The Washington, DC District Attorney Irvin Nathan has filed his brief concerning the Corcoran Gallery’s cy prés petition to reform the museum and College of Art + Design with the National Gallery of Art and George Washington University. To put it succinctly, “The District supports entry of the Proposed Order because the proposed cy pres relief will allow the Corcoran’s assets to continue to be used in D.C. consistently with the charitable purposes to which they have been dedicated.” The brief also addresses and bears on the question of the “Save the Corcoran” motion to intervene and standing, which will be argued tomorrow (which the underlying petition will not). The DA brief leans heavily on the downside of the alternative: deaccession leading to industry sanction, which may be a little circular.
Confronting the impracticability of the status quo (the first prong of analysis), the DA’s brief argues “The Corcoran’s current situation renders it impracticable in the short term, and likely impossible in the long term, for the Corcoran to continue its current operations and act in accordance with its charitable purposes.” Likewise, the DA argues that the proposed change is consistent with William Corcoran’s original intent “to establish ‘an institution of Washington City, to be dedicated to Art, and used solely for the purpose of encouraging American genius, in the production and preservation of works pertaining to the Fine Arts, and kindred objects.’” There, the DA stressed the many comments he had received about the importance of the Corcoran’s impact within the District of Columbia itself. It takes particular issue with the potential loss of accreditation if the Corcoran deaccessioned to shore up its finances in violation of AAM or AAMD guidelines.
Overall the brief handles the elements of cy prés thoroughly and makes a strong case (and the very fact of support from the DA or Attorney General often suffices in and of itself). The supposedly dire consequences of de-accreditation may be overstated, however, and a little circular. If a museum says (1) it has to reform its trust because (2) otherwise it will have to sell art, but (3) it would then be sanctioned, so (4) it has to spend the money other than how than the trust says, that does not necessarily answer the right question. If, hypothetically, a museum had a painting worth $100 million and sold it, it would almost certainly be sanctioned by the AAMD and AAM. Yet that could, from one perspective, be better than the museum closing altogether if all the court is concerned about is the original intent of the donor and not about the museum industry consensus (that is, a donor may well want his museum to exist as a top priority—rather than not exist). Whether another proposal (like this one) is as close as possible, or better, is a fact intensive inquiry, but it does not seem to us that the mere fact of likely sanctions should be dispositive. With that said, the cy prés petition seems like a thoughtful one carefully designed to head off disaster and preserve a significant cultural asset right where it is now.
Lastly, beware too much tea-leaf reading from tomorrow’s intervention hearing; if the judge is active in questioning he or she may be probing the limits of the case merely to assess the interests involved in intervention, not necessarily out of an opinion about the underlying case.
