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More on the Rose Complaint

By Intellectual Property Law, Esq.

I've now had a chance to read the Rose complaint. It's no easy task. It's 12 pages long, but then they attach about 140 pages of various exhibits -- and they just kind of dump it all there, with no real effort to tie the documents back to the specific allegations in the complaint. (These two blog posts by Felix Salmon are now part of the official record in the case, Exhibits F and G.) I guess the clearest statement of their claim is that "Brandeis has reneged on its duty to keep the Rose open as a permanent, public museum" (paragraph 17c). "Brandeis's actions to close the Rose and prepare its collection for sale for cash for general university operations contradict the charitable intentions of ... the plaintiff donors and other donors, [and] abrogate Brandeis's promise that the Rose would be maintained in perpetuity as a [m]useum ..." (paragraph 24).

Again, I hate to rain on the parade, but the museum is not closing. As the Future of the Rose Committee put it in their interim report in May: "Brandeis is not closing the Rose and selling all the art work, though we must say in the same breath: it remains a possibility that some will be sold." The Committee's charge is to "recommend ways for the Rose to continue to play a vital role in the cultural and educational mission of the University," and they are expressly committed to the proposition "that the University must do all it can to insure that the Rose remains a vibrant and distinguished part of the University, and it must in the coming period reaffirm in very concrete ways its commitment to the Arts. To that end, we are considering how the mission of the museum can be enhanced and maximized."

The Committee is still in the midst of that process. So what is it that these plaintiffs are seeking to "stop"?

Another problem with the suit is the usual one of standing. We saw this most recently in the Tennessee Court of Appeals decision in the Fisk-O'Keeffe case, where the O'Keeffe Museum was tossed from the proceedings. It was also the basis for the dismissal of the most recent Barnes Foundation lawsuit. In general, the enforcement of gifts to charities lies with attorney general of the state in which the charity is located. "Based on the traditional rule that enforcement of charitable trusts is reserved to the attorney general, donors and heirs of donors usually are denied standing to sue for the enforcement of such trusts. Having made a gift for the benefit of the public, a donor is viewed as having no stronger claim to that gift than any other member of the public" (Marie Malaro, A Legal Primer on Managing Museum Collections, p. 26). The complaint in this case says that "in April, 2009, the Attorney General of the Commonwealth met separately with Brandeis, and certain overseers," and the Attorney General is actually named as a defendant in the suit.

I'm not familiar with the relevant law in Massachusetts; maybe thay have more relaxed standing requirements. But this is certainly going to be another problem for the plaintiffs here, and perhaps a fatal one.

Brandeis's lawyer -- Thomas Reilly, a former Massachusetts attorney general -- calls the lawsuit "frivolous" and says:

"The university has a responsibility to provide the very best education and faculty to fulfill its higher educational agenda. Apparently, these three overseers are oblivious to the Brandeis mission."

Full post as published by The Art Law Blog on July 28, 2009 (boomark / email).