the Grunbaum heirs to search diligently for the missing pieces of the Grunbaum art collection, and (b) any factual basis for believing that they knew they were heirs of Grunbaum before 1998 or that they could discover the whereabouts of the Drawing which Bakalar had carefully secreted from public gaze for decades before he decided to sell it. In both Bakalar I and Bakalar II the district court could have avoided the legal errors that flawed the proceedings below if he had been attentive to the data set forth in the profferred expert testimony that he excluded from consideration. The district judge, in effect, rejected valuable historical information relating to the context of the events at issue. This lack of information led him to expect or to order compliance with the impossible. First, although the Austrian archives were sealed prior to 1998, the distriCt court wrongly assumed that the Fischer ancestors should have been tracing the contents of Fritz Grunbaum's art collection long before the discovery in 2003 of documents relating to the theft of this art by the Israelitische Kultusgemeinde Wien, or Jewish Community of Vienna. Second, although Czechoslovakia was a communist state that outlawed private property and personal wealth in the Cold War period, the district judge was apparently inadvertent to this reality when he wrote that the Vavra heirs should have engaged in research impossible at the time. 24
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III. The Defense of Laches Should be Unavailable to Block Otherwise Meritorious Claims for Restitution of Nazi-looted Art, Especially in Situations Where a Claimant Has not Been Provided with Reliable Provenance Information. The "act of state" doctrine is not in play in this case, but the implications of a famous decision of this Court certainly are. In Bernstein v. N V. NederlandscheAmerikaansche Stoomvaart-Maatschappij, 173 F.2d 71 (2d.Cir. 1949), the Court
refused to adjudicate the validity of acts of Nazi Germany because it lacked guidance from the Executive Branch. Jack B. Tate, Acting Legal Advisor in the Eisenhower administration later clarified: [The U.S.] Govermnent's opposition to forcible acts of dispossession of a discriminatory and confiscatory nature practiced by the Germans on the countries or peoples subject to their controls '" [and] the policy of the Executive, with respect to claims asserted in the United States for restitution of such property, is to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials. This Court promptly reversed its prior holding. 210 F.2d 375, 376 (2d.Cir. 1954). The Supreme Court cited the Tate letter with approval in Altmann, supra, 541 U.S. at 689690. This Court does not lack guidance from the Executive Branch on disposition of claims about restitution of Holocaust-era assets. On the contrary, in 1998 Ambassador Stuart Eizenstat and colleagues in the State Department enabled forty-four countries to agree to a body of principles about the restitution of stolen art and the recovery of cultural heritage, collectively known as the "Washington Principles." Appendix B. In 2009 forty-six nations asserted the duty to "ensure that their legal systems or alternative 25
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processes, while taking into account the different legal traditions, facilitate just and fair solutions withregard to Nazi-confiscated and looted art, and ... make certain that claims to recover such art are resolved expeditiously and based on the facts and merits." Terezin Declaration, Appendix C; see also keynote address to the Prague conference by Ambassador Eizenstat, Appendix C (criticizing "tendency for holders of disputed art to seek redress in technical defenses" by seeking "refuge in statutes of limitation and
laches defenses in order to block otherwise meritorious claims even in situations where the claimant has not been provided with provenance information). The federal government has publicly undertaken a moral commitment before nearly all other countries involved in these matters to provide claimants a serious and effective means of achieving restitution. Federal courts are dismissing claims such as the present one on grounds that are unprincipled and border on the frivolous. Jennifer Anglim Kreder, "Guarding the Historical Record," supra,
