Second Circuit: Bolshevik-Seized Painting Belongs to the Met

If you hoped that the Second Circuit would help return your family's Bolshevik-seized masterpiece from a major museum this year, you're probably out of luck.

This week, the New York-based appellate court ruled that the act of state doctrine precludes such righting of wrongs from the Soviet past.

Pierre Konowaloff appealed from a district court judgment, dismissing his action against the Metropolitan Museum of Art for its acquisition, possession, display, and retention of a Cézanne painting known as "Madame Cézanne in the Conservatory" or "Portrait of Madame Cézanne." The Russian Bolshevik regime confiscated the painting from Konowaloff's great-grandfather in 1918.

The district court granted the Museum's motion to dismiss Konowaloff's Amended Complaint, ruling that the pleading revealed that his claims were barred by the act of state doctrine, Courthouse News Service reports. The Second Circuit Court of Appeals agreed this week that Konowaloff's contentions lacked merit.

Konowaloff is the sole heir to the estate of his great-grandfather Ivan Morozov, a Russian national who previously owned the Cézanne.

The 1917 revolution in Russia overthrew Tsar Nicholas II and installed a Provisional Government. In November 1917, the Bolsheviks seized power from the Provisional Government, eventually forming the Soviet government. The U.S. didn't recognize the Soviet government until November 16, 1933.

In 1918, the Bolsheviks decreed that Morozov's art collection -- including the Cézanne at the center of this dispute -- was state property. Konowaloff claims it was "tantamount to a bill of attainder."

Stephen C. Clark acquired the painting in May 1933, and bequeathed it to the Museum upon his death.

Konowaloff's alleged that "the Museum may have known that Clark's bequest involved looted art" and "may have known that Soviet law prohibited the alienation of Western art unless approved by the highest authorities," yet the Museum did nothing to verify the Clark's title or the Morozov's heirs interest in the work.

The act of state doctrine generally "'precludes the courts of this country from inquiring into the validity of the public acts of a recognized foreign sovereign power committed within its own territory." Confiscations by a state of the property of its own national -- no matter how flagrant and regardless of whether compensation has been provided -- do not constitute violations of international law. The act of state doctrine applies "even if international law has been violated."

When a revolutionary government is recognized as a de jure government, the recognition applies retroactively and validates all the actions and conduct of the government from the commencement of its existence.

Though the act of state doctrine is an affirmative defense, which the Museum had the burden to prove, the Second Circuit agreed that the district court properly granted the motion to dismiss based on the doctrine because its applicability was shown on the face of the complaint. Because the Bolshevik government seized the Cézanne, and the U.S. later recognized the Bolshevik-turned-Soviet government in 1933, Konowaloff's action was barred by the act of state doctrine.

Related Resources:

• Konowaloff v. Metropolitan Museum of Art (Second Circuit Court of Appeals)
• Turns Out An Art Degree is a Better Career Move Than Law School (FindLaw's Greedy Associates)
• Met Museum Is Rightful Owner Of Cezanne Portrait, Court Decides (New York Observer)
• 9th Cir: Tattoos Are Art Protected by the First Amendment (FindLaw's Decided)