Amicus Curiae Brief — Von Saher v. Norton Simon Museum of Art

(2) Supreme Court, U.S.

FILED

Nos09-1254 MAY 1 1 2010

In The OFFICE OF THE CLERK

Supreme Court of the Gnited States

MAREI VON SAHER,

Petittoner,

V.

NORTON SIMON MUSEUM OF ART AT PASADENA,

NORTON SIMON ART FOUNDATION, and

THE NORTON SIMON FOUNDATION,

Respondents.

Sd

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

*

BRIEF OF AMICI CURIAE BET TZEDEK LEGAL

SERVICES, SIMON WIESENTHAL CENTER,

AMERICAN JEWISH COMMITTEE, AMERICAN

JEWISH CONGRESS AND THE JEWISH

FEDERATION COUNCIL OF GREATER

LOS ANGELES IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

¢

FRANK KAPLAN*

HEATHER L. RISTAU

KRISTEN GRACE HILTON

SARA EPSTEIN

BINGHAM MCCUTCHEN LLP

The Water Gardens

1620 26th Street

Fourth Floor, North Tower

Santa Monica, CA 90404

(310) 907-1000

Frank. Kaplan@bingham.com

Attorneys for Amici Bet Tzedek Legal Services,

Simon Wiesenthal Center, American Jewish Committee,

American Jewish Congress and The Jewish

Federation Council of Greater Los Angeles

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIA oicscssccscsesvecpecserens 1

ARGUMENT uo cenccieicene eee 4

Me tg 658 8 bey 8) Re eee re 4

Il. THE FOREIGN AFFAIRS POWER HAS

ITT.

BEEN CONSISTENTLY APPLIED AND

USED SPARINGLY TO PREEMPT STATE

A. Pre-Garamendi Cases Other Than

Zschernig Have Relied On Conflict

PYOGMRUION ...5isi500- ree

B. The Garamendi Decision Confirmed The

Narrow Scope Of Dormant Or Field

Preemption In The Area Of Foreign

Affairs And Adopted And Applied A Con-

flict Preemption Analysis In Invalidat-

ing A State Statute Intended To Benefit

Holocnuist Surv ivOre sccecicsciccssassvessiveieaens

VON SAHER MISAPPREHENDED AND

MISAPPLIED GARAMENDI AND_ ITS

PROGENY, RESULTING IN AN EXPAN-

SIVE, AND LEGALLY INCORRECT, IN-

TERPRETATION OF FOREIGN AFFAIRS

PRE 1 PIM ces ssvedssiscastebestastraeeee a

UNLESS REVERSED BY THIS COURT,

VON SAHER THREATENS TO OPEN

STATE LAWS TO FOREIGN AFFAIRS

ATTACKS ON MATTERS THA? ARE NOT

IN CONFLICT WITH FEDERAL LAW OR

EXPRESSED POLICY AND DO NOT CRIT-

ICIZE FOREIGN GOVERNMENTS............

10

13

TABLE OF CONTENTS — Continued

Page

A. The Ninth Circuit’s Test Is Vague And

Subjective And Makes The Courts Rather

Than The Executive Or Congress The

Primary Arbiters Of When States Have

Improperly Intruded Into Foreign Af-

ee tino eNecnkdpaunesnusieniesaceseennecesaeins 20

B. The Ninth Circuit’s Expanded Dor-

mant Foreign Affairs Preemption Test

Will Subject A Broad Range Of Socially-

Motivated State Laws To Preemption

DEIN vss ccvsssvocnesscossesssercessconssecsens paused 23

TUTE EA IIR ce sscnsvenesssvsscessccsssessccesonnscesenses 27

1

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Am. Ins. Ass’n v. Garamendi, 539 U.S. 396

(BOG Fisicissveicccsreuinscd Gaal e ee passim

Beaty v. Republic of Iraq, 480 F. Supp. 2d 60

(SNES. Be inmnsiddintncsnen eee 12

Camps Newfound/Owatonna, Inc. v. Town of

Harrison, 520 U.S. 564 (1997)..................ccccccossssees 13

Central Valley Chrysler-Jeep, Inc. v. Goldstene,

529 F. Supp. 2d 1151 (E.D. Cal. 2007).................... 12

Clark v. Allen, 331 U.S. 503 (1947)............ccccocsevsssocees 8

Crosby v. National Foreign Trade Council, 530

CF eas See Ce iceecscAdaccna eee Pe

Cruz v. United States, 387 F. Supp. 2d 1057

iN.D. Cal S008)... 910, 12

Dames & Moore v. Regan, 453 U.S. 654 (1981)........... 7

Doe v. Exxon Mobil Corp., 2006 WL 516744

(D.53:C; Be Se cee 12

Garcia v. San Antonio Metro. Transit Auth.,

GGG 12.25. Cine Ce eas acct eee ee 21

Green Mt. Chrysler Plymouth Dodge Jeep v.

Crombie, 508 F. Supp. 2d 295 (D. Vt. 2007)........... 12

Hines v. Davidowitz, 312 U.S. 52 (1941) ......ooe ee. 7

Natl Foreign Trade Council v. Natsios, 181

F.3d 38 (1st Cir. 1999), aff’d sub nom. Crosby

v. National Foreign Trade Council, 530 U.S.

