The Barnes Foundation rulings (Part 2)

The latest Barnes ruling:
The judge who sees no evil

ROBERT ZALLER

Second of two articles about the latest ruling concerning the Barnes Foundation move.

The kindest interpretation one can place on Judge Stanley R. Ott’s decision of December 13, 2004 to permit the Barnes Foundation to move from Merion to Philadelphia is that he recognized that a broad coalition of political, commercial and philanthropic interests had effectively taken charge of the Foundation, and that their will was not to be denied by a mere Montgomery County Orphans Court jurist in a court of first instance. Judge Ott would have seen, and indeed he stated, that the deal had been blessed by the Attorney General’s Office, and so presumably had the consent of higher executive and legal authority. Ott’s job was to steer the proceedings through to their foreordained conclusion, and to keep the unsavory details of how this political sausage had been cooked out of the court record.

He did so by denying the student respondents to the petition for the move the standing granted them by his predecessor, Louis Stefan, thereby forestalling an adversarial hearing that, with its capacity to compel discovery and conduct cross-examination, would have disclosed the story of the plot to move the Barnes even as it was under way. Of course, Judge Ott possessed those investigative powers himself. But the less he knew (or, to put it a little differently, the more he could plausibly deny having known), the better for all concerned— except, of course, for those dead Frenchmen Picasso and Matisse, and for the general public of Pennsylvania that was the intended beneficiary of the Barnes trust.

As far as the latter was concerned, it was legally spoken for by the attorney general, and if the attorney general said that all was well, who was Judge Ott to gainsay him? Ott had given the student Davids their day in court against great Goliath, albeit without their slingshot. See no evil, hear no evil: It was all as carefully plotted as a Kabuki play, and the outcome as clearly determined.

A meeting that wasn’t disclosed

What Judge Ott could have found during the 2004 hearings was that Attorney General Mike Fisher had met with the Barnes Foundation trustees at Lincoln University in September 2002 to present the takeover terms of the Foundation's principal "benefactor," the Pew Charitable Trusts; that, a month later, $100 million had been mysteriously inserted into the Pennsylvania capital budget to fund the Barnes’s move to Philadelphia, in advance of any petition (less alone permission) to do so; and that Lincoln itself had been bought off with an $80 million bribe in the form of a capital improvements package for the University, again funded by the taxpayers. The trustees, the attorney general and the Pew all had an affirmative duty to present these facts to the court; all knowingly breached it.

The facts of the conspiracy came out piecemeal. On May 22, 2005, Patricia Horn published an article in the Philadelphia Inquirer (“The Deal of the Art”) that described the infamous meeting at which Attorney General Fisher coerced Lincoln into surrendering its majority control of the Barnes board. A little more than a year later, an enterprising member of the Merion Civic Association discovered the unexpended $100 million state allocation in the Commonwealth budget, whereupon another private citizen, Walter Herman, wrote to Judge Ott to ask whether he had been aware of the allocation during the 2003-04 hearings.

Judges don’t normally respond to ex parte communications. But Judge Ott replied within 48 hours to state that he had had no cognizance of the allocation, and to agree with Herman that such information would have been highly germane to the Barnes hearings had he possessed it.

What he could have done, but didn’t

Judge Ott carefully added that he could make no further comment because the matter was no longer before him. But he could have called the parties back into court to ask, under oath, whether the Barnes trustees, the attorney general’s representative, Lawrence Barth, or the Pew’s attorneys had withheld knowledge of the allocation from him— an act of malfeasance that would certainly have justified a reconsideration of the judge’s decision. Just as he had failed to provide for adversarial discovery in the first place, however, so now Judge Ott limited his response to a personal disclaimer.

(A few months later, at a meeting in the attorney general’s Philadelphia office, I asked Barth directly whether he had known of the allocation. He denied it. To this date, no one has confessed knowledge of what has come to be known as the immaculate appropriation.)

Meanwhile, in Center City….

