No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Transcription

1 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» ï ±º íî No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MAREI VON SAHER, Plaintiff-Appellant. v. NORTON SIMON MUSEUM OF ART AT PASADENA, and NORTON SIMON ART FOUNDATION, Defendants-Appellees. On Appeal from the United States District Court for the Central District of California Honorable John F. Walter D.C. No. 2:07-cv JFW-SS BRIEF OF AMICUS CURIAE PROFESSOR LEONARD F.M. BESSELINK IN SUPPORT OF APPELLANT MAREI VON SAHER AND IN SUPPORT OF REVERSAL Susan J. Kohlmann Irene M. Ten Cate Ava U. McAlpin JENNER & BLOCK LLP 919 Third Avenue New York, NY Tel: (212) Counsel for Amicus Curiae Professor Leonard F.M. Besselink

2 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» î ±º íî DISCLOSURE STATEMENT PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE The full name of every party that the attorneys represent in this case: Professor Leonard F.M. Besselink. 2. The names of all law firms whose partners or associates have appeared for the amicus curiae in this case: Jenner & Block, LLP is counsel to Professor Leonard F.M. Besselink. 3. If the party or amicus curiae is a corporation: i. Identify parent corporation: N/a. ii. List any publicly held company that owns 10% or more of the stock: N/a. Dated: March 27, 2017 By: /s/ Susan J. Kohlmann Susan J. Kohlmann Counsel for Amicus Curiae Professor Leonard F.M. Besselink i

3 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» í ±º íî TABLE OF CONTENTS STATEMENT PURSUANT TO FED. R. APP. P INTEREST OF PROFESSOR BESSELINK AS AMICUS CURIAE AND AUTHORITY TO FILE...1 SUMMARY OF ARGUMENT...2 ARGUMENT...5 I. THE REGULATORY AND CONSTITUTIONAL FRAMEWORK...5 A. The Royal Decrees and the 1947 Decision...6 B. The Dutch Constitution Constitutional Provision Governing Expropriation Prohibition on Judicial Review...12 II. UNCONSTITUTIONAL EXPROPRIATION AND CONTRAVENES DUTCH STATUTORY CONSTRUCTION PRINCIPLES...13 A. Expropriation of the Cranachs Would Have Violated the 1938 Constitution...13 B. Contravenes Principles of Statutory Construction Dutch Statutes Must Be Interpreted in Conformity with the Constitution The Interpretative Rule Applies to the Relevant Royal Decrees and the 1947 Decision...20 CONCLUSION...23 ii

4 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» ì ±º íî TABLE OF AUTHORITIES Cases Von Saher v. Norton Simon Museum of Art at Pasadena, 754 F.3d 712, (9th Cir. 2014)...3 Von Saher v. Norton Simon Museum of Art at Pasadena, No. CV JFW (SSx) (C.D. Cal. Aug. 9, 2016), Dkt. No passim Dutch Constitutional Provisions Gw. [Constitution] art. 79(7) (1938) (Neth.)...6 Gw. [Constitution] art. 158 (1938) (Neth.)...11, 14, 16 Gw. [Constitution] art. 124 (1938) (Neth.)...12, 17 Gw. [Constitution] art. 120 (2008) (Neth.)...12 International Authorities Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, Mar. 20, 1952, 213 U.N.T.S. 252, Art Dutch Court Decisions H.R. 19 Feb. 1858, Weekblad van het Regt, S (Neth.)...19 H.R. 23 Dec. 1864, Weekblad van het Regt, S (Neth.) H.R. 30 Oct. 1946, NJ 1946, 737 (Neth.)....21, 22 ABRvS July 24, 2002, ECLI:NL:RVS:2002:AE5780 (Neth.)...20 ABRvS Sept. 14, 2011, ECLI:NL:RVS:2011:BS8847 (Neth.)...20 Raad voor het Rechtsherstel, June 27, 1949, Rechtsherstel VI (Neth.)...23 iii

5 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» ë ±º íî Secondary Sources G.J. Th. Belaerts van Blockland, The Inviolability of Acts of Parliament (1868)...18 L.F.M. Besselink, Judicial Review in the Netherlands (2016)...18 J.E.F.M. Den Drijver-VanRijckevorsel et al., Handboek Onteigening (2016) Other Authorities 1947 Decision... passim Royal Decree A6...6 Royal Decree E Royal Decree E iv

