Dispute over Berkshire Museum art sale moves to next stage
PITTSFIELD — A month from now, lawyers who clashed in court over the Berkshire Museum's sale of art will meet again, this time in Boston, taking what has become a national issue to a higher legal arena.
While opponents of the art sale had reason to celebrate Saturday, the 30-day pause secured late Friday through intervention by the attorney general is no guarantee that the museum will not prevail in the Massachusetts Appeals Court.
But for now, the landscape shifts — and the museum and its critics are regrouping in advance of the next legal test.
A decision by Justice Joseph A. Trainor to halt the museum's sales Monday at Sotheby's led the auction house to quickly remove seven works from an exhibit at its New York City headquarters.
Two of those works, paintings by Norman Rockwell, have had a busy week. "Shuffleton's Barbershop" and "Shaftsbury Blacksmith Shop" were moved to new locations in Sotheby's premier 10th-floor galley after Berkshire Superior Court Judge John Agostini denied a request from a variety of plaintiffs and the Attorney General's Office to grant a preliminary injunction stopping the sale of pieces from the museum's collection.
That ruling came Tuesday.
First, the paintings were repositioned side by side, making them more visible to people arriving on the floor. Since the exhibit opened Nov. 3, the paintings had been hung separately in locations that two art world experts described to The Eagle as unfavorable.
On Saturday, visitors reported that the pieces had been removed entirely. New art hung on the walls. A billboard outside the auction house featuring Rockwell's painting had been changed to display work by another artist.
Monday's planned 84-lot auction of American art at Sotheby's is now down to 77 pieces. That's the count after the removal of the first Berkshire Museum holdings that were to be sold, as part of the institution's planned 40-piece deaccession.
The museum announced July 12 that it would sell works and channel proceeds of $60 million into a renovation and to create a $40 million financial buffer.
That plan drew opposition, in part, because the sales would include Rockwell's works, among other pieces that have been part of the museum's collection for decades. The plan also ran counter to collections policies nationally, which hold that proceeds from deaccession should only be used for the good of a collection.
The case drew national attention and has been considered precedent-setting.
Reactions to ruling
William F. Lee, the museum's attorney, told The Eagle on Saturday that he does not plan to challenge Trainor's decision by taking the question to the Supreme Judicial Court. That means the 30-day injunction, good until Dec. 11, sets up another meeting between a squad of lawyers from Lee's firm, WilmerHale, and three assistant attorneys general.
They previously met Nov. 1, in a more than two-hour hearing in Berkshire Superior Court.
In that outing, Agostini found the museum's case far more persuasive — as Lee noted in his Friday response to the government's motion to the appeals court.
In short, on Nov. 1, Lee had argued, successfully, that the attorney general does not have the right to substitute that office's judgment for decisions made by the museum's volunteer trustees.
In challenging the museum's deaccession plan, Lee wrote in his filing Friday, the attorney general has exerted an "extraordinary authority ... under which the minutiae of public charity decision-making would be subject to the approval of a small group of government lawyers."
Lee's filing faults the office for moving too slowly last week to seek an appeal, leaving Trainor with scant time to review a court record that tops 1,000 pages and hours of transcribed arguments. He says his office asked the attorney general's team Tuesday, Wednesday and Thursday whether it would appeal, only to hear that it would do so at 10 p.m. Thursday.
In his decision Friday, Trainor noted that he had read only the filings entered into this court's docket that day. He granted the attorney general's motion after deciding that the "balance of risk of irreparable harm ... weighs in favor of the petitioner."
That petitioner was the government, which had argued that all would be lost if the Monday auction were to proceed, to be followed by three other sales of museum objects at Sotheby's the same week.
Agostini used both words to characterize the attorney general's handling of the case. And in his Friday response, Lee led off by quoting him.
The injunction was granted nonetheless.
In a guest column in Sunday's Eagle, the president of the museum's trustees says her institution remains "at grave risk of closing" due to annual deficits of about $1 million that, since 2007, have totaled more than $11.8 million.
Elizabeth McGraw says she hopes the legal dispute can be resolved and allow the museum to carry on with its deaccession.
"We are disappointed the Attorney General decided to continue legal action that now threatens the future of this Museum," she wrote in her opinion piece. "The temporary order issued in response is a setback for our members, our neighbors and all the citizens of Berkshire County."
Elsewhere in the commentary, McGraw says trustees acted in the best interests of the institution and the community — a conclusion Agostini also reached, and articulated, in his ruling Nov. 7.
"The difficult decision to sell just a few of the museum's thousands of works is necessary to help fund physical renovations and create a new endowment essential to the museum's future and long-term financial stability," McGraw wrote.
It remained unclear Saturday whether the museum must pay a financial penalty to Sotheby's because of the injunction and the removal of the works from auction schedules in November. A museum spokeswoman did not respond to a request for information on financial implications of the court action.
Whether the works will remain in New York or be returned to Pittsfield is also unclear.
The museum has declined to release the consignment contract it signed in June with Sotheby's. Though that document was entered into evidence in the civil case before Agostini, it was impounded by the court.
The Attorney General's Office, though, has noted in briefs that the museum faces a significant financial penalty if it were to remove the works from sale.
Michael B. Keating, a partner with the Boston law firm Foley Hoag, had represented plaintiffs in an Oct. 20 civil action seeking an injunction. Most of his clients were found to lack legal standing to bring suit.
But on Saturday, Keating applauded the appellate justice's injunction and reaffirmed his own belief that members of Rockwell's family, and residents of the Berkshires in general, would suffer if the sales took place.
