Norton Simon grandson urges museum to be 'just' with 'Adam' and 'Eve'

LA Times 14 November 2014
By Mike Boehm

A grandson of museum founder Norton Simon has expressed misgivings over how the Norton Simon Museum is handling a lawsuit in which heirs of a Dutch Jewish art dealer are seeking the return of two prominent German Renaissance paintings that were seized by the Nazis during World War II and are highlights of the museum's collection.

"I'm writing to share my regrets with the Jewish community," began a letter sent this week by Eric Simon to the editor of the Los Angeles Times.

In the letter and a subsequent phone interview from his home in San Mateo County, Simon expressed hope that a 1998 international accord, the Washington Conference Principles on Nazi-Confiscated Art; and the Terezin Declaration, a 2009 companion statement; should serve as a "road map" for negotiations with heirs of art dealer Jacques Goudstikker seeking the return of Lucas Cranach the Elder's 1530s paintings, "Adam" and "Eve." 

Lucas Cranach the Elder's "Adam" and "Eve." (Norton Simon Art Foundation)

"Steps should be taken expeditiously to achieve a just and fair solution," Simon wrote.

A settlement is unlikely to happen soon. The museum this week petitioned the U.S. Supreme Court to overturn a 9th Circuit Court of Appeals decision in June that kept Goudstikker heir Marei von Saher's claim to "Adam" and "Eve" alive after it had been dismissed by a U.S. district court judge in Los Angeles.

In the 2-1 appellate ruling, the majority judges urged the museum to take guidance from the Washington and Terezin documents. The Terezin Declaration says that cases involving Nazi-looted property should be decided "based on the facts and merits of the claims" and not sidetracked by procedural issues.

Simon said he's frustrated that these principles have not been followed in the Von Saher legal proceedings, which date to 2007.

"The ability of well-paid lawyers to find loopholes to evade responsibility under this agreement and the … Terezin Declaration is impressive," wrote Simon, whose family is Jewish. "The choice should be an easy one: replace two paintings on a wall of the museum with two of many works of art kept indefinitely in storage, or be singled out as an apologist for Nazi art theft."

Simon added in the letter that "the living relatives of Norton Simon have not taken part in any decision related to the ongoing legal battle."

But in an interview, Simon seemed to backtrack from the letter's implications that he was advocating the museum hand over the Cranach paintings without compensation.

"There's an opportunity to find middle ground" through negotiations that might lead to a compromise, said Simon on the phone. He suggested that one side might end up with the paintings while the other received financial compensation.

Responding Wednesday in a prepared statement, Walter Timoshuk, the Norton Simon Museum's president, said that it had already tried the approach advocated by Simon:

"The Norton Simon engaged in years of discussions with Ms. von Saher in the hopes of expeditiously reaching a just and fair resolution. These discussions included two formal mediations. After Ms. von Saher brought a lawsuit against the Norton Simon, we have sought to fairly vindicate the [museum's] rights in court."

Timoshuk added that "all actions [by the museum] have been consistent with both the Washington Principles and the Terezin Declaration." The two accords technically apply only to claims against government-owned art of the nations that signed them. The Norton Simon Museum's collection is private property. However, some private entities have cited the accords as a basis for decisions to return Nazi-looted art.

Von Saher, the daughter-in-law of Goudstikker, did reach a compromise in July with the Cummer Museum of Art and Gardens in Jacksonville, Fla., without filing a lawsuit. She received an undisclosed payment for a 1600s still life by Jacques Adolphz de Claeuw that was less than its estimated market value, then donated the painting back to the museum.

But even a partial payment for "Adam" and "Eve" would likely be astronomical. An appraisal for insurance purposes in 2006 pegged their value at $28.3 million.

Simon said that any negotiations over "Adam" and "Eve" should take into account their complex history, which makes them perhaps unique among Nazi-looted art masterpieces.

They are, in effect, twice-stolen works that were seized by the Soviets in the 1920s, then sold to Goudstikker in a 1931 Soviet-sponsored art auction in Berlin. The art dealer and his family escaped the Nazi invasion of Holland in 1940, leaving behind a collection that was soon confiscated by Hermann Goering, an art-loving chief henchman of Adolf Hitler. Goudstikker died in an accidental fall aboard the ship on which his family escaped.

But even a partial payment for 'Adam' and 'Eve' would likely be astronomical. An appraisal for insurance purposes in 2006 pegged their value at $28.3 million. -  

U.S. forces found Goering's art stash in 1945 and sent "Adam" and "Eve" to Holland for possible restitution proceedings. George Stroganoff-Scherbatoff, an American heir of a Russian aristocratic family, bought them from the Dutch government in 1966 after claiming the Soviets had expropriated them from his family. He sold "Adam" and "Eve" to Norton Simon in 1971.

The Norton Simon Museum has regarded Stroganoff-Scherbatoff's claims as factual, but Von Saher's attorneys dispute that the Stroganoff family ever owned "Adam" and "Eve." They cite evidence that the paintings were seized from a church in Kiev, capital of present-day Ukraine.

In seven years of litigation, however, the focus has not been on evidence concerning who owned the paintings before the Soviets seized them but on procedural issues bearing on whether legal precedents should bar Von Saher from suing at all.

Von Saher, who lives in Connecticut, first approached the museum with her claim in the early 2000s and eventually sued for the paintings' return.

A U.S. District Court judge in Los Angeles dismissed Von Saher's suit in 2012, ruling that "Adam" and "Eve" properly had gone through a process laid out in a 1940s U.S. policy that left it to each postwar European government to decide the fate of Nazi-looted art recovered by U.S. forces.

But the 9th Circuit majority found that the Netherlands had failed to follow the postwar restitution process that U.S. policy required for "Adam" and "Eve."

The ruling — if it withstands possible Supreme Court scrutiny — is seen as potentially groundbreaking by some legal experts. It's the first time a U.S. court has given legal weight to the Washington Conference Principles and Terezin Declaration.

Eric Simon said he had paid little attention to the case until the U.S. 9th Circuit appeals decision generated headlines that led to public criticism of the museum, including a call by World Jewish Congress president Ronald Lauder for the paintings to be returned.

"My grandfather cared a lot about what people thought of the museum," he said in the interview. To have the "Adam" and "Eve" case linger in court, he added, would be "an unnecessary blemish" on the Simon family.

Simon is one of five members of the museum founder's immediate family who serve on one or more of the three nonprofit boards that work together to fund and operate the museum. They also include his father, a brother and sister and Norton Simon's stepson from his second marriage to actress Jennifer Jones.

Simon, his father, Donald Simon, and Robert Walker, the museum founder's stepson, serve with six others on the board of the Norton Simon Foundation, whose investment holdings — $110 million as of 2012, the last immediately available public filing — generate earnings that cover most of the museum's operating expenses of about $6 million a year.

The art collection is not owned by the museum, per se, but by the Norton Simon Foundation and the separate Norton Simon Art Foundation, which each own different groupings of artworks. Together they lend the 12,000-piece collection to the museum; their public filings place the combined fair-market value of the artworks at about $2.5 billion.

Von Saher sued the Art Foundation, which owns "Adam" and "Eve," and the museum itself, which displays the two paintings. The Norton Simon Foundation board on which Eric Simon serves is not a direct party to the lawsuit.

Simon declined to comment on discussions about "Adam" and "Eve" within the family, or in museum-related board deliberations.

However, he said he was "uncomfortable" with people thinking "that the family wasn't uncomfortable with the situation."
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