6 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» ê ±º íî Professor Leonard F.M. Besselink respectfully submits the following brief as amicus curiae in support of Plaintiff-Appellant Marei Von Saher and in support of reversal. STATEMENT PURSUANT TO FED. R. APP. P counsel authored this brief. No authored this brief in whole or in part. 2. fund preparing or submitting this brief. 3. No person, other than the amicus curiae, its members, or its counsel, contributed money that was intended to fund preparing or submitting this brief. INTEREST OF PROFESSOR BESSELINK AS AND AUTHORITY TO FILE Professor Besselink holds the chair of Constitutional Law at the law school (faculteit der rechtsgeleerdheid) of the University of Amsterdam, where he heads the Public Law department and is affiliated with the Amsterdam Centre for European Law and Governance. Before his current appointment, Professor Besselink held the chair of European Constitutional Law at Utrecht University. He has taught several courses on Dutch and European constitutional law since 1983, and held Visiting Professorships with universities in Rome, Florence, and Addis Ababa (Ethiopia). Professor Besselink has published widely in the areas of Dutch, European, and comparative constitutional law. He recently authored a book chapter about the 1

7 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» é ±º íî prohibition on judicial review in the Netherlands and the obligation of judges to interpret statutes in accordance with the Dutch Constitution for a volume of the Handbuch Ius Publicum Europaeum, a major research project undertaken by the Max Planck Institute for Comparative Public and International Law in Heidelberg, Germany. Additionally, Professor Besselink served as a member of a National Committee that was tasked with advising the Dutch government and Parliament concerning potential amendments to the Dutch Constitution. Professor Besselink respectfully submits that the D from which appeal is taken raises substantial issues of Dutch public law. Because of his expertise in the relevant areas, he offers the Court a unique and valuable perspective with respect to the issues presented by this appeal. As an academic who has taught and written on Dutch public law for more than three decades, Professor Besselink has a compelling interest in the proper interpretation and application of Dutch constitutional law. SUMMARY OF ARGUMENT The dispute between the parties in this case concerns a pair of paintings, that were created by Lucas Cranach the Elder around 1530 (the Jacques Goudstikker when he was forced to flee the Netherlands in 1940, shortly after Germany invaded the Netherlands. Soon thereafter, Nazi leader Hermann 2

8 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» è ±º íî Göring took possession of the Cranachs through a forced sale. In 1946, the Allied Forces returned artworks looted from the Goudstikker art collection, including the Cranachs, to the Dutch government, subject to the policy that the Netherlands was to restore recuperated objects to their rightful owners. Von Saher v. Norton Simon Museum of Art at Pasadena, 754 F.3d 712, (9th Cir. 2014); Von Saher v. Norton Simon Museum of Art at Pasadena, No. CV JFW (SSx), at 3 (C.D.. Marei Von Saher, the Plaintiff- Appellant in this action, is the only living heir of Jacques Goudstikker. She now seeks to recover the two paintings from the Norton Simon Art Foundation. Von Saher, 754 F.3d at A central question on this appeal is whether the Dutch State obtained full ownership, with the attendant property rights, over the Cranachs as a result of a 1947 decision by the Commissie Rechtsverkeer in Oorlogstijd. The District Court answered this question in the affirmative. SJ Decision at Its ruling is based on reading of the which revoked the automatic invalidity that had affected most transactions with the enemy during the occupation in combination with Royal Decree E133, issued by the Dutch government in exile in 1944, which granted the Dutch State ownership of property belonging to the enemy. Id. at