"The irreparable harm that would occur if these paintings were to be sold, coupled with the significant unresolved legal issues surrounding the legality of this sale, clearly compel this injunction," Keating said.
Attorney Nicholas M. O'Donnell, representing another group of plaintiffs who brought a civil action to halt the sale, said late Friday that his clients were glad to see an injunction imposed.
"They remain alarmed at the Berkshire Museum's treatment of its members and of the art that it holds in trust for the community," O'Donnell said. "With the benefit of some breathing room and the continued investigation by the Attorney General, they are hopeful that reason will prevail."
While McGraw cast the appeals court decision as a setback, opponents of the art sales were celebrating at rallies outside the 39 South St. museum and in front of Sotheby's on York Avenue in Manhattan.
Hope Davis, who lives in Great Barrington and New York, said a permitted gathering outside Sotheby's drew 14 participants at its peak from 11 a.m. to 1 p.m. Saturday.
"It was pretty high-energy. I was really happy that people showed," she said.
Davis, a professional art appraiser, said she looks forward to a fuller exploration of the legal issues involved in the sale than took place in the Berkshire Superior Court hearing.
With the stakes higher at the appeals level, Davis said she expects the government's presentation will kick up a notch.
"Preparation, and a depth of understanding on the AG's side, will be greatly sharpened," she said. "Clearly, everyone recognizes the importance. ... I think there will be a different level of exchange at the next hearing."
The Manhattan gathering drew reporters from two online arts publications and a representative of Maine Antiques Digest.
In Pittsfield, about 45 people opposed to the art sale gathered in front of the museum at the same time. They held signs up to passing cars and cheered when motorists sounded their horns.
A shout went up around 12:30 p.m., when someone noticed a social media post about the Rockwell paintings being removed from walls at Sotheby's.
Michael Morin of Newtown, a member of the Pittsfield High School Class of 1977, was back in town for a reunion and joined the rally because he treasures grade-school memories of museum visits.
On one trip over from the Hibbard School on Elm Street, Morin and classmates donned kimonos for a tea ceremony.
"We still talk about that," Morin said. "Every time I use chopsticks, I think of that field trip to the museum. It's embedded in our brains."
Linda Gunderson, attending her fourth rally outside the museum, wore a poster that read, "Albert Bierstadt Not For Sale," a reference to one of the artists whose work was culled from the collection to be auctioned.
"I'm hearing a lot more horns honking this time around," she said.
John Block used the first day of his retirement from a career in the wholesale food business to show his support for keeping the museum's works in Pittsfield. It was his second rally. "It's amazing, the horns," he said.
Carol Diehl, a spokeswoman for the citizens group Save the Art-Save the Museum, said the mood at the rally was much improved after Friday's court order temporarily halting the sales. The group plans a strategy meeting this week to set its goals for the coming month, during the period of the injunction.
"We have to keep a presence. We have to keep the discussion alive," Diehl said.
She said she believes the attorney general can — and must — prevail at the appeals level. She feels it must because losing risks setting the precedent that museum boards anywhere can sell works for financial reasons.
"I hope this will result in better laws, perhaps the 'Rockwell Law' that really lays out what can and cannot be done with deaccessioning," Diehl said. "This is what keeps boards on the straight and narrow. Otherwise, there's nothing to keep them from looting the collection."
Sharon Gregory of Great Barrington, dressed against the November chill, said the scale of the museum's planned deaccession deserved the strong response it has received from the attorney general.
"Letting this ruling (in Berkshire Superior Court) go as a precedent would be horrendous for the rest of the nation," Gregory said.
She said she hopes an eventual trial at the appellate level will dig in on what she perceives to have been missteps by the trustees, including those flagged by the attorney general in a series of court briefs. The museum, for instance, signed a contract to sell through Sotheby's while its own collections policy stated it needed to first give other museums an option to buy the works.
Another rally participant, Carl Olson, said he, too, is concerned about the process used by trustees.
"I hope that the sale is stopped permanently and the art is returned to the museum," Olson said. "I can't see the treasures being lost."
"It's so beyond acceptable," said David Teeple, a sculptor who lives in Northampton.
Anita Walker, executive director of the Massachusetts Cultural Council, urged the Attorney General's Office last week to appeal Agostini's decision.
She suggested Saturday that people who support the museum might use the month ahead to rebuild bridges with one another.
"We are pleased that Judge Trainor has granted a reprieve from the pressure of a looming deadline that has so divided this community," Walker said in a statement to The Eagle.
"His injunction has presented a juncture to diffuse the clash of caring people and come together to craft a path forward for this important institution," Walker said. "Now is the time to stop talking about who's right and start discussing what's right for the Berkshire Museum and the great many people who love it."
Walker pledged support from the council in that work.
In terms of relations with museum leaders, the council has some bridge-building of its own to do. It came out against the art sales in September and froze funding to the museum. The museum later canceled a planned meeting with Walker's team about its finances.
Asked whether she wants to see the sales stopped, Walker said: "We have full confidence in the diligence of the attorney general's investigation and its commitment to protecting the public trust."
The office is waiting to learn the full findings of the office's review of the sale before taking a harder position, a spokesman said.
From a cold sidewalk outside the museum Saturday, the idea of reconciliation between museum leaders and art sale opponents seemed distant.
"We don't even speak the same language," Diehl said. But she said Save the Art will continue to work for what it views to be in the public's interest.
"We want to be present to help set the terms for whatever happens," she said.
Grier Horner, a rally participant, suggested that when the issue is finally resolved, scars will remain.
"When it's over, there's going to be a lot of bitterness," he said.
Larry Parnass can be reached at email@example.com, at @larryparnass on Twitter and 413-496-6214.
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