No. 09-1254

Supreme Court, U.S.FILED

MAY 11 2010OFFICE OF T~ CLEF~K

upr me q ourt of tniteb tate

MAREI VON SAHER,Petitioner,

v.

NORTON SIMON MUSEUM OF ART AT PASADENA,NORTON SIMON ART FOUNDATION, and

THE NORTON SIMON FOUNDATION,Respondents.

On Petition For Writ Of CertiorariTo The United States Court Of Appeals

For The Ninth Circuit

BRIEF OF AMICI CURIAE BET TZEDEK LEGALSERVICES, SIMON WIESENTHAL CENTER,

AMERICAN JEWISH COMMITTEE, AMERICANJEWISH CONGRESS AND THE JEWISHFEDERATION COUNCIL OF GREATER

LOS ANGELES IN SUPPORT OFPETITION FOR A WRIT OF CERTIORARI

FRANK KAPLAN*HEATHER L. RISTAUKRISTEN GRACE HILTONSARA EPSTEINBINGHAM MCCUTCHEN LLPThe Water Gardens1620 26th StreetFourth Floor, North TowerSanta Monica, CA 90404(310) 907-1000Frank.Kaplan@bingham.com

Attorneys for Amici Bet Tzedek Legal Services,Simon Wiesenthal Center, American Jewish Committee,

American Jewish Congress and The JewishFederation Council of Greater Los Angeles

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS

INTEREST OF AMICI CURIAE .........................ARGUMENT ........................................................

I. INTRODUCTION ........................................II. THE FOREIGN AFFAIRS POWER HAS

BEEN CONSISTENTLY’APPLIED ANDUSED SPARINGLY TO PREEMPT STATELAW ..............................................................A. Pre-Garamendi Cases Other Than

Zschernig Have Relied On ConflictPreemption ............................................

III.

Page144

6B. The Garamendi Decision Confirmed The

Narrow Scope Of Dormant Or FieldPreemption In The Area Of ForeignAffairs And Adopted And Applied A Con-flict Preemption Analysis In Invalidat-ing A State Statute Intended To BenefitHolocaust Survivors ..............................10

VON SAHER MISAPPREHENDED ANDMISAPPLIED GARAMENDI AND ITSPROGENY, RESULTING IN AN EXPAN-SIVE, AND LEGALLY INCORRECT, IN-TERPRETATION OF FOREIGN AFFAIRSPREEMPTION .............................................13UNLESS REVERSED BY THIS COURT,VON SAHER THREATENS TO OPENSTATE LAWS TO FOREIGN AFFAIRSATTACKS ON MATTERS THAT ARE NOTIN CONFLICT WITH FEDERAL LAW OREXPRESSED POLICY AND DO NOT CRIT-ICIZE FOREIGN GOVERNMENTS ...........19

ii

TABLE OF CONTENTS - ContinuedPage

A. The Ninth Circuit’s Test Is Vague AndSubjective And Makes The Courts RatherThan The Executive Or Congress ThePrimary Arbiters Of When States HaveImproperly Intruded Into Foreign Af-fairs ........................................................ 20

B. The Ninth Circuit’s Expanded Dor-mant Foreign Affairs Preemption TestWill Subject A Broad Range Of Socially-Motivated State Laws To PreemptionScrutiny ................................................. 23

CONCLUSION ............................................. 27

o.o111

TABLE OF AUTHORITIESPage

FEDERAL CASES

Am. Ins. Ass’n v. Garamendi, 539 U.S. 396(2003) ........................................ : ...................... passim

Beaty v. Republic of Iraq, 480 F. Supp. 2d 60(D.D.C. 2007) ...........................................................12

Camps Newfound/Owatonna, Inc. v. Town ofHarrison, 520 U.S. 564 (1997) ................................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) ..............................8

Crosby v. National Foreign Trade Council, 530U.S. 363 (2000) ......................................................7, 9

Cruz v. United States, 387 F. Supp. 2d 1057(N.D. Cal. 2005) ............................................. 9, 10, 12

Dames & Moore v. Regan, 453 U.S. 654 (1981) ...........7Doe v. Exxon Mobil Corp., 2006 WL 516744

(D.D.C. March 3, 2006) ...........................................12

Garcia v. San Antonio Metro. Transit Auth.,469 U.S. 528 (1985) .................................................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) .....................7

Nat’l Foreign Trade Council v. Natsios, 181F.3d 38 (1st Cir. 1999), aff’d sub nora. Crosbyv. National Foreign Trade Council, 530 U.S.363 (2000) ..................................................................8

iv

TABLE OF AUTHORITIES - Continued

PageTayyari v. New Mexico State University, 495

F. Supp. 1365 (D.N.M. 1980) ....................................9Trojan Techs. v. Pennsylvania, 916 F.2d 903 (3d

Cir. 1990) ...................................................................9United Haulers Ass’n v. Oneida-Herkimer Solid