9 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» ç ±º íî As explained in this amicus brief, the ruling cannot be reconciled with the Dutch Constitution and contravenes well-established principles of statutory construction. U 1947 Decision expropriated the Cranachs from the Goudstikker heirs. The 1947 Decision, however, does not meet the requirements for expropriating private property set forth in the Constitution at the time, including the obligation to issue a prior decree and pay just compensation. The failure to meet these requirements was not excused for reasons of emergency, nor was the expropriation itself warranted for the benefit of the general interest, as required by the Dutch Constitution. decision is therefore premised on an expropriation that was plainly unconstitutional. Dutch rules of statutory construction, however, militate against interpreting legislative acts in such a manner that they violate the Constitution. The Netherlands prohibits judicial review of legislation; but highest courts have long held that the judiciary has a duty to construe statutes consistent with the Constitution. Here, the 1947 Decision and Decree E133 can be interpreted so as to avoid the conclusion that the Dutch government blatantly violated the Constitution. Under this alternative interpretation, Decree E133 only transferred ownership of enemy property that was within the borders or legal sphere of the Netherlands at that time. Decree E133 thus did not apply to recuperated goods that the State subsequently came to possess; the State held these goods as a custodian for their rightful owners. 4

10 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» ï𠱺 íî And the 1947 Decision claims by rightful owners which expressly disclaimed any prejudicial effect on did not retroactively transform recuperated goods into enemy property subject to automatic transfer of ownership under Decree E133. In sum, the Dutch Constitution and statutory construction principles that flow from the constitutional design of the Netherlands compel an interpretation of the 1947 Decision that does not result in the Dutch State acquiring full ownership rights over recuperated property. Instead, this Court should adopt an interpretation that comports with Dutch constitutional law, namely that the 1947 Decision left the substantive ownership rights of claimants to recuperated property unaffected. Consequently, the Dutch State continued to retain (houder or detentor) for the benefit of any rightful owners. Because the District and regulatory framework under which the Dutch government and CORVO were operating, amicus Professor Besselink supports reversal of the SJ Decision. ARGUMENT I. THE REGULATORY AND CONSTITUTIONAL FRAMEWORK In issuing the Royal Decrees and the 1947 Decision, and in holding and distributing recuperated property, the relevant State organs exercised paradigmatic sovereign functions that are subject to constitutional restrictions on the exercise of government power. 5

11 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» ïï ±º íî A. The Royal Decrees and the 1947 Decision During the occupation of the Netherlands, the Dutch government in exile continued to govern, but instead of enacting formal legislation (which requires a functional Parliament), it issued several Royal Decrees (Koninklijke Besluiten). A Royal Decree is an order that is signed by the monarch and at least one minister. See Add. 1 (Gw. [Constitution] art. 79(7) (1938)). 1 The question of whether ownership in the Cranachs transferred to the Dutch State in 1947 calls for the interpretation of several Royal Decrees and the 1947 Decision from CORVO, which are briefly discussed here. Decree A6. This Decree was promulgated on June 7, 1940, less than a month after the Netherlands was invaded by Germany and three days after Queen Wilhelmina and the Dutch government fled to London. The measures taken in this... to [prevent] that the legal practice in wartime inflicts damage to the interests of the Kingdom of the E.R Article 6(1)(a) of Decree A6 prohibited agreements with the enemy or with enemy nationals, unless prior consent was obtained from CORVO, a special committee that was created by Royal Decree A6. E.R Article 10(1) 1 All pertinent foreign constitutional provisions and international authorities herein that are not already included in the Excerpts of Record are included in the Addendum submitted with this amicus 6

12 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» ïî ±º íî entered into..., either without the required prior consent from [CORVO], or without due observance of the E.R specified in the previous paragraph based on special circumstances by declaring the agreement... still E.R Decree E100. Promulgated in 1944, Decree E100 set up a process for deciding on claims concerning recuperated objects. To this end, it established the Council for Restoration of Rights (Raad voor het Rechtsherstel), which comprised several divisions and sub-divisions. E.R One of these sub-divisions, the Stichting Nederlands Kunstbezit (Netherlands Art Property Foundation or which took possession of the Cranachs in 1946 was tasked with restoring artworks to their rightful owners. E.R. 779; SJ Decision at 3. Under Article 21, claimants could seek restitution of recovered property by written request, which needed to be filed by July 1, E.R Article 23 granted the Council for Restoration of Rights the power to rtially null and void any legal relations that originated or were modified during enemy occupation. Id. The Goudstikker heirs apparently Decree E100 because the Dutch State at the time contested that the Cranachs and other works in the Goudstikker collection were sold in a coerced transaction a position it has since abandoned. See 20-25, 47. 7

