Tuesday, September 15, 2009

Can't Stand It

On my first review of the Rose suit against Brandeis, I said the issue of standing was "certainly going to be another problem for the plaintiffs ..., and perhaps a fatal one":

"In general, the enforcement of gifts to charities lies with the 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)."

Jack Siegel had a similar take.

Today, the Brandeis Justice's Alana Abramson reports that Brandeis has moved to dismiss on precisely those grounds. I had a chance to look at the motion papers, and the argument is very straightforward. "Time and again, Massachusetts courts and the Legislature have rejected the notion that donors or their heirs have standing ... to enforce their vision of how a charitable organization should operate. The authority to supervise charities in this way is reserved exclusively to the Attorney General." The plaintiffs here have "no standing to represent the public interest" or "the presumed wishes of other donors." At most, if they have any standing at all, "it is limited to contract-like claims with respect to their individual gifts" (p. 8).

Expanding a bit on the latter point, the university says that "donors may have rights ... to seek a return of their gifts, but this right is quite different from the power reserved to the Attorney General. A donor's reversionary right to his gift exists, if at all, for his particular gift. It does not entitle the donor to insert himself into the governance of the charity" (p. 11).

Strictly speaking, the motion does not (at this point) seek dismissal of the entire complaint. Instead, it requests dismissal of all claims "except insofar as they allege claims with respect to [these four plaintiffs'] own individual gifts" (p. 20). But as a practical matter, the granting of the motion would mean the end of the claims seeking to prevent the "closing" of the Rose and the sale of "any artwork."