Waste Mgmt. Auth., 550 U.S. 330 (2007) ................21United States v. Belmont, 301 U.S. 324 (1937) ............6United States v. Curtiss-Wright Export Corpo-

ration, 299 U.S. 304 (1936) .......................................7United States v. Pink, 315 U.S. 203 (1942) ..................7Zschernig v. Miller, 389 U.S. 429 (1968) ...........passim

STATE CASES

New York Times Co. v. City of New YorkComm’n on Human Rights, 361 N.E.2d 963(N.Y. 1977) .................................................................9

Springfield Rare Coin Galleries, Inc. v. John-son, 503 N.E.2d 300 (Ill. 1986) .................................9

STATE STATUTES

California Code of Civil Procedure §337.15 ...............17California Code of Civil Procedure §340.7 .................17California Code of Civil Procedure §352.1 .................17California Code of Civil Procedure §354.3 .......3, 13, 16

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TABLE OF AUTHORITIES - ContinuedPage

OTHER AUTHORITIES

Daniel A. Farber, Climate Change, Federalism,and the Constitution, 50 ARIZ. L. REV. 879,904-09 (2008) ...........................................................27

Ernest A. Young, Preemption and Federal Com-mon Law, 83 NOTRE DAME L. REV. 1639, 1676& n.191 (2008) ...................................................23, 24

J. Christian Kennedy, Special Envoy for Holo-caust Issues, The Role of the United States inArt Restitution, Remarks at the Conferencein Potsdam, Germany (April 23, 2007), http://germany.usembassy.gov/kennedy_speech.html ........14

Jack L. Goldsmith, Federal Courts, Foreign Af-fairs, and Federalism, 83 VA. L. REV. 1617(1997) ............................................... 20, 22, 23, 24, 25

Judith Resnik, Foreign as Domestic Affairs: Re-thinking Horizontal Federalism and ForeignAffairs 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 Decentralizationof Foreign Policy, 40 AKRON L. REV. 647, 686(2007) ............................................................... passim

Note: Foreign Affairs Preemption and StateRegulation of Greenhouse Gas Emissions, 119HARV. L. REV. 1877, 1896 (2006) .......................21, 26

Peter J. Spiro, Foreign Relations Federalism,70 U. COLO. L. REV. 1223, 1242 (1999) .....................9

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Bet Tzedek Legal Services ("Bet Tzedek"), theSimon Wiesenthal Center, the American JewishCommittee, the American Jewish Congress, and theJewish Federation Council of Greater Los Angeles("Jewish Federation") (collectively "Arnici") submitthis Brief as amici curiae in support of PetitionerMarei Von Saher’s Petition for Writ of Certiorari.1

INTEREST OF AMICI CURIAE

Bet Tzedek, "The House of Justice," is a non-profit legal services agency that, since 1974, has beenproviding free legal representation to thousands oflow-income residents throughout Southern California.It is one of the only organizations in the UnitedStates regularly representing Holocaust survivors,having represented more than 800 such clients intheir efforts to assert claims under various repara-tions programs, United States-based litigation, andother humanitarian relief programs administered byvarious international funds or governments.

1 Counsel of record for all parties received notice at least 10days prior to the due date of the amici’s intention to file thisbrief; all counsel have consented to the filing of this brief andthe consent letters have been filed with the Clerk of the Courtwith this brief. No counsel for any party authored this brief inwhole or in part, and no person or entity, other than the amicicuriae, their members, or counsel, made a monetary contribu-tion to the preparation or submission of this brief.

The Simon Wiesenthal Center is an advocacyorganization that has particular expertise in theprosecution of Nazi War criminals and is dedicated tothe vindication of the rights of Holocaust survivors.Through counsel, it is a signatory to an agreementthat resolved a major piece of Holocaust litigation inthe 1990’s. In addition, the Simon Wiesenthal Centerhas sponsored a conference on property and art resti-tution.

The American Jewish Committee ("AJC’) is aninternational human relations organization, foundedin 1906 to protect the civil and religious rights ofJews, 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 longhistory of active involvement with restitution andindemnity claims on behalf of Holocaust survivors. Ithas played an integral role in advocating for resti-tution and the return of assets to Holocaust survivorsand 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. Sincethe early 1950’s, the American Jewish Congress hasparticipated in many lawsuits seeking restitution ofproperty stolen from Jews by the Nazis.

The Jewish Federation is the central organizing,planning and fundraising organization for the LosAngeles Jewish Community. The Jewish Federation

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identifies and funds social service, educational andhumanitarian needs locally, in Israel and around theworld. Providing for the needs of Holocaust survivorsand their families has long been a core priority of theJewish Federation.

Amici bring a unique point of view to this caseand are qualified to assist this Court in its decision.Through their work with Holocaust victims and theirheirs, Arnici have witnessed the tremendous difficul-ties involved in identifying, locating and recoveringproperty that was seized, stolen or confiscated duringWorld War II. The problems are further compoundedby the assertion of numerous purported legal barriersto the recovery of the property.