13 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» ïí ±º íî Decree E133. Decree E133, also promulgated in 1944, provided in Article belonging to an enemy state or to an enemy national automatically passes in ownership to the [Dutch] State with the entering into force of this decree. E.R The scope of this provision specifically, whether it includes property that had subsequently been recovered by allied forces and returned to the Netherlands is one of the vermogen) indicates that its application was territorially limited to property that was either located within the Netherlands or was in the physical possession of Dutch citizens and other persons who came sphere. Specifically, Article and contractual rights that are either located within the territory of the Kingdom, belonging to the legal sphere of the Kingdom or can be exercised within the Kingdom, or regardless where they are located or where they can be exercised belong to Dutch people, Dutch nationals or persons who have their place of residence E.R Thus, property that was later recuperated and was, by definition, not within the borders or legal sphere of the Netherlands at the time E133 was promulgated did not come within its scope. The record contains various express statements indicating that the Dutch State itself did not believe it obtained full ownership rights over recuperated property pursuant to Decree E133, including several that were made shortly after the issuance 8

14 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» ïì ±º íî of the 1947 Decision. For example, in an opinion dated January 5, 1948, the SNK which was tasked with the restitution of recovered artworks and held the Cranachs at that time the Dutch Minister of Finance characterized the State as a custodian (zaakwaarnemer) for rightful owners of recupera government to claim ownership of such property under Decree E133. E.R The 1947 Decision. Lastly, the 1947 Decision was issued by CORVO almost two years after the German occupation of the Netherlands ended. In this Decision, CORVO appeared to exercise the authority that had been granted to it in Decree A6 that automatically attached to agreements executed in violation of the prohibition on enemy transactions. E.R Specifically, CORVO decreed breach of the provisions of Section 6(1) of [Royal Decree A6], to the extent that such acts and agreements relate to property found in enemy area after it had been liberated or occupied by the Allies respectively, in so far as such property has returned or will E.R. 26. In the preamble, CORVO explained the considerations that animated its resolution to lift the automatic nullity: [T]hat [CORVO] has been requested to consider validating the acts and agreements performed or concluded in breach of the provisions of section 6 of [Royal Decree A6], to the extent that such acts and agreements concern so-called recuperated property; 9

15 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» ïë ±º íî that there is no longer any interest in the nullity referred to in Section 10 ensuing from the prohibition of Section 6 of [Royal Decree A6], which serves to prevent the interests of the Kingdom from being harmed, as far as that recuperated property is concerned; that, moreover, the lifting of that nullity would not prejudicially affect the question whether that property will return to the persons who were the owners at the time of the act or agreement by virtue of the provisions on the restoration of rights; [and] that several proceedings are pending before the Dutch Council for the Restitution of Rights relating to that property, so that it concerns a very urgent case[.] E.R The preamble provides insight into the and demonstrates that CORVO was conscious of the limits of its authority. Importantly, CORVO expressly noted that the lifting of the nullity would not affect the determination of whether property would be returned to previous virtue of the provisions on the restoration of righ E.R. 26. The 1947 Decision thus simply lifted a sanction that had become obsolete. 2 The last consideration similarly suggests that CORVO intended to facilitate the adjudication of claims and distribution of recuperated property to rightful owners. There is nothing in the 1947 Decision to suggest that CORVO intended to drastically change the ownership rights 2 The reference to to leave ownership claims unaffected is limited to claimants who opted for that process. 10

16 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» ïê ±º íî of rightful owners; to the contrary, the preamble demonstrates that CORVO was careful not to affect those rights. B. The Dutch At the time the Decrees and the 1947 Decision were promulgated, the Constitution (Grondwet) of 1938 was in force. Two constitutional provisions are relevant for interpreting the Decrees and Decision described above: Article 158, which constrained the State 124, which prohibited judicial review. 1. Constitutional Provision Governing Expropriation In 1947, limitations on uthority to expropriate private property were set forth in Article 158 of the Dutch Constitution (Grondwet), which read as follows: No expropriation in the public interest shall take place, unless a prior Act of Parliament has been issued declaring that the public interest requires expropriation, and unless the owner has been paid or assured just compensation prior to the expropriation, all in accordance with the requirements set forth by Act of Parliament. An Act of Parliament shall determine under what circumstances a prior declaration by act of Parliament is not legally required. Prior payment or assurance of just compensation shall not be required if immediate expropriation is necessary as a result of war, danger of war, riot, insurrection, fire, or extreme flooding. Add. 3 (Gw. [Constitution] art. 158 (1938)). 11

