Lynn Villency Cohen
STOCKBRIDGE — When Justice Lowy peered down from his high court seat at the hearing to address briefs filed by plaintiffs' attorneys opposed to deaccessioning the art at the Berkshire Museum, his skepticism over management of the museum could not go unnoticed. "Why is there a $1.2 million (yearly) deficit? What's been going on here?", a seemingly dismayed Justice Lowy asked.
After a 10-month legal drama, it has been his job to render final judgment on whether an agreement to sell in excess of $55 million worth of art should move forward, put forth by the Massachusetts attorney general and the Berkshire Museum. He issued that decision in a terse five page judgment with a full blessing of the agreement and sale of the entire cache of publicly held art works. To those who hoped he would modify this very lopsided agreement that had been hashed out by the attorney general in a head-spinning 11th hour turn around from strong legal adversary to united ally, it is a time of great disappointment.
Comments rang hollow
On the face of it, at the March hearing, Justice Lowy's line of questioning and remarks appeared indicative of a jurist striving to marry two opposing narratives in a high stakes tug-of-war to determine a solution backed by legal precedent. His focus was on the following points: that the leadership had mismanaged museum finances for over a decade; that the executive director had a troublesome record of non profit management; and that the Pittsfield community was faced with the potential loss of its core art collection.
One would expect the justice's sprinkling of comments to reflect a window into his thinking, particularly for those who are adept at reading the tea leaves, but in light of this decision, these comments rang hollow. He issued a short Memorandum of Decision and Judgment essentially devoid of legal reasoning and deep discussion of the issues; only to fully affirm the attorney general's stance that the museum must sell all the valuable art works to survive. His decision lacked any explanation or specifics for affirming the $55 million amount set by the attorney general, a figure that financial and museum professionals maintained to be greatly exaggerated.
Most troubling is the justice's indifference to the systemic net effects of green lighting a multi million dollar sale of donated art work to erase deficits and fund endowments to cover operating costs. This decision will likely set into motion an open invitation to financially challenged public institutions, whether they be museums, universities, historical homes or historical societies, to head straight to the auction block for relief, using proceeds to fund operations and endowments.
At the hearing Justice Lowy expressed interest in a court appointed special master to ensure a responsible handling of sale proceeds. He remarked to one of the plaintiff's lawyers: "I'm very interested in what you have to say about the special master." Yet his decision granted that status solely to the attorney general. An independent overseer would have been an important constraint and may have served as a deterrent for unethical actions by institutions.
To the leaders of Berkshire Museum, in implementing such a sizable deaccessioning plan that generated overwhelmingly negative press and community criticism; triggering a wellspring of scrutiny of the executive director's past and ethical lapses by board members; and diminishing the reputation of the museum; how does that make you feel?
Felt for years to come
More importantly, does the museum have the ability to repair broken ties with many members of the community brushed aside over this issue? Certainly a pathway to healing would be to cultivate those opposition voices and include them in the conversation going forward.
So it seems, with the Commonwealth's highest court issuing its decision, we can imagine that a dispirited Lady Justice will not have that moment to peek through her blindfold to view the art works headed to the auction block. But the truly sorrowful faces will be worn by Berkshire residents who will not be reunited with these paintings, many with unique Berkshire ties — the Hudson River School works, the Calder mobiles, the Rockwell painting. And unquestionably for the Berkshire community this will be a widely felt injustice for years to come.
Lynn Villency Cohen is an art historian and writer.