159 U.PA.L.REv.
PENNUMBRA 253 (2011). This is a national embarrassment. These decisions render the Nation out of compliance with the very principles it led the world to adopt. The time has come to end the doubling of the trauma of the Shoah when secondgeneration survivors are required to be responsible for diligent searching for property stolen from their ancestors to pay, in part, for their murder. J.D. Bindenagel, "Apology, Reconciliation, and the German Foundation," Taking Wrongs Seriously 280-310 (2006). It is also past time to end the trebling of reopened wounds when these descendants enter
a courtroom in pursuit of imperfect justice. 26
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Conclusion
For the reasons stated above, the district court should be reversed, with instructions to grant judgment for Defendants-appellants. Respectfully submitted,
Edward McGlynn Gaffney, Jr. * Valparaiso University School of Law 656 S. Greenwich Street Valparaiso, IN 46383 219.465.7860
[email protected] * Counsel of Record
27
Jennifer Anglim Kreder Northern Kentucky University Salmon Chase College of Law Nunn Hall, Nunn Drive Highland Heights, KY 41099 859.572.5889
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Certificate of Word Count I affirm that I am a member of the Bar of this Court. Pursuant to the Rules of this Court, I used the word count function ofMS Word, and certify that this Petition contains 6,993 words, including all footnotes, and excluding the Table of Contents, Table of Authorities, signature block, and Appendices A, B, & C. The font I used is Times New Roman 14 point.
Respectfully submitted,
Edward McGlynn Gaffney, Jr. Valparaiso University School of Law 656 S. Greenwich Street Valparaiso, IN 46383 219.465.7860 * Counsel of Record
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Appendix A: Particular Statements of Interest of Amici Curiae Michael J. Bazyler is a Professor of Law and the "1939" Club Law Scholar in
Holocaust and Human Rights Studies at Chapman University School of Law in Orange, California, where he teaches a course on Law and the Holocaust. He is the author of Holocaust Justice: The Battle for Restitution in America's Courts (2003), and the editor of Holocaust Restitution: Perspectives on the Litigation and Its Legacy (2005). Rabbi Haim Beliak is Special Envoy from the World Union for Progressive
Judaism to Beit Polska. He has engaged in postgraduate studies in the Holocaust program of the Hebrew University's Institute for Contemporary Jewry. The focus of his research was on religious and psychological dimensions of the restoration of stolen goods as a dimension of restorative justice. Dr. Michael Berenbaum is Professor of Jewish Studies at the American Jewish
University, Los Angeles. From 1988 to 1993 he served as the Project Director of the United States Holocaust Memorial Museum, and is intimately familiar with the needs of museums for pieces of art, artifacts, and other visual means of communicating themes central to exhibitions. See, e.g., Michael Berenbaum, The World Must Know: The History of the Holocaust as Told in United States Holocaust Memorial Museum (2d ed. 2008). He is a prolific scholar and the Editor-
in-Chief of the second edition ofthe Encyclopedia Judaica. 1
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Judy Chicago and Donald Woodward are artists and the authors of Holocaust Project From Darkness Into Light (1993); they are deeply sensitive to issues of
devaluation of art by governmental censors. Marion F. Deshmukh is Robert T. Hawkes Professor of History at George Mason University, where she teaches German and European cultural history and German art history, including courses on 19th and 20 th Century Germany, 19th and 20 th Century German and Austrian Art, the Third Reich and Holocaust. Hedy Epstein is a survivor of the Shoah who left her home in Kippenheim, Germany in 1939 at the age of 14 as part of the Kindertransport to England. Her story is narrated in the Academy-Award winning documentary film, "Into the Arms of Strangers: Stories of the Kindertransport" (2000), and in the companion volume of the same title. She has been involved for decades in Holocaust education at all levels. Klara Firestone is the founder and current President of Second Generation of Los Angeles. Klara is a long time member of the Board of the Los Angeles Museum of the Holocaust. She also served as the Second Generation representative to the Council of Post-War Holocaust Organizations. She has lectured frequently on the Holocaust to schools and organizations, and has received many awards for community service to the Holocaust survivor community.
