Panic Street Lawyer: Failing in Philadelphia III

Sunday, 13 May 2012 06:00 AM Written by  Jay Hornack
Carl Van Vechten Photographs Collection at the Library of Congress

Last weekend my wife and I went on a tour of the “Van Gogh Up Close” special exhibition at the Philadelphia Museum of Art. I will leave reviewing all of that historic artwork to an expert on the subject.

Following that tour, we met and spoke in the PMA’s cafeteria with Evelyn Yaari, current president of Barnes Watch. Barnes Watch, along with the “Friends of the Barnes Foundation,” publicly challenged for years the move of artwork worth billions-with-a-b from the Foundation’s Merion, Montgomery County education center (established there 90 years ago) to a new Benjamin Franklin Parkway location (just a few blocks away from the PMA).

The start of “Opening Week” at the Barnes downtown Philadelphia “campus” is this Saturday, May 19 – one day after a PMA free admission day "in celebration of the International Council of Museums’ (ICOM) International Museum Day.”

Views of the new Barnes campus in Philadelphia, opening May 19. Jay Hornack photos

Evelyn provided me with a permitted reprint of a May 31, 2010 Weekly Standard article that included not only a detailed description of the original Merion art layout but also a history of the decades-long fight over the Barnes estate. She also was kind enough to provide me with my very own copy of the 2009 documentary film The Art of the Steal.

I was curious, now that the opening of the “Barnes Foundation Art Education Center” was coming up, what Evelyn thought were the lessons of this fight. Understandably, she focused on the most recent development affecting her organization; namely, a March 7, 2012 court order directing Barnes move opponents to reimburse the Foundation $25,000.00 for the Foundation’s bill from its attorneys, Schnader Harrison. This development and a link to the court order in question were included last week in Part II of this series.
Barnes Foundation entrance in Merion. Associated Press
Ms. Yaari said that everyone in Pennsylvania should be concerned about state court judges who accept arguments by the rich and powerful that lawsuits brought against them on issues of public importance constitute “dilatory, obdurate or vexatious” conduct and therefore justify counsel fee sanctions upon dismissal. 42 Pa.C.S.A. § 2503. The Barnes Friends/Barnes Watch 2011 petition sought for a second time to reopen a 2004 Montgomery County court order approving the Barnes art relocation (the first attempt to reopen filed in 2007 was rejected in a 2008 court order).

The 2011 petition claimed that evidence discovered following the public release of The Art of the Steal showed that the Pennsylvania Office of the Attorney General had a conflict of interest in the Barnes art move matter that was not disclosed back when the court initially approved the move in 2004. My review of the 2011 court opinion (as well as its earlier 2008 opinion) disclosed no attempt by the judge to specifically address the Barnes Friends/Barnes Watch’s main argument: because the AG’s conflict meant that it could not fulfill its role in representing the public interest in the matter of a charity (i.e. the Barnes Foundation), Barnes Friends/Barnes Watch should have been granted legal standing to question in a court of law, under the a legally-recognized “private attorney general” theory, the Foundation’s claimed financial need to move the art from Merion.

Despite the court’s failure to address this main standing argument, and without questioning the newly-discovered nature of the evidence presented, the judge found the filing of the 2011 petition “sanctionable” [sic]. The Barnes Friends/Barnes Watch standing theory may have been novel in this context, but was really sanction-worthy?

As stated on the Friends’ website, a majority of the 2011 petitioners have voted to pay the court-ordered March 2012 sanctions to the Foundation. Presumably the Foundation has paid the balance of their $64,269.41 2011 PO (preliminary objections) bill from Schnader Harrison.

Sadly, this is just the latest example of how the Foundation’s endowment has been drained by legal fees since the death of Dr. Barnes in 1951 (and how that endowment could have been better spent, say, improving the building in Merion). A more egregious example of counsel fee excess in the Barnes case was the reported $6 million paid by the Foundation to unsuccessfully pursue a federal “civil rights conspiracy” action against Merion and the Foundation’s residential neighbors back in the 1990s, in connection with community opposition to a parking lot zoning variance request.

Visitor in Merion location gallery in May of 2003. AP
In retrospect, this 42 U.S.C. § 1985(3) lawsuit brought by the Foundation can be seen as a SLAPP (strategic lawsuit against public participation) suit, which are extremely burdensome when the critics being sued are neither rich nor powerful. Pennsylvania courts ought to be very wary of the “established and well-heeled” (to borrow from the Weekly Standard article) that try to turn 42 Pa.C.S.A. § 2503 into a “SLAPP countersuit” statute when they happen to be defendants rather than plaintiffs. Speaking of which …

The Friends’ website reports that on April 4, 2012, the Office of the Attorney General appealed the portion of the Montgomery County court’s opinion that concluded that the AG’s office was not entitled to its own award of sanctions against Barnes Friends/Barnes Watch under 42 Pa.C.S.A. § 2503. As Ms. Yaari wrote in an email:

This unprecedented action is an intimidation tactic against the Friends for daring to challenge the Office of the Attorney General. Some call it "retribution." That is bad enough, but this would also have a chilling effect on citizen advocates challenging the Attorney General's Office in the future. That might be good news for state officials who do not tolerate opposition, but it is a dreadful outcome for the public.

For those who saw The Art of the Steal, you will recall a couple of instances in the film where the Barnes collection -- both in Merion and now soon to be in Philadelphia -- was referred to as the “Super Bowl” of the art world. Well, rather than calling the AG office’s appeal “retribution” as Ms. Yaari says some do, I would call it a more commonly-used phrase these days, taken from the sport played in Super Bowls. I would call it spiking the football.

(Top photo: Albert C. Barnes in 1940. Carl Van Vechten Photographs Collection/Library of Congress)

The Panic Street Lawyer is a personal opinion column by attorney Jay Hornack. Contact him right here at This email address is being protected from spambots. You need JavaScript enabled to view it. .

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