Court was Mis-led by Pa. AG's Office, Barnes Petitioners Will Argue Monday

As the Friends of the Barnes goes to court today in what appears to be the bottom of the 9th inning in a very lopsided game, many fans have long since left the stadium. There are a few die-hards left in the bleachers, sure, and a handful still standing behind glass in the air-conditioned luxury boxes, talking business with one eye on the batter and the imposing closer he faces.

But most people consider the game long over. After all, wasn’t July 3 the final day to see the world-renowned private collection of Impressionist and post-Impressionist art and African artifacts at its Merion home?

Scores of media outlets, including this one ( and then again ), did features about the final Sunday, “when the Barnes Foundation closes its doors ... and begins the process of transporting its art collection to a new building down the street from the Philadelphia Museum of Art,” as Don Steinberg of the Wall Street Journal put it, in a piece about the tricky process of transporting the art that, perhaps understandably, had an all-over-but-the-cryin’ tone to it.

And wasn’t the second floor already closed in those final months in preparation for the move, and weren’t many of the works on the first-floor galleries already gone? A documentary on the decade of legal fights over the move made a splash in the art world and was well-received by many film critics, but it was also panned as one-sided by the Inquirer, among others, resulting in a sort of wash (the New York Times nicely split the difference).

The new building on the Benjamin Franklin Parkway is nearing completion, too. Would the powers that be really allow such an enormous investment, described as a linchpin to the revitalized Parkway—a veritable jewel in the crown of the city’s Museum Mile—to become the new Disney Hole at the 11th hour? The implied answer to such a question has been, for some time now, “How naïve could you possibly be?”

The names on the hundreds of frames pretty much say it all: Van Gogh and Renoir. Picasso and Cézanne. Manet and Monet. Degas and Matisse. ... If there was ever a fait accompli, surely the Barnes move is it.

Right?

A ‘Mis-use’ of the Office

It’s telling that it may come as news that today’s arguments are even happening. “I thought that was all over,” said a Main Line executive, when the subject came up last week (he did not wish to be interviewed on the subject, but like many area residents, professed to not care much about the controversy “as long as it stays in Philadelphia”).

But attorney Samuel Stretton will be back at it for at least one more shot to re-open proceedings this afternoon at 1:30 in Courtroom B of the Montgomery County Courthouse in Norristown, on behalf of the Friends of the Barnes, BarnesWatch, and various individuals. Oral arguments will be heard by Judge Stanley R. Ott, who ruled in December 2004 that the case made by the Barnes Foundation (led by high-profile city and state elected officials and civic leaders and foundations) that it needed to move to survive “showed clearly and convincingly the need to deviate from the terms of Dr. Barnes’ indenture.”

What will Stretton argue today? He’ll tell Ott that much of the behind-the-scenes machinations were unavailable to present in court until recently, and in particular, revelations from that documentary mentioned above, “The Art of the Steal,” which came out in early 2010.

Stretton’s premise will be that “the evidence in the film, the statements made by former Pennsylvania Attorney General Mike Fisher, indicates a very high level of misuse of the office,” said Evelyn Yaari, a petitioner and a member of the Friends of the Barnes steering committee.

“Why is that so terribly important, so critical? It’s for one reason only—under the law, only the attorney general can intervene in the matter, unless you’re talking about someone on the Board of Trustees. So there’s an awful lot of trust in that office that they’re going to do the right thing and protect the public’s interest.”

The response from the AG’s office has been that it did have an obligation to protect the Barnes trust, but it was equally obliged to protect the public interest.

“So we say, ‘Show us—show us how it’s in the public interest,’” Yaari said.

One’s immediate thought is that it’s in the public interest to have more people able to see the collection. But the main argument from the AG’s office has been that if it is not moved to the Parkway, the collection “will be scattered to the four corners of the earth, that it is not sustainable in Merion,” Yaari said. “That’s absolutely not true, because they didn’t begin to do the things needed to be done to make it financially sustainable. There were some very simple things that could have been done.”

Bankruptcy specialists argue that the Barnes was never even near insolvency, the Friends of the Barnes maintains, and that it was at or close to the break-even point in certain scenarios. But specific numbers are not the point at this stage, Yaari said—what’s important is getting some basic truths out there to re-open the proceedings.

The Last Ditch?

The statements by Fisher in the film “reveal his active involvement with Lincoln University’s decision to drop their legal opposition to the Barnes Foundation’s petition seeking expansion of its Board and permission to transfer” the art collection from Lower Merion to Philadelphia, Yaari and her fellow petitioners wrote in a press release last week.

In an April 27, 2011 memorandum stating preliminary objections to the petitioners’ argument to re-open proceedings, attorneys for the Barnes Foundation—the law firm of Schnader Harrison Segal & Lewis LLP—wrote that the petitioners are dredging up “evidence that they call ‘new’ but that has been in the public record for many years.”

“The petitions are untimely and seek to re-litigate matters that this Court already has decided,” the memo states, adding that “scandalous and impertinent accusations” made by the Friends of the Barnes should be stricken from any record.           

