Monday, June 11, 2007

Next Round for the Barnes Foundation

The Barnes Foundation is known nationally, both for its operations of an art museum, and also for its recurrent litigation, both conducted in the situs of Montgomery County, Pennsylvania. It appears that a sequel in the Barnes Foundation's Orphans' Court litigation will be initiated soon.

Wikipedia provides a good overview of the Barnes Foundation & its spectacular artwork collection:

The Barnes Foundation is a museum and art school situated in Lower Merion Township, a suburb of Philadelphia, Pennsylvania in the United States.

The Museum displays works of several painters, including Paul Cézanne, George de Chirico, Paul Gauguin, El Greco, Francisco Goya, Edouard Manet, Henri Matisse, Amedeo Modigliani, Claude Monet, Pablo Picasso, Pierre-Auguste Renoir, Maurice Utrillo, Vincent Van Gogh. * * *

The museum was constructed in 1922 in one great villa, designed by Paul Cret, on the grounds of the home of Dr. Albert C. Barnes. The grounds now form a fine arboretum in their own right (The Arboretum of the Barnes Foundation).
Since 1992, the Barnes Foundation was involved in Orphans' Court litigation, as its Board sought to address fundamental facility inadequacies & a failing economic outlook. For a good summary of key events during the past fifteen years, see Wikipedia's "Recent Developments":
On December 15, 2004, after a two-year legal battle (which included an examination of the Foundation's financial situation), Judge Stanley Ott of the Montgomery County Orphans' CourtThe Pew Charitable Trusts, The Lenfest Foundation and The Annenberg Foundation, had agreed to help the Barnes raise $150 million on the condition that the move be approved. * * *

After Judge Ott's decision in 2004 a group called Friends of the Barnes Foundation was formed consisting of former students, neighbors and art lovers from around the region and the world to try and find a way to keep the collection together in its home in Merion.

As a result several steps have been taken to thwart the move. * * *

In May 2006, the Foundation announced that it had successfully reached its $150 million fundraising goal, and that it would now expand the campaign to raise another $50 million for endowment purposes.

In August 2006, the Foundation announced that it was beginning a planning analysis for the new gallery, and that Derek Gillman (formerly of the Pennsylvania Academy of the Fine Arts) had been selected to be its new director and president.

The Barnes Foundation is moving ahead with its plans to move its gallery collection to the Benjamin Franklin Parkway, and on March 6th 2007, they announced that they had sent out a request for qualifications to an extensive group of leading and international architecture firms. They plan to select the architect by August 1st, 2007. * * *

Last week, the latest development was reported by The Philadelphia Inquirer, in an article entitled "Commissioners plan suit to keep Barnes in Merion", dated June 8, 2007, by Jeff Shields.
With the move of the Barnes Foundation stalled by political gridlock in Philadelphia, officials in Montgomery County yesterday said they would sue to keep the famed art collection at its Merion home.

County commissioners unanimously voted to hire lawyer Mark Schwartz to ask a county Orphans Court judge to reconsider his 2004 decision allowing the museum to leave its specially tailored home on Latches Lane for a yet-to-be-built museum on the Benjamin Franklin Parkway.

[Philadelphia] City Council is expected next week to approve a 99-year lease for the Barnes on the site now occupied by the city's Youth Study Center, a juvenile housing facility. But city leaders have been unable to agree on a new site for the center, and no solution appears imminent. If the center doesn't vacate the site by May 2008, the Barnes Foundation can break the lease.

"I think that gives us more time," Thomas Ellis, the commissioners chairman, said yesterday. "We don't believe that Philadelphia is committed to moving the facility there, and we're committed to keeping it here."

Schwartz said he would file a petition in the next few weeks asking Judge Stanley Ott to review his decision authorizing the Barnes' relocation against the directives of its deceased founder, Albert C. Barnes. The appeal will be based on "new information" showing that politicians, private interests and the Barnes' board of directors worked together to undermine Barnes' wishes as outlined in the trust he left behind, Schwartz said. * * *
The article noted the position of the Barnes Foundation about the previously-approved, pending move:
Barnes attorney Ralph Wellington said the foundation considers the case settled.

