Thursday, May 05, 2011

"The mere fact that the present petitioners do not agree with the position the Attorney General took does not mean that there was any impropriety; it just establishes a difference of opinion."

The Friends of the Barnes kindly provide a link to the brief the Barnes Foundation filed last week seeking to dismiss the most recent action challenging the move.  They really hammer the Friends on the standing issue, and honestly it's hard to imagine the case surviving past this round.

This portion of the brief also caught my eye:

"[The claims that the Attorney General 'forfeited his neutrality'] reveal a misunderstanding of the ... Attorney General's role in this case. . . . The Attorney General must look out for the interests of the Commonwealth's citizens as a whole, balancing the needs of various constituencies as he determines what would be best for the public charity at issue.  His job is not to remain neutral, but instead to advocate the result he concludes is best.  Here, he concluded that the relief sought in The Foundation's 2002 Petition was in the best interests of The Foundation and the public it serves.  He reached that conclusion only after what Attorney General Pappert described as numerous meetings with the parties involved and a review of thousands of relevant documents.  Before agreeing to support The Foundation's request for relief, Attorney General Fisher sought and obtained amendments to The Foundation's petition that would satisfy his demands.   Then he and his successors publicly announced support for the requested relief in an answer to The Foundation's amended petition and in other public statements, including Attorney General Pappert's statement in open court during the hearing" (emphasis added, citations to the record omitted).

I made a similar point here:

"I've never understood this notion that it was somehow wrong for the AG to push for the move.  Once he decided that, all things considered, that was the best outcome, what was he supposed to do?  When Lee Rosenbaum calls, for example, for 'Super Cooper' to block the Fisk deal, isn't she calling on him to take a side in the dispute?  Does his having done so open the court's decision up to challenge on the ground that the attorney general favored one side in the dispute over the other?  The Friends petition accuses the AG of 'forfeit[ing] his neutrality,', but, if he has, then hasn't Super Cooper done so as well?  It's just a fundamental misunderstanding of the attorney general's role."