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As Closely Watched Case Nears Possible End, Lawyers Duel Over Berkshire Museum Sales in Massachusetts Supreme Court

The John Adams Courthouse in Boston today.

ANDREW RUSSETH/ARTNEWS

The battle over the Berkshire Museum’s controversial plan to sell artworks from its collection, including two important Norman Rockwell paintings, in order to pursue what its leadership terms a New Vision, has been long and grinding.

But on Tuesday, at the John Adams Courthouse in downtown Boston, the fight may have finally entered its final round. At a hearing in the afternoon, the Massachusetts Attorney General’s Office and the museum asked Justice David Lowy of the state’s Supreme Judicial Court to sign off on a deal they had previously reached, while attorneys for plaintiffs who had filed to block the sell-off made a last-ditch attempt to have the agreement rejected, scaled back, or modified.

If the court grants approval, and barring any new further legal challenges, the museum will be able to proceed in selling works by artists including Francis Picabia, Alexander Calder, and Albert Beirstadt to raise a sum that Sotheby’s has estimated could be more than $50 million. Museum groups say that such a move would undermine donors’ trust and encourage other financially strapped institutions to take similar steps. The Berkshire Museum’s team argues that it is essential for its survival.

The 50-minute hearing was fast-paced, with four lawyers—one for the Attorney General’s Office, one for the museum, and one each for two groups of plaintiffs—presenting brief statements while fielding interjections from Justice Lowy.

“I have to tell you, I’m watching two different movies,” Lowy said at one point, in response to the dueling narratives being proffered.

William Lee, the Berkshire Museum’s lead attorney, described an institution that had acted carefully in crafting a plan that would ensure its long-term existence as a pillar of its community. “This is a museum that is providing a science program for under-resourced schools that can’t provide science programs,” he said. “This is a museum that is providing a portion of the population that lives below the poverty line with their window to the world”—borrowing a phrase from Zenas Crane, who termed the museum that he founded in 1903 a “window on the world.”

In sharp contrast, Michael Keating, an attorney for Berkshire County residents as well as Tom Patti, an artist with a permanent installation at the museum, said that “there are several questions that the museum has failed to answer” about its plans and governance. He argued that, consequently, the “petition bears particular scrutiny by this court.”

Keating, whose team in the courtroom included Martha Coakley, a former Massachusetts attorney general (who, as it happens, was born in Pittsfield, the home of the Berkshire Museum), argued that the court should appoint a Special Master to oversee the sale and use of any generated funds, and questioned the museum’s claim that it truly needs some $50 million in order to fulfill its mission.

Nicholas O’Donnell, an attorney for current and former museum members, highlighted the dangerous precedent that the case could set, with other museums looking to sell their works rather than engage in the difficult business of fundraising. “The auction house is going to do what auction houses do, which is sell to the highest bidder,” he said, so that the works “will be scattered to where, we don’t know. That is hard to square with the intent of Zenas Crane and Norman Rockwell.” (Rockwell himself donated two of his paintings that are among the group marked for sale.)

At the core of the dispute is whether the proposed agreement between the Attorney General’s Office and the museum meets what with known as “cy-près doctrine,” which stipulates that, as circumstances change, the intent of donors should be followed as closely as possible. In this case, that means that the court has to weigh whether the museum has shown that selling some of its art is necessary for fulfill its mission.

The agreement previously reached between the Attorney General’s Office and the Berkshire Museum states that the museum will be able to sell works in three tranches. The first $50 million of any prospective sales will be available for spending without restriction, going toward maintenance, renovations, and its technology-focused New Vision; any additional money would go to a fund to benefit collection care and future acquisitions. (The museum would also be able to decide not to sell later tranches if it reached that target figure beforehand.)

The headline-grabbing aspect of the deal when it was announced last month was that an unnamed buyer had been found for Shuffleton’s Barbershop (1950), the Rockwell masterpiece at the center of the dispute. That buyer has agreed to display it publicly after extending a loan of up to two years for public display in Massachusetts. (That work had been estimated to sell for between $20 million to $30 million, but the offered price has not been revealed.)

