Barnes move leaves tangled legal legacy, lingering hard feelings

The fight to move the Barnes collection from Lower Merion to Center City has divided Philadelphia — and the art world, generally — into opposing camps. Some fought in public, some fought in court.

The Barnes Foundation will cut a ribbon Friday opening its new galleries on the Parkway. Those with tickets can start touring the art collection on Saturday.

The fight to move the collection from Lower Merion to Center City has divided Philadelphia — and the art world, generally — into opposing camps. Some fought in public, some fought in court.

As publisher of the newsletter “Nonprofit Issues,” attorney Don Kramer has been closely following the Barnes in court for 10 years. As a Philadelphian, he also has been following the Barnes in the newspapers. He noticed a difference.

“There was a large divergence between what was being argued in the papers, and what was argued in court,” said Kramer.

The Barnes Foundation asked the Montgomery County Court of Common Pleas for permission to break the rules of its own indenture, created 90 years ago by Dr. Albert Barnes. In order to survive, it said, the foundation needed to move to the Parkway.

“It was argued on very narrow legal grounds on whether or not the restrictions were too tight,” said Kramer. “It was argued in the press on the grounds [it was] a great tourist attraction. That’s not the legal standard. It’s a valid economic argument, but it’s not the legal standard.”

Educational establishment

In 1922, Barnes created the Barnes Foundation as an educational institution with the collection of paintings at its core. To protect both the paintings and his vision of how those paintings should be used, he created a trust with highly specific conditions.

Public viewing would be restricted to just two and a half days a week. No paintings could be sold, and no reproductions could be made. Funds could be raised only through government bonds. There would be only five members on its board.

Since Barnes’ death in 1951, the foundation has gone to court at least 20 times to change parts of its indenture. Most recently, it enlisted the help of attorney Carl Solano.

“When trust lawyers look for precedence on things like the law of deviation … you’ll find most of the law was created by the Barnes Foundation,” said Solano, an attorney with Schnader Harrison Segal and Lewis. “There is a huge body of Barnes Foundation law.”

The foundation may have left its fingerprints on the law, but it did not set legal precedence.

“There is a long history of legal principle involving when a trust that has been set up is having difficulty meeting its core purpose. How can you best achieve that purpose by amending certain provisions of the trust?” said Ralph Wellington, also with Schnader Harrison Segal and Lewis. “That’s called the doctrine of deviation.”

Judge Stanley Ott decided that the move to the Parkway would not deviate from the mission laid out by Barnes, just from the way that mission is administered.

Opposition blocked

Naturally, there was opposition.

Jay Raymond, a former student of the Barnes, wanted to show that the move would violate the mission of the foundation’s trust, and that other tactics could be used to save the foundation. But first he had to show that he was in a position to make that argument in court. He had to have standing.

“The students are the beneficiary of the trust,” said Raymond. “It’s a school, and the sole intent was the function of the school. So it seemed to me the students had what’s called a special interest — different from the public, whose interest is represented by the attorney general.”

Raymond was denied standing, leaving only the Pennsylvania attorney general to argue against the foundation’s board.

But the attorney general — back then it was Michael Fisher — didn’t. Fisher agreed that the foundation should be able to move. That’s when Sam Stretton got involved.

In 2010 Stretton, an attorney, filed an appeal on behalf of the Friends of the Barnes, claiming they — or at least somebody — should be able to push back when the attorney general does not.

“I do believe that this case was an important case to define what the attorney general is supposed to do,” said Stretton. “At least, if the attorney general is in full agreement with whatever the other side wants, [it] ought to be fully disclosed, so the court can then give someone else standing to become adversarial, so the court has a full and complete picture.”

Despite opening, case continues

Stretton was not successful in gaining standing for the Friends of the Barnes. The case still limps on with another appeal pending, but the $150 million building on the parkway is finished and the art has moved in.

“We have a case here — a case heard around the world — that was not appealable at home,” Don Kramer. “If we believe that the adversary proceeding is the way to resolve these — when the attorney general represents the same side as the proponent, and there is no opponent, you undercut the adversarial process.”

Everyone agrees the art inside the Barnes building is beautiful, but the legal fight that got it to Philadelphia was ugly.