"From our perspective, the judge, and all the way up through the Supreme Court, has fully evaluated this issue," Wellington said. "We're moving forward."
What might persuade the Orphans' Court Division, of the Court of Common Pleas of Montgomery County, to reexamine its prior approval?

A basis for such reconsideration might be found within an article, written by Christopher Knight, published on October 6, 2006, by the Los Angeles Times, entitled "What the Court Didn't Know" (PDF, 3 pages, as reposted by the Friends of the Barnes Foundation on its website here).

The L.A. Times reported that "Pennsylvania set aside funds to move the Barnes collection to downtown Philadelphia long before a judge's ruling allowed it."

In December 2004, a Pennsylvania court did the unthinkable. It ruled in favor of a controversial petition to relocate the greatest collection of Post-Impressionist and early Modern paintings ever assembled by an American art collector from its historic home in a wealthy Philadelphia suburb to a gritty site downtown.

There, as part of an evolving urban redevelopment plan, a powerful coalition representing the city's political, business and cultural establishment hoped to create an international tourist draw. The alluring magnet would be the nearly five dozen paintings by Matisse, 46 by Picasso, 69 by Cézanne, seven by Van Gogh, 181 by Renoir and scores more by other household names in art's firmament. All came from the fabled Barnes Foundation.

The court's decision to allow the move set off international howls of dismay. The ruling not only ventured into troubling legal waters but also paved the way for the destruction of a singular monument of 20th century American culture. The Barnes, founded in 1922, had been hailed by no less an eminence than Matisse as "the only sane place" for the display of art he had seen in America.

Now it appears the court decision to abandon "the only sane place" was made without a critical piece of information.

What the judge did not know — in fact, what almost no one seems to have known — was that long before the court hearing even began, more than $100 million had already been set aside for the scheme.

Who was the mystery benefactor? The state of Pennsylvania.

Two state appropriations for the Barnes Foundation totaling $107 million were made 13 months before Judge Stanley R. Ott raised his gavel to begin final hearings in the Montgomery County Orphans Court.

There is no indication that these appropriations were ever mentioned in court, where the deliberation focused like a laser on the Barnes' strained finances — and on the difficult prospects for fundraising necessary to accomplish the move. Nor did the earmarked money appear in any of the extensive mainstream press coverage generated by the case. * * *
Another article that also appeared on June 8, 2007, confirmed this approach by the County of Montgomery seeking the trial court's reconsideration of its prior decision. See: "Montco commissioners press ahead with reopening Barnes Museum litigation", by Margaret Gibbons, posted by the Main Line Times:

Montgomery County stands a good chance of reopening the litigation that cleared the way for the move of the Barnes museum's art collection out of Lower Merion to a proposed new museum in Philadelphia, according to county Commissioners Chairman Thomas J. Ellis.

"My expectation is to win, otherwise we would not engage in this action," said Ellis.

Ellis' comments came after the commissioners voted to hire Bryn Mawr lawyer Mark D. Schwartz to petition the county's Orphans Court to reopen the Barnes litigation. * * *

One of the reasons for his confidence, said Ellis, is that, at the time of his ruling. Orphans Court Judge Stanley R. Ott, like many others, did not know that the state had earmarked $107 million in state funds for the move even before the litigation was filed.

With the budget crisis in Harrisburg where there is not enough money for public transit and roads, "I think we also will have the public on our side," said Ellis.

"Why should we spend $100 million to move something that should not be moved?" said Ellis.

The details of this allocation will be part of the new evidence that Schwartz will submit in support of reopening of the case. * * *

"The opera ain't over until the fat lady sings."

Dan Cook, a San Antonio sports broadcaster (April, 1978), who coined the famous phrase after the first basketball game between the San Antonio Spurs & the Washington Bullets during the 1977-78 National Basketball Association playoffs, to illustrate that, while the Spurs had won once, the series was not over yet.