Courtney Aladro, an assistant attorney general, told the court that, after a seven-month investigation, her office believed that the museum’s plan to try to raise $50 million was appropriate, even if it involved selling works with restrictions placed on them by donors or legislation. Near the end of the investigation, Aladro said, her office came to understand that a lower figure, of around $25 million that had been proposed by a consultant with the museum, “addressed only then-current deficits. It didn’t provide a sustainable, viable path forward for the museum to be self-sufficient.” (Other museum experts have suggested that lower amounts, as little as $4.5 million, might be enough sustain it.)

“We have a $1.2 million structural deficit; we have about $6 million left,” Lee, the museum’s attorney, said during his presentation. “We had $7-and-a-half million when this litigation started, but the structural deficit has consumed 20 percent of that. There is not time for us to wait another year or two or three.”

The hearing on Tuesday was scheduled to begin at noon, but the audience began filing in at about 11:15 a.m., and ten minutes before the starting time there was not a seat left in the place. A small number of people stood around the edge of room, perhaps sharing in a sense of déjà vu. Several months earlier, in November of last year, many of the same people had met in Berkshire Superior Court in Pittsfield, just around the corner from the Berkshire Museum, for a hearing on a motion brought by opponents on an injunction to halt the sale. Back then, Judge John A. Agostini questioned the plaintiffs skeptically and ended up rejecting their motion. That led to the Attorney General’s Office joining the plaintiffs in their action, in order to have more time to complete an investigation.

An eleventh-hour ruling by a justice on the state’s appeals court, Joseph A. Trainor, brought the Berkshire Museum’s plan to a halt just three days before the first works were set to hit the block in an auction room in Manhattan in a sale scheduled for November 13, 2017.

In court on Tuesday, Berkshire Museum staff and board members took seats to the left of the room. There was Elizabeth “Buzz” McGraw, the president of the museum’s board, sitting next to Van Shields, who was sidelined during much of the legal tangling by a medical emergency. Together, McGraw and Shields led the charge on the deaccessioning, and McGraw in particular has been singled out by opponents of the sale for keeping it secret from the public until after a contract had been minted. At one point, she sent an email to board members with the subject line “Loose lips sink ships.”

Members of the group identified as Save the Art – Save the Museum, which has staged protests against the sale, were scattered throughout the rest of the courtroom. Among them was Mike Morin, a graphic designer with a white beard and a puffy olive-colored winter jacket, who told me before the hearing that he had visited the museum as a boy while growing up in Pittsfield. He now lives in Boston. “We’re hoping that the justice will listen to the two briefs and do what the [attorney general] didn’t do,” Morin said. Until the proposed agreement between the museum and the Attorney General’s Office was announced, those aiming to block the sale had hoped the attorney general would be their savior. “I don’t know what happened, but she did an about-face,” Morin said.

At the beginning of the hearing, Justice Lowy, who was appointed to the court in 2016 by Governor Charlie Baker, a Republican, told the crowd that, since the Attorney General’s Office and the museum were in agreement, he thought it was important to hear opposing views. That was why he had made the somewhat unusual decision of allowing Keating and O’Donnell to speak even though they had filed only amicus curiae or—“friend of the court”—briefs, since they lacked standing in the case.

In his brief, O’Donnell pulled no punches, saying that the museum’s plans to “dispose of its most celebrated art would undeniably harm the public interest,” and calling the AGO’s decision a “complete capitulation” and an “inexplicable reversal.” “The present petition would hand the keys right back to the driver who crashed the car,” O’Donnell wrote, adding at one point, in reference to the trustees, “No group has ever less deserved a $50 million slush fund.”

In court, Keating argued that the museum’s agreement requires oversight by an expert. “What is the basis for the museum’s contention that it needs $50 million?” he asked. He said at another point, “It’s quite clear that, at the moment, there is no real plan to show what the cost and the income would be from the New Vision plan.”

When Keating’s talk turned to the ongoing structural deficit, he seemed to find a sympathetic audience. Justice Lowy asked him, “Didn’t I read that the fundraising stopped?”

