By Larry Parnass
The Berkshire Eagle
PITTSFIELD — The Berkshire Museum cannot sell works from its collection next week as planned, pending an appeal won Friday by the state's attorney general.
On Friday, Attorney General Maura Healey asked the Massachusetts Appeals Court to stop the museum's art sale, three days before the scheduled start of auctions Monday.
That motion was allowed late Friday by Justice Joseph A. Trainor of the appeals court.
Trainor entered an order saying that after reviewing submissions to the appeals court, he allowed the attorney general's request for an injunction prohibiting the museum from "selling, auctioning, or otherwise disposing of any of the artworks that have been listed for auction" starting Monday.
"The balance of the risk of irreparable harm to the petitioner and the respondent in light of each party's chance of success on the merits," the justice said, "weighs in favor of the petitioner."
The injunction against the sale is in effect until Dec. 11, but can be extended by the Attorney General's Office, Trainor said, if it knows the date by which its review of the sale will be complete.
In its appeal, the Attorney General's Office asserted that Berkshire Superior Court Judge John Agostini erred in his handling of an earlier request for an injunction. The judge had ruled Tuesday that the sales can go ahead, a decision that has now been stayed.
"The issues before this court include the trial court's abuse of discretion through clear errors of law related to ... the charitable trusts pursuant to which the Museum holds these items," the filing says.
The office is acting in its statutory role as the overseer of charitable assets in the state. In this case, it argues that the museum's works must be maintained for the intended beneficiaries, which it defines as the people of Berkshire County.
The Attorney General's Office also claimed that the museum has violated its "duty of care" to the public.
"The balance of harms," the office says in its filing, "strongly favors entering an injunction in this case."
Requests Friday evening for comment from the museum's attorney, William F. Lee, and from the museum's spokeswoman, Carol Bosco Baumann, were not answered.
Trainor is handling what are known as "single justice" applications this month to the court.
Appellate court rules allow parties in civil cases such as this to seek a stay in the judgment of a lower court, pending appeal. The motion has to show that it's not practical to return to the lower court. The AG's appeal makes that claim.
According to court rules, the justice considering the appeal can act with or without holding a hearing.
The museum announced July 12 it would sell 40 works in all in an effort to raise as much as $60 million. Trustees voted to remove works from the collection to finance renovations and to provide a bulwark against future financial stress for the nonprofit.
They said the deaccession of art was driven by a wish to overcome recurring deficits that they said threatened the 114-year-old museum's existence.
Museum groups have criticized the sale, saying it violates longstanding ethical principles and would set a bad precedent that could lead to works now available to the public going into private collections.
The Attorney General's Office came out on the losing side in a ruling Tuesday by Agostini.
The office last week joined a lawsuit seeking a preliminary injunction against the sales so it could have more time to review the case.
Agostini denied a request to stop the sale. He found that all plaintiffs other than the Attorney General's Office lacked standing, in two combined lawsuits, to bring the action.
Criticism of action
Darrell Rocha, a spokesman for Sotheby's, said earlier Friday that the auction house was confident Monday's sales would take place.
"It is regrettable that the Attorney General's Office — rather than take heed of Judge Agostini's extensive and carefully reasoned decision, and despite its own unqualified admission that the Berkshire Museum's Trustees have acted in good faith — has now, three days after that decision was issued, filed an 11th hour appeal rehashing the same arguments that were so thoroughly rejected by the court," Rocha said in a statement provided to The Eagle.
He said the money raised will "allow the Berkshire Museum to serve its community for generations to come."
Lee, the museum's attorney, said earlier Friday, before the motion was allowed by the appeals court and the auctions halted, that the attorney general's action posed a threat to the institution.
In an affidavit filed for the Berkshire Superior Court case, the chief operating officer of Sotheby's said that the eventual "hammer" prices for the art could be reduced if sales are delayed.
"Continuing this litigation jeopardizes vital educational, cultural and economic resources in a struggling community, placing the special interests of a portion of the well-funded arts community over people, especially young people, really in need," Lee said in a statement provided by the museum.
Lee defended Agostini's ruling, calling it "a very clear legal decision [that] rejected the arguments the Attorney General repeats in this misguided appeal."
In his ruling Tuesday, Agostini found that other plaintiffs in the case lacked legal standing, including three sons of the late Norman Rockwell and residents of Berkshire County.
Margaret Rockwell, whose husband is a grandson of the artist, said in a statement that the family is pleased that the attorney general filed an appeal.
"Norman Rockwell gave 'Shuffleton's Barbershop' and 'Shaftesbury Blacksmith Shop' to the Berkshire Museum. They were given as gifts to the people of the Berkshires. They should remain in the Berkshires, as he intended, and they should be exhibited for all to enjoy," she said.
Attorney Nicholas M. O'Donnell, who sought an injunction in the lower court against the sale on behalf of three residents of Lenox, said he and his clients are still considering their options, but applaud the step taken Friday.
"My clients support the Attorney General's petition," O'Donnell said.
The motion filed Friday by the Attorney General's Office, he said, "explains well the important components of the Superior Court's ruling that warrant reversal on appeal, which support an injunction against the sale until that appeal is resolved."
Michael B. Keating, who represented the three Rockwell sons and other plaintiffs, filed a response Friday in support of the appeal.
The response says that his clients agree that "irreparable harm will result if the Museum's planned sale is not immediately enjoined."
Keating's response faults Agostini for not giving due weight to evidence that the sale involves "substantially all" of the museum's assets. He notes that the attorney general provided evidence to the court, drawn from the museum's records, "that proves this point, and this evidence was evidently ignored."