* * *

Update: 06/13/07:

The Montgomery County (PA) Board of Commissioners "made a stunning, historic attempt to keep Philadelphia from hijacking its great treasure -- the Barnes Foundation and its $30 billion art collection in Merion", reported an article entitled "Montco's Barnes Offer Stuns", by Jim McCaffrey, published Wednesday, June 13, 2007, in the Evening Bulletin.

The article reported the development, which occurred on Tuesday, June 12th:

Yesterday, Mark Schwartz, newly-appointed legal counsel for Montgomery County in all things Barnes, made a bid on behalf of the county to buy the Barnes property in Merion. The bid also includes Ker Feal, Dr. Albert Barnes' historic Chester County country home near Chester Springs.

Schwartz said the offer will "be equal to or exceed $50 million, the amount [Orphans' Court] Judge [Stanley] Ott said would be needed for a viable endowment."

The county would then become a landlord to the Barnes -- the same role Philadelphia would play if the foundation completes its bid to move its art collection to the Benjamin Franklin Parkway.

There would be no taxpayer money used in the purchase of the Barnes' property, Schwartz guaranteed. The county would sell bonds to cover the cost of the purchase. The Barnes Foundation would then be responsible for paying the debt service on the borrowing. * * *
The offer to be presented to the charitable foundation invokes the "fiduciary obligation" of the trustees for consideration, according to the article:

Schwartz is seeking to reopen the Orphans Court litigation that allowed the Foundation to break Dr. Barnes' will and the Foundation Charter to move the collection to Philadelphia. * * *

Schwartz says he believes the county's offer should open negotiations with the Barnes. "My expectation is this will get [Barnes Foundation Chairman] Dr. [Bernard] Watson to meet with us and start negotiations," Schwartz claims.

"I believe he has a fiduciary obligation to respond to this offer.

Remember, Judge Ott said they may move; he didn't say they must move. This is the most cost-effective solution and does the least harm to the indenture. Moving is not the only possibility. There are other possibilities.

* * *

Update: 06/19/07:

For further discussion about the Barnes Foundation, in the context of other treasured collections having a past home in Philadelphia,
see: Philly Rocks Stay Home. Paintings Too? (PA EE&F Law Blog, 06/19/07).

Update: 06/21/07:

This PA EE&F Law Blog posting was referenced on the "Save Ardmore Coalition" blog.

For further developments reported by newspapers, see:
"Barnes Rejects Montgomery County Lease Offer, by Jeremy Rogoff, published in the Philadelphia Inquirer on June 21, 2007; and also "Barnes Rebuffs Montco Offer", by Jim McCaffrey, of The Evening Bulletin (Philadelphia), published on June 21, 2007:
And they are off to court.

Once again the Barnes Foundation has probably landed itself in court, where it will again have to defend its decisions. This comes thanks to its response yesterday to Montgomery County's offer to create an endowment for the foundation. * * *

Yesterday, Bernard Watson, chairman of the Barnes Foundation, rejected the Montco offer.

"The Barnes Foundation intends to fulfill its mission 'to promote the advancement of education and the appreciation of fine arts' by moving the gallery collection to the site on the Benjamin Franklin Parkway provided to us by the city of Philadelphia," Watson said in his reply.

"Over the years, the board of trustees has considered all reasonable proposals presented to us. At this juncture, we have now made binding commitments to carry out the move of the gallery collection to Philadelphia and the decision is irreversible." * * *
* * *

Update: 05/19/08:

On May 15, 2008, the
Orphans' Court Division, of the Montgomery County (PA) Court of Common Pleas, per Judge Stanley R. Ott, issued a Memorandum Opinion (8 pages) that denied "standing" to the Friends of the Barnes Foundation and the County of Montgomery in the litigation referenced as The Barnes Foundation -- Petitions to Reopen Proceedings.

PA EE&F Law Blog posting
"No Standing" for Barnes Foundation Petitioners (05/19/08).