“Yes, you did,” Keating replied enthusiastically, explaining that, when the museum’s leaders made their decision to sell art to fund their New Vision, they “terminated their fundraising efforts. A generous attitude toward that would be that they knew they didn’t have to fundraise anymore if they added $50 million to the coffers.” In his own, earlier remarks, O’Donnell had hammered that same point. “Not raising money is a really good way to run out of money,” he said.

Later, Lee, the museum’s attorney, maintained that the institution had only stopped its fundraising for a capital campaign, and that it had continued to otherwise raise money as per usual. He also rebuffed allegations that the museum had acted rashly or inappropriately, and that it did not have a plan. The museum, he said, “is in dire circumstances and looking for a way to fulfill its mission. It went through a two-year planning process and came to the conclusion that this was the way to do it.”

Responding to calls by Keating for the court to appoint an outside expert as a steward for the museum, Lee said, “There is a steward and an expert who represents the public in this—and that is the attorney general.” While Keating and O’Donnell “talk about what they don’t know,” he said, “that’s different than what the attorney general knows.” Alandro, the assistant attorney general, emphasized that her office will continue to have oversight of the museum, as is its responsibility under the law, and that the plan for “monitoring that is set up with the relief is sufficient.”

Justice Lowy quizzed both Lee and Alandro on why the agreement might not place some additional restrictions on the sale of art, perhaps mandating that they be sold to institutions that would continue to exhibit them in a manner that could fulfill the wishes of donors. Alandro said that such a rule “could depress the purchase price,” meaning that the board would not be able to realize the full value of the art. The assistant attorney general said that her office had taken the extra step of signing off on the private sale (without an auction) of Shuffleton’s Barbershop to an entity willing to display the work publicly only because a letter, from the Berkshire Museum’s director at the time of Rockwell’s donation, stated that the artist wanted the work to remain in its permanent collection.

(Observers have speculated that the still-anonymous buyer of the Rockwell work could be either George Lucas’s forthcoming Museum of Narrative Art, which just broke ground in Los Angeles, or the Crystal Bridges Museum of American in Bentonville, Arkansas. Both are deep-pocked enough to be able to afford the painting. After that proposed sale was announced, the three sons of Norman Rockwell, who had challenged the sale as part of suit helmed by Keating, dropped their objections.)

Lee ended his remarks with a deadline of sorts, saying that “April 6 is the day we need to go to press to sell in the spring,” That is the date that Sotheby’s—which still holds the 40 works earmarked for sale—will need to have the pieces confirmed in order to include them in the catalogues for its spring sale. Barring that, the next major sales for the auction house will be in the fall.

Both O’Donnell and Keating called on the court to act. The former maintained that the court was not “presented with an all or nothing question here.” The latter advocated for “effective monitoring. For reasons that are not clear to me, the Attorney General does not think that it does not want to get into that.” In court documents, O’Donnell had put the decision looming before Justice Lowy starkly, writing that “this Court is now the last resort to avoid the Commonwealth becoming a shameful opening salvo in the pillaging of museum collections nationwide by opportunists.”

After the hearing concluded, with the Justice saying he would take the case under advisement, attendees stood for his exit and then spilled out into one of the hallways of the Adams Courthouse. “I thought he asked some really important questions,” Carol Diehl, of the Save the Art Group, said of the justice. “He saw that there were two different stories [and] there were holes in the argument by the museum. I thought that he was thorough.”

Lee, the museum’s attorney, told me, “We had a chance to present our case here today, and we’re sure we’ll get a full and fair hearing.” Referring to his client’s success in Superior Court and with the Attorney General’s Office, he said, “We’re hopeful that the full and fair hearing will reach the same result as it reached the prior two times.”

Asked if the museum had any regrets about the fact that the litigation has gone on for so long, stretching back to October 2017, Lee replied, “I think I can answer that for you very quickly: we didn’t sue anybody—we got sued.” The museum has simply been showing up, he said, in pursuit of the course of action it believes is best.

“Would we have preferred to be where we are today without litigation?” Lee said. “Of course. And I’m sure some of the other parties would as well.”

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