PEC Update, February 18, 2008

As depositions and filings by the College have progressed in January and February, it is clear that the College is attempting to make the art case more about PEC, our Board, and our communications rather than the restrictions on the sale of the four paintings, the permanency of the Maier Collection, the ethics of deaccessioning of art, the SACS decision, or the College's financial position. What this means is that all communications, including updates from PEC, must be carefully reviewed, limited in scope, and not as timely as we might like. Sadly that is the nature of litigation -- we thank you for your understanding.

February 15 Deadline to Fund a Temporary Injunction on the Sale of Art

The February 15 deadline to fund a temporary injunction passed without the second installment of $500,000 for the $1 million injunction being made. Plaintiffs filed a Motion in the Supreme Court asking the Court to accept $500,000 as the full amount for the temporary injunction to prevent the sale of the four paintings until the art trial is heard. Plaintiffs cited the SACS decision in December to take the College off of warning and the College's repeated statements in December that it would not sell the paintings until after the art trial as two of the reasons why the temporary injunction (and the funding thereof) appeared to many to be unnecessary.

The Supreme Court issued a brief decision on Friday basically saying that they would not reduce the amount. Plaintiffs' attorneys also requested the first deposit of $500,000 be returned and the Court did not address this issue. The College has filed with the Circuit Court asking that the money remain with the Court to cover any damages that the College may prove if it wins the art suit. The Judge has not issued a decision on this matter yet. What this means is that the $1 million bond to secure a temporary injunction on the sale of the four paintings does not exist, so theoretically the College could move to sell the paintings before the trial. In articles in November and December it stated that it would not do so, that it would wait until after the art trial (now scheduled for late May 2008).

Clearly we do not know what the College will do – but as recently as February 5, Judge Mosby denied the College's request to dismiss the art suit. These plaintiffs have standing to bring this suit and legitimate causes of action – so a sale of these paintings before the art trial would appear to be very risky given that the Judge could decide (as we hope) that the College does not have the right to sell these works of art at all. In the College's latest filing with the Supreme Court this week it states “...the College plans to sell the Four Paintings at its earliest and most financially advantageous opportunity. Although the College has no immediate plans to sell the Four Paintings until after the circuit court trial, the College cannot represent that it would not sell if the temporary injunction were dissolved and a willing buyer made an offer acceptable to the College's Board of Trustees..." Until the art trial in May 2008, the burden is clearly on the Trustees to do what is right with the art – to keep it as the educational and cultural asset for the College and Lynchburg community that the donors intended.

We invite everyone who cares about keeping the art at the Maier Museum and in Lynchburg to write to the College's trustees and administration. The main address of the College is: 2500 Rivermont Ave., Lynchburg, VA 24503.

Charitable Trust and Student Contract Appeals

Oral arguments for the Supreme Court appeals of the charitable trust case and student contract case were scheduled to be heard the last week of February. Plaintiffs' attorneys recently received notification from the Court that because of docket issues (more criminal cases than anticipated) the arguments would not be heard this month. Last week, Plaintiffs' attorneys filed jointly with the College asking the Court to reconsider hearing the cases this month. We will let you know the Court's decision as soon as we can.

February 5 Hearing in the Art Case

The hearing on February 5 for the art case went well. Many motions from both sides were heard by the Judge.

Motion to Stay

Plaintiffs asked the trial court to postpone the trial until the two appeals before the Supreme Court of Virginia were resolved. Judge Mosby granted up to a six-week extension on the trial date so that each side and the Court would have time to consider the Supreme Court's ruling in the two cases. The new art trial date is currently anticipated to be in late May 2008.

Motion to Strike

The College asked the trial court to strike (remove) the claims in the Plaintiffs' Amended Complaint that involved the Louise Jordan Smith Trust Art and the other art at the Maier Museum. Judge Mosby granted this motion, narrowing the subject matter of the litigation to the Four Paintings. This means that the outcome of the trial will affect only the Four Paintings, not all of the art at the Maier Museum.

Demurrer

The College asked the trial court to dismiss several counts from the Plaintiffs' Amended Complaint. Judge Mosby granted the College's demurrer with respect to Count I - Equitable Preservation of the Res of Pending Litigation. The Judge also granted the demurrer with respect to Count V - Breach of the Smith Trust because he ruled that the Smith Trust Art wasn't at issue here. If the College later wants to sell art from the Smith Trust, it would have to come back to the Court to seek permission at that time. Lastly, he granted the demurrer with respect to Count VI - Breach of the Public Trust, holding that this is not a recognized cause of action. This ruling leaves four causes of action intact for the May trial: Count II, Violation of Va. Code 57-57N; Count III, Breach of Trust under Va. Code 2.2-507.1; Count IV, Breach of Trust under Va. Code 55-544.01; Count VII - Declaratory Judgment.

Demand for Jury Trial

Plaintiffs requested a jury trial. Judge Mosby said he was inclined to grant the request for an advisory jury, but would take the issue under advisement and rule on it at a later date.

Motion to Compel

Plaintiffs asked the trial court to compel the College to produce documents that were requested as part of discovery. The parties agreed to go back and look at the discovery requests to see if any should be limited or revised based on the Judge's ruling that this case involves only the Four Paintings. If disagreements over discovery cannot be resolved, then the Judge will hold a hearing by telephone on this issue.

The next step in the litigation process will be for the Plaintiffs' attorneys to depose members of Randolph College's administration and Board of Trustees. Individual depositions can last a day or more and are quite expensive to undertake. We need support now more than ever for the art defense fund.

To donate, send your check to:

Preserve Educational Choice, Inc.
P.O. Box 29612
Richmond, VA 23242

Make the check payable to "Preserve Educational Choice, Inc." and write "Art Defense Fund" on the memo line. All donations to this fund are restricted to preserving the art, not the general restoration of Randolph-Macon Woman's College. You can also make a donation via PayPal through the PEC website (www.PreserveEducationalChoice.org). All donations are fully tax-deductible to the amount allowed by law.

We will let you know of any other developments with the art, student contract, and charitable trust litigation as soon as we are able.

Vita Abundantior,

PEC Board

Diane U. Montgomery (R-MWC '85)
Carol Curcio Lang (R-MWC '68)
Anne Yastremski (R-MWC '05)
Madeline Miller (R-MWC '66)

Return to PEC Updates