17 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» ïé ±º íî Although the Dutch Constitution has been revised several times over the past two centuries, restrictions on the exercise of state authority to expropriate private property have consistently been included since the Constitution for the Kingdom of 1815 (Grondwet voor het Koninkrijk), which is often described as the first Constitution of the Kingdom of the Netherlands. Protection of private ownership rights from unjustified encroachment by the State is, in other words, one of the pillars of the Dutch constitutional monarchy. 2. Prohibition on Judicial Review One of the most significant differences between the constitutional design of the Netherlands and the United States is that the Dutch Constitution expressly prohibits judicial review of legislative acts. Dutch courts, in other words, cannot strike down legislation on the basis that it is unconstitutional. In 1947, this prohibition on judicial review (toetsingsverbod) was set forth in Article 124, which Acts of Parliament are inviolable Add. 5 (Gw. [Constitution] art. 124 (1938))., Article 120, Parliament Add. 7 (Gw. [Constitution] art. 120 (2008)). review[ing] the constitutionality of Acts of The islation, however, does not leave the legislature free to ignore the Constitution. As explained in Part II.B. below, the notion that Acts of Parliament (i.e., statutes) are inviolable has resulted in an 12

18 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» ïè ±º íî obligation on the part of the judiciary to favor interpretations that render statutes consistent with the Constitution. Put differently, the legislature must be presumed to have acted in accordance with its constitutional obligations. II. RULING IS PREMISED ON AN UNCONSTITUTIONAL EXPROPRIATION AND CONTRAVENES DUTCH STATUTORY CONSTRUCTION PRINCIPLES The Summary Judgment Decision contravenes the Dutch Constitution in force in 1947, which imposed property. A. Expropriation of the Cranachs Would Have Violated the 1938 Constitution Stripped to its essence, the District Court held that Decree A6 rendered the coerced sale of the Cranachs to Göring null and void on the basis that it was a transaction with an enemy national; that the nullity was lifted as a result of the 1947 Decision; that upon the lifting of the nullity, the Dutch State automatically obtained ownership rights pursuant to Royal Decree E133; and that the only avenue available was through the process established by Decree E100. SJ Decision at Under this interpretation, the 1947 Decision effected an expropriation of the Cranachs from Goudstikker never ceased to be 13

19 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» ïç ±º íî the rightful owners of the paintings. 3 The Summary Judgment Decision, however, ignores any public law aspects of this presumed transfer of ownership of the Cranachs to the State. Consequently, outcome that does not comport with the Dutch constitutional requirements for expropriation that were in place at the time of the 1947 Decision. First, Article 158 of the Constitution of 1938 forbade the State from expropriating private property, that the general interest requires expropriation and unless the owner has been paid or assured just compensation prior t Add. 3 (Gw. [Constitution] art. 158 (1938)). The 1947 Decision does not comply with those two requirements. The State never issued a statutory declaration, and the Goudstikker heirs and similarly situated claimants were not paid just compensation prior to the 1947 Decision. The 1947 Decision itself does not explain that it effects a potentially large-scale expropriation, nor does it identify or even reference any general interest that would require such a drastic measure. 3 Although Article 158 of the 1938 Constitution did not define expropriation (onteigening favor of the expropriator, usually the government, when necessary for reasons of 160 (J.E.F.M. Den Drijver-van Rijckevorsel et al., Handboek Onteigening, at 1 (2016); see also Add. 25 (Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, Mar. 20, 1952, 213 U.N.T.S. 252, Art. 1) is possessions except in the public interest and subject to the conditions provided for by law and by the general 14

