BY GAREN YEGPARIAN
It seems year’s end is becoming “legal season” judging by when that aspect of our struggle calls for attention.
You might recall that the U.S. Court of Appeals for the Ninth Circuit had heard an appeal of one of the Genocide era insurance claims cases. A three judge panel had rendered an unfavorable verdict, then reversed itself when one of the members of that panel thought better of it.
Now, it seems the court wants to star in its own version of the movie “Groundhog Day” and decided, on November 7, to revisit the issue. Why? The Turkish government and German insurance companies involved in this, the “Movsesian,” case have appealed the latest ruling. You’d think that German companies would and ought to know better than to mire themselves in litigation involving fighting genocide related claims. This just proves the inherently cynical nature of corporations. Of course Turkey’s opposition requires no further explanation.
But why would the court accept this appeal “en banc,” that is by the whole court? I’m told by attorneys it’s an indication that some of the judges sitting on this court (29 of them when they are fully staffed) see a reason to review the matter. As a practical matter, not every judge will be participating, but a large number of them, perhaps eleven or more, chosen at random, will hear the case. Briefs must be submitted to the court by mid-December, and the hearing will likely be held some months later. It was encouraging to hear Professor Bazyler, an expert attorney in Holocaust related court cases who spoke at the ANC’s Thanksgiving weekend Grassroots Conference, say that he had been working on the filings in this case. (By the way, if you didn’t attend the conference, you missed out BIG time).
But what could that reason be? Could it be subtle, insidious pressures from government quarters? I suppose it’s possible, but it turns out there’s another case currently wending its way through the courts that is, at least superficially, similar to our Movsesian case. And, that case shapes up in such a way that it seemingly produces a contradictory result to ours, so the court wants to clear things up.
That case (referred to as “Von Saher”) involves looted art from the Holocaust era and a California law (again, much like the one enabling our insurance claims). In Von Saher, the current holders of the art, the Norton Simon museum, are arguing that because the federal government has an arrangement through which such issues are to be settled, the states cannot pass laws that impinge on the federal setup. This is based on the U.S. Constitution allowing the states to make laws on matters not already addressed by the federal government.
The apparent, though inaccurate, “similarity” between Von Saher and Movsesian is this federal/state issue. But the key difference is, in the Armenian case, there IS NO federal policy that prevents the states from enacting Armenian Genocide based legislation. The Turks and misguided German insurance companies are claiming that THERE IS such federal policy, based on the statements made by our consecutive lying U.S. presidents opposing passage of a Genocide resolution by Congress. Of course such opposition, based on momentary political considerations is not the same as the denialism of the Turkish government. Presidents and their lower level ilk have simply argued that a resolution should not be passed, not that the Genocide did not happen. Plus, no federal government official has EVER objected to ANY state’s passage of Armenian Genocide resolutions or issuance of proclamations about the Armenian Genocide.
Separately, there exists the issue of the states’ rights to pass legislation. In this respect, our side may have the support of the states who, naturally, do not want their powers curbed or compromised.
These are some of the issues that will be considered by the Ninth Circuit Court when it hears the issue. Or, Movsesian might end up in the Supreme Court depending on the outcome of “Von Saher” case. It’s a messy, and potentially confusing, situation we face. Unfortunately, the courts are not very susceptible to public pressure, so a writing campaign might actually backfire. On this one, we’ll just have to be alert and watchful. Perhaps the trick will be to enact federal legislation specifically allowing the type of legislation now being questioned in the courts.