SE | neem pr Ban AEA S ACTEEAT 2REAC UAREEh Es Ans 8

iV

TABLE OF AUTHORITIES — Continued

Page

Tayyart v. New Mexico State University, 495

F. Supp. 1365 (D.N.M. 1980) .......................... seer ase 9

Trojan Techs. v. Pennsylvania, 916 F.2d 903 (3d

ne Ne a ee eae ec) 3)

United Haulers Ass’n v. Oneida-Herkimer Solid

Waste Mgmt. Auth., 550 U.S. 330 (2007)................ 21

United States v. Belmont, 301 U.S. 324 (1937)............ 6

United States v. Curtiss-Wright Export Corpo-

PALION, BOO U.S. SOE CLGDGS) ox ccccescsccscccscsecescscss svvsceccess 7

United Siates v. Pink, 315 U.S. 203 (1942)... 7

Zschernig v. Miller, 389 U.S. 429 (1968) ........... passim

STATE CASES

New York Times Co. v. City of New York

Comm’n on Human Rights, 361 N.E.2d 963

Bosc, ie eden dad aekehnetsc ee eer ms)

Springfield Rare Coin Galleries, Inc. v. John-

son, 503 N.E.2d 300 (Ill. 1986) ....0.0.000. ee 9

STATE STATUTES

California Code of Civil Procedure §337.15............... 17

California Code of Civil Procedure §340.7................. 17

California Code of Civil Procedure §352.1................. 17

Californie Code of Civil Procedure §354.3.......3, 13, 16

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

Daniel A. Farber, Climate Change, Federalism,

and the Constitution, 50 Ariz. L. Rkv. 879,

II os sngccaranenponssr-aecsuiepeunenceadpemotentersarcavantsas 27

Iirnest A. Young, Preemption and Federal Com-

mon Law, 83 NoTRE DAME L. REv. 1639, 1676

i Do. 5 na v0s aecaeucaceteesunsenensespcaceseries 23, 24

J. Christian Kennedy, Special Envoy for Holo

caust Issues, The Role of the United States in

Art Restitution, Remarks at the Conference

in Potsdam, Germany (April 23, 2007), http://

germany.usembassy.gov/kennedy_speech.html........ 14

Jack L. Goldsmith, Yederal Courts, Foreign Af-

fairs, and Federalism, 83 Va. L.. Rev. 1617

eee er ot ea, ep 20, 22, 23, 24, 25

Judith Resnik, Foreign as Domestic Affairs: Re-

thinking Horizontal Federalism and Foreign

Affairs Preemption in Light of Translocal In-

ternationalism, 57 EMORY L.J. 31, 84 (2007).....20, 26

Nick Robinson, Citizens Not Subjects: U.S. For

eign Relations Law and the Decentralization

of Foreign. Policy, 40 AKRON L. Rkv. 647, 686

SEN Dorcas cvcdolac cane geneacser ands vubpandivsest pias acer esintusd passim

Note: Foreign Affairs Preemption and State

Regulation of Greenhouse Gas Emissions, 119

HARV. I.. REV. 1877, 1896 (2006)................000.... 21, 26

Peter J. Spiro, Foreign Relations Federalism,

70 U. Coo. L. Rev. 1223, 1242 (1999)..................... 9

Bet Tzedek Legal Services (“Bet Tzedek”), the

Simon Wiesenthal Center, the American Jewish

Committee, the American Jewish Congress, and the

Jewish Federation Council of Greater Los Angeles

(“Jewish Federation”) (collectively “Amuicz”) submit

this Brief as amici curiae in support of Petitioner

Marei Von Saher’s Petition for Writ of Certiorari.

$$$ —___—_— 2 ___—

INTEREST OF AMICI CURIAE

Bet Tzedek, “The House of Justice,” is a non-

profit legal services agency that, since 1974, has been

providing free legal representation to thousands of

low-income residents throughout Southern California.

It is one of the only organizations in the United

States regularly representing Holocaust survivors,

having represented more than 800 such clients in

their efforts to assert claims under vamous repara-

tions programs, United States-based litigation, and

other humanitarian relief programs administered by

various international funds or governments.

‘ Counsel of record for all parties received notice at least 10

days prior to the due date of the amici’s intention to file this

brief; all counsel have consented to the filing of this bnef and

the consent letters have been filed with the Clerk of the Court

with this brief. No counsel for any party authored this brief in

whole or in part, and no person or entity, other than the amici

curiae, their members, or counsel, made a monetary contribu-

tion to the preparation or submission of this brief.

The Simon Wiesenthal Center is an advocacy

organization that has particular expertise in the

prosecution of Nazi War criminals and is dedicated to

the vindication of the rights of Holocaust survivors.

Through counsel, it is a signatory to an agreement

that resolved a major piece of Holocaust litigation in

the 1990's. In addition, the Simon Wiesenthal Center

has sponsored a conference on property and art resti-

tution.

The American Jewish Committee (“AJC”) is an

international human relations organization, founded

in 1906 to protect the civil and religous rights of

Jews, and to combat anti-Semitism and other bigotry.

It maintains regional offices in major cities nation-

wide, as well as eight overseas. AJC has a long

history of active involvement with restitution and

indemnity claims on behalf of Holocaust survivors. It

has played an integral role in advocating for resti-

tution and the return of assets to Holocaust survivors

and their heirs.

The American Jewish Congress is an organiza-

tion founded in 1918 to protect the civil, religious,

political and economic rights of American Jews. Since

the early 1950's, the American Jewish Congress has

participated in many lawsuits seeking restitution of

property stolen from Jews by the Nazis.

The Jewish Federation is the central organizing,

planning and fundraising organization for the Los

Angeles Jewish Community. The Jewish Federation

ov

identifies and funds social service, educational and

humanitarian needs locally, in Israel and around the

world. Providing for the needs of Holocaust survivors

and their families has long been a core priority of the

Jewish Federation.

Amici bring a unique point of view to ihis case

and are qualified to assist this Court in its decision.