California has specifically recognized the stateinterest in alleviating the hardship faced by Holo-caust victims and their heirs in recovering artworktaken from the victims. It has done so in part byenacting California Code of Civil Procedure section354.3, a statute that simply affords victims and theirheirs the opportunity to pursue the recovery of theirartwork from museums and galleries until 2010,rather than binding them to general statutes of limi-tations that, in many cases and through no fault ofthe victims, may have expired years or decades ago.Amici strongly believe that statutes such as section354.3 promote important state interests and are notpreempted by the federal government’s foreign affairspower.

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ARGUMENTI. INTRODUCTION

This Court recognized in Am. Ins. Ass’n v.Garamendi, 539 U.S. 396 (2003) ("Garamendi") that,properly understood, preemption of state laws basedon the federal government’s foreign affairs poweroccurs only in two limited circumstances: (1) wherethe state law conflicts with a treaty, federal statute,executive agreement, or express federal policy, or(2) in those rare instances where even though thefederal government has not acted, a state statutecriticizes, or fosters criticism of, a foreign govern-ment. Cases decided both before and after Garamendihave also carefully confined foreign affairs preemp-tion to one of these two circumstances. And for goodreason, since the scope of the federal government’sforeign affairs power is not clearly defined in theConstitution and, unless properly tethered, couldusurp many laws and regulations traditionally withinthe states’ competence.

The Ninth Circuit’s decision in Von Saher v.Norton Simon Museum of Art at Pasadena, 592 F.3d954 (9th Cir. 2010) ("Von Saher") invalidated a statestatute of limitations for certain property claimsdespite the absence of any conflict with federal law orpolicy and notwithstanding the lack of any statecriticism of a foreign government. Instead, the panelmajority crafted a new and expanded dormant foreignaffairs preemption power that has never been rec-ognized by this or any other Court.

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This unwarranted extension of foreign affairspreemption far beyond the carefully delineatedboundaries established by this Court reflects afundamental misunderstanding of this Court’s foreignaffairs jurisprudence. Unless reversed, Von Saherthreatens to upset the previously existing balancebetween federal and state law and to legitimizebroadside dormant "foreign affairs" attacks on statelaw never before permitted. Given the increasedglobalization of modern society and ordinary businessaffairs, there is a significant risk that Von Saher-styled foreign affairs preemption could be used as apretext to challenge a variety of otherwise unob-jectionable state laws.

To preserve the narrow framework for foreign af-fairs preemption adopted by this Court and followedby all other courts except the Ninth Circuit panel inVon Saher, this Court should grant certiorari. Sincethe Ninth Circuit found no conflict between the statestatute and federal law or policy, this Court shouldthen reverse the Ninth Circuit decision and order thecase remanded to the District Court for furtherproceedings on the merits of Petitioner’s claims.

II. THE FOREIGN AFFAIRS POWER HASBEEN CONSISTENTLY APPLIED AND USEDSPARINGLY TO PREEMPT STATE LAW

This Court and others have described the federalgovernment’s foreign affairs power in broad terms.Nevertheless, a review of the leading cases decided by

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this Court reflects a constrained and consistent viewof when that federal power ought to preempt statelaw or other state conduct. More specifically, in vir-tually all the decisions of this Court implicatingforeign affairs, the federal government has affirma-tively acted, and the courts have employed a conflictpreemption analysis to resolve the issue. In onlyone 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 foreignaffairs 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 veryunique facts and, until Von Saher, had been confinedto those facts. Von Saher has now extended Zschernigand this Court’s much more recent Garamendi deci-sion and has dangerously opened the door to anexpansive dormant foreign affairs preemption of statelaw that could have wide-ranging negative implica-tions.

A. Pre-Garamendi Cases Other ThanZschernig Have Relied On ConflictPreemption

Pre-Garamendi cases other than Zschernig wereconsistent in their use of conflict preemption toinvalidate state laws or conduct that interfered withthe federal government’s foreign affairs power. InUnited States v. Belmont, 301 U.S. 324 (1937) and

United States v. Pink, 315 U.S. 203 (1942), this Courtgave preemptive effect to an executive agreement rec-ognizing the government of the Soviet Union, therebybarring conflicting state policies regarding the legal-ity of Soviet expropriation of foreign property. Aroundthis same period, this Court engaged in a traditionalArticle VI Supremacy Clause analysis to hold that thefederal 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 afederal statute prescribing limited economic sanctionsagainst Burma (now Myanmar) preempted a similarbut more restrictive regulation by Massachusetts.2

These decisions each involved federal govern-ment action and each reflected a determination thatthe federal government’s action when dealing withforeign affairs had supremacy over state law orconduct that conflicted or interfered with the federalgovernment’s exercise of power. By contrast, only a

2 In United States v. Curtiss-Wright Export Corporation,299 U.S. 304 (1936), the Court upheld a criminal charge ofconspiracy to sell arms of war to a foreign government inviolation of a joint resolution of Congress. Later, in Dames &Moore v. Regan, 453 U.S. 654 (1981), this Court addressed theeffect of emergency executive orders made pursuant to anexecutive agreement, impliedly consented to by Congress, thatended the Iran hostage crisis of 1980. Based on those orders,this Court nullified a prejudgment attachment of assets ofcertain Iranian banks and suspended the common law claims ofAmerican nationals against Iran.