20 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» î𠱺 íî To the contrary, the 1947 Decision appears to have been drafted to preserve ownership claims by rightful owners. The preamble expressly notes that of [the automatic nullity resulting from Decree A6] would not prejudicially affect the question whether that property will return to the persons who were the owners at the time of the... agreement by virtue of the provisions on the restoration of E.R. 26. The same preamble clarifies that the automatic nullity, which was a penalty for violating the prohibition of transactions with the enemy, was no property into the Netherlands means that the original interest in that nullity no longer E.R. 25. The text of the 1947 Decision thus makes clear that with the limited mandate that was provided to CORVO in Decree A6 consistent CORVO intended simply to lift the automatic nullity that had been imposed on certain transactions related to recuperated property, not to affect the substantive rights of those who had lost their property as a result of looting or coerced sales. The State also did not pay just compensation, nor was any assurance made that such compensation was assured. The 1947 Decision, in other words, does not bear the indicia of an expropriation. Moreover, as discussed supra, at 9, shortly after the end of the occupation, representatives of the Dutch government expressly disclaimed any ownership over recuperated property based on Decree E

21 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» îï ±º íî Second, while Article 158 excused the requirement of prior compensation or assurance of compensation in certain emergency situations including war, no such emergency situation was present when CORVO issued the 1947 Decision, two years after the Second World War and the German occupation of the Netherlands had ended. Third, there is no plausible reason why require[d] expropriation of personal property that rightfully belonged to survivors of the Nazi occupation and their heirs. Add. 3 (Gw [Constitution] art. 158 (1938)) (emphasis added). The 1947 Decision was, as noted, issued after the war had ended, and there were no other exigencies that required expropriation. In sum, the 1947 Decision provides no basis for concluding that CORVO intended to expropriate private property as to which non-enemy parties could validly claim ownership. The Dutch legislature did not enact prior legislation or pay just compensation; two years after the war had ended there were no exigent circumstances excusing non-compliance with these formal requirements; and there privately owned artworks at that time. Add. 3 (Gw. [Constitution] art. 158 (1938)). Consequently, the expropriation of the Cranachs in 1947 would have been unconstitutional. The implausibility of the inference that CORVO would have expropriated the Cranachs and similarly situated recuperated property in violation 16

22 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» îî ±º íî of the Dutch Constitution and without explaining this drastic measure undercuts B Decision Contravenes Principles of Statutory Construction The District n also flies in the face of a well-established canon of statutory construction under Dutch law. Under case law dating back as far as the 1860s, the Dutch legislature must be presumed to have acted in conformity with the Constitution. This statutory construction rule also applies to wartime Royal Decrees including the ones at issue on this appeal that set forth generally applicable rules. 1. Dutch Statutes Must Be Interpreted in Conformity with the Constitution The Netherlands is one of only a handful of constitutional democracies that prohibit the judiciary from striking down statutes that violate the Constitution. This prohibition, which in 1947 was set forth in the somewhat cryptic instruction in the Constitution Acts of Parliament are inviolable, Add. 5 (Gw. [Constitution] art. 124 (1938)), removes a powerful tool for reining in legislative and executive power. This has not left the Dutch Constitution toothless, however, because courts must still consider relevant constitutional provisions in applying statutes. As early as 1868, Gerard Belaerts van Blockland identified in an influential dissertation the crucial difference between judicial review for the purpose of determining whether a statute 17

23 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» îí ±º íî must be struck down which is prohibited and using the Constitution as a yardstick true meaning of a statute[,] not only allowed but often required. Add. 88 (G.J. Th. Belaerts van Blockland, The Inviolability of Acts of Parliament (1868)) (emphasis in original). He then noted that when faced with an ambiguous statute, a judge must determine the opt for the interpretation that is most compatible Id. Over the years, this principle of interpretation has appeared in decisions of the Dutch Supreme Court (Hoge Raad) as well as the highest administrative court, the Administrative Judicial Division (Afdeling Bestuursrechtspraak) of the Netherlands Council of State (the Raad van State). See Add. 101 (L.F.M. Besselink, Judicial Review in the Netherlands (2016)). Many of these cases involve questions about expropriation. Fittingly for the Netherlands, two early examples involved expropriation for the benefit of levees. The first case, decided in 1858, concerned a county government authority to compel private landowners to provide soil for levee repair. One landowner argued that this demand constituted an impermissible expropriation, because the county had not complied with the including regarding prior payment of compensation. (Onteigeningswet), The Dutch Supreme Court 18

