Judge rejects group's petition to stop the Barnes move

Melancholic Italian Woman, by Laresha Williams, 7th grade, C.W. Henry Elementary School. View is from N. 20th Street. ( David M Warren / Staff Photographer )
Melancholic Italian Woman, by Laresha Williams, 7th grade, C.W. Henry Elementary School. View is from N. 20th Street. ( David M Warren / Staff Photographer )
Posted: October 07, 2011

A last-minute legal effort to prevent the Barnes Foundation in Merion from moving its spectacular art collection to Philadelphia was turned aside Thursday morning by a court order.

Judge Stanley R. Ott of Montgomery County Orphans' Court ruled that the Friends of the Barnes, an organization opposed to moving the renowned collection of impressionist and early modernist work to a new museum on the Benjamin Franklin Parkway, had no legal standing to challenge the move.

Ott made a similar ruling in a 2007 suit brought by the organization.

In its most recent petition, brought in the spring, the friends group argued that "new evidence" contained in a 2009 movie, The Art of the Steal, showed that Pennsylvania authorities connived to facilitate the move.

Ott ruled that there was no new information in the movie, citing his own 2008 ruling, which specifically touched on the supposedly new information.

Evelyn Yaari, a leader of the friends group, said Ott's ruling did not reject all the friends' arguments and did not address a key issue: whether the Barnes Foundation had to move, as contended, because of failing finances.

"The important issues in the case remain unexamined," the friends group said in a statement. "The dismantling of the Barnes is as wrong now as it always has been. Someone has to stand up for the truth, and that is what we will continue to do. Our lawyer, Sam Stretton, will file an appeal at the appropriate time."

Stretton said he was "very disappointed." He deemed the suit an unusual opportunity to examine the role of the state attorney general in charitable-trust cases.

Derek Gillman, head of the Barnes Foundation, said he was "extremely pleased" with Ott's ruling, adding that it was "consistent with the court's prior decisions."

The new Parkway building, which will house Renoirs, Matisses, Cezannes, and works of other masters, is nearing completion and is scheduled to open in May.

In their petition, the friends argued that the building was helped along by a "secret" $107 million appropriation inserted into the state's 2002 capital-redevelopment bill. The existence of the potential state funding was never mentioned during the original court hearings on the proposed move in 2004.

Citing his own words, Ott demonstrated that he was aware of the funding at the time of the last friends suit in 2008. This time around, in an aside, Ott noted that "the perception that this appropriation is a smoking gun . . . has always left the court somewhat mystified."

He continued: "The appropriation was earmarked to fund a new building for the foundation in Philadelphia. Surely, even the most vehement critics of our decision in 2004 [to allow a move] do not believe that, had the existence of the budget item been known at the hearings, the court could have directed the legislature to redirect the funds to the existing gallery in Merion or sent the foundation off with instructions to accomplish this on its own."

In any event, Ott ruled, the friends offered no tenable argument that the Attorney General's Office had a responsibility to remain neutral in its actions.

In fact, the Attorney General's Office maintained in hearings this summer that it had a duty not to remain neutral, but to find a solution to the Barnes' woes that best served the public interest.

Lawrence Barth, senior deputy attorney general, argued that his office had analyzed the Barnes Foundation's financial prospects and determined that a move to Philadelphia, backed by more than $100 million in funding from private foundations, had merit.

Far from being neutral, Barth said, his office actively sought a viable solution to the foundation's problems. (The foundation, a private nonprofit, is considered a public charity under the law.)

Ott agreed with the attorney general's legal argument. "We have no basis for finding fault in this stance or embarking on further inquiry as to the attorney general's modus operandi," Ott wrote in the ruling Thursday.

Beyond that, Ott said the law was crystal clear on the issue of who can go to court and challenge rulings regarding charitable trusts, such as the Barnes Foundation. Only affected parties may do so.

"This is well-trod ground," Ott ruled.

The foundation is governed by a trust indenture drawn up by founder Albert Barnes, who died in 1951. The indenture contained a host of restrictions on investments, publicity, gallery use, hours of operation, and the moving of artwork.

In addition to turning down the friends' request to reopen the litigation - and a similar suit brought by lawyer and author Richard Feudale - Ott directed that the friends and Feudale pay a portion of the court costs that the Barnes Foundation sustained to defend itself.

Ott said Feudale's legal brief was so lacking in substance that Feudale should face a financial penalty - court costs. The friends, he said, were being sanctioned for bringing up "the budget appropriation item as a basis for standing, which this court rejected in 2008."


Contact culture writer Stephan Salisbury at 215-854-5594, ssalisbury@phillynews.com,

or @SPSalisbury on Twitter.

 

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