Conspiracy theory or hostile corporate takeover?
Those two options come to mind when reading the lengthy court petition filed recently in the dispiriting case of the Barnes Foundation. Nearly three years ago, the court approved moving the unique Pennsylvania school with the drop-dead $6-billion Modern art collection from suburban Lower Merion Township to downtown Philadelphia. The scheme wrecks the greatest American cultural monument of the early 20th century, so opponents are trying a last-ditch effort.
The petitioners, called Friends of the Barnes, are asking Orphans Court Judge Stanley Ott to rescind his earlier order, disband the Barnes' new board and put the foundation in receivership, under his supervision. Montgomery County, where the school is located, reportedly has a similar suit in the works.
Three law review articles say the original case was wrongly decided, but conventional wisdom says a successful reversal is a long shot. A ruling is a ruling. I'm no lawyer, but the shorthand reasoning seems to be "No do-overs."
No do-overs? Isn't that just what the judge granted in December 2004? Albert C. Barnes died in 1951, and Ott broke Barnes' will.
The will gave a school with a fabulous collection of paintings by Picasso, Matisse, Van Gogh, Cézanne and other masters to Montgomery County, if the state agreed to Barnes' terms. Working with education reformer John Dewey, Barnes had devised an eccentric installation that mingles Modern paintings, tools, rustic furniture, African sculpture and more, all housed inside a carefully crafted architectural milieu designed by Paul Cret -- complete with Jacques Lipchitz reliefs and a major Matisse mural -- and set in a 12-acre arboretum. Central to the bequest was a requirement that not one iota of the carefully planned Merion installation would ever be changed. Today's plan to shutter the school and build a $100-million tourist attraction six miles away in Philadelphia would seem to count as a pretty big do-over of that half-century-old covenant.
Judges don't like breaking wills. It discourages future benefactors, who would be worried about long-term stability for their own bequests.
It also emboldens others to try the same thing. Since the Barnes ruling, two additional schools have become embroiled in litigation over valuable art collections bequeathed long ago by donors. Controversial deals pending at Tennessee's Fisk University and Virginia's Randolph College are different, since both involve selling art. But the desire for a do-over is the same.
A decision in the new Barnes petition might come down to this: How does the judge feel about being duped? Two disquieting facts that emerged after his 2004 ruling imply that he was, both relating to events in fall 2002, when the court was first asked to break the donor's will and allow the move.
On Sept. 24 the state's three richest art philanthropies -- Pew, Lenfest and Annenberg -- announced a pact to lead fundraising to accomplish the task. (Walter Annenberg, a jealous rival collector who first went to court to break the Barnes will 50 years earlier, died a week later.) Reaction outside the region was uniformly negative, but silent acquiescence was guaranteed from local art organizations, who depend on the foundations' philanthropic largess. Pew volunteered to administer the deal.
Six days later, the state appropriated $100 million for downtown construction. But that huge budget allocation was never publicly announced. It remained undisclosed for four years -- until long after the judge's ruling. Ironically, Ott's decision was based on fears of the Barnes' financial insolvency.
No state legislator has yet stepped forward to acknowledge inserting the funding into the budget bill. Ott has said he knew nothing of it.
Finally, in December 2002 Pew filed an IRS application to change its status. Pew was a private foundation, using established assets primarily to give grants to others; it wanted instead to become a public charity. The change would save millions of dollars in taxes and reduce restrictions on how Pew spends its money.
Gifts normally provide about one-third of a public charity's support. To convince the IRS that donors would contribute to a foundation already flush with $4 billion in assets, Pew's application held out its management of Barnes fundraising as "a prime example of the valuable role that [Pew] will play."
But that's not the story Pew Charitable Trusts President Rebecca W. Rimel later told Ott's court, according to the petition. By the time she took the stand to testify in the Barnes hearing, the successful change in her foundation's status had been announced. Yet the change, she said, was "not based on anything that may or may not happen with the Barnes. . . . It has no implications whatsoever."