24 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» îì ±º íî interest, in accordance with [the constitutional provision governing expropriation], and must therefore be interpreted in the spirit of Add. 39 (H.R. 19 Feb. 1858, Weekblad van het Regt, S. 1936) (emphasis added). The Court then considered that the Constitution expropriation provision only permitted the forcible taking of property under certain specified emergency situations. Interpreting the Expropriation Act in light of the constitutional restrictions, the Court held that since there was no immediate danger of extreme flooding, the county. Id. at The second case, decided in 1864, demonstrates the far-reaching implications of this principle of statutory construction. There, the Court considered which types of compensation were appropriate for expropriation of land, including previously built riverbank levees, in order to build a new levee system. A local Board that had built and maintained the riverbank levees that would be destroyed to make room for the levee system demanded compensation to cover the costs involved in re-building these levees. The State argued that such damages were precluded, including because they were not among the categories of compensable damages listed in the Expropriation Act. The Dutch Supreme Court held that the provisions in the Expropriation Act that prescribed rules for calculating damages had to be interpreted as not providing an exclusive basis for damage calculations. In so ruling, the Court 19

25 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» îë ±º íî of all damages that are an immediate and necessary consequence of the this interpretation is compelled by Article 147 of the Constitution Add. 46 (H.R. 23 Dec. 1864, Weekblad van het Regt, S. 2652) (emphasis added). In two more recent decisions, the Administrative Judicial Division was careful to distinguish between impermissible judicial review and the mandated use of the Constitution for guidance in applying statutes to particular cases. The are reminiscent of articulation of this distinction a centuryand-a-half earlier: As an initial matter, due to the prohibition on judicial review set forth in Article 120 of the Constitution, the starting point must be that Acts of Parliament cannot be held to violate the Constitution. But this leaves undisturbed the requirement that, when the application of a formal statute to a specific case leaves room for different results, the court must in applying the statute interpret it so as to render it consistent with the Constitution. Add. 58 (Afdeling Bestuursrechtspraak 24 July 2002, ECLI:NL:RVS:2002:AE5780, at 2.6); see also Add. 65 (Afdeling Bestuursrechtspraak 14 Sept. 2011, ECLI:NL:RVS:2011:BS8847, at 2.9.1) (same). 2. The Interpretative Rule Applies to the Relevant Royal Decrees and the 1947 Decision As described supra, at 6, Decree A6 was adopted by the Dutch government while it was in exile in London. Of course, the government was unable to enact Acts 20

26 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» îê ±º íî of Parliament, as the process for doing so requires parliamentary adoption of a bill, and there was no functioning Parliament during the occupation. Relying on unwritten constitutional emergency law (subjectieve staatsnoodrecht), the government in exile issued several Royal Decrees, which became effective upon being signed by the King and at least one minister. Shortly after the Netherlands was liberated, questions about the validity and status of the wartime Royal Decrees arose. In a 1946 decision, the Dutch Supreme Court held that the wartime Royal Decrees, to the extent that they addressed matters that could not await the restoration of Parliament, had the full force of formally issued legislation. As a result, their reviewability by the courts was limited to the inquiry of whether issue the Decree] cannot possibly be said to have existed. 4 Add. 54 (H.R. 30 Oct. 1946, NJ 1946, 737). At issue in the 1946 decision was Decree E93, which like Decree A6 had been issued without parliamentary approval under the emergency 4 promulgation of the Decree on Measures Taken During the Occupation in September 1944, joint exercise of legislative power by the Queen and Parliament was impossible; that under those circumstances, the Crown [i.e., the Queen together with the responsible minister], is authorized to promulgate legislative measures that cannot await the restoration of cooperation between the government and Parliament, inasmuch these are necessary under the circumstances; [and] that the decision that such a necessity exists is a matter of government policy that cannot be reviewed by a court of law, whose authority is limited to denying legal effect to legislative 54 (H.R. 30 Oct. 1946, NJ 1946, 737). 21