2
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Renee Firestone is a native of Hungary and a survivor of the Nazi killing center at
AuschwitzlBirkenau. Her story is narrated in the Academy-Award winning documentary film "The Last Days" (James Moll, 1998). She lives in Beverly Hills, California, and has been involved for decades in Holocaust education at all levels, including service as a lecturer at the Museum of Tolerance (Simon Wiesenthal Center) in Los Angeles, as well as a Board member and lecturer at the Los Angeles Museum of the Holocaust. In 2010 the University of Redlands presented her with its first honorary degree-Doctor of Educational Justice. Rabbi Irving Greenberg is the past President of Jewish Life Network-Steinhardt
Foundation and the former Chairman of the United States Holocaust Memorial Council. A prolific author, Rabbi Greenberg, has contributed significantly to the philosophical and theological implications of the Shoah. Douglas Kinsey, Professor of Art Emeritus at the University of Notre Dame, and
his wife Marjorie Kinsey, an art historian, are familiar with the long history of looting of art in time of war, by the military and private parties, from the ancient world to the present century. Dr. Marcia Sachs Littell is Professor of Holocaust and Genocide Studies and
Director of the Master of Arts Program in Holocaust and Genocide Studies at the Richard Stockton College of New Jersey. She is a prolific author on the Holocaust and genocide. 3
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Dr. Hubert G. Locke is professor emeritus at the University of Washington, and
is the co-founder of The Scholars' Conference on the Holocaust and the Churches . . He is a prolific author on the Holocaust and genocide, and on American history, especially on race relations and the civil rights movement. Carrie Menkel-Meadow is a second-generation survivor of the Shoah. She is the
A.B. Chettle, Jr. Professor of Law, Dispute Resolution and Civil Procedure at the Georgetown Law Center, and Professor of Law at the University of California, Irvine School of Law. She is a prolific scholar and a co-author with _ of a leading book of materials and cases on alternative mechanisms of dispute resolution. In addition to her scholarship, research and teaching, Professor MenkelMeadow often serves as a mediator and arbitrator in public and private settings and has trained lawyers, judges, diplomats, and mediators in the United States and on five continents. Brendan Pittaway, formerly a journalist with BBC TV and currently a
communications consultant in Manchester, England, co-authored with Peter Harclerode The Lost Masters: World War II and the Looting of Europe's Treasure Houses (2000). Sister Carol Rittner, RSN, is Distinguished Professor of Holocaust and Genocide
Studies at The Richard Stockton College of New Jersey. She is a prolific author and editor of books relating to the Holocaust and genocide. She is also the 4
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producer-director of the Oscar award-winning documentary film, "Courage to Care," and the editor of an accompanying volume, Courage to Care: Non-Jews Who Rescued Jews During the Holocaust (1986). Dr. John K. Roth is the Edward J. Sexton Professor Emeritus of Philosophy and
founding Director of the Center for the Study of the Holocaust, Genocide, and Human Rights at Claremont McKenna College. He is a prolific author and editor of books relating to the Holocaust and genocide, and he edits the Holocaust and Genocide Studies Series published by Paragon House. Dr. William L. Shulman is the President of the Association of Holocaust
Organizations, a network of organizations and individuals for the advancement of Holocaust programming, awareness, education, and research. Arthur P. Stern is a survivor of the Shoah who lives in California. He escaped
from Budapest as a member of the "Kasztner transport" and spent five months in concentration camp Bergen Belsen. He is intimately familiar with the Nazi practices of confiscation and looting and supports restitution of stolen property to its rightful owners and heirs. In the 1990s and early 2000s he headed the efforts of the Los Angeles Jewish Federation for restitution of Jewish property in various European countries and was Chairman of the California Humanitarian Foundation for Jewish Holocaust Survivors.
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Fritz Weinschenk was born in Mainz, Germany, of Jewish parents. In 1935 his
family and emigrated to the United States to escape Nazi persecution of Jews. He fought in World War II with the US Army and survived the landing at Omaha Beach. From 1946 to 1950 he served as a member of the US Army Counter Intelligence Corps in Germany. Admitted to the Bar of New York in 1953, he was active in many restitution and indemnification cases. From 1962 to 1995 he served as a Commissioner to German courts and prosecutors in over 200 Nazi-crimes cases, and was twice awarded the Bundesverdienstkreuz (Federal Service Award). He obtained the degree of Doktor Juris from Mainz University summa cum laude. His record of pro bono service includes membership on the Board of
the United Restitution Organization, the Conference on Jewish Material Claims against Germany, and the Jewish Philanthropic Fund of 1933, Inc. Mel Weiss served as lead counsel in important class action lawsuits that sought to
structure effective remedies for claims relating to assets seized by the Nazis and held illegally by other entities or individuals in this country and abroad; see Stuart E. Eizenstat, Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II 83-88, 116-75, 222-56 (2003). Mr. Weiss also founded
the Holocaust Art & Remembrance Foundation. As a private collector of art, he supports full transparency in establishing the provenance of art or other objects of
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human and sacred value that may have been stolen during the era of Nazi persecution.