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single decision of this Court, Zschernig, has appearedto recognize a dormant federal foreign relationspreemption that excludes states from certain foreignrelations activity even in the absence of conflictingfederal activity. Zschernig, however, is limited to thedistinct circumstance of a state law that, when ap-plied, fostered criticism and hostility toward foreigngovernments.

In Zschernig, this Court invalidated an Oregoninheritance statute that prevented residents of for-eign countries from inheriting through Oregonestates unless their government granted reciprocalrights to Oregon residents. Earlier, this Court hadupheld a similar California statute, dismissing aclaim 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 becameconcerned 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 inheritancestatutes that caused the problem in Zschernig (orelse Clark would have been decided differently), butrather the critical, hostile way that they were ap-plied. Later cases confirm this reading, applyingZschernig by assessing whether the challenged stat-ute, on its face or as applied, criticizes or showshostility toward foreign governments. See, e.g., Nat’lForeign Trade Council v. Natsios, 181 F.3d 38, 56 (lst

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Cir. 1999), aff’d sub nom. Crosby v. National ForeignTrade Council, 530 U.S. 363 (2000); Trojan Techs. v.Pennsylvania, 916 F.2d 903, 913-14 (3d 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. UnitedStates, 387 F. Supp. 2d 1057, 1075 (N.D. Cal. 2005)(holding that a California law, which lifted the bar ofthe statute of limitations for certain claims filed by"braceros" and their heirs, was not preempted underthe foreign affairs doctrine, and noting that Zschernighas been "applied sparingly"); see also Peter J. Spiro,Foreign Relations Federalism, 70 U. COLO. L. REV.1223, 1242 (1999) (observing that the Zschernigdecision "seems both explained and justified [at leastat the time] by its Cold War context").

Zschernig has largely been applied to invalidatestate regulations that amounted to embargoes orboycotts aimed at coercing foreign states to alter theirpolitical and social policies. See, e.g. Springfield RareCoin Galleries, Inc. v. Johnson, 503 N.E.2d 300 (Ill.1986) (striking down Illinois tax provision that dis-criminated against South African coins, because "solemotivation was disapproval of [South Africa’s] poli-cies" and "encouraging a boycott" of South Africanproducts); Tayyari v. New Mexico State University,495 F. Supp. 1365, 1378 (D.N.M. 1980) (invalidatingstate university’s policy of excluding Iranian studentsfrom admission in retaliation for the Iranian hostagecrisis); New York Times Co. v. City of New York

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Comm’n on Human Rights, 361 N.E.2d 963 (N.Y.1977) (affirming reversal of municipal agency’s rulingthat newspaper advertisements for employment inSouth Africa implicitly violated city antidiscrimi-nation laws). Describing the limited reach of thesecases, another district court explained that "[i]n thesecases, the state enactments not only used state com-mercial power as a tool of foreign policy, their mereexistence articulated state condemnation of a foreignnation’s conduct by passing the statutes." Cruz, 387F. Supp. 2d at 1076.

B. The Garamendi Decision Confirmed TheNarrow Scope Of Dormant Or Field Pre-emption In The Area Of Foreign AffairsAnd Adopted And Applied A ConflictPreemption Analysis In Invalidating AState Statute Intended To Benefit Holo-caust Survivors

In Garamendi, this Court invalidated on foreignaffairs preemption grounds a California statute thatcompelled insurers and their affiliates to discloseinformation regarding insurance policies issued inEurope during the period between 1920 and 1945. Inso holding, the Court adopted and applied a conflictpreemption analysis, balancing the state’s regulatoryinterest against the federal government’s expressedforeign policy interest.

Significantly, the Court pursued a conflict pre-emption analysis notwithstanding its belief that thestatute was enacted to assist Holocaust survivors in

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vindicating Holocaust-era European insurance claims,rather than serve a traditional consumer protectioninterest. Garamendi, 539 U.S. at 425-26. In theCourt’s view, this perceived purpose did not doom thestatute on dormant or field preemption grounds; ifthe statute had failed on those grounds, the Courtwould have said so and would not have engaged in alengthy conflict preemption analysis. Instead, theapparent weakness of the state’s regulatory interest,when viewed "against the backdrop of traditionalstate legislative subject matter", was simply a factorto be evaluated in determining the extent of conflictwith federal foreign policy. Id. at 425-27.

Before embarking on its conflict analysis, theGaramendi Court discussed Zschernig. Although notrejecting Zschernig’s dormant foreign affairs preemp-tion (which the Court described as "field preemp-tion"), the Court expressly confined the potentialouter boundaries of that preemption to a narrowcircumstance - namely, "[i]f a State were simply totake a position on a matter of foreign policy with noserious claim to be addressing a traditional stateresponsibility," then field preemption "might be theappropriate doctrine." Garamendi, 539 U.S. at 420,n.ll (emphasis added).

