Barnes Attorneys Claim State Law Bars Suit By Opposition

October 22nd, 2007
By Jim Mc Caffrey
The Bulletin

Philadelphia - Rather than respond to those who oppose the move of the Barnes' art collection, attorneys for the Barnes Foundation instead last week argued the petitioners should be dismissed.

In briefs submitted to Montgomery County Orphans' Court last week, attorneys for Barnes' board members ignored the arguments of Montgomery County Commissioners and the Friends of the Barnes.

Instead, the attorneys complain neither the commissioners nor the Friends have any legal standing. The plaintiffs are attempting to prevent the move of the $6 billion art collection from the Merion gallery, where it is now housed, to a new home on the Benjamin Franklin Parkway in Philadelphia.

The Barnes' lawyers rely on a 2006 Pennsylvania Supreme Court decision in a case involving Milton Hershey School Alumni Association to argue for the petitioners' dismissal. The court ruled in that case the alumni did not have standing to challenge decisions made about the Hershey Trust.

"Petitioner's unsolicited desire to assist the Foundation is not a legally enforceable interest," the Barnes attorneys write in their response. "The county's unprecedented theory of standing to intervene would confer standing on every municipality and county in the commonwealth to intervene in court proceedings involving any for-profit or nonprofit entity operating within the municipality's or county's jurisdiction. Avoidance of such an unworkable regime is one of the primary reasons that standing to intervene in cases such as this is conferred on the attorney general alone."

They additionally claim the Friends of the Barnes "may not intervene in this matter simply because they are dissatisfied with the actions and positions taken by the attorney general ... and [the Friends] may not intervene in an effort to usurp the role of the attorney general."

Friends Attorney Mark Schwartz argued there is a difference between the standing of the Friends and the standing of the Milton Hershey School Alumni.

"There is a distinguishable difference," he told The Bulletin. "There is a difference between an alumni association and present students. This is only one of the difficult questions before the court. [Orphans' Court] Judge [Stanley] Ott can cut through all of this and open this. That's consistent with what courts can and should do."

Barnes Counsel Phyllis Beck explained, "The Hershey alumni were upset about what was being taught. That is their absolute right. The question is if the court is an appropriate forum to assert their right. The courts traditionally found it was not."