Through their work with Holocaust victims and their

heirs, Amici have witnessed the tremendous difficul-

ties involved in identifying, locating and recovering

property that was seized, stolen or confiscated during

World War II. The problems are further compounded

by the assertion of numerous purported legal barriers

to the recovery of the property.

Cahtornia has specifically recognized the state

interest in alleviating the hardship faced by Holo-

caust victims and their heirs in recovering artwork

taken from the victims. It has done so in part by

enacting California Code of Civil Procedure section

354.3, a statute that simply affords victims and their

heirs the opportunity to pursue the recovery of their

artwork from museums and galleries until 2010.

rather than binding them to general statutes of limi-

tations that, in many cases and through no fault of

the victims, may have expired years or decades ago.

Amici strongly believe that statutes such as section

354.3 promote important <tate interests and are not

preempted by the federal government’s foreign affairs

power.

ARGUMENT

I. INTRODUCTION

This Court recognized in Am. Ins. Ass'n

Garamendi, 539 U.S. 396 (2003) (“Garamendi”) that.

properly understood, preemption of state laws based

on the federal government's foreign affairs power

occurs only in two limited circumstances: (1) where

the state law conflicts with a treaty, federal statute,

executive agreement, or express federal policy, or

(2) in those rare instances where even though the

federal government has not acted, a state statute

criticizes, or fosters criticism of. a foreign govern-

ment. Cases decided both before and after Garamendi

have also carefully confined foreign affairs preemp-

tion to one of these two circumstances. And for good

reason, since tb scope of the federal government's

foreign affairs power is not clearly defined in the

Constitution and, unless properly tethered, could

usurp many laws and regulations traditionally within

the states’ competence.

The Ninth Circuit's decision in Vor Saher v.

Norton Simon Museum of Art at Pasadena, 592 F.3d

954 (9th Cir. 2010) (“Von Saher”) invalidated a state

Statute of limitations for certain property claims

despite the absence of any conflict with federal law or

policy and notwithstanding the lack of any state

criticism of a foreign government. Instead, the panel

majority crafted a new and expanded dormant foreign

affairs preemption power that has never been rec-

ognized by this or any other Court

This unwarranted extension of foreign affairs

preemption far beyond the carefully delineated

boundaries established by this Court reflects a

fundamental misunderstanding of this Court’s foreign

affairs jurisprudence. Unless reversed, Von Saher

threatens to upset the previously existing balance

between federal and state law and to legitimize

broadside dormant “foreign affairs” attacks on state

law never before permitted. Given the increased

globalization of modern society and ordinary business

affairs. there is a significant risk that Von Saher-

styled foreign affairs preemption could be used as a

pretext to challenge a variety o* otherwise unob-

jectionable state laws.

To preserve the narrow framework for foreign af-

fairs preemption adopted by this Court and followed

by all other courts except the Ninth Circuit panel in

Von Saher, this Court should grant certiorari. Since

the Ninth Circuit found no conflict between the state

statute and federal law or policy, this Court should

then reverse the Ninth Circuit decision and order the

case remanded to the District Court for further

procee dings on the merits of Petitioner's claims.

Lh. THE FOREIGN AFFAIRS POWER HAS

BEEN CONSISTENTLY APPLIED AND USED

SPARINGLY TO PREEMPT STATE LAW

This Court and others have described the federal

government's foreign affairs power in broad terms.

Nevertheless, a review of the leading cases decided by

6

this Court reflects a constrained and consistent view

of when that federal power ought to preempt state

law or other state conduct. More specifically, in vir-

tually all the decisions of this Court implicating

foreign affairs, the federal government has affirma-

tively acted, and the courts have employed a conflict

preemption analysis to resolve the issue. In only

one case, Zschernig v. Miller, 389 U.S. 429 (1968)

(“Zschernig”), has this Court gone outside that con-

flict analysis and instead relied on a dormant foreign

affairs preemption, not requiring any conflict or,

indeed, any activity by the federal government what-

soever, to invalidate state action.

The Zschernig case, however, was based on very

unique facts and, until Von Saher, had been confined

to those facts. Von Saher has now extended Zschernig

and this Court’s much more recent Garamendi deci-

sion and has dangerously opened the door to an

expansive dormant foreign affairs preemption of state

law that could have wide-ranging negative implica-

tions.

A. Pre-Garamendi Cases Other Than

Zschernig Have Relicd On Conflict

Preemption

Pre-Garamendi cases other than Zschernig were

consistent in their use of conflict preemption to

invalidate state laws or conduct that interfered with

the federal government’s foreign affairs power. In

United States v. Belmont, 301 U.S. 324 (1937) and

~.

United States v. Pink, 315 U.S. 203 (1942), this Court

gave preemptive effect to an executive agreement rec-

ognizing the government of the Soviet Union, thereby

barring conflicting state policies regarding the legal-

ity of Soviet expropriation of foreign property. Around

this same period, this Court engaged in a traditional

Article VI Supremacy Clause analysis to hold that the

federal Alien Registration Act, 54 Stat. 670, ch. 439

(1940), preempted Pennsylvania's conflicting Alien Reg-

istration Act. Hines v. Davidowitz, 312 U.S. 52 (1941).

Later, in Crosby v. National Foreign Trade Council,

530 U.S. 363 (2000), this Court concluded that a

federal statute prescribing limited economic sanctions

against Burma (now Myanmar) preempted a similar

but more restrictive regulation by Massachusetts.”

