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Friday June 27, 2003

Survivors rip court's overturn of state Holocaust law

JOE ESKENAZI
Bulletin Staff

Survivors are fuming following a Monday U.S. Supreme Court ruling that struck down California's Holocaust Victims Insurance Relief Act.

"I'd have expected differently from the United States Supreme Court, that's for sure," said Louis de Groot, a Berkeley resident who spent the war years in hiding in his native Holland. "If there's one country I thought that would possibly show some ethics -- but this has always been the story, right?

"In a way, it doesn't surprise me. But it's really a great disappointment. It took me 57 years to get my father's policy paid, and after 57 years, I didn't get a fortune, I can tell you that."

Signed into law by Gov. Pete Wilson in 1998, HVIRA required any insurer "related" to a company that sold Holocaust-era insurance policies to report its full list of European policyholders from 1920 to 1945 to the state or face the revocation of its insurance license. An injunction was placed on HVIRA in 2001 during the course of an ongoing legal battle.

Like de Groot, William Lowenberg, a prominent San Francisco survivor and advocate, was angered by the Supreme Court decision. "Let's face it, the insurance companies are a bunch of gonaven [thieves]. It's not millions but billions of dollars they collected through policies. When [survivors] went to collect, they said go get a death certificate. They should be told to go to Hitler to get a death certificate from him. Auschwitz didn't give death certificates."

In a 5-4 ruling, the Supreme Court overturned the judgment of the 9th Circuit Court of Appeals, determining that, in demanding policyholder lists, California was, in essence, establishing its own foreign policy. Specifically, the court declared that HVIRA undermined an executive agreement signed by President Clinton and German Chancellor Gerhard Schroeder in July 2000 creating a voluntary compensation fund.

The Bush administration filed an amicus brief on behalf of the insurance companies.

"The basic fact is California seeks to use an iron fist where the President has consistently chosen kid gloves," wrote Justice David Souter in the majority opinion.

"We have heard powerful arguments that the iron fist would work better...But our thoughts on the efficacy of one approach versus the other are beside the point, since our business is not to judge the wisdom of the National Government's policy; dissatisfaction should be addressed to the President, or, perhaps, Congress."

The president's preference, articulated the court, is for Holocaust-era insurance claims to be handled by the International Commission of Holocaust-Era Insurance Claims.

In her dissenting opinion, however, Justice Ruth Bader Ginsburg ridiculed ICHEIC as incompetent and wasteful.

Only 35.5 percent of the prewar European insurance market participate in ICHEIC, noted Ginsburg, who wrote for Justices Antonin Scalia, John Paul Stevens and Clarence Thomas.

Furthermore, Ginsberg continued, ICHEIC resolved only 797 of 77,000 claims against Italian insurance company Generali, and, as of 18 months ago, offered survivors $38.2 million in restitution but ran up $40 million in overhead costs.

Ginsburg also failed to see how HVIRA regulated foreign businesses.

"The HVIRA imposes no duty to pay any claim, nor does it authorize litigation on any claim," she wrote. "It mandates only information disclosure, and [in] our assessment the HVIRA is properly confined to that requirement alone."

While HVIRA required insurance companies to submit lists of all their policyholders, ICHEIC only requires the list of unpaid policies to Holocaust survivors. This leaves the insurance companies in the dubious position of deciding who is and who isn't a Holocaust victim, according to Leslie Tick, the California Department of Insurance's senior staff counsel.

"It's in their own best interests to have a smaller list. I don't think they should be the ones deciding who's a victim and who isn't," she said.

"It has come to light that if insurance companies paid into a blocked account, which was the same as paying the Nazis, they considered the [policy] paid, and that did not show up on their list of unpaid policies."

At this point, Tick noted, HVIRA-like disclosure can only be achieved through congressional or presidential action.

Leslie Kane, executive director of the Holocaust Center of Northern California, doubted Bush would go out of his way to alter the status quo.

"The question is, is the Bush administration dancing with the insurance companies?" she said. "Because the administration gets pretty good support from that lobby, why wouldn't they want to grease the skids of the railroad they ride on?"

Rep. Henry Waxman (D-Los Angeles) introduced an HVIRA-like bill in March. This was noted wryly by Souter in his decision, however.

"Legislation along the lines of HVIRA has been introduced in Congress repeatedly," he wrote, "but none of the bills has come close to making it into law."

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