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AppendixB Washington Conference Principles on Nazi-Confiscated Art On 3 December 1998 the 44 governments participating in the Washington Conference on Holocaust-Era Assets endorsed the following principles for dealing with Nazi-looted art: Released in connection with the Washington Conference on Holocaust-Era Assets, Washington, DC, December 3, 1998 In developing a consensus on non-binding principles to assist in resolving issues relating to Nazi-confiscated art, the Conference recognizes that among participating nations there are differing legal systems and that countries act within the context of their own laws. 1. Art that had been confiscated by the Nazis and not subsequently restituted should be identified. 2. Relevant records and archives should be open and accessible to researchers, in accordance with the guidelines of the International Council on Archives. 3. Resources and personnel should be made available to facilitate the identification of all art that had been confiscated by the Nazis and not subsequently restituted. 4. In establishing that a work of art had been confiscated by the Nazis and not subsequently restituted, consideration should be given to unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era. 5. Every effort should be made to publicize art that is found to have been confiscated by the Nazis and not subsequently restituted in order to locate its preWar owners or their heirs. 6. Efforts should be made to establish a central registry of such information. 7. Pre-War owners and their heirs should be encouraged to come forward and make known their claims to art that was confiscated by the Nazis and not subsequently restituted.
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8. If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case. 9. If the pre-War owners of art that is found to have been confiscated by the Nazis, or their heirs, can not be identified, steps should be taken expeditiously to achieve a just and fair solution. 10. Commissions or other bodies established to identify art that was confiscated by the Nazis and to assist in addressing ownership issues should have a balanced membership. 11. Nations are encouraged to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.
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Appendix C Holocaust Era Assets Conference (Prague, 2009) 1. Remarks of Ambassador Stuart Eizenstat Plenary Session, Prague (June 28, 2009) http://www.state.gov/p/eur/rls/rm/20091126158.htm
I am ... concerned by the tendency for holders of disputed art to seek redress in technical defenses to avoid potentially meritorious claims, including statutes of limitation, adverse possession; de-accession laws; and export control laws which bar the export of looted art back to their rightful owner, even when its ownership has been established. Some holders of artworks have not honored the Principles and have gone to great lengths to retain objects in the face of facially valid claims. In the United States, declaratory judgments are being used to make it more difficult for claimants to prove their ownership. Other holders of art have simply refused to consider claims, thereby forcing the claimants either to give up their claims or engage in expensive and difficult legal proceedings. I am also concerned by the tendency of holders of disputed art to seek refuge in statutes of limitation and laches defenses in order to block otherwise meritorious claims even in situations where the claimant has not been provided with provenance information. Given the nature of the Holocaust and the Cold War that followed, many families simply were unaware or only partially aware of their heritage. The difficulty in getting documentation and the uncertain nature of the current restitution process creates further uncertainty. For a defendant to take advantage of circumstances totally beyond the control of the claimant compounds the grotesque nature of the original cnme. 2. Terezin Declaration (June 30, 2009) Upon the invitation of the Prime Minister of the Czech Republic we the representatives of 46 states listed below met this day, June 30, 2009 in Terezin, where thousands of European Jews and other victims of Nazi persecution died or were sent to death camps during World War II. We participated in the Prague Holocaust Era Assets Conference organized by the Czech Republic and its partners in Prague and Terezin from 26-30 June 2009, discussed together with experts and nongovernmental organization (NGO) representatives important issues such as Welfare of Holocaust (Shoah) Survivors and other Victims of Nazi Persecution, Immovable Property, Jewish Cemeteries and Burial Sites, Nazi- Confiscated and Looted Art, Judaica and Jewish Cultural Property, Archival Materials, and Education, Remembrance, Research and Memorial Sites. We join affirming in this 1
