A 2-1 Ninth Circuit panel has asked the California Supreme Court to help out in a long-running case that it says involves “particularly thorny and substantial” issues about the ownership of a Camille Pissarro painting the Nazis forcibly took from a German Jewish family in 1939.

Photo of Pissaro painting in appendix to U.S. Supreme Court opinion

The federal court’s Monday order in Cassirer v. Thyssen-Bornemisza Collection Foundation queries “how the comparative impairment analysis, the third step in California’s choice-of-law test, applies in a situation where, under the laws of California, a person may not acquire title to a stolen item of personal property (because a thief cannot pass good title, and California has not adopted the doctrine of adverse possession for personal property), while under the conflicting laws of Spain, a person may acquire title to a stolen item of personal property by means of adverse possession.” The specific question is “[w]hether . . . California’s or Spain’s interest is more impaired” by applying California’s rule.

The appeal has been before the Ninth Circuit numerous times, most recently on remand from the U.S. Supreme Court, which held last year that the dispute must be determined by “applying the forum State’s choice-of-law rule, not a rule deriving from federal common law.” (Cassirer v. Thyssen-Bornemisza Collection Foundation (2022) 142 S.Ct. 1502, 1506.)

The dissenting Ninth Circuit judge says the California Supreme Court’s input is unnecessary because “application of [California law] to the facts of this case is straightforward.” He claims “there is a ‘false conflict’ ” between Spanish and California law and that Spanish law should apply because only Spain “has taken a clear stance” on the property law at issue. Even if there were a true conflict, the dissenter asserts, “the comparative impairment analysis . . . clearly favors the choice of Spanish law.” He concludes, “When we certify non-determinative, nonnovel questions like the majority does today, we deplete our reservoir of comity by wasting the California Supreme Court’s time and resources.”

The California Supreme Court docketed the case yesterday. It should let the Ninth Circuit know by late July — give or take — whether it will answer the question. It has granted 20 of the last 21 requests, dating back to July 2018.  The lone denial during that time was in October 2019.

[August 9 update: Supreme Court turns down the Ninth Circuit in Nazi painting case.]


Rule 8.548

Asked and answered:  California Supreme Court responses to Ninth Circuit questions

The constitutionality of the Supreme Court answering the Ninth Circuit’s legal questions

Ask not what the Supreme Court can do for the Ninth Circuit

Justice Kruger and Judge Owens talk about the Supreme Court answering Ninth Circuit questions

The shadow docket . . . of California’s Supreme Court, part 2