27 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» îé ±º íî regime and authorized certain measures taken during the occupation. Over the expropriated objections regarding its constitutionality, the Court applied a set of rules issued under Decree E93, which provided for reduced compensation for property expropriated during wartime compared to the amount to which the owner would have been entitled under the Expropriation Act. Add (H.R. 30 Oct. 1946, NJ 1946, 737). Thus, even though Article 124 of the Dutch Constitution which prohibited judicial review as of 1947 only references Acts of Parliament (wetten), the Dutch Supreme Court has also shielded wartime Royal Decrees from judicial review, leaving only a narrow exception for any Decrees as to which a court would find that a necessity to issue the Decree cannot possibly be said to have existed; something no court has ever held. The Adjudicatory Body (Afdeling Rechtspraak) of the Council for Restoration of Rights, which was tasked with the distribution of recuperated goods, confirmed the understanding that the constitutionality of the wartime Royal Decrees including Decree E100, which was at issue in that case cannot be reviewed. In a decision issued in 1949, the Adjudicatory Body considered -called Legislative Decrees based on the wartime emergency regime, of which the general applicability has been 22

28 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» îè ±º íî Add. 84 (Raad voor het Rechtsherstel, June 27, 1949, Rechtsherstel VI). Decree A6 was therefore subject to the prohibition on judicial review and its corollary presumption that the legislature must have intended to act in conformity with the Constitution. The same is true for the 1947 Decision, which similar to the set of rules considered by the Dutch Supreme Court in the 1946 case is an executive application of power specifically granted by Decree A6. Consequently, the 1947 Decision must also be interpreted so as to be consistent with the Constitution. The Dutch government in exile cannot be presumed to have authorized CORVO to expropriate property in a manner that is wholly inconsistent with, and indeed in flagrant violation of, the constitutional requirements for such a drastic measure. CONCLUSION For the reasons described in this amicus brief, the outcome that results from A6 and A133 would have violated the constitutional provision on expropriation. Dutch principles of statutory construction militate against this result, and instead strongly favor an alternative interpretation under which, after the 1947 Decision, the Dutch State continued to hold consistent with its constitutional obligations recuperated property that had fallen into enemy hands as a result of looting or 23

29 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» îç ±º íî coerced sales as a custodian for lawful owners. Therefore, Professor Leonard F.M. Besselink, as Amicus Curiae for Plaintiff-Appellant Marei Von Saher, requests that this Court reverse the decision of the District Court. Dated: March 27, 2017 Respectfully submitted, By: /s/ Susan J. Kohlmann Susan J. Kohlmann Susan J. Kohlmann Irene M. Ten Cate Ava U. McAlpin JENNER & BLOCK LLP 919 Third Avenue New York, NY Tel: (212) Counsel for Amicus Curiae Professor Leonard F.M. Besselink 24

30 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» í𠱺 íî CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 29(a)(5) and 32(a)(7)(B) and Ninth Circuit Rule 32-1 because this brief contains 5,494 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in proportionally-spaced typeface using Microsoft Word with 14- point Times New Roman font. Dated: March 27, 2017 Respectfully submitted, By: /s/ Susan J. Kohlmann Susan J. Kohlmann Counsel for Amicus Curiae Professor Leonard F.M. Besselink 1

31 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» íï ±º íî CERTIFICATE OF SERVICE I hereby certify that on Monday, March 27, 2017, I caused the foregoing to be electronically filed with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system, which also caused a copy of the foregoing to be delivered by electronic means to counsel for the parties listed below. Laura G. Brys, Esq. MCGUIREWOODS LLP 355 S. Grand Avenue Suite 4200 Los Angeles, CA Lawrence M. Kaye, Esq. Howard Neil Spiegler, Esq. Frank Knight Lord, IV, Esq. Darlene B. Fairman, Esq. HERRICK, FEINSTEIN LLP 2 Park Avenue New York, NY Edward Gartenberg, Esq. Milena Dolukhanyan, Esq. GARTENBERG GELFAND HAYTON & SELDEN LLP 801 South Figueroa Street Suite # 2170 Los Angeles, CA Counsel for Plaintiff-Appellant 1

32 Ý»æ ïêóëêíðèô ðíñîéñîðïéô Üæ ïðíéíëëïô ܵ Û² æ ïêóîô Ð ¹» íî ±º íî Luis Li, Esq. Ronald L. Olson, Esq. Fred Anthony Rowley, Jr., Esq. Eric P. Tuttle MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue 50th Floor Los Angeles, CA Counsel for Defendants-Appellees /s/ Susan J. Kohlmann Susan J. Kohlmann Counsel for Amicus Curiae Professor Leonard F.M. Besselink 2