These decisions each involved federal govern-

ment action and each reflected a determination that

the federal government's action when dealing with

foreign affairs had supremacy over state law or

conduct that conflicted or interfered with the federal

government's exercise of power. By contrast, only a

‘In United States v. Curtiss-Wright Export Corporation,

299 U.S. 304 (1936), the Court upheld a criminal charge of

conspiracy to sell arms of war to a foreign government in

violation of a joint resolution of Congress. Later, in Dames &

Moore v. Regan, 453 U.S. 654 (1981), this Court addressed the

effect of emergency executive orders made pursuant to an

executive agreement, impliedly consented to by Congress, that

ended the Iran hostage crisis of 1980. Based on those orders,

this Court nullified a prejudgment attachment of assets of

certain Iranian banks and suspended the common law claims of

American nationals against Iran.

8

single decision of this Court, Zschernig, has appeared

to recognize a dormant federal foreign relations

preemption that excludes states from certain foreign

relations activity even in the absence of conflicting

federal activity. Zschernig, however, is limited to the

distinct circumstance of a state law that, when ap-

plied, fostered criticism and hostility toward foreign

governments.

In Zschernig, this Court invalidated an Oregon

inheritance statute that prevented residents of for-

eign countries from inheriting through Oregon

estates unless their government granted reciprocal

rights to Oregon residents. Earlier, this Court had

upheld a similar California statute, dismissing a

claim based on the foreign affairs effects of the stat-

ute as “farfetched.” Clark v. Allen, 331 U.S. 503, 517

(1947) (“Clark”). But in Zschernig, this Court became

concerned that the Oregon statute and others like it,

as applied, had become a vehicle for inflammatory,

“Cold War” criticism of foreign governments -

especially Communist governments — by the states.

389 U.S. at 433-35, 439, 440 & nn.6,8.

It was not the existence of reciprocal inheritance

statutes that caused the problem in Zschernig (or

else Clark would have been decided differently), but

rather the critical, hostile way that they were ap-

plied. Later cases confirm this reading, applying

Zschernig by assessing whether the challenged stat-

ute, on its face or as applied, criticizes or shows

hostility toward foreign governments. See, e.g., Nat'l

Foreign Trade Council v. Natsios, 181 F.3d 38, 56 (1st

9

Cir. 1999), aff’d sub nom. Crosby v. National Foreign

Trade Council, 530 U.S. 363 (2000); Trojan Techs. v.

Pennsylvania, 916 F.2d 903, 913-14 (38d Cir. 1990)

(upholding under Zschernig a state commercial regu-

lation disadvantaging foreign business but not target-

ing any country or group of countries); Cruz v. United

States, 387 F. Supp. 2d 1057, 1075 (N.D. Cal. 2005)

(holding that a California law, which lifted the bar of

the statute of limitations for certain claims filed by

“braceros” and their heirs, was not preempted under

the foreign affairs doctrine, and noting that Zschernig

has been “applied sparingly”); see also Peter J. Spiro,

Foreign Relations Federalism, 70 U. Coio. L. REv.

1223, 1242 (1999) (observing that the Zschernig

decision “seems both explained and justified [at least

at the time] by its Cold War context”).

Zschernig has largely been applied to invalidate

state regulations that amounted to embargoes or

boycotts aimed at coercing foreign states to alter their

political and social policies. See, e.g. Springfield Rare

Coin Galleries, Inc. v. Johnson, 503 N.E.2d 300 (Ill.

1986) (striking down Illinois tax provision that dis-

criminated against South African coins, because “sole

motivation was disapproval of [South Africa’s] poli-

cies” and “encouraging a boycott” of South African

products); Tayyari v. New Mexico State University,

495 F. Supp. 1365, 13878 (D.N.M. 1980) (invalidating

state university's policy of excluding Iranian students

from admission in retaliation for the Iranian hostage

crisis); New York Times Co. v. City of New York

10

Comm'n on Human Rights, 361 N.E.2d 963 (NLY.

1977) (affirming reversal of municipal agency’s ruling

that newspaper advertisements for employment in

South Africa implicitly violated city antidiscrimi-

nation laws). Describing the limited reach of these

cases, another district court explained that “[iJn these

cases, the state enactments not only used state com-

mercial power as a tool of foreign policy, their mere

existence articulated state condemnation of a foreign

nation’s conduct by passing the statutes.” Cruz, 387

F. Supp. 2d at 1076.

B. The Garamendi Decision Confirmed The

Narrow Scope Of Dormant Or Field Pre-

emption In The Area Of Foreign Affairs

And Adopted And Applied A Conflict

Preemption Analysis In Invalidating A

State Statute Intended To Benefit Holo-

caust Survivors

In Garamendi, this Court invalidated on foreign

affairs preemption grounds a California statute that

compelled insurers and their affiliates to disclose

information regarding insurance policies issued in

Europe during the period between 1920 and 1945. In

so holding, the Court adopted and applied a conflict

preemption analysis, balancing the state’s regulatory

interest against the federal government’s expressed

foreign policy interest.

Significantly, the Court pursued a conflict pre-

emption analysis notwithstanding its belief that the

statute was enacted to assist Holocaust survivors in

11

vindicating Holocaust-era European insurance claims,

rather than serve a traditional consumer protection

interest. Garamendi, 539 U.S. at 425-26. In the

Court’s view, this perceived purpose did not doom the

statute on dormant or field preemption grounds; if

the statute had failed on those grounds, the Court

would have said so and would not have engaged in a

lengthy conflict preemption analysis. Instead, the

apparent weakness of the state’s regulatory interest,

when viewed “against the backdrop of traditional

state legislative subject matter”, was simply a factor

to be evaluated in determining the extent of conflict

with federal foreign policy. Id. at 425-27.