The Friends, in their press release, quote Fisher from the film as saying:

“I don’t know that we were ever as direct as saying, ’We can take this [the Barnes Foundation] away from you’ because that would take a court to do that, but I had to explain to them that, you know, maybe the Attorney General’s office would have to take some action, involving them that might have to change the complexion of the board. And, whether I said that directly or I implied it, I think they finally got the message.”

That’s important, the petitioners say, because Lincoln “was the only party with legal standing to intervene other than the Attorney General,” and that Lincoln’s decision to drop their petition “left the Attorney General as the only party with legal standing” to question matters related to the transfer of the art.

The Art of the Mis-lead

Stretton will argue that because Ott had no knowledge of the pressure on Lincoln by Fisher, and had “no knowledge of the promises by then-Governor Ed Rendell for $80 million in taxpayer funds for Lincoln’s University’s capital campaign, the Court was misled and the hearings were not a valid adversarial legal process,” the petitioners say.

The public was equally misled, Yaari said. “What is its image in the public eye? They’ve repeatedly presented it as pretty much a basket case, over and over again in the press,” Yaari said, speaking of Lincoln’s financial mismanagement.

The situation has been portrayed expertly as a bunch of rich, Main Line whiners suddenly backing a treasure when in the past they considered even the presence of buses a nuisance, Yaari said.

“There’s a thread running through this that is ... classism,” she said, an irony almost too large to comprehend, since “the people who are destroying this monument, which is an American treasure, are who? They’re the richest people around here. We’re talking about Robert Montgomery Scott, may his soul rest in peace, ... the Pews, the Annenbergs—all the luminaries of the Philadelphia elite class. They decided this is going to happen and nothing is going to stop them. So they make it sound like moving it to the Parkway is for the people. That is absolute rubbish.”

Whether this line of argument will come out in court Monday is uncertain, but Yaari said that when Stretton saw “The Art of the Steal,” he told the Friends that Fisher provided them with a new, solid hook on which to hang their argument for legal “standing” in the case because Fisher had violated his broad public role.

“We had plenty of evidence that we could have presented in court but we had no voice,” Yaari explained, because they had no legal standing. Stretton will argue the case for the “Private Attorney General theory”—that the petitioners can argue anew on behalf of a broad constituency, since in his opinion, Fisher fell down on the job, or worse.

In very broad terms, “Private Attorney General” refers to a private party that brings a lawsuit, or case, considered to benefit the public just as much, if not more, than the plaintiff. Its opposite concept is parens patriae (“parent of the nation”), or the power of the state to intervene in legal matters concerning negligent parents, or caretakers (in this case, the Barnes Foundation) on behalf of its citizens. Through Fisher’s actions and certain inactions, the state AG’s role as parens patriae for the Barnes, a charitable foundation, was invalidated, Stretton will argue.

“He has said from the very beginning, ‘I think we’re gonna win this thing,’” Yaari said of Stretton. “He has never wavered from that. It would be very surprising if the judge decided on the spot to re-open the hearings, but that could happen.”

Ker-Feal

Meanwhile, Yaari said the Barnes building in Merion has been eligible for the National Register of Historic Places since 1991, but an application was never submitted.

On the other hand, Dr. Albert Barnes’ other estate, the 137-acre Ker-Feal in Chester County, with an 18th century farmhouse and a large collection of “Americana,” did get registered—nationally as well as with the state—in 2003, Yaari said.

“This represented an asset that the [Barnes] board, at the time, could have looked to as an alternative to shore up the financial picture in Merion,” she said.

Stretton will hit upon this point today, too—that Ker-Feal, a large property in the midst of the wealthiest county in the state, was purposely taken off the table as an alternative to moving the Barnes art collection.

Yaari said the value of the land and the collection of thousands of pieces of American objects was over-played, in terms of their historical significance when compared to the Merion galleries, at the hearings leading up to Ott's 2004 ruling. At the same time, both the real estate and the objects were underestimated in terms of their financial value.

“They spent an enormous amount of time on that property in disabling it, so to speak, as a potential source of funds.”

This argument has been made in the past, and Ott addressed it, but the point is that Ker-Feal’s significance “rests squarely on the shoulders of Dr. Barnes and what he did in Merion,” she said, a fact never brought up before. “Without that, Ker-Feal is just an old farmhouse.”

Stretton will point to “the absence of any references in earlier hearings to the extraordinary value of the Barnes Foundation as a site of national historical and cultural significance” and “explain how in contrast, lengthy testimony about the Foundation’s far less significant holding,”—Ker-Feal—“was designed to prevent the sale of the Chester County property from posing a viable alternative to moving the Barnes art collection to Philadelphia.”

Put another way, official recognition of the national and cultural significance of the Barnes in Merion—the building itself, the school, the history, the arboretum, the unique setting—was purposefully held in check, Yaari said.

“It was kept under a thick, heavy blanket, shoved in the corner.”