To paraphrase the famous Saturday Night Live skit about General Francisco Franco: this just in: Museum members and supporters still cannot go to court to challenge the administration of the institution. The Barnes Foundation has defeated the latest challenge to its right to move from its original home in Lower Merion outside of Philadelphia to its new home in the center of the city. The relocation will go forward.
Taking a step back from the news coverage and recent documentary treatment, the decision stands for a well-established proposition, but one often unknown to the general public: it is the attorney general, not a museum’s constituents, that have the legal right to try to affect the governance of a public charity.
This is the latest chapter in the more than a decade old saga about where the collection of Albert Barnes will be seen. The Barnes has had since its inception a very strict list of conditions about where it can be seen, when, and by whom. Administered as it is by a trust, the Foundation had very limited ability to stray from those instructions (the Isabella Stewart Gardner Museum being perhaps the most famous other example).
To accommodate the proposed relocation, therefore, the Foundation had to reform the underlying trust, resorting to the doctrine of cy pres, “as near as possible,” available when the original purpose of a trust is no longer possible. The argument went that the Barnes could not survive in its current location, so existing elsewhere was nearer to Barnes’s wishes that closing its doors forever. The Barnes’ reliance on this doctrine has been controversial, but with the support of the Pennsylvania Attorney General it convinced the court in 2004 that moving the collection was the nearest outcome possible to the wishes of Albert Barnes.
Since then, several interest groups have been trying to stop the move, most prominently the Friends of the Barnes. Their efforts focused a great deal on the role of Lincoln University, which had been given a prominent role in the administration of the Barnes Foundation, and which therefore needed to be on board with the new plan.
The Friends of the Barnes tried to reopen the case in 2008, and lost. In 2009, a documentary entitled The Art of the Steal was released about the controversy. The documentary spotlighted an appropriation in 2002 by the Pennsylvania legislature to Lincoln University, an appropriation that the movie implied was an inducement to obtain the university’s acquiescence in the deal.
Having predated the original 2004 result allowing the relocation, the 2002 appropriation could only serve as a basis to revisit the result if it were unknown, and probably only if it were unknowable, to the petitioners in 2004.
Yesterday, the Pennsylvania court overseeing the case rejected the Friends of the Barnes’s characterization of the 2002 appropriation as “new.” In the harshest part of the decision, the court sanctioned the Friends and an attorney who had petitioned on his own behalf, ordering them to pay the Barnes’s attorneys fees. The court’s impatience no doubt stemmed large from the fact that the 2002 budget appropriation was explicitly mentioned in the 2008 decision upholding the original 2004 result.
The case has been a visible one, but it underscores some important points about public charities (the rules of which are particular to each state, but which are joined by some common concepts) that often escape the community of museum supporters. The actual basis for the court’s decision yesterday, in 2008, and 2004, was the concept of standing. That is, no matter the propriety of the Barnes’s actions, private citizens have no standing in court to seek relief about it, only the Attorney General does. This concept received some attention in the controversy about the Rose Art Museum as well, and the Barnes case is a reminder that no matter how important a museum is to a member, donor or visitor, he or she is almost certainly not going to get through the courtroom threshold to complaint about it.
For thoughtful analysis of the history of the case at its various points, see here.