Further, Keating comes to the attorney general's defense against criticism in Agostini's ruling.
The judge lambasted the office for its response to the question of the art sale, saying it had four months to act and labeling it a "reluctant warrior."
"The Museum's own records," Keating's response states, "show that it decided to pursue this sale no later than October 2016 and intentionally withheld the information from the Attorney General and the public."
He adds, "The Attorney General's office should not be faulted for pursuing a diligent and thorough investigation before taking the unusual and consequential step of alleging breaches of duty by the trustees of a charitable institution."
In a phone interview, Keating said he hoped Trainor would be receptive.
"We're hoping he'll understand it's an emergency," he said. "He's got to be persuaded from the filing itself that it deserves a hearing."
Anita Walker, executive director of the Massachusetts Cultural Council, had pressed Healey's office to fight the lower court ruling. The council announced Sept. 20 that it opposed the art sales and suspended funding to the museum pending the outcome of the case.
"The Attorney General clearly sees the critical importance of getting this decision right," Walker said Friday, "as it stands to have a lasting impact on museums in Massachusetts and across the country. The AG makes a strong and compelling case for an injunction to stop the sale of the art on Monday."
The injunction is raises the hopes of the members of Save the Art-Save the Museum, which opposes the deaccession.
The group plans two events Saturday to protest the sale — a rally outside the 39 South St. museum in Pittsfield and a gathering in front of Sotheby's U.S. headquarters on York Avenue in Manhattan. Both events run from 11 a.m. to 1 p.m.
Before the justice's decision came, members of the group were hopeful.
"My fingers are crossed," said Hope Davis, a founding member of the group who has a home in Great Barrington.
Carol Diehl, a spokeswoman for Save the Art, said she believes trustees are wrong to think they own the art in question.
"The public owns the art and they are the custodians," Diehl said.
She said she expected the attorney general to challenge the lower court's finding. "I'd have been surprised if she did all that work and didn't follow up on it," Diehl said of Healey's office. "Everybody's watching."
Another group member, metal artist Linda Kaye-Moses, said she waited anxiously this week for the Attorney General's Office to act.
"We've all been kind of hanging on by our thumbs," she said. "We think it's a just cause or we'd not have been so persistent."
Kaye-Moses said she hopes the Attorney General's Office pursues every legal recourse it can to stop the sale. That now includes taking the case to a wider review, based on the appeal.
"I'm hoping that there's more coming down the pike from the AGO and that it would fight all the way," she said.
In its filing Friday, the Attorney General's Office said that because the first sale was set for Monday, returning to Berkshire Superior Court to seek a stay in the decision pending appeal "is not practicable."
The office restates arguments from its earlier briefs concerning its mission to protect charitable trusts.
"The sale of the 40 items planned for auction would violate charitable trusts pursuant to which the Museum holds those items and result from a violation of the duty of care," it states in its motion.
The motion claims Agostini erred by concluding that the museum held the right to sell its most valuable works.
"The Museum holds this art in charitable trust to promote the study of art and any proceeds must be used accordingly in the absence of a court order," the motion states.
On the issue of the sale of two paintings by Rockwell, the Attorney General's Office argues that Agostini "assumed facts about the artist that were not in evidence" and the court "erred in ignoring restrictions on the Museum's use" of the works.
The motion also takes issue with Agostini's finding that an 1871 act of the Legislature that referenced Pittsfield did not mean items from the collection of what was then the Berkshire Athenaeum could not leave the community.
In a final point detailed over the course of four pages in the motion, the Attorney General's Office argues that Agostini "disregarded numerous and significant failures by the Museum's trustees and erred as a matter of law in concluding that the Museum exercised due care in deciding to deaccession its 40 most significant pieces of art."
The office says trustees failed to exercise "prudent" care of the assets under their trust by "setting an unreasonable $60 million goal that far exceeded its $25.6 million need to sustain operations which could only be funded through the drastic deaccession of the 40 items."
The appeals court needed to act, the motion states, because if the works are sold next week there is little chance of getting them back from buyers.
That point was heard and accepted by Trainor, it appears.
Pausing the sale, the office argues, does not harm the museum.
"If the Museum is able to demonstrate that it has the legal authority to sell the objects, the Museum may sell the works of art at any time."
Any lost revenue due to a delay in the sales, the office states, is a problem the museum itself created by signing a contract with Sotheby's without seeking court approval.
Sotheby's had planned to auction off seven works owned by the museum Monday, including two paintings by Rockwell — "Shuffleton's Barbershop" and "Shaftsbury Blacksmith Shop" — that carry by far the highest bid estimates in the 84-piece sale.
"Shuffleton's" had a bidding range of $20 million to $30 million. The range for "Shaftsbury" was $7 million to $10 million.
Those sales were the first of 13 planned next week in a total of four auctions. More sales of Berkshire Museum works were to follow in coming months.
Plaintiffs whose standing was not allowed by Agostini included James and Kristin Hatt and Elizabeth Weinberg, who were represented by O'Donnell.
Thomas, Jarvis and Peter Rockwell were represented, in a suit filed Oct. 20, by Michael Keating, of the Boston law firm Foley Hoag. They were joined as plaintiffs by Tom Patti, Tom Patti LLC, James Lamme, Donald MacGillis, Jonas Dovydenas and Jean Rousseau.
Patti said Friday he is grateful the attorney general acted.
He praised Assistant Attorney General Courtney Aladro, who led the review, and her office "for acting as guardians of the museum's 40 irreplaceable artworks."
Larry Parnass can be reached at firstname.lastname@example.org, at @larryparnass on Twitter and 413-496-6214.Motion for Injunction Pending Appeal
byThe Berkshire Eagle