Cultural Property Law Deathmatch: The Ancient Coin Collectors Guild v. The State Department

Posted on February 15, 2010

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I took a break from blogging, and from keeping on top of the antiquities blogs, and when I came back, it was like I never left.  This guy is mad at that guy for this article in this journal, but oh have you forgotten this other article that *you* published, my friend?  Etcetera.  And so the games continue, and I remain a mere fly on the wall in the parlor, watching a cocktail party gone awry.

I don’t chime in, because why should I after all, I want to be a scholar (or at least consider myself as such, if there’s a difference).  Scholars hardly brawl and spit in contempt.  But even being a fly, it’s hard to move around the elephant in the room, who has gone from white to pink with purple polka dots, wearing the most enormous tutu you’ve ever seen and parroting words like “provenance” and “bias” and “nationalism,” completely unconcerned about what they mean.  It’s like trying to maintain composure when someone is undressing or thumb-wrestling in your peripheral vision (or worse: doing both at the same time).

Amidst the perpetual academic chaos, however, the ante has been upped by the Antique Coin Collector’s Guild, which has mustered up the money to file suit against the Department of Homeland Security, Customs, and the Department of State (that is assuming that Peter Tompa didn’t donate the time it took to draft the document, as he is a coin-collecting attorney, and appears on the signature page of the complaint, although he’s not the one actually signing off on the document).

The Complaint rings in at a whopping 37 pages of dense text.  Since something like this comes along only once in a very rare while, its the equivalent of cultural property lawyer porn, so I had no problem devoting myself fully to it for the hour plus it took to digest it.  Here’s a synthesis and some notes.  (You are welcome to download the entire complaint from my server if you are also an aficionado.)

The ACCG complains that it had 23 coins seized from it by customs upon entering into the States from the UK, where the coins had been purchased, sans documentation of provenance.  The argument is two fold:

(1) The proper procedure for forfeiture has not been followed.  A due process violation has resulted.

(2) For the import restrictions under which the coins were seized, the proper procedure for enactment of those restrictions was not followed.

Okey dokey.  I’m just going to free form on some comments here. I’m gonna try to take it easy because I like Peter and I liked the complaint, and I’m excited to watch this one play out.

So first, the thing is hella long, and I only mention that because its hardly a “short and plain statement” as complaints are supposed to be.  Heck, the facts section starts out, “Western coinage originated in Asia Minor sometime around the 7 c. B.C.”  (I kid you not).  But… I’ve done it myself, drafted these long complaints so that I could make the argument in the complaint, maybe even get it noticed.  Of course the last time I did it I got my hand slapped and told that I was trying to do discovery through the complaint.  Live and learn.

The biggest problem I see with the substance is that, as to the issues the ACCG takes with the import restrictions, the complaint is asking for an advisory opinion.  The ACCG was, of course, left with no choice but to go this route when the State refused to file a formal forfeiture action (where the ACCG could have contested the seizure, and made a more procedurally appropriate argument against the restrictions).  All this business about declaratory judgment in the complaint probably won’t fly because its not speaking to the rights of the parties, but to the legality of a regulation, and that spells “advisory opinion,” people.

See also how Paragraph 8 states, “ACCG is acting on behalf of collectors and the small businesses of the numismatic trade who typically cannot financially afford to contest Customs seizures”?  This is code for one of two things: (1) a constitutional suit where the plaintiff lacks standing but represents people who do, or (2) advisory opinion.  This complaint is not framed for the former.

Its also problematic that even if the restrictions were improperly enacted (without proper adherence to the CPIA requirements), where’s the remedy?  The “counts” section of the complaint struggles to answer that question, and the only place they can find any solace at all is the Administrative Procedures Act (APA).  I have a hard time thinking the Court is going to toss the import restrictions on the procedural failings as described (in detail) in the complaint, especially when the APA also would allow the Court to just order the State to provide the letter with the missing explanation, and it wouldn’t have to be much of one, frankly.

Also, with the ACCG’s legally sufficient seizure/due process claim, the Court won’t have to get to that argument (and I’m sure they won’t want to).  I get the impression from between the lines of the complaint that the ACCG knows this.  The problem, essentially, is that the CPIA does not create a substantive right for the ACCG to enforce.  If the provisions are not obeyed, the question is then, “So what?”  The ACCG is going to have to find an injury that brings with it its own vehicle for a remedy (in this case they look to the APA and the Fifth Amendment, mainly).

The complaint contains a hefty portion of vague allegations of impropriety, but none of them really stick.  See, for example, Paragraphs 61-62, “Assistant Secretary of State, ECA Dina Powell, the decision maker for the extension of the MOU with Cyprus announced her departure to become the Director for Global Corporate Engagement at Goldman Sachs[, which] upon information and belief… is a bank holding company with worldwide business interests, likely including relationships with Cyprus or Cypriot entities like the Bank of Cyprus.” Oh, come on.  (Incidentally, Paragraph 61 was the one which David Gill took issue with on Looting Matters for citing to Wikipedia as authority).

There is some confusion of legal standards mixed in, but that’s almost a lawyer’s job.  For instance, in the first part of Paragraph (a), the State failed to disclose to Congress “the rational basis” for their decision to restrict the importation of coins.  There is no obligation for the State to do so.  The rational basis test is a kick back to constitutional law, and may be appropriate as an analytical vehicle to determine whether a law that infringes on a person’s rights passes constitutional muster, but that’s another deal.  Similarly, the complaint repeatedly states that the Civil Asset Forfeiture Reform Act, in 18 U.S.C. § 983 (c), maintains only non-hearsay evidence be used, but the act itself doesn’t say that.  It just shifts the burden, and that’s it.  Whether case law has imposed stricter evidentiary requirements is another matter, but the statute is clear.

Since the attack on the Archaeological Institute of America is patent, I’ll point out that in paragraph 42, the complaint states, “According to one such pronouncement, the AIA maintains that all unprovenanced artifacts should be deemed to be ‘stolen’ and repatriated to their supposed countries of origin. See
http://www.archaeological.org/webinfo.php?page=10421”  So stolen is in double quotes, but there is no such reference on the web page cited.  I’ve read the thing, and this is a misstatement.  Their position is much more logical/understandable than that (not that I’m taking sides, but its just not that extremist).

How the complaint is framed is that the fact section largely argues policy as to the passage of the import restrictions, while the actual legal claims go much more to the improper seizure.  Paragraph 58 provides a good summary of ACCG’s beef with the coin restrictions: “Upon information and belief, comments provided by ACCG and others established: (a) that Cypriot coins were common, with many known examples of coin types struck on the Island; (b) that Cypriot coins travelled widely so that one could not assume that a coin struck in Cyprus was found there; (c) that less drastic remedies like the imposition of a treasure trove law and/or the regulation of metal detectors should be tried before import restrictions were considered; (d) and that the CPIA’s ‘concerted international response’ requirement could not be met.”

So there are my initial comments.  Looking into my often inaccurate but highly entertaining crystal ball, I predict that the Court will rule in favor of the ACCG as to the forfeiture, without reaching the impropriety of the restrictions claim (if they even have to, because chances are the State will file the forfeiture claim, potentially rendering the whole complaint moot).  But, we shall see.

Hat tip to David Gill at Looting Matters.

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