The $100 million raid on the taxpayer, and the subsequent revelations of the dealings of the Pew and the attorney general with the Barnes trustees, all would have warranted if not compelled a reconsideration of the move. At the same time, Judge Ott could have noted that the Barnes had fulfilled virtually none of the undertakings it had made in 2004. Not only had a new Barnes facility failed to open in Center City in 2007, as promised, but as of this writing one has not even been designed. Although $150 million purportedly had been raised for the promised endowment and the move (including $25 million from the state allocation), not a penny appeared to be actually in hand, and the trustees had been back in court to ask permission to raid their own capital accounts for such maintenance operations as fence-painting (permission was denied, and the fence remains unpainted).

Montgomery County, meanwhile, had devised a financial plan that would keep the Barnes in Merion at no cost to the taxpayer, by throwing off enough annual revenue to the Barnes to cover its alleged deficit through a bond-leaseback arrangement. Lower Merion Township passed a zoning ordinance that, by raising the attendance ceiling at the Barnes from 62,400 to 144,000, would net the Barnes even more revenue.

Given these circumstances— the discovery of a fraud perpetrated on the court by the original petitioners, as well as their failure to meet the undertakings given it; the uncontroverted evidence of a conspiracy to undermine the trust and coerce the Lincoln trustees by those charged with responsibility for protecting it; and the new revenues available to the Barnes by Montgomery County’s bond-leaseback offer and the Lower Merion zoning variance— there was a quite overwhelming case to be made for Judge Ott to reconsider his 2004 ruling.

Who were the “many”?

Judge Ott refused to do so, not on the merits of the petitions presented to him by the Montgomery County Board of Commission and the Friends of the Barnes Foundation, but on the ground that both parties lacked judicial standing. Some of the Friends had, as we have noted, been granted standing by Ott’s predecessor Louis Stefan in the 1990s, and Ott himself had given them amicus standing in the 2004 hearing. Yet, in his new ruling of May 15, 2008, he announced: “We conclude that, as many who have gone before [sic], the Friends lack standing because they have no interest beyond that of the general public” (p. 4).

Who, one wonders, are these “many,” beside Ott himself? He cites no one, but dismisses the Friends’ 77-page petition as a “diatribe, rampant [sic again] with scattershot accusations, arguments, and conjecture” (p. 2).

To clinch what can scarcely be called a judicial argument, Judge Ott cites In re: Milton Hershey School (2006), in which the State Supreme Court rejected standing for an alumni group challenging the school’s administration. But the Barnes is a continuing case in which student standing already exists, not a new one in which such standing is precluded by the Hershey rules. It is also a case in which, as the Friends have argued, the question of standing is inextricably enmeshed with the merits of the petitions themselves, the grave malfeasance they document and the remedies they propose. In other words, the petitions constitute a hue and cry no responsible jurist can ignore.

A delicious Catch-22

Ott dismissed the Montgomery County petition even more cavalierly, devoting less than a page to it. The gravamen of his argument is that the county’s interest in its historic heritage and its community resources are solely “within the purview of the Attorney General’s Office” because the Commonwealth is a unitary entity and there can be no “second sovereign” in it (p. 6). If that is law, county government might as well go out of business.

The beauty of Ott’s argument is that he had already found in 2004 that the attorney general had “abdicated” his responsibility in the Barnes case. If we boil this Catch-22 reasoning down to a syllogism, it runs something like this:

(a) Only the attorney general can speak for the Barnes Foundation (and, by breathtaking extension, Montgomery County as well);

(b) The attorney general has abdicated his role; therefore

(c) No one can speak for the Barnes, and no one can defend the interests of Montgomery County. The county, indeed, can't even get into court to complain.

Even if Ott believes this, there yet remains a party with full and peremptory power to bring the Barnes case back into court, and that is Ott himself. This power is called sua sponte, and it means that the judge can conduct hearings at any time on his own authority.

Ott knows this perfectly well, of course, which is why he lost his temper when the Friends' attorney reminded him of it. It is the one fact of this case— his own responsibility— of which he is most anxious not to be reminded.

Justice, they say, is blind. In Judge Stanley R. Ott's court, it appears to be deaf and dumb as well.♦


To read Robert Zaller's previous article about the recent Barnes ruling, click here.