Indeed, to emphasize that it was not expandingZschernig, the Court discussed in some detail andimplicitly 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

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of dormant foreign affairs preemption went too far.Zschernig, 389 U.S. at 459. Instead, he said that hewould find preemption only where there was a"conflicting federal policy," and all of the cases hecited as examples of "federal policy" preempting statelaw involved statutes or treaties. Id. at 458-59 &n.25.

Later cases have all recognized that afterGaramendi, the linchpin of foreign affairs preemptionis "the existence of an actual conflict between thestate [statute] at issue and clearly articulated federalpolicy." Cruz, 387 F. Supp. 2d at 1075. See alsoCentral Valley Chrysler-Jeep, Inc. v. Goldstene, 529F. Supp. 2d 1151, 1184 (E.D. Cal. 2007) ("The courtconcludes that Zschernig, together with cases thatfollow it, including Garamendi, hold that a partyasserting preemption on the ground of foreign policypreemption must show ’clear conflict’ between a statelaw or program and the functioning of some agree-ment, treaty, or program that. is the product ofnegotiations between the administrative branch anda foreign government."); Green Mt. Chrysler PlymouthDodge Jeep v. Crombie, 508 F. Supp. 2d 295, 396 (D.Vt. 2007) ("Preemption is thus required underGaramendi if the plaintiffs have demonstrated a clearconflict 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) ("UnderGaramendi, Iraq must identify a ’conflict of a clarityor substantiality that [varies] with the strength orthe traditional importance of the state concern

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asserted.’"); Doe v. Exxon Mobil Corp., 2006 WL516744 at *7-8 (D.D.C. March 3, 2006) (holding thatunder the foreign affairs doctrine as articulated byGaramendi, "state laws are preempted when thereis a conflict between the state law and the ’exerciseof the federal executive authority,’" and holdingGaramendi "simply not applicable" because "no stategovernment has passed any statute in conflict withU.S. foreign policy").3

This settled law has now been abandoned by theVon Saher decision. That decision has expanded for-eign affairs preemption far beyond its recognizedboundaries and, unless corrected by this Court,threatens to undermine the careful balance betweenstate regulation and the federal government’s foreignaffairs power that has been followed by this Court.

III. VON SAHER MISAPPREHENDED AND MIS-APPLIED GARAMENDI AND ITS PROGENY,RESULTING IN AN EXPANSIVE, AND LE-GALLY INCORRECT, INTERPRETATION OFFOREIGN AFFAIRS PREEMPTION

California Code of Civil Procedure section 354.3extends the statute of limitations on claims for the

3 This view is consistent with the fact that, as a generalmatter, field preemption has been "frequently rejected" by thisCourt "in the absence of statutory language expressly requiringit." Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520U.S. 564, 617 (1997) (Thomas, J., dissenting).

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recovery of Holocaust-era artwork from museums orgalleries subject to jurisdiction in the state untilDecember 31, 2010. That extension, which implicitlyrecognizes the difficulty inherent in identifying, lo-cating, and making claims on such artwork, is con-sistent with the federal government’s policy that suchartwork should be returned to their rightful owners,through litigation if necessary. See J. ChristianKennedy, Special Envoy for Holocaust Issues, TheRole of the United States in Art Restitution, Remarksat the Conference in Potsdam, Germany (April 23,2007), http://germany.usembassy.gov/kennedy_speech.html.

The statute is not directed at or critical of anyforeign country, does not create any right or claimagainst any foreign government, and is insteadlimited to actions for the recovery of artwork frommuseums or galleries.

Respondent, a museum located in California, suc-cessfully challenged the statute on foreign affairspreemption grounds in the district court, and Peti-tioner appealed to the Ninth Circuit. A majority of apanel of that court, while expressly finding that "[t]hestatute does not ... conflict with any current foreignpolicy espoused by the Executive Branch" (592 F.3d at963), nevertheless affirmed that the statute waspreempted under the foreign affairs doctrine.

This unprecedented result followed from themajority’s holding that even in the absence of aconflict with federal policy or criticism of a foreign

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government, the statute nonetheless "infringed on aforeign affairs power reserved by the Constitutionexclusively to the national government" - i.e. it waspreempted by the federal government’s "dormant"foreign affairs power. 592 F.3d at 964-68. The courtreached that remarkable conclusion by finding thatthe statute’s subject matter was not in an area of"traditional state responsibility" and was "thereforesubject to a field preemption analysis." Id. at 965.

The court acknowledged that California "has alegitimate interest in regulating the museums andgalleries operating within its borders, and preventingthem from trading in and displaying Nazi-looted art."592 F.3d at 965. But, since the statute applied to anymuseum or gallery subject to personal jurisdiction inthe state, including those located outside its borders,the court divined that "California’s ’real purpose’ wasto create a friendly forum for litigating Holocaustrestitution claims, open to anyone in the world to suea museum or gallery located within or without thestate." Id.

