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Fisk Wins Chance to Make Case For Selling Interest In Art Collection

The Tennessee Court of Appeals on Tuesday ordered a Nashville trial judge to give Fisk University the chance to prove it meets the legal requirements to modify the conditions of a deceased donor’s gift of art and, if satisfied, fashion an order that would allow Fisk to sell part interest in the world famous collection it has controlled more than half a century.

The ruling left Fisk far short of a clear path to victory but was still the first favorable ruling for the school by the Tennessee courts since the fall of 2005 when the small, liberal arts school began a costly legal battle to establish unencumbered control of the 101 piece Alfred Stieglitz Collection so it could then sell all or parts of it to raise funds. The collection was donated to the historically Black school in several parts in the late 1940’s and early 1950’s by the late artist Georgia O’Keeffe, widow of photographer Alfred Stieglitz.

To Fisk’s delight, the appeals court removed, for the moment, one major thorn in Fisk’s side: the Georgia O’Keeffe Museum. The appeals court ruled the Santa Fe-based museum had no legal standing to challenge any of Fisk’s efforts and that the trial judge erred in granting the museum legal standing and allowing it to participate in any part of what had become a three-way battle between Fisk, the O’Keeffe Museum and the State of Tennessee, acting as public advocate for the interest of donors and the public.

The museum, which inherited O’Keeffe’s estate from a foundation created to handle O’Keeffe’s affairs after her death, had mounted a vigorous challenge to Fisk, arguing that nothing in the collection could be sold unless it was back to the museum as successor representative of O’Keeffe.

The court also found, in reversing the trial court, that contrary to common belief and the finding of the trial court, there was no evidence in the record of correspondence between O’Keeffe and the school or anywhere else indicating O’Keeffe’s specific intent that the collection was to be housed and shown only at Fisk.

In contrast, the court held, the objective of Stieglitz as articulated by O’Keeffe was to improve art education in Nashville and the South. By ruling the “intent” of O’Keeffe was “general” and not “specific,” the appeals court implied Fisk’s plan to sell part interest of the collection to the Crystal Bridges Museum in Arkansas for $30 million may be acceptable for meeting the intent standard but it was “premature” to consider that question.

The museum’s standing and O’Keeffe’s intent aside, the appeals court ruled Fisk has not met the strict legal two-step process for winning the relief it is seeking. It laid out a brief roadmap for exploring this matter that could take several more years of litigation to resolve.

 Under step one, a gift recipient must first meet the so-called “cy pres” rules used by courts to determine whether the recipient of a gift has made a compelling enough case for the courts to approve the modification of the terms of a gift absent the donor’s permission. 

To be declared eligible for cy pres relief, recipients must establish a gift had 1) been charitable in nature, 2) the donor must have demonstrated a general rather than a specific charitable intent and 3) the circumstances have changed subsequent to the gift that render literal compliance with the restrictions impossible or impracticable, the appeals court said.

If a gift recipient can establish its case using those three tests, “cy pres relief is available,” the court ruled.

“However, that determination does not satisfy the last requirement of the cy pres doctrine, which is that the proposed modification most clearly approximates the donor’s charitable intent,” the court said.

“Accordingly, we need not consider whether the proposed agreement with the Crystal Bridges Museum is or is not as near as possible to the intent expressed by Georgia O’Keeffe until it is determined that the University has successfully proven all three prongs under the New York cy pres test,” the court said.

The court ordered Nashville judge Ellen Hobbs Lyle, the trial court judge who barred Fisk from proceeding with various sales plans, to determine whether “the literal compliance with the conditions imposed by Ms. O’Keeffe are impossible or impracticable” to meet. “If cy pres relief is available,” the appeals court said, the trial court “is to fashion a form of relief that most closely approximates Ms. O’Keeffe’s charitable intent.”

Fisk President Hazel O’Leary said in a statement the school was “obviously pleased” with the appeals court’s ruling “…but fully understand that it will take some time” to reach resolution of the case. “We believe the merit of our position is sound and [we] are poised to continue the case to its conclusion,” said O’Leary.

Tennessee Attorney General Robert Cooper, who has oft times been at odds with Fisk in court, said in a separate statement he agreed with the court’s ruling the O’Keeffe Museum could not be party to the case. That sharing of Fisk’s sentiments aside, Cooper promised his office “would continue to be vigorously engaged in this litigation to protect the interests of the community in the Stieglitz Collection.” Cooper has repeatedly questioned Fisk’s judgment in trying to dispose of the art collection.

Saul Cohen, chairman of the O’Keeffe Museum, said in a telephone interview the museum was not ready to comment on the court ruling which, in addition to denying the museum standing, ordered the museum to pay all court costs associated with the appeal. “We have to look at it, read it and consider it,” Cohen, a veteran attorney, said.

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