By MEGAN SPICER, From The Connecticut Law Tribune

A Vincent van Gogh painting will continue to hang on the walls of the Yale University Art Gallery after the U.S. Supreme Court decided to not hear an appeal from a man who claims his ancestor was the rightful owner of the masterpiece titled “Night Cafe.”

“I understand that Supreme Court has a giant docket of national cases so it can’t, from an economical view, handle every case,” said Allan Gerson, the Washington, D.C., attorney representing Pierre Konowaloff, the man who claims he’s the rightful owner of the masterpiece. However, he expressed displeasure at how the U.S. Court of Appeals for the Second Circuit handled the case. “I do not understand why the court of appeals ruled the way they did,” Gerson said.

The Supreme Court announced March 28 it would not grant certiorari. Gerson said the Supreme Court’s decision “shouldn’t be seen as an affirmation of the court of appeals’ decision.”

Konowaloff said the painting, which is valued at $200 million, was taken from his great-grandfather, a Russian aristocrat, by the new Bolshevik government in Russia in 1918. In 1933, “The Night Cafe” and a work by French master Paul Cezanne, “Madame Cezanne in the Conservatory,” were sold by the Soviets to Stephen Carlton Clark, an American collector who was also the founder of the Baseball Hall of Fame. When Clark died, he willed one of the masterpieces to his alma mater, Yale, and the other to the Metropolitan Museum of Art in New York City.

In 2009, after Konowaloff tried to claim the painting on behalf of his family, Yale went to U.S. District Court in Connecticut to assert its ownership rights. Konowaloff filed a counterclaim a year later, arguing that Russia’s seizure of the painting violated international law and that Russia’s failure to pay his great-grandfather upon his death in 1921 meant the painting rightfully belonged to him.

The federal court ruled in Yale’s favor. The judge ruled that the the “act of state” doctrine precluded the claims of Konowaloff, who is a French national. The doctrine generally requires U.S. courts to presume the validity and legality of a foreign state’s action with regard to its own nationals within its own borders. In this instance, that meant presuming the Soviet government had acted lawfully.

Konowaloff appealed the decision, and the U.S. Court of Appeals for the Second Circuit issued a brief, unpublished ruling upholding the lower court ruling and the act of state doctrine. Gerson said the appellate court’s decision to publish such a brief ruling “made it extremely difficult to get the Supreme Court to review it.”

“It was not a shining moment for the judiciary,” he said. “It was such an important issue that you would think that the court of appeals would provide a learned opinion. They didn’t really give it due consideration.”

Gerson argued in his petition that the Supreme Court should not only consider the Yale case, but it should also consider looking at two decision by other circuit courts regarding when the act of state doctrine does and does not apply.

“In the absence of such resolution, cases will be decided differently if brought in an East Coast court than if brought in a West Coast Court,” Gerson wrote in his petition filed with the Supreme Court on Jan. 15. “This court should grant certiorari and clearly establish that the act-of-state doctrine may be considered by a court and affect the outcome of litigation only if the outcome of the case turns up validating the effect of official action by a foreign sovereign.”

However, Yale argued that a court decision in Konowaloff’s favor could have invalidated the ownership of tens of billions of dollars’ worth of artwork in galleries around the world. Other art owners have challenged titles to other property seized from them in Russia, but their claims were rejected by the U.S. Supreme Court and state, federal and foreign courts.

This is the second time Konowaloff was denied ownership of art his great-grandfather once owned. He was unsuccessful in a 2012 lawsuit against the Metropolitan Museum of Art over the ownership of the Cézanne piece.

IMAGE: Yale Law School

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