Before embarking on its conflict analysis, the

Garamendi Court discussed Zschernig. Although not

rejecting Zschernig’s dormant foreign affairs preemp-

tion (which the Court described as “field preemp-

tion”), the Court expressly confined the potential

outer boundaries of that preemption to a narrow

circumstance — namely, “lilf a State were simply to

take a position on a matter of foreign policy with no

serious claim to be addressing a traditional state

responsibility,” then field preemption “might be the

appropriate doctrine.” Garamendi, 539 U.S. at 420,

n.11 (emphasis added).

Indeed, to emphasize that it was not expanding

Zschernig, the Court discussed in some detail and

implicitly endorsed Justice Harlan’s concurring opin-

ion in Zschernig. See Garamendi, 539 U.S. at 418-20

& n.10. In his concurring opinion in Zschernig,

Justice Harlan had asserted that the majority’s view

12

of dormant foreign affairs preemption went too far.

Zschernig, 389 U.S. at 459. Instead, he said that he

would find preemption only where there was a

“conflicting federal policy,” and all of the cases he

cited as examples of “federal policy” preempting state

law involved statutes or treaties. Jd. at 458-59 &

n.25.

Later cases have all recognized that after

Garamendi, the linchpin of foreign affairs preemption

is “the existence of an actual conflict between the

state [statute] at issue and clearly articulated federal

policy.” Cruz, 387 F. Supp. 2d at 1075. See also

Central Valley Chrysler-Jeep, Inc. v. Goldstene, 529

F. Supp. 2d 1151, 1184 (E.D. Cal. 2007) (“The court

concludes that Zschernig, together with cases that

follow it, including Garamendi, hold that a party

asserting preemption on the ground of foreign policy

preemption must show ‘clear conflict’ between a state

law or program and the functioning of some agree-

ment, treaty, or program that is the product of

negotiations between the administrative branch and

a foreign government.”); Green Mt. Chrysler Plymouth

Dodge Jeep v. Crombie, 508 F. Supp. 2d 295, 396 (D.

Vt. 2007) (“Preemption is thus required under

Garamendi if the plaintiffs have demonstrated a clear

conflict between the state law and an express na-

tional foreign policy.”); Beaty v. Republic of Iraq,

480 F. Supp. 2d 60, 85-88 (D.D.C. 2007) (“Under

Garamendi, Iraq must identify a ‘conflict of a clarity

or substantiality that [varies] with the strength or

the traditional importance of the state concern

asserted.’”); Doe v. Exxon Mobil Corp., 2006 WL

516744 at *7-8 (D.D.C. March 3, 2006) (holding that

under the foreign affairs doctrine as articulated by

Garamendi, “state laws are preempted when there

is a conflict between the state law and the ‘exercise

of the federal executive authority,” and holding

Garamendi “simply not applicable” because “no state

vovernment has passed any statute in conflict with

U.S. foreign policy”).”

This settled law has now been abandoned by the

Von Saher decision. That decision has expanded for

eign affairs preemption far beyond its recognized

boundaries and, unless corrected by this Court,

threatens to undermine the careful balance between

state regulation and the federal government’s foreign

affairs power that has been followed by this Court.

Ill. VON SAHER MISAPPREHENDED AND MIS-

APPLIED GARAMENDI AND ITS PROGENY,

RESULTING IN AN EXPANSIVE, AND LE-

GALLY INCORRECT, INTERPRETATION OF

FOREIGN AFFAIRS PREEMPTION

California Code of Civil Procedure section 354.3

extends the statute of limitations on claims for the

This view 1s consistent with the fact that, as a general

matter, field preemption has been “frequently rejected” by this

Court “in the absence of statutory lanyuaye expressly requiring

it.” Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520

U.S. 564, 617 (1997) (Thomas, J., dissenting)

14

recovery of Holocaust-era artwork from museums or

galleries subject to jurisdiction in the state until

December 31, 2010. That extension, which implicitly

recognizes the difficulty inherent in identifying, lo-

cating, and making claims on such artwork, is con-

sistent with the federal government’s policy that such

artwork should be returned to their rightful owners,

through litigation if necessary. See J. Christian

Kennedy, Special Envoy for Holocaust Issues, The

Role of the United States in Art Itestitution, Remarks

at the Conference in Potsdam, Germany (April 23,

2007), http://germany.usembassy.gov/kennedy_speech.

html.

The statute is not directed at or critical of any

foreign country, does not create any right or claim

against any foreign government, and is_ instead

limited to actions for the recovery of artwork from

museums or galleries.

Respondent, a museum located in California, suc-

cessfully challenged the statute on foreign affairs

preemption grounds in the district court, and Peti-

tioner appealed to the Ninth Circuit. A majority of a

pancl of that court, while expressly finding that “|t|he

statute does not ... conflict with any current foreign

policy espoused by the Executive Branch” (592 F.3d at

963), nevertheless affirmed that the statute was

preempted under the foreign affairs doctrine.

This unprecedented result followed from the

majority's holding that even in the absence of a

conflict with federal policy or criticism of a foreign

15

government, the statute nonetheless “infringed on a

foreign affairs power reserved by the Constitution

exclusively to the national government” — i.e. it was

preempted by the federal government’s “dormant”

foreign affairs power. 592 F.3d at 964-68. The court

reached that remarkable conclusion by finding that

the statute’s subject matter was not in an area of

“traditional state responsibility” and was “therefore

subject to a field preemption analysis.” Jd. at 965.

The court acknowledged that California “has a

legitimate interest in regulating the museums and

galleries operating within its borders, and preventing

them from trading in and displaying Nazi-looted art.”

592 F.3d at 965. But, since the statute applied to any

museum or gallery subject to personal jurisdiction in

the state, including those located outside its borders,

the court divined that “California’s ‘real purpose’ was

to create a frienc:y forum for litigating Holocaust

restitution claims, open to anyone in the world to sue

a museum or gallery located within or without the

state.” Id.

