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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1865%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 821

## Text

(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1865%3A08. Public record. Not legal advice.