Of course, they appealed.
What could they hope to achieve at this late stage?
Bruce Merenstein, a partner at Center City law firm Schnader Harrison Segal & Lewis L.L.P., took a stab at answering this question at a recent continuing legal education seminar on trust and estate law by observing tongue in cheek that “if you see construction equipment in the next year tearing the Barnes gallery down, we will know why.”
Not to worry. No wrecking ball swings in the Barnes’ future, legal or otherwise. But it is entirely possible that more months will be spent litigating a matter that was basically done in 2008, when Ott last threw out objections to the Barnes move. Because the Barnes contains one of the world’s most important art collections, and because the litigation, which played out against a backdrop of political intrigue, was so hard-fought, the case is now fodder for study at the best law schools.
But it also offers an example of how the U.S. civil justice system at times tends toward dysfunction and absurd results. Judges, lawyers, and even expert witnesses may now spend additional hours examining the merits of moving a museum that has already moved.
The case at its heart is a classic trust and estate battle. Albert C. Barnes, a chemist who also had a medical degree, was a very wealthy man, a visionary art collector, and a world-class eccentric. He grew up poor in the Kensington section of Philadelphia, despised elite Philadelphia society, and devised with philosopher and education reformer John Dewey a theory of art education that became the raison d’être for his vast collection of early modern and post-impressionist paintings, valued at as much as $30 billion.
Barnes stipulated in the trust documents governing his foundation that the paintings had to remain where they were, exactly as he left them when he died in 1951, in the Lower Merion museum and education building he erected to house them. But by the late 1990s, as the court proceedings amply demonstrated, the foundation had suffered from years of financial mismanagement, some of it resulting from the restrictions Barnes had imposed.
Against this backdrop, Ott did his best to keep matters under control after signing off on the move, deemed necessary to improve the accessibility of the collection and enhance the finances of the foundation. He did, after all, sanction the petitioners when they came back last year, sending them a message that enough was enough.
At the same time, you can hardly blame the petitioners for raising objections to Ott’s sanctions. They are on the hook for $40,000. And maybe more because now the Attorney General’s Office, which represented the public interest in the Barnes move, says it, too, wants its fees paid.
But this is a problem of the petitioners’ own making.
In 2008, Ott told the students they didn’t have standing in the suit. Last year, he said the same thing. When, in their latest petition, the students and other opponents of the move argued that Ott should reopen the case based on new information in the documentary film The Art of the Steal that the attorney general had colluded to spirit the Barnes to Center City and that he should have taken a neutral stance in the litigation, Ott flatly rejected their arguments.
Ott’s decision should not have been a surprise. Robert Louis, a partner and cochair of the personal wealth, estates, and trust practice at Center City’s Saul Ewing L.L.P., says the attorney general often takes an advocacy position in disputes involving charitable trusts, and, indeed, is obligated to by law.
The students and other plaintiffs were represented by West Chester lawyer Samuel C. Stretton, a well-regarded litigator who has represented hundreds of lawyers and judges in disciplinary proceedings over the years. Though they were sanctioned by Ott, they at least got a somewhat respectful hearing.
Ott took two paragraphs to dismiss Feudale’s request to reopen the case.
Feudale, who declined to be interviewed for this article, is the author of a book, Barnes Rune 2012, in which he purports to explain Barnes’ purpose in establishing the foundation. He posits in his petition that the collection should not be moved because it is intricately arranged to command “his foundation and the Merion mansion itself in every age to seek the just and the courageous, those qualities of the archangel Michael, in each of us who enter the foundation from the garden landscape of Pennsylvania.”
Do you understand now?
Ott apparently did not, and speculated that perhaps Feudale’s petition sought merely to promote sales of his book.
“His brief and argument were devoid of any legal substance, relying instead on historical anecdotes, snippets of art theory, and his own brand of philosophical musings,” Ott wrote before lowering the boom.
Lawyers often assert, with considerable merit, that an aim of the civil justice system should be to keep open the doors to the courthouse. At times, however, it seems best to close them a bit.
Contact Chris Mondics at 215 854 5957 or firstname.lastname@example.org