The court then concluded that the federal govern-

ment’s “power to wage and resolve war” included “the

power to legislate restitution and reparation claims”

and that such power “has been reserved exclusively to

the national government by the Constitution.” 592

F.3d at 967. Since. according to the court, the stat-

ute’s “real purpose” intruded into this exclusive fed-

eral domain, California lacked the power to act. /d. at

967-68.

16

The Ninth Circuit’s analysis is fundamentally

flawed and not reconcilable with Garamendi. Unless

corrected, Von Saher will likely lead to unwarranted

preemptions of state law.

The majority in Von Saher began veering off the

road by attempting to determine whether the Cali-

fornia statute concerned a “traditional state respon-

sibility.” 592 F.3d at 964-65. Finding the statute too

broad (since it covered museums and galleries outside

the state), the court concluded that the statute was

not addressing a “traditional state responsibility” and

must therefore reflect an expression of California's

“dissatisfaction with the federal government's reso-

lution (or lack thereof) of restitution claims arising

out of World War II.” Jd. at 965. It followed, then,

according to the Ninth Circuit majority, that the

statute was invalid even in the absence of any conflict

with federal policy. Jd.

The Ninth Circuit’s perception that section 354.3

did not concern a “traditional state responsibility” is

unsupported. Such responsibilities surely include

legislation that allows and facilitates the recovery of

stolen property, and legislation that recognizes dis-

abling circumstances that might prevent the timely

filing of claims under more general statutes of

limitation. Other Calfornia statutes, for example.

expressly toll or extend the limitations period for

bringing lawsuits in situations where there might be

some impediment to the claim being brought within

the time period allowed by more general limitations

statutes. See, e.g., California Code of Civil Procedure

=~]

po!

$337.15 (establishing 10-year limitations period for

claims involving latent defects in real property):

California Code of Civil Procedure $340.7 (tolling

limitations period for Dalkon Shield claimants):

California Code of Civil Procedure $352.1 (tolling

limitations period for claimants who are imprisoned).

Nor does it follow that the breadth of the statute

disqualifies it as one concerning “traditional state

responsibilities” or converts it into a foray into foreign

affairs. Similarly. contrary to the Ninth Circuit's

apparent speculation, there is nothing to suggest that

the statute’s breadth reflects some dissatisfaction

with federal government restitution efforts. And

finally, even if some dissatisfaction with the federal

government was apparent from the statute, that fact

is not evidence of an interference with foreign affairs

that this Court has recognized as requiring pre-

emption.

But the real problem with Von Saher is this: even

if the scope, purpose or tradition of the state statute

are legitimate subjects of inquiry, the Ninth Circuit

considered and applied those factors to the wrong

preemption doctrine. Those factors. if relevant at all,

should only be evaluated in assessing whether there

is conflict preemption — whether there is a conflict

between the state statute and a treaty, federal stat-

ute, executive agreement or express federal policy.

“(I]t would be reasonable to consider the strength of

the state interest, judged by standards of traditional

practice, when deciding how serious a conflict must

be shown before declaring a state law preempted.”

18

Garamendi, 339 U.S. at 420. See also Garamendi. 539

U.S. at 425-27. The Ninth Circuit expressly found no

conflict in Von Saher.

Those factors should not be emploved. where

there is no conflict and no criticisn of a foreign gov-

ernment, to invalidate a state statute on dormant

(field) foreign affairs preemption grounds. Neithe1

Garamendi nor Zschernig go that far. To the contrary,

Garamendi teaches that dormant foreign affairs

preemption should be invoked only where the state

law or conduct criticizes a foreign government or

perhaps (and just perhaps) where a state “takels] a

position on a matter of forcign policy, with no senous

claim to be addressing a traditional state respon-

sibility.” 539 U.S. at 417-20 & n.11.

If the Von Saher majority were correct, then the

lengthy conflict analysis in Garamendi was super-

fluous and unnecessary. If the Von Saher majority

were correct, then presumably this Court would have

relied on the perceived overbreadth of the disclosure

statute and apparent weakness of the state's tradi-

tiunal regulatory interest in Garamendi and simply

voided the statute there on field preemption grounds

— an intrusion into an area of exclusive federal power.

But this Court did not do that. This Court did not

employ a dormant or field preemption analvysis.

because the statute in Garamendi (like the one here)

neither criticized a foreign government nor took a

position on a matter of foreign policy. This Court

instead evaluated the breadth of the disclosure

19

statute and the strength of the state’s regulatory

interest as part of its conflict analysis, balancing the

state's interest against the federal government's

expressed foreign policy interest.

In light of Von Saher, this Court should re-

confirm the limits of the federal government's foreign

affairs preemption power.

IV. UNLESS REVERSED BY THIS COURT,

VON SAHER THREATENS TO OPEN STATE

LAWS TO FOREIGN AFFAIRS ATTACKS ON

MATTERS THAT ARE NOT IN CONFLICT

WITH FEDERAL LAW OR EXPRESSED

POLICY AND DO NOT CRITICIZE FOR-

EIGN GOVERNMENTS

Unless checked, Von Saher threatens to preempt

virtually any state regulation dealing with a matter

that might be thought to have foreign implications.

even where the federal government has not spoken

(or, as here, where the federal government has ex-

pressed support for the state action). This Court, in

Garamendi and earlier cases, did not sanction that

result.