The court then concluded that the federal govern-ment’s "power to wage and resolve war" included "thepower to legislate restitution and reparation claims"and that such power "has been reserved exclusively tothe national government by the Constitution." 592F.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. Id. at967-68.

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The Ninth Circuit’s analysis is fundamentallyflawed and not reconcilable with Garamendi. Unlesscorrected, Von Saher will likely lead to unwarrantedpreemptions of state law.

The majority in Von Saher began veering off theroad by attempting to determine whether the Cali-fornia statute concerned a "traditional state respon-sibility." 592 F.3d at 964-65. Finding the statute toobroad (since it covered museums and galleries outsidethe state), the court concluded that the statute wasnot addressing a "traditional state responsibility" andmust therefore reflect an expression of California’s"dissatisfaction with the federal government’s reso-lution (or lack thereof) of restitution claims arisingout of World War II." Id. at 965. It followed, then,according to the Ninth Circuit majority, that thestatute was invalid even in the absence of any conflictwith federal policy. Id.

The Ninth Circuit’s perception that section 354.3did not concern a "traditional state responsibility" isunsupported. Such responsibilities surely includelegislation that allows and facilitates the recovery ofstolen property, and legislation that recognizes dis-abling circumstances that might prevent the timelyfiling of claims under more general statutes oflimitation. Other California statutes, for example,expressly toll or extend the limitations period forbringing lawsuits in situations where there might besome impediment to the claim being brought withinthe time period allowed by more general limitationsstatutes. See, e.g., California Code of Civil Procedure

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§337.15 (establishing 10-year limitations period forclaims involving latent defects in real property);California Code of Civil Procedure §340.7 (tollinglimitations period for Dalkon Shield claimants);California Code of Civil Procedure §352.1 (tollinglimitations period for claimants who are imprisoned).

Nor does it follow that the breadth of the statutedisqualifies it as one concerning "traditional stateresponsibilities" or converts it into a foray into foreignaffairs. Similarly, contrary to the Ninth Circuit’sapparent speculation, there is nothing to suggest thatthe statute’s breadth reflects some dissatisfactionwith federal government restitution efforts. Andfinally, even if some dissatisfaction with the federalgovernment was apparent from the statute, that factis not evidence of an interference with foreign affairsthat this Court has recognized as requiring pre-emption.

But the real problem with Von Saher is this: evenif the scope, purpose or tradition of the state statuteare legitimate subjects of inquiry, the Ninth Circuitconsidered and applied those factors to the wrongpreemption doctrine. Those factors, if relevant at all,should only be evaluated in assessing whether thereis conflict preemption - whether there is a conflictbetween the state statute and a treaty, federal stat-ute, executive agreement or express federal policy."[I]t would be reasonable to consider the strength ofthe state interest, judged by standards of traditionalpractice, when deciding how serious a conflict mustbe shown before declaring a state law preempted."

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Garamendi, 539 U.S. at 420. See also Garamendi, 539U.S. at 425-27. The Ninth Circuit expressly found noconflict in Von Saher.

Those factors should not be employed, wherethere is no conflict and no criticism of a foreign gov-ernment, to invalidate a state statute on dormant(field) foreign affairs preemption grounds. NeitherGaramendi nor Zschernig go that far. To the contrary,Garamendi teaches that dormant foreign affairspreemption should be invoked only where the statelaw or conduct criticizes a foreign government orperhaps (and just perhaps) where a state "take[s] aposition on a matter of foreign policy, with no seriousclaim to be addressing a traditional state respon-sibility." 539 U.S. at 417-20 & n.11.

If the Von Saher majority were correct, then thelengthy conflict analysis in Garamendi was super-fluous and unnecessary. If the Von Saher majoritywere correct, then presumably this Court would haverelied on the perceived overbreadth of the disclosurestatute and apparent weakness of the state’s tradi-tional regulatory interest in Garamendi and simplyvoided 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 notemploy a dormant or field preemption analysis,because the statute in Garamendi (like the one here)neither criticized a foreign government nor took aposition on a matter of foreign policy. This Courtinstead evaluated the breadth of the disclosure

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statute and the strength of the state’s regulatoryinterest as part of its conflict analysis, balancing thestate’s interest against the federal government’sexpressed foreign policy interest.

In light of Von Saher, this Court should re-confirm the limits of the federal government’s foreignaffairs preemption power.

IV. UNLESS REVERSED BY THIS COURT,VON SAHER THREATENS TO OPEN STATELAWS TO FOREIGN AFFAIRS ATTACKS ONMATTERS THAT ARE NOT IN CONFLICTWITH FEDERAL LAW OR EXPRESSEDPOLICY AND DO NOT CRITICIZE FOR-EIGN GOVERNMENTS

Unless checked, Von Saber threatens to preemptvirtually any state regulation dealing with a matterthat 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, inGaramendi and earlier cases, did not sanction thatresult.

