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Vanderbilt Law Review

Iris J. Goodwin

First Page

1093

Abstract

The cat is out of the bag: Donors are fast discovering what was once a well-kept secret in the philanthropic sector-that a gift to public charity donated for a specific purpose and restricted to that purpose is often used by the charity for its general operations or applied to other uses not intended by the donor. In most states, the Attorney General is the agent for enforcement of such gifts (an arrangement that recognizes the public's role as the ultimate beneficiary of any public charity). But Attorney General offices are beset with difficulties that make it virtually impossible to monitor how each charity administers its restricted gifts, leaving the charities, for the most part, on the honor system. Donors-whose restricted gifts play a vital role in the charitable sector as a source not only of funding but also mission-are increasingly aware that their restrictions are ignored. Frustrated by lax enforcement mechanisms, donors (and their families) are pursuing standing to enforce their restrictions.

In Smithers v. St. Luke's/Roosevelt Hospital', the donor's widow succeeded in obtaining standing, even after the Attorney General had entered into a settlement agreement with the Hospital. Donors with their restricted gifts (often representing their personal beliefs and social agenda) keep the charitable sector vital and ensure its diversity. Such restrictions exist in perpetuity, however, and can result in an effective privatization of a charity's mission, especially if the charity is not free to interpret a restriction in response to change. Even though such restrictions are legally binding on the charity, the Attorney General in the exercise of her prosecutorial discretion can effectively allow certain restrictions to lapse, thus preserving the autonomy of the charity. Thus, Smithers has enormous implications for the autonomy of charitable organizations and their capacity to respond independently to change.

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