20

A. The Ninth Circuit’s Test Is Vague And

Subjective And Makes The Courts Rather

Than The Executive Or Congress The

Primary Arbiters Of When States Have

Improperly Intruded Into Foreign Affairs

The Ninth Circuit’s broad test to preempt state

laws in the absence of any conflicting federal law or

policy raises numerous concerns. First, “[plolitical

protections for state interests are absent when the

unelected federal judiciary preempts state law under

a foreign relations rationale without any apparent

political branch authorization.” Jack L. Goldsmith,

Federal Courts, Foreign Affairs, and Federalism, 83

Va. L. REV. 1617, 1678 (1997). The legislature and the

executive are more familiar with the nation’s foreign

policy and are better suited to determine when state

laws pose a genuine threat to foreign relations. See

Nick Robinson, Citizens Not Subjects: U.S. Foreign

Relations Law and the Decentralization of Foreign

Policy, 40 AKRON L. Rev. 647, 686 (2007); Goldsmith,

supra, 83 Va. L. REv. at 1684. Moreover, “giving broad

preemption power to the judiciary may result in

diverse decisions by lower courts in the same area of

foreign relations, creating further confusion.” Robin-

son, supra, 40 AKRON L. REV. at 686. Where the actual

impact on national policy is unclear (7.e., “dormant”),

judges should not “broaden their own authority to

decide when national interests require preemption of

state and local legislation.” See Judith Resnik,

Foreign as Domestic Affairs: Rethinking Hortzontal

Federalism and Foreign Affairs Preemption in Light

21

of Translocal Internationalism, 57 Emory L.J. 31, 84

(2007).

In addition, the Ninth Circuit's “traditional state

responsibility” test is fraught with ambiguity and

subjectivity. State laws can be “framed in ways that

make them seem either traditional or nontraditional,

depending on how one views their purposes and at

what level of abstraction one characterizes them.”

Note: Foreign Affairs Preemption and State Regula-

tion of Greenhouse Gas Emissions, 119 Harv. L. REV.

1877. 1896 (2006). As this Court noted in the context

of the state immunity doctrine, “{a]lny rule of state

immunity that looks to the ‘traditional,’ ‘integral, or

‘necessary nature of governmental functions inevi-

tably invites an unelected federal judiciary to make

decisions about which state policies it favors and

which ones it dislikes.” Garcia v. San Antonio Metro.

Transit Auth., 469 U.S. 528, 546 (1985).

In Garcia, this Court rejected as “unsound in

principle and unworkable in practice, a rule of state

immunity from federal regulation that turns on a4

judicial appraisal of whether a particular govern-

mental function 1s ‘integral’ or ‘traditional,’” explain-

ing that “[alny such rule leads to inconsistent results

at the same time that it disserves principles of demo-

eretic self-governance, and it breeds inconsistency

precisely because 1t is divorced from those principles.”

Id. at 546-47; see also United Haulers Assn v.

Oneida-Herkimer Solid Waste Mgmt. Auth., 550 USS.

330. 368-69 (2007) (Alito, J.. dissenting) ((T]his

22

Court has previously recognized that any standard

that turns on a judicial appraisal of whether a

particular governmental function is integral or

traditional is unsound in principle and unworkable in

practice. ... Thus, to the extent today’s holding rests

on a distinction between traditional governmental

functions and their nontraditional counterparts, it

cannot be reconciled with prior precedent.”) (internal

citations and quotation marks omitted).

Limiting the dormant field preemption test to the

facts of Zschernig — that is, to circumstances where

the state law fosters criticism of a foreign government

would rein in the courts’ broad discretion, alleviate

the problem of subjectivity, and bring the doctrine

back in line with this Court’s past decisions. Such a

limitation would not give the states free rein. Where

a state law is beyond the scope of Zschernig — and,

thus, beyond the reach of the courts — the executive or

legislative branches of the federal government could

step in if they believe the state law affects the federal

government’s ability to conduct foreign affairs. See

Robinson, supra, 40 AKRON L. REv. at 676 (“If lo-

calities’ actions damage U.S. foreign policy interests,

the federal government can easily preempt the state

or local policies in question.”); Goldsmith, supra, 83

Va. L. REV. at 1678-79 (“LOjur constitutional democ-

racy normally depends on the elected federal political

branches to correct this sort of problem.”). While

various types of state laws might have implications

that extend beyond U.S. borders, it is really for the

23

political branches of the government, nut the ju-

diciary, to decide whether those laws intrude on the

foreign relations. Absent a “clear conflict” with

federal law or presidential foreign policy as found in

Garamendi, or criticism directed at a foreign govern-

ment as found in Zschernig, the courts should not

strike down state laws on grounds of foreign affairs

preemption.

B. The Ninth Circuit’s Expanded Dormant

Foreign Affairs Preemption Test Will Sub-

ject A Broad Range Of Socially-Motivated

State Laws To Preemption Scrutiny

As several commentators in law and political

science have recognized, “globalization makes state

participation in foreign affairs inevitable.” See Ernest

A. Young, Preemption and Federal Common Law, 83

NoTRE DAME L. REvy. 1639, 1676 & n.191 (2008); see

also Jack L. Goldsmith, Federal Courts, Foreign

Affairs, and Federalism, 83 VA. L. REv. 1617, 1672

(1997) (“[A]s the world becomes more interconnected,

domestic law and activity increasingly have foreign

consequences, and vice versa.”).