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A~ The Ninth Circuit’s Test Is Vague AndSubjective And Makes The Courts RatherThan The Executive Or Congress ThePrimary Arbiters Of When States HaveImproperly Intruded Into Foreign Affairs

The Ninth Circuit’s broad test to preempt statelaws in the absence of any conflicting federal law orpolicy raises numerous concerns. First, "[p]oliticalprotections for state interests are absent when theunelected federal judiciary preempts state law undera foreign relations rationale without any apparentpolitical branch authorization." Jack L. Goldsmith,Federal Courts, Foreign Affairs, and Federalism, 83VA. L. REV. 1617, 1678 (1997). The legislature and theexecutive are more familiar with the nation’s foreignpolicy and are better suited to determine when statelaws pose a genuine threat to foreign relations. SeeNick Robinson, Citizens Not Subjects: U.S. ForeignRelations Law and the Decentralization of ForeignPolicy, 40 AKRON L. REV. 647, 686 (2007); Goldsmith,supra, 83 VA. L. REV. at 1684. Moreover, "giving broadpreemption power to the judiciary may result indiverse decisions by lower courts in the same area offoreign relations, creating further confusion." Robin-son, supra, 40 AKRON L. REV. at 686. Where the actualimpact on national policy is unclear (i.e., "dormant"),judges should not "broaden their own authority todecide when national interests require preemption ofstate and local legislation." See Judith Resnik,Foreign as Domestic Affairs: Rethinking HorizontalFederalism and Foreign Affairs Preemption in Light

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of Translocal Internationalism, 57 EMORY L.J. 31, 84(2O07).

In addition, the Ninth Circuit’s "traditional stateresponsibility" test is fraught with ambiguity andsubjectivity. State laws can be "framed in ways thatmake them seem either traditional or nontraditional,depending on how one views their purposes and atwhat 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 contextof the state immunity doctrine, "[a]ny rule of stateimmunity that looks to the ’traditional,’ ’integral,’ or’necessary’ nature of governmental functions inevi-tably invites an unelected federal judiciary to makedecisions about which state policies it favors andwhich ones it dislikes." Garcia v. San Antonio Metro.Transit Auth., 469 U.S. 528,546 (1985).

In Garcia, this Court rejected as "unsound inprinciple and unworkable in practice, a rule of stateimmunity from federal regulation that turns on ajudicial appraisal of whether a particular govern-mental function is ’integral’ or ’traditional,’" explain-ing that "[a]ny such rule leads to inconsistent resultsat the same time that it disserves principles of demo-cratic self-governance, and it breeds inconsistencyprecisely because it is divorced from those principles."Id. at 546-47; see also United Haulers Ass’n v.Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S.330, 368-69 (2007) (Alito, J., dissenting) ("[T]his

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Court has previously recognized that any standardthat turns on a judicial appraisal of whether aparticular governmental function is integral ortraditional is unsound in principle and unworkable inpractice .... Thus, to the extent today’s holding restson a distinction between traditional governmentalfunctions and their nontraditional counterparts, itcannot be reconciled with prior precedent.") (internalcitations and quotation marks omitted).

Limiting the dormant field preemption test to thefacts of Zschernig - that is, to circumstances wherethe state law fosters criticism of a foreign government- would rein in the courts’ broad discretion, alleviatethe problem of subjectivity, and bring the doctrineback in line with this Court’s past decisions. Such alimitation would not give the states free rein. Wherea state law is beyond the scope of Zschernig - and,thus, beyond the reach of the courts - the executive orlegislative branches of the federal government couldstep in if they believe the state law affects the federalgovernment’s ability to conduct foreign affairs. SeeRobinson, supra, 40 AKRON L. REV. at 676 ("If lo-calities’ actions damage U.S. foreign policy interests,the federal government can easily preempt the stateor local policies in question."); Goldsmith, supra, 83VA. L. REV. at 1678-79 ("[O]ur constitutional democ-racy normally depends on the elected federal politicalbranches to correct this sort of problem."). Whilevarious types of state laws might have implicationsthat extend beyond U.S. borders, it is really for the

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political branches of the government, not the ju-diciary, to decide whether those laws intrude on theforeign relations. Absent a "clear conflict" withfederal law or presidential foreign policy as found inGaramendi, or criticism directed at a foreign govern-ment as found in Zschernig, the courts should notstrike down state laws on grounds of foreign affairspreemption.

B. The Ninth Circuit’s Expanded DormantForeign Affairs Preemption Test Will Sub-ject A Broad Range Of Socially-MotivatedState Laws To Preemption Scrutiny

As several commentators in law and politicalscience have recognized, "globalization makes stateparticipation in foreign affairs inevitable." See ErnestA. Young, Preemption and Federal Common Law, 83NOTRE DAME L. REV. 1639, 1676 & n.191 (2008); seealso Jack L. Goldsmith, Federal Courts, ForeignAffairs, and Federalism, 83 VA. L. REV. 1617, 1672(1997) ("[A]s the world becomes more interconnected,domestic law and activity increasingly have foreignconsequences, and vice versa.").

