Tag Archives: Washington

Burden on Art Theft Victims in 1st and 9th Circuits

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In at least two recent federal court decisions, the burden for discovery of lost art works has been found to be on the victim of the art theft.

The First Circuit¹ stated that summary judgment is appropriate to dismiss a case where a plaintiff does not bring a claim within the requisite statutory time. Museum of Fine Arts, Boston v. Seger-Thomchitz, 623 F.3d 1, 9 (1st Cir. 2010). Under Massachusetts law of discover, the plaintiff Seger-Thomschitz had to bring her cause of action within three years of findint out she possibly had a claim for the stolen art. Id. at 6. At best, Seger-Thomschitz was apprised of a possible right to recover the painting in question no later than the fall of 2003, when she was apprised of Vienna’s decision to return to her “as the sole heir of Oskar Reichel” four artworks in their collection by the artist Anton Romako. Id. at 9. The plaintiff did not demand the return of the Painting from the museum until March 12, 2007 and therefore was barred at summary judgment from presenting her case to a jury.

The Painting had been on public display at the Museum of Fine Art (MFA), Boston, a major international museum, for over 25 years, and was listed in several publicly available provenance databases (websites) that listed the MFA as its current holder. Id. at 7.

On the question of federal law (and policy), the court found that Massachusetts law was not in clear conflict with federal policies encouraging rightful return of Nazi-era goods to their rightful owners. Id. at 13. (there was no express federal policy disfavoring overly rigid timeliness requirements). Accordingly, it was not appropriate for the court to allow the federal policies to not override the Massachusetts statute of limitations. Id. at 13.

A similar pronouncement was put forth by the Ninth Circuit² in Orkin v. Taylor, 487 F.3d 734 (9th Cir. 2007), cert. den., 552 U.S. 990 (2007). The Orkin court stated that the “torts asserted here are undoubtedly causes of action that are traditionally relegated to state law,” and that a federal remedy in this case “would be inappropriate under” Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). In Cort, the Supreme Court established a four-factor test for discerning whether a federal statute creates a private right of action. None of these factors were in favor of the plaintiff, Orkin.

In Jolly v. Eli Lilly & Co., the California Supreme Court held that, under California’s discovery rule, “[a] plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her.” 44 Cal.3d 1103, 1109, 245 Cal.Rptr. 658, 751 P.2d 923 (1988). Under the discovery rule, a cause of action accrues when the plaintiff discovered or reasonably could have discovered her claim to and the whereabouts of her property.

In assessing California law, the court conclude that it is “highly unlikely that the California Supreme Court would abandon the Jolly rule, much less adopt a new rule that eschewed the concept of constructive notice.” Under Jolly, the latest possible accrual date of the Orkins’ cause of action was the date on which they first reasonably could have discovered, through investigation of sources open to them, their claim to and the whereabouts of the van Gogh painting – 1990 when Elizabeth Taylor auctioned the painting in a highly publicized auction.

¹The First Circuit interprets federal law for Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island.

²The Ninth Circuit covers Arizona, Nevada, California, Oregon, Washington, Alaska, Idaho, Montana and Hawaii.

Washington Shield Law for Journalists?

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Washington is not one of the states that has a shield law in its statutes (i.e., in the Revised Code of Washington or the RCW’s). However, the Washington constitution provides some protection for journalists. In particular, Article I, Section 5, titled Freedom of Speech, states in relevant part that “[e]very person may freely speak, write and publish on all subjects” and states that everyone is “responsible for the abuse of that right.”

At least one Washington court has suggested that this constitutionally explicit protection of the right to “write” in addition to the right to “publish” suggests an intention to create a broader right than is available under the First Amendment of the U.S. Constitution. See State v. Rinaldo, 36 Wn. App. 86, 91-102, 673 P.2d 614 (1983), aff’d on other grounds, 102 Wn.2d 749, 689 P.2d 392 (1984).

Otherwise, there is scant Washington case law on the topic. One court recognized, without discussion, that a journalist had a First Amendment privilege to resist disclosure of interview notes pursuant to a subpoena duces tecum. This case was In the matter of the request of: Plaintiffs Alfredo Azula et al., 29 Med. L. Rptr. 1414 (Wash. App. 2001). The court stated that where “disclosure of evidence is opposed on the basis of a privilege, an in camera review is the only way a court can determine whether a document is exempt from disclosure or sufficiently relevant” to merit disclosure.

In summary, the principle for protecting journalists is based on the First Amendment. This principle can trump the obligations imposed by the civil discovery process. In one state court case, the Washington Supreme Court recognized that a First Amendment privilege may be interposed to resist civil discovery requests. Snedigar v. Hoddersen, 114 Wn.2d 153, 786 P.2d 781 (1990). This case involved a political party’s refusal to name members and donors. This case suggests that a journalist’s privilege can be rooted in a broader First Amendment context in appropriate circumstances.

A more orderly analysis of this topic is provided by the Reporters Committee for Freedom of the Press and in the Guide to Journalist Shield Laws by Meghan Martin and Larry Larsen.