Foreign affairs was traditionally understood as

relations between national governments, where the

main concerns were military and diplomatic issues

and the primary participants were the executive

branches of the national governments. See Goldsmith,

supra, 83 VA. L. REv. at 1670. Today, that has

24

changed. Issues as diverse as trade, investment, tech-

nology and energy transfers, environmental and so-

cial issues, cultural exchanges, migratory labor, drug

traffic and epidemics have entered the foreign policy

arena. See Goldsmith, supra, 83 VA. L. REV. at 1671;

see also Young, supra, 83 NOTRE DAME L. REV. at 1676

(“‘(GJlobalization makes everything international,’ so

that many if not most things states do — whether it is

regulating highway safety, or adjudicating contract or

tort suits, or executing their own citizens that commit

capital crimes, may well implicate foreign affairs in

one way or another.”). Thus, foreign relations have

come to encompass numerous issues traditionally

regulated by the states, and there is no clear line

dividing “foreign affairs” from traditional areas of

state regulation.

State law-making in these diverse areas is vital

to our political system. It allows the states to express

the core values and local interests of their citizens.

And it allows citizens to “more fully shape their lives,

create a nation-wide system of policy experimenta-

tion, and provide a check on federal and international

power.” Robinson, supra, 40 AKRON L. REV. at 697.

“(AJ single courageous State may, if its citizens

choose, serve as a laboratory; and try novel social and

economic experiments without risk to the rest of the

country.” Robinson, supra, 40 AKRON L. REv. at 679-

80.

The role of the states as laboratories for innova-

tion has been instrumental in shaping our country’s

25

history and values. “[H]istory has shown localities

were often on the forefront of causes of justice.”

Robinson, supra, 40 AKRON L. REv. at 684 (noting the

northern states’ ban on slavery when it was condoned

by the federal government, and the western states’

leadership in pushing for women’s suffrage). Here,

California recognized the unique legal and logistical

obstacles faced by Holocaust survivors as they try to

locate and recover artwork looted during World War

II. In response, the state extended the statute of

limitations on such claims to provide Holocaust sur-

vivors and their heirs sufficient time to finance,

investigate and commence an action to recover their

artwork.

As noted in Von Saher’s Petition, the Ninth

Circuit’s decision could have negative implications for

numerous Holocaust-related state statutes. See

Petition at 22-25 and nn.5-8. But the implications of

the Ninth Circuit’s decision are not limited to

statutes involving Holocaust survivors. The decision

could affect countless other socially-motivated state

laws that have been or may be enacted, including

laws aimed at promoting human rights or environ-

mental interests. “[T]he changing nature of inter-

national regulation and concern means that even

domestic law that applies to domestic persons for

domestic acts can implicate foreign relations.” Gold-

smith, supra, 83 VA. L. REV. at 1672.

Environmental policy, which was formerly an

area of local or national concern, has become inter-

nationalized. See Robinson, supra, 40 AKRON L. REV.

26

at 680. State regulation in this area has great po-

tential benefits: “localities can experiment with cre-

ative new environmental policies, defraying risk for

the country and creating support for successful poli-

cies.” Robinson, supra, 40 AKRON L. REv. at 680. But,

while states have long regulated air pollution, vehicle

emissions and electricity generation, the overarching

issues of climate change and greenhouse gas emis-

sions are “unavoidably global in scope.” See 119 Harv.

L. REV. 1877, 1896. Under the Ninth Circuit’s ex-

panded dormant preemption test, a state environ-

mental statute enacted with the goal of effecting

change outside state borders might be subject to chal-

lenge. See, e.g., Resnik, supra, 57 Emory LJ. at 77

(noting that state laws relating to Kyoto might be

preempted under the increasingly broad doctrine of

foreign affairs preemption).

In addition, state laws differ on issues such as

the death penalty, public benefits for illegal immi-

grants, gay marriage, and stem-cell research. See

Robinson, supra, 40 AKRON L. REV. at 695-97. These

differences reflect the local interests and values of

the states, and each of these areas has the potential

to implicate foreign relations. For example, certain

states’ continued use of the death penalty has

sometimes put a strain on diplomatic relations with

countries that oppose the death penalty. See id. al

695. States take different positions on illegal immi-

grants’ eligibility for certain public benefits, and

27

those positions have obvious potential to impact {for-

eign relations. See id. at 696-97. Likewise, states’

decisions whether or not to recognize same-sex mar-

riages and civil unions consummated abroad could

give rise to conflicts with countries allowing such

unions. See id. at 696. And, because of differing views

about what constitutes human life, “[t]he issues

surrounding cloning and stem-cell research all have

the potential to insult the moral sensibilities of the

citizens and governments of foreign countries and

become diplomatic issues in the future.” See id.

In sum, modern foreign affairs covers a wide

range of issues, and “it would be extraordinary if the

states were preempted from all of these areas merely

because of their potential entanglement with foreign

affairs.” See Daniel A. Farber, Climate Change, Fed

eralism, and the Constitution, 50 Ariz. L. Rev. 879,

904-09 (2008). The Ninth Circuit’s ruling in Von

Saher failed to follow this Court’s narrowly-defined

doctrine of dormant foreign affairs preemption and

threatens to set a dangerous precedent for the future.

Vv. CONCLUSION

This Court should grant Petitioner’s Petition for

a writ of certiorari in order to allow the Court to

address the impermissibly broad reading that the

23

Ninth Circuit has given to the foreign affairs pre-

emption doctrine.

Respectfully submitted,

I'RANK KAPLAN*

HEATHER L. RISTAU

KRISTEN GRACE HILTON

SARA EPSTEIN

BINGHAM McCutcHen LLP

The Water Gardens

1620 26th Street

Fourth Floor, North Tower

Santa Monica, CA 90404

(310) 907-1000

Frank. Kaplan@bingham.com

Attorneys for Amict Bet Tzedek

Legal Services, Simon

Wiesenthal Center, American

Jewish Committee, American

Jewish Congress and The

Jewish Federation Council

of Greater Los Angeles

‘Counsel of Record