Foreign affairs was traditionally understood asrelations between national governments, where themain concerns were military and diplomatic issuesand the primary participants were the executivebranches of the national governments. See Goldsmith,supra, 83 VA. L. REV. at 1670. Today, that has

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changed. Issues as diverse as trade, investment, tech-nology and energy transfers, environmental and so-cial issues, cultural exchanges, migratory labor, drugtraffic and epidemics have entered the foreign policyarena. See Goldsmith, supra, 83 VA. L. REV. at 1671;see also Young, supra, 83 NOTRE DAME L. REV. at 1676("’[G]lobalization makes everything international,’ sothat many if not most things states do - whether it isregulating highway safety, or adjudicating contract ortort suits, or executing their own citizens that commitcapital crimes, may well implicate foreign affairs inone way or another."). Thus, foreign relations havecome to encompass numerous issues traditionallyregulated by the states, and there is no clear linedividing "foreign affairs" from traditional areas ofstate regulation.

State law-making in these diverse areas is vitalto our political system. It allows the states to expressthe 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 internationalpower." Robinson, supra, 40 AKRON L. REV. at 697."[A] single courageous State may, if its citizenschoose, serve as a laboratory; and try novel social andeconomic experiments without risk to the rest of thecountry." 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

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history and values. "[H]istory has shown localitieswere often on the forefront of causes of justice."Robinson, supra, 40 AKRON L. REV. at 684 (noting thenorthern states’ ban on slavery when it was condonedby the federal government, and the western states’leadership in pushing for women’s suffrage). Here,California recognized the unique legal and logisticalobstacles faced by Holocaust survivors as they try tolocate and recover artwork looted during World WarII. In response, the state extended the statute oflimitations on such claims to provide Holocaust sur-vivors and their heirs sufficient time to finance,investigate and commence an action to recover theirartwork.

As noted in Von Saher’s Petition, the NinthCircuit’s decision could have negative implications fornumerous Holocaust-related state statutes. SeePetition at 22-25 and nn.5-8. But the implications ofthe Ninth Circuit’s decision are not limited tostatutes involving Holocaust survivors. The decisioncould affect countless other socially-motivated statelaws that have been or may be enacted, includinglaws aimed at promoting human rights or environ-mental interests. "[T]he changing nature of inter-national regulation and concern means that evendomestic law that applies to domestic persons fordomestic acts can implicate foreign relations." Gold-smith, supra, 83 VA. L. REV. at 1672.

Environmental policy, which was formerly anarea of local or national concern, has become inter-nationalized. See Robinson, supra, 40 AKRON L. REV.

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at 680. State regulation in this area has great po-tential benefits: "localities can experiment with cre-ative new environmental policies, defraying risk forthe country and creating support for successful poli-cies." Robinson, supra, 40 AKRON L. REV. at 680. But,while states have long regulated air pollution, vehicleemissions and electricity generation, the overarchingissues 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 effectingchange outside state borders might be subject to chal-lenge. See, e.g., Resnik, supra, 57 EMORY L.J. at 77(noting that state laws relating to Kyoto might bepreempted under the increasingly broad doctrine offoreign affairs preemption).

In addition, state laws differ on issues such asthe death penalty, public benefits for illegal immi-grants, gay marriage, and stem-cell research. SeeRobinson, supra, 40 AKRON L. REV. at 695-97. Thesedifferences reflect the local interests and values ofthe states, and each of these areas has the potentialto implicate foreign relations. For example, certainstates’ continued use of the death penalty hassometimes put a strain on diplomatic relations withcountries that oppose the death penalty. See id. at695. States take different positions on illegal immi-grants’ eligibility for certain public benefits, and

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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 couldgive rise to conflicts with countries allowing suchunions. See id. at 696. And, because of differing viewsabout what constitutes human life, "[t]he issuessurrounding cloning and stem-cell research all havethe potential to insult the moral sensibilities of thecitizens and governments of foreign countries andbecome diplomatic issues in the future." See id.

In sum, modern foreign affairs covers a widerange of issues, and "it would be extraordinary if thestates were preempted from all of these areas merelybecause of their potential entanglement with foreignaffairs." 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 VonSaher failed to follow this Court’s narrowly-defineddoctrine of dormant foreign affairs preemption andthreatens to set a dangerous precedent for the future.

V. CONCLUSION

This Court should grant Petitioner’s Petition fora writ of certiorari in order to allow the Court toaddress the impermissibly broad reading that the

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Ninth Circuit has given to the foreign affairsemption doctrine.

pre°

Respectfully submitted,

FRANK KAPLAN*HEATHER L. RISTAUKRISTEN GRACE HILTONSARA EPSTEINBINGHAM MCCUTCHEN LLPThe Water Gardens1620 26th StreetFourth Floor, North TowerSanta Monica, CA 90404(310) 907-1000Frank.Kaplan@bingham.com

Attorneys for Amici Bet TzedekLegal Services, SimonWiesenthal Center, AmericanJewish Committee, AmericanJewish Congress and TheJewish Federation Councilof Greater Los Angeles

*Counsel of Record