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Terezin Declaration on Holocaust Era Assets and Related Issues - Aware that Holocaust (Shoah) survivors and other victims of Nazi persecution have reached an advanced age and that it is imperative to respect their personal dignity and to deal with their social welfare needs, as an issue of utmost urgency, - Having in mind the need to enshrine for the benefit of future generations and to remember forever the unique history and the legacy of the Holocaust (Shoah), which exterminated three fourths of European Jewry, including its premeditated nature as well as other Nazi crimes, - Noting the tangible achievements of the 1997 London Nazi Gold Conference, and the 1998 Washington Conference on Holocaust-Era Assets, which addressed central issues relating to restitution and successfully set the stage for the significant advances of the next decade, as well as noting the January 2000 Stockholm Declaration, the October 2000 Vilnius Conference on Holocaust Era Looted Cultural Assets, - Recognizing that despite those achievements there remain substantial issues to be addressed, because only a part of the confiscated property has been recovered or compensated, - Taking note of the deliberations of the Working Groups and the Special Session on Social Welfare of Holocaust Survivors and their points of view and opinions which surveyed and addressed issues relating to the Social Welfare of Holocaust Survivors and other Victims of Nazi Persecution, Immovable Property, Nazi Confiscated Art, Judaica and Jewish Cultural Property, Holocaust Education, Remembrance and Research, which can be found on the web link for the Prague Conference and will be published in the Conference Proceedings, - Keeping in mind the legally non-binding nature of this Declaration and moral responsibilities thereof, and without prejudice to applicable international law and obligations, 1. Recognizing that Holocaust (Shoah) survivors and other victims ofthe Nazi regime and its collaborators suffered unprecedented physical and emotional trauma during their ordeal, the Participating States take note of the special social and medical needs of all survivors and strongly support both public and private efforts in their respective states to enable them to live in dignity with the necessary basic care that it implies. 2. Noting the importance of restituting communal and individual immovable property that belonged to the victims of the Holocaust (Shoah) and other victims of Nazi persecution, the Participating States urge that every effort be made to rectify the consequences of wrongful property seizures, such as confiscations, forced sales and sales under duress of property, which were part of the persecution of these innocent people and groups, the vast majority of whom died heirless. 3. Recognizing the progress that has been made in research, identification, and restitution of cultural property by governmental and non-governmental institutions· in some states since the 1998 Washington Conference on Holocaust-Era Assets and the endorsement of the Washington Conference Principles on Nazi-Confiscated Art, the 2
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Participating States affirm an urgent need to strengthen and sustain these efforts in order to ensure just and fair solutions regarding cultural property, including Judaica that was looted or displaced during or as a result of the Holocaust (Shoah). 4. Taking into account the essential role of national governments, the Holocaust (Shoah) survivors' organizations, and other specialized NGOs, the Participating States call for a coherent and more effective approach by States and the international community to ensure the fullest possible, relevant archival access with due respect to national legislation. We also encourage States and the international community to establish and support research and education programs about the Holocaust (Shoah) and other Nazi crimes, ceremonies of remembrance and commemoration, and the preservation of memorials in former concentration camps, cemeteries and mass graves, as well as of other sites of memory. 5. Recognizing the rise of Anti-Semitism and Holocaust (Shoah) denial, the Participating States call on the international community to be stronger in monitoring and responding to such incidents and to develop measures to combat anti-Semitism. The Welfare of Holocaust (Shoah) Survivors and other Victims of Nazi Persecution Recognizing that Holocaust (Shoah) survivors and other victims of Nazi persecution, including those who experienced the horrors of the Holocaust (Shoah) as small and helpless children, suffered unprecedented physical and emotional trauma during their ordeal. Mindful that scientific studies document that these experiences frequently result in heightened damage to health, particularly in old age, we place great priority on dealing with their social welfare needs in their lifetimes. It is unacceptable that those who suffered so greatly during the earlier part of their lives should live under impoverished circumstances at the end. 1. We take note of the fact that Holocaust (Shoah) survivors and other victims of Nazi persecution have today reached an advanced age and that they have special medical and health needs, and we therefore support, as a high priority, efforts to address in their respective states the social welfare needs of the most vulnerable elderly victims of Nazi persecution - such as hunger relief, medicine and homecare as required, as well as measures that will encourage intergenerational contact and allow them to overcome their social isolation. These steps will enable them to live in dignity in the years to come. We strongly encourage cooperation on these issues. 2. We further take note that several states have used a variety of creative mechanisms to provide assistance to needy Holocaust (Shoah) survivors and other victims of Nazi persecution, including special pensions; social security benefits to non-residents; special funds; and the use of assets from heirless property. We encourage states to consider these and other alternative national actions, and we further encourage them to find ways to address survivors' needs.
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Immovable (Real) Property Noting that the protection of property rights is an essential component of a democratic society and the rule of law, Acknowledging the immeasurable damage sustained by individuals and Jewish communities as a result of wrongful property seizures during the Holocaust (Shoah), Recognizing the importance of restituting or compensating Holocaust-related confiscations made during the Holocaust era between 1933-45f and as its immediate consequence, Noting the importance of recovering communal and religious immovable property in reviving and enhancing Jewish life, ensuring its future, assisting the welfare needs of Holocaust (Shoah) survivors, and fostering the preservation of Jewish cultural heritage, 1. We urge, where it has not yet been effectively achieved, to make every effort to provide for the restitution of former Jewish communal and religious property by either in rem restitution or compensation, as may be appropriate; and 2. We consider it important, where it has not yet been effectively achieved, to address the private property claims of Holocaust (Shoah) victims concerning immovable (real) property of former owners, heirs or successors, by either in rem restitution or compensation, as may be appropriate, in a fair, comprehensive and nondiscriminatory manner consistent with relevant national law and regulations, as well as international agreements. The process of such restitution or compensation should be expeditious, simple, accessible, transparent, and neither burdensome nor costly to the individual claimant; and we note other positive legislation in this area. 3. We note that in some states heirless property could serve as a basis for addressing the material necessities of needy Holocaust (Shoah) survivors and to ensure ongoing education about the Holocaust (Shoah), its causes and consequences. 4. We recommend, where it has not been done, that states participating in the Prague Conference consider implementing national programs to address immovable (real) property confiscated by Nazis, Fascists and their collaborators. If and when established by the Czech Government, the European Shoah Legacy Institute in Terezln shall facilitate an intergovernmental effort to develop non-binding guidelines and best practices for restitution and compensation of wrongfully seized immovable property to be issued by the one-year anniversary of the Prague Conference, and no later than June 30, 2010, with due regard for relevant national laws and regulations as well as international agreements, and noting other positive legislation in this area. Jewish Cemeteries and Burial Sites Recognizing that the mass destruction perpetrated during the Holocaust (Shoah) put an end to centuries of Jewish life and included the extermination of thousands of Jewish communities in much of Europe, leaving the graves and cemeteries of generations of Jewish families and communities unattended,and Aware that the genocide ofthe Jewish people left the human remains of hundreds of thousands of murdered Jewish victims in unmarked mass graves scattered throughout Central and Eastern Europe, 4
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We urge governmental authorities and municipalities as well as civil society and competent institutions to ensure that these mass graves are identified and protected and that the Jewish cemeteries are demarcated, preserved and kept free from desecration, and where appropriate under national legislation could consider declaring these as national monuments. Nazi-Confiscated and Looted Art Recognizing that art and cultural property of victims of the Holocaust (Shoah) and other victims of Nazi persecution was confiscated, sequestered and spoliated, by the Nazis, the Fascists and their collaborators through various means including theft, coercion and confiscation, and on grounds of relinquishment as well as forced sales and sales under duress, during the Holocaust era between 1933-45 and as an immediate consequence, and Recalling the Washington Conference Principles on Nazi-Confiscated Art as endorsed at the Washington Conference of 1998, which enumerated a set of voluntary commitments for governments that were based upon the moral principle that art and cultural property confiscated by the Nazis from Holocaust (Shoah) victims should be returned to them or their heirs, in a manner consistent with national laws and regulations as well as international obligations, in order to achieve just and fair solutions, 1. We reaffirm our support of the Washington Conference Principles on NaziConfiscated Art and we encourage all parties including public and private institutions and individuals to apply them as well, 2. In particular, recognizing that restitution cannot be accomplished without knowledge of potentially looted art and cultural property, we stress the importance for all stakeholders to continue and support intensified systematic provenance research, with due regard to legislation, in both public and private archives, and where relevant to make the results of this research, including ongoing updates, available via the internet, with due regard to privacy rules and regulations. Where it has not already been done, we also recommend the establishment of mechanisms to assist claimants and others in their efforts, 3. Keeping in mind the Washington Conference Principles on Nazi-Confiscated Art, and considering the experience acquired since the Washington Conference, we urge all stakeholders to ensure that their legal systems or alternative processes, while taking into account the different legal traditions, facilitate just and fair solutions with regard to Nazi-confiscated and looted art, and to make certain that claims to recover such art are resolved expeditiously and based on the facts and merits of the claims and all the relevant documents submitted by all parties. Governments should consider all relevant issues when applying various legal provisions that may impede the restitution of art and cultural property, in order to achieve just and fair solutions, as well as alternative dispute resolution, where appropriate under law. Judaica and Jewish Cultural Property Recognizing that the Holocaust (Shoah) also resulted in the wholesale looting of Judaica and Jewish cultural property including 5
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sacred scrolls, synagogue and ceremonial objects as well as the libraries, manuscripts, archives and records of Jewish communities, and Aware that the murder of six million Jews, including entire communities, during the Holocaust (Shoah) meant that much of this historical patrimony could not be reclaimed after World War II, and Recognizing the urgent need to identify ways to achieve a just and fair solution to the issue of Judaica and Jewish cultural property, where original owners, or heirs of former original Jewish owners, individuals or legal persons cannot be identified, while acknowledging there is no universal model, 1. We encourage and support efforts to identify and catalogue these items which may be found in archives, libraries, museums and other government and non-government repositories, to return them to their original rightful owners and other appropriate individuals or institutions according to national law, and to consider a voluntary international registration of Torah scrolls and other Judaica objects where appropriate, and 2. We encourage measures that will ensure their protection, will make appropriate materials available to scholars, and where appropriate and possible in terms of conservation, will restore sacred scrolls and ceremonial objects currently in government hands to synagogue use, where needed, and will facilitate the circulation and display of such Judaica internationally by adequate and agreed upon solutions. Archival Materials Whereas access to archival documents for both claimants and scholars is an essential element for resolving questions of the ownership of Holocaust-era assets and for advancing education and research on the Holocaust (Shoah) and other Nazi crimes, Acknowledging in particular that more and more archives have become accessible to researchers and the general public, as witnessed by the Agreement reached on the archives of the International Tracing Service (ITS) in Bad Arolsen, Germany, Welcoming the return of archives to the states from whose territory they were removed during or as an immediate consequence of the Holocaust (Shoah), We encourage governments and other bodies that maintain or oversee relevant archives to make them available to the fullest extent possible to the public and researchers in accordance with the guidelines of the International Council on Archives, with due regard to national legislation, including provisions on privacy and data protection, while also taking into account the special circumstances created by the Holocaust era and the needs of the survivors and their families, especially in cases concerning documents that have their origin in Nazi rules and laws. Education, Remembrance, Research and Memorial Sites Acknowledging the importance of education and remembrance about the Holocaust (Shoah) and other Nazi crimes as an eternal lesson for all humanity, Recognizing the preeminence of the Stockholm Declaration on Holocaust Education, Remembrance and Research of January 2000, 6
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Recognizing that the Universal Declaration of Human Rights was drafted in significant part in the realization of the horrors that took place during the Holocaust, and further recognizing the U.N. Convention on the Prevention and Punishment of the Crime of Genocide, Recalling the action of the United Nations and of other international and national bodies in establishing an annual day of Holocaust remembrance, Saluting the work of the Task Force for International Cooperation on Holocaust Education, Remembrance and Research (ITF) as it marks its tenth anniversary, and encouraging the States participating in the Prague Conference to cooperate closely with the Task Force, and Repudiating any denial of the Holocaust (Shoah) and combating its trivialization or diminishment, while encouraging public opinion leaders to stand up against such denial, trivialization or diminishment, 1. We strongly encourage all states to support or establish regular, annual ceremonies of remembrance and commemoration, and to preserve memorials and other sites of memory and martyrdom. We consider it important to include all individuals and all nations who were victims of the Nazi regime in a worthy commemoration of their respective fates, 2. We encourage all states as a matter of priority to include education about the Holocaust (Shoah) and other Nazi crimes in the curriculum of their public education systems and to provide funding for the training of teachers and the development or procurement of the resources and materials required for such education. 3. Believing strongly that international human rights law reflects important lessons from history, and that the understanding of human rights is essential for confronting and preventing all forms of racial, religious or ethnic discrimination, including Anti~ Semitism, and Anti-Romani sentiment, today we are committed to including human rights education into the curricula of our educational systems. States may wish to consider using a variety of additional means to support such education, including heirless property where appropriate. 4. As the era is approaching when eye witnesses of the Holocaust (Shoah) will no longer be with us and when the sites of former Nazi concentration and extermination camps, will be the most important and undeniable evidence of the tragedy of the Holocaust (Shoah), the significance and integrity of these sites including all their movable and immovable remnants, will constitute a fundamental value regarding all the actions concerning these sites, and will become especially important for our civilization including, in particular, the education of future generations. We, therefore, appeal for broad support of all conservation efforts in order to save those remnants as the testimony of the crimes committed there to the memory and warning for the generations to come and where appropriate to consider declaring these as national monuments under national legislation. Future Action Further to these ends we welcome and are grateful for the Czech Government's initiative to establish the European Shoah Legacy Institute in Terezfn 7
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(Terezin Institute) to follow up on the work of the Prague Conference and the Terezin Declaration. The Institute will serve as a voluntary forum for countries, organisations representing Holocaust (Shoah) survivors and other Nazi victims, and NGOs to note and promote developments in the areas covered by the Conference and this Declaration, and to develop and share best practices and guidelines in these areas and as indicated in paragraph four of Immovable (Real) Property. It will operate within the network of other national, European and international institutions, ensuring that duplicative efforts are avoided, for example, duplication of the activities of the Task Force for International Cooperation on Holocaust Education, Remembrance and Research (ITF). Following the conference proceedings and the Terezin Declaration, the European Commission and the Czech Presidency have noted the importance of the Institute as one of the instruments in the fight against racism, xenophobia and anti-Semitism in Europe and the rest of the world, and have called for other countries and institutions to support and cooperate with this Institute. To facilitate the dissemination of information, the Institute will publish regular reports on activities related to the Terezin Declaration. The Institute will develop websites to facilitate sharing of information, particularly in the fields of art provenance, immovable property, social welfare needs of survivors, Judaica, and Holocaust education. As a useful service for all users, the Institute will maintain and post lists of websites that Participating States, organizations representing Holocaust (Shoah) survivors and other Nazi victims and NGOs sponsor as well as a website of websites on Holocaust issues. We also urge the States participating in the Prague Conference to promote and disseminate the principles in the Terezin Declaration, and encourage those states that are members of agencies, organizations and other entities which address educational, cultural and social issues around the world, to help disseminate information about resolutions and principles dealing with the areas covered by the Terezin Declaration. A more complete description of the Czech Government's concept for the Terezin Institute and the Joint Declaration of the European Commission and the Czech EU Presidency can be found on the website for the Prague Conference and will be published in the conference proceedings. List of States: Albania, Argentina, Australia, Austria, Belarus, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France FYROM, Germany, Greece, Hungary, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Montenegro, The Netherlands, Norway, Poland, Portugal, Romania, Russia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom, United States, Uruguay, The Holy See (observer), Serbia (observer)
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Certificate of Service th
I, Tina Duron, not a party to this matter, did on this 26 day ofJanuary, 2012, by placing the original and six copies of the Motion for Leave to File Brief Amicus Curiae and Brief Amicus Curiae in a sealed envelope, and delivering to an office of the United States Postal Service, with First Class postage prepaid, to the following party: Clerk of the Court United States Court of Appeals for the Second Circuit Daniel Patrick Moynihan Building 500 Pearl Street New York, NY 10007
I also placed three copies ofthe Motion for Leave to File Brief Amicus Curiae and Brief Amicus Curiae in a sealed envelope, and delivering to an office of the United States Postal Service, with First Class postage prepaid, to the following parties: Raymond J. Dowd Counsel for Defendants-Appellant Dunnington Bartholow & Miller LLP 1359 Broadway Suite 600 New York NY 10018 William L. Charron, Esq. Counsel for Plaintiff-Appellee Pryor Cashman LLP 7 Ti s Square ork, ~Yo.rk 1.0036
~j)~.---ma Valp aiso University School of Law 656 S